Hatton v. Barnett Bank of Palm Beach County

• Decision Date: 06 September 1989
• Docket Number: No. 88-00951,88-00951
• Citation: 550 So.2d 65,14 Fla. L. Weekly 2124
• Parties: 14 Fla. L. Weekly 2124 J. Ray HATTON and Betty B. Hatton, Appellants, v. BARNETT BANK OF PALM BEACH COUNTY, Appellee.
• Court: Florida District Court of Appeals

Page 65

550 So.2d 65

14 Fla. L. Weekly 2124

J. Ray HATTON and Betty B. Hatton, Appellants, v. BARNETT BANK OF PALM BEACH COUNTY, Appellee.

No. 88-00951.

District Court of Appeal of Florida Second District.

Sept. 6, 1989.

Rehearing Denied Oct. 17, 1989.

Robert L. Donald of Pavese, Garner, Haverfield, Dalton, Harrison & Jensen, Lehigh Acres, for appellants.

Lisa A. Miller and Patrick E. Quinlan of Moyle, Flanigan, Katz, FitzGerald & Sheehan, P.A., West Palm Beach, for appellee.

DANAHY, Acting Chief Judge.

In this appeal, the appellants, Mr. and Mrs. Hatton, raise several procedural and substantive issues regarding deficiency final judgments entered against Mr. Hatton as general partner of a limited partnership which owned real property upon which the mortgage was foreclosed, and against both Hattons as personal guarantors of the promissory note secured by the mortgage. Of the several issues raised, we find only one mandates our reversal.

On a preliminary issue, the appellee contends that we do not have jurisdiction to review the deficiency judgment entered against Mr. Hatton as general partner because the notice of appeal from that judgment was not timely filed. We disagree. Mr. Hatton's motion after entry of this final judgment against him alone is styled "Motion for Relief from Deficiency Final Judgment; Motion for Rehearing." Motions for relief from judgments are filed pursuant to Florida Rule of Civil Procedure 1.540; motions for rehearing are filed pursuant to rule 1.530. The former do not suspend rendition of the final judgment (and therefore do not toll the time for filing an appeal) but the latter do. Mr. Hatton timely filed this appeal from the final judgment of deficiency which was rendered upon the denial of his motion for rehearing.

We begin our discussion by commenting briefly on the issues which we affirm. Although Mr. Hatton claims that he did not receive sufficient notice of the hearing on the appellee's motion for deficiency final judgment against him as general partner, the record contains competent evidence upon which the trial court based its finding that he received sufficient actual notice of the hearing and voluntarily chose not to attend or have counsel attend. Furthermore, the court was authorized to enter the deficiency final judgment against him as general partner and as an individual guarantor even though during a portion of the original foreclosure proceedings he had filed a petition for personal bankruptcy as opposed to a bankruptcy of the partnership. See In re Dreske, 25 B.R. 268 (Bkrtcy.E.D.Wis.1982). At the time of the deficiency proceedings the bankruptcy proceeding had been dismissed.

The remaining nonmeritorious points raised by the Hattons have to do with whether Mrs. Hatton was ever properly served in the original foreclosure action to bring her within the court's jurisdiction and whether there remained disputed factual issues which would preclude summary judgment on the Hattons' personal guarantees. The record itself belies the first point because it shows that Mrs. Hatton made a general appearance when she took some steps acknowledging the court's jurisdiction in the original proceedings, without objecting to the arguably defective service at the first opportunity, thus waiving this issue. See Sternberg v. Sternberg, 139 Fla. 219, 190 So. 486 (1939), and Meyer v. Roesel, 482 So.2d 444 (Fla. 2d DCA 1986). On the second point, we find that the disputed factual issues, which the appellants alleged as remaining unresolved, were not properly raised in the trial court because they were presented to the trial court in a manner which can be characterized as "too little, too late." The trial court did not err in determining that there remained no material factual disputes, either procedurally or substantively.

We turn now to the issue upon which we reverse. The Hattons correctly contend that the trial court erred when it used an incorrect measure of damages to determine the amount of the deficiency final judgment. We do not need to give an exhaustive factual chronology of the foreclosure and deficiency proceedings which started in September of 1984 with the filing of the complaint for foreclosure. Suffice it to say that a second mortgage encumbering real property, held by the appellee, went into default and the property was ultimately sold at judicial foreclosure sale to satisfy this second mortgage. At the sale, the appellee was the only bidder and subsequently received certificate of title. When the appellee moved for a deficiency final judgment against Mr. Hatton as the general partner of the mortgagor partnership, and against both Hattons as guarantors of the note secured by this second mortgage, the trial court granted the deficiency final judgment in the total amount of the original foreclosure judgment. The court, however, gave no credit to the appellants for the amount for which the property sold at the judicial sale. The appellants contend that this was clear error since:

[t]he amount for which a mortgaged property sells at foreclosure sale, whether to the mortgagee or to a stranger, is ... applied to the debt as fixed by the final judgment of foreclosure. Although the amount for which mortgaged property sells at a properly conducted foreclosure sale is not conclusive as to the value of the property nor the right to a deficiency judgment, the deficiency may not exceed the difference between the amount for which the property so sold and the amount of the indebtedness secured by the...