Dyck-O'Neal, Inc. v. Oerti Stermilli

District Court of Appeal of Florida

Dyck-O'Neal, Inc. v. Oerti Stermilli

249 So. 3d 797

CourtDistrict Court of Appeal of Florida

DecidedAugust 3, 2018

Docket17-3396

StatusPublished

This text of 249 So. 3d 797 (Dyck-O'Neal, Inc. v. Oerti Stermilli) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dyck-O'Neal, Inc. v. Oerti Stermilli, 249 So. 3d 797 (Fla. Ct. App. 2018).

Pincite

Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

No. 1D17-3396 _____________________________

DYCK-O’NEAL, INC.,

Appellant,

v.

OERTI STERMILLI,

Appellee. _____________________________

On appeal from the Circuit Court for Duval County. Robert M. Dees, Judge.

August 3, 2018

PER CURIAM.

In Higgins v. Dyck-O’Neal, Inc., this court held that “a party is not entitled to pursue an action at law on a promissory note where that party includes a prayer for a deficiency judgment in its foreclosure complaint and the trial court reserves jurisdiction to enter a deficiency judgment.” 201 So. 3d 157, 166 (Fla. 1st DCA 2016). Based on that case, which was binding at the time, the trial court dismissed with prejudice appellant’s independent action for a deficiency judgment.

On appeal, appellant argued that Higgins was wrongly decided. And while the appeal was pending, the Florida Supreme Court agreed. It disapproved Higgins and held that “when a foreclosure court reserves jurisdiction to adjudicate a deficiency judgment claim but has not adjudicated the claim, section 702.06, Florida Statutes (2014), permits the lender or its assignee to bring its deficiency claim in a separate action at law.” Dyck-O’Neal v. Lanham, SC17-975, 43 Fla. L. Weekly S278c (Fla. July 6, 2018). Accordingly, we reverse and remand for further proceedings on appellant’s deficiency claim.

REVERSED and REMANDED.

MAKAR, WINOKUR, and WINSOR, JJ., concur.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Susan B. Morrison of Law Offices of Susan B. Morrison, P.A., David M. Snyder of David M. Snyder, P.A., and Joshua D. Moore of Law Offices of Daniel C. Consuegra, Tampa, for Appellant.

Michael S. Drews of Drews Law Firm, Jacksonville, for Appellee.

Free access — add to your briefcase to read the full text and ask questions with AI

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

No. 1D17-3396 _____________________________

DYCK-O’NEAL, INC.,

Appellant,

v.

OERTI STERMILLI,

Appellee. _____________________________

On appeal from the Circuit Court for Duval County. Robert M. Dees, Judge.

August 3, 2018

PER CURIAM.

In Higgins v. Dyck-O’Neal, Inc., this court held that “a party is not entitled to pursue an action at law on a promissory note where that party includes a prayer for a deficiency judgment in its foreclosure complaint and the trial court reserves jurisdiction to enter a deficiency judgment.” 201 So. 3d 157, 166 (Fla. 1st DCA 2016). Based on that case, which was binding at the time, the trial court dismissed with prejudice appellant’s independent action for a deficiency judgment.

On appeal, appellant argued that Higgins was wrongly decided. And while the appeal was pending, the Florida Supreme Court agreed. It disapproved Higgins and held that “when a foreclosure court reserves jurisdiction to adjudicate a deficiency judgment claim but has not adjudicated the claim, section 702.06, Florida Statutes (2014), permits the lender or its assignee to bring its deficiency claim in a separate action at law.” Dyck-O’Neal v. Lanham, SC17-975, 43 Fla. L. Weekly S278c (Fla. July 6, 2018). Accordingly, we reverse and remand for further proceedings on appellant’s deficiency claim.

REVERSED and REMANDED.

MAKAR, WINOKUR, and WINSOR, JJ., concur.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Susan B. Morrison of Law Offices of Susan B. Morrison, P.A., David M. Snyder of David M. Snyder, P.A., and Joshua D. Moore of Law Offices of Daniel C. Consuegra, Tampa, for Appellant.

Michael S. Drews of Drews Law Firm, Jacksonville, for Appellee.

Cite This Page — Counsel Stack

Bluebook (online)

249 So. 3d 797, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dyck-oneal-inc-v-oerti-stermilli-fladistctapp-2018.