final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Paul B. Kanarek, Judge; L.T. Case No.
Jennifer S. Carroll of the Law Offices of Jennifer S.
Carroll, P.A., Jupiter, for appellant.
Shield and Roger Levine of Shield & Levine, P.A., Boca
Raton, for appellee.
challenges an amended final judgment after remand from this
court's opinion in Flinn v. Doty, 214 So.3d 683
(Fla. 4th DCA 2017). The amended judgment converted an
equitable lien-which had been granted in the original final
judgment that was subsequently reversed-to a money judgment.
However, because the original judgment had not been stayed,
the property upon which the lien was imposed was sold by
judicial sale, and a deficiency judgment was sought. Because
this constituted an election of remedies, we reverse the
amended money judgment, as appellee must pursue a deficiency
facts surrounding this case are set forth in Flinn.
Briefly, the guardian of appellant's father,
appellant's sister, sought to impose an equitable lien on
appellant's homestead for monies that appellant had
secured from the sale of properties deeded to her at a time
when her father was incapacitated. Id. at 684. The
proceedings resulted in a final judgment imposing an
equitable lien in the amount of $206, 000 on appellant's
home because appellant had used monies from the sale of the
father's property to pay off her existing mortgage.
Id. The court also imposed an equitable lien for an
additional $185, 000 that appellant received from other
properties. Id. During these proceedings, the father
had died. Id. After an appeal to this court, which
affirmed the final judgment, the personal representative of
the father's estate filed a complaint to foreclose the
equitable lien against the homestead for $206, 000.
Id. The PR also sought a money judgment for the
$185, 000 lien. However, the trial court entered a combined
judgment for both liens and interest in the amount of $421,
428 and set a foreclosure sale. Id.
appellant sought to cancel the sale of her homestead, and
appealed the judgment, the PR did not cross-appeal the
court's refusal to enter a money judgment. Instead, the
PR set, and then reset, the sale. This resulted in the sale
of appellant's homestead for $59, 100. The PR then moved
for a deficiency for the difference between the sale price
and the $421, 428. The trial court refused to consider the
issue without proof of the fair market value of the
property. No denial of the motion appears in the
record, and it is still pending.
court affirmed the imposition of the equitable lien of $206,
000 against appellant's homestead because those funds had
been used to pay off the mortgage on the home. Id.
at 685. But we held that the $185, 000 lien could not be
included as part of the foreclosure proceeding because those
proceeds were not used to satisfy any obligations on the
home. Id. at 686. We reversed "the final
judgment to the extent it enforces the $185, 000 lien and
remand[ed] for the court to revise the judgment
remand, over the objection of appellant that the PR had
already elected his remedy by proceeding with the foreclosure
and sale of the property for both liens, the court entered an
amended final money judgment for $185, 000 plus interest,
prompting this appeal.
raising multiple issues, we consider the appellant's
claim that the PR elected his remedy by pursuing the
foreclosure and deficiency judgment, to be dispositive.
"The election of remedies doctrine is an application of
the doctrine of estoppel and operates on the theory that a
party electing one course of action should not later be
allowed to avail himself of an incompatible course."
Barbe v. Villeneuve, 505 So.2d 1331, 1332 (Fla.
1987). This is true, even if the remedy sought was an
improper one. In United Companies Financial Corp. v.
Bergelson, 573 So.2d 887, 888-89 (Fla. 4th DCA 1990),
where a plaintiff chose an improper remedy, we said:
We acknowledge that real property cannot be the subject of
conversion. American Int'l Land Corp v. Hanna,
323 So.2d 567, 569 (Fla. 1975). Therefore, conversion was a
nonexistent remedy. Ordinarily, if a plaintiff proceeds upon
an nonexistent remedy, he is not precluded from resorting to
another remedy. Rolf's Marina, Inc. v. Rescue Serv.
& Repair, Inc., 398 So.2d 842, 843 (Fla. 3d DCA
1981) (quoting Perry v. Benson, 94 So.2d 819, 820
(Fla. 1957). However, the plaintiff's effort under the
nonexistent remedy must have been aborted to pursue another
remedy. Id. Sub judice, appellees' effort under
the conversion remedy was not aborted since that case
proceeded to judgment. Appellees obtained the remedy they
sought even though it was an improper remedy.
"When a party elects between two or more inconsistent
courses and has knowledge of all the pertinent facts, he
binds himself to the course he adopts first and cannot later
withdraw from this knowing election." Barbe v.
Villeneuve, 505 So.2d 1331, 1334 (Fla. 1987). Appellees
cannot now seek a different remedy.
party first foreclosed on property and then sought to execute
on a money judgment on the promissory note, the Second
District held that the plaintiff had elected its remedy and
had to pursue a ...