final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carlos A. Rodriguez, Judge; L.T. Case No.
B. Morrison of Law Offices of Susan B. Morrison, P.A., Tampa,
appearance for appellee.
Dyck-O'Neal, Inc. ("DONI"), filed suit to
recover a deficiency judgment against Trevor Meikle. The
trial court granted final summary judgment in Meikle's
favor. DONI appeals the summary judgment. We reverse.
made the following allegations in its complaint, which was
personally served on Meikle. Meikle owned a residence that
was subject to a mortgage. After Meikle defaulted on his
mortgage, the holder of the note and mortgage sued and
obtained a final judgment of foreclosure. The judgment
contained the following language:
Jurisdiction of this action is retained to enter further
orders as are proper including without limitation, deficiency
judgments, except where discharge is applicable or where
service of process was not personally obtained.
residence was sold at a judicial sale. The proceeds of the
sale were insufficient to satisfy the amount of the judgment.
Thereafter, DONI obtained the right to pursue the deficiency
against Meikle by assignment of the final judgment.
filing an answer to DONI's complaint, Meikle filed a
motion for summary judgment in which he argued that based on
the language of the foreclosure judgment, the court lacked
jurisdiction to enter a deficiency judgment against him
because he was served with the original foreclosure complaint
by publication. In a tersely worded order, the trial judge
granted Meikle's motion, ruling:
The underlying foreclosure judgment was obtained after
service through publication. Plaintiff seeks to use that
judgment to obtain a money deficiency judgment pursuant to
Florida Statute 702.06 which is both vague and a violation of
court's ruling was incorrect on all accounts. First, the
fact that Meikle was served by publication in the foreclosure
action did not prevent the court from acquiring personal
jurisdiction via personal service over Meikle in DONI's
deficiency action. On this issue, our opinion in NCNB
National Bank of Florida v. Pyramid Corp., 497 So.2d
1353, 1354 (Fla. 4th DCA 1986) is directly on point. There, a
mortgagee brought a foreclosure lawsuit against a borrower,
but was unable to personally serve the borrower. Id.
Instead, the mortgagee acquired in rem jurisdiction
via service by publication. Id. Ultimately, the
mortgagee obtained a final judgment of foreclosure.
the mortgagee filed a separate lawsuit seeking a deficiency
judgment against the borrower. Id. This time, the
mortgagee personally served the borrower. Id. After
initially entering a deficiency judgment in the
mortgagee's favor, the trial court set aside the judgment
as void based on its finding that it lacked personal
jurisdiction over the borrower since he was not personally
served in the underlying foreclosure action. Id. We
reversed, holding that the deficiency court had personal
jurisdiction over the borrower by virtue of the fact that the
borrower was personally served in the deficiency action.
at 1355. Likewise, the court here had personal
jurisdiction over Meikle.
the court also incorrectly found that section 702.06 was
unenforceable because it was "vague and a violation of
due process." ...