DIVERSIFIED ENTERPRISES OF FLORIDA, INC., A CORPORATION, APPELLANT,
v.
JAMES F. HOLT, APPELLEE

Fla. 2d DCA | 1966-07-15
No. 6315
ALLEN, C. J., and SHANNON, J., concur.
188 So. 2d 693 Florida District Court of Appeal, Second District (1966) Positive Treatment
Cited by 2 cases

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Synopsis

Diversified Enterprises appealed a deficiency decree in a mortgage foreclosure action, challenging the trial court's authority to enter a deficiency judgment when the original sales contract allegedly provided that the mortgage would be the sole security for the debt. The appellate court affirmed, finding no abuse of discretion and holding that the issue was improperly raised for the first time on appeal.


Holding

The appellate court affirmed the deficiency decree, holding that appellant could not raise the sole-security argument for the first time on appeal and that the record contained sufficient evidence to support the trial court's findings regarding the deficiency decree.


Key Quotes

“This Court will not consider questions raised for the first time in this Court.”

Establishes the controlling procedural bar preventing appellant from raising the sole-security clause argument on appeal for the first time.

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Facts & Procedural History

Diversified Enterprises (defendant/appellant) defaulted on a mortgage held by Holt (plaintiff/appellee). Holt initiated foreclosure proceedings seekin…

The full statement of facts, procedural history, and disposition for this case are member content.

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Opinion of the Court
ODOM, ARCHIE M., Associate Judge.

ODOM, ARCHIE M., Associate Judge.

Appellee, plaintiff below, brought this action to foreclose a mortgage and for a deficiency decree if the debt was not satisfied by the sale of the property. Appellant, defendant below, answered, admitting default, but affirmatively asserting that it had deeded subject property to appellee, consequently, appellant would not be liable for attorney fees or a deficiency. The answer also alleged that the value of the property exceeded the debt.

Appellee filed a motion for summary decree supported by affidavits. The cause came on for hearing on said motion with the record in this state. Summary decree was granted in favor of appellee. Subsequently, appellant filed two affidavits, one creating no issue, but the other set forth the fact that the initial contract between appellant and appellee contained a provision that the mortgage would be the sole security for the debt. This latter affidavit was filed three days after the order granting summary decree was entered.

Final decree of foreclosure was entered for $25,402.00 containing an upset price of $17,500.00 based on an appraisal ordered by ' the Court and the property was bid in at the upset price by appellee leaving a difference 1 or deficiency in an amount in excess of $9,000.00.

*694Appellee applied for a deficiency decree supporting the application with the appraisal used by the court in establishing the upset price. Appellant offered testimony of an expert who testified that the value of the property was in excess of $25,000.00.

The Court entered a deficiency decree in the amount of $6,233.75. It is from the-final summary decree and the deficiency decree that this appeal is taken.

The notice of appeal filed by appellant asserts that this appeal is from the deficiency decree but makes no mention of the final summary decree, hence appellant cannot now be heard on his complaints regarding said summary decree. See Hollywood, Inc. v. Clark, 153 Fla. 501, 15 So.2d 175.

In attacking the deficiency decree the first point raised by appellant can be stated as follows:

Did the Trial Court abuse its discretion in entering a deficiency decree for appellee where the contract for sale provided the mortgage was to be the sole security for the debt but this provision was not carried forward in the mortgage by mistake or inadvertence.

The only place in the record where any mention is made of the sales contract is in the affidavit opposing summary decree filed three days after the hearing on the same. Appellant made no attempt to amend the answer to set up this defense. Appellant relies on the fact that a motion to strike said affidavit was denied and that the same should be considered as an amendment of the pleadings. It doesn’t appear that this-question was ever raised in the Trial Court on the hearing for a deficiency decree and no evidence was proferred or offered to support appellant’s contention.

This Court will not consider questions raised for the first time in this Court. See Jones v. Neibergall, Fla., 47 So.2d 605; Mariani v. Schleman, Fla., 94 So.2d 829; Alliance for Conservation of Nat. Resources v. Furen, Fla.App., 122 So.2d 51.

Appellant’s next question can be stated as follows:

Did the Trial Court abuse its discretion in entering a deficiency decree upon the basis of the equitable consideration pending before it?

We have examined the record and find there is evidence to support the findings of the Chancellor, consequently, we will not disturb those findings. See Tendler v. Gottlieb, Fla.App., 126 So.2d 308; Marucci v. Linder, Fla.App., 177 So.2d 237.

The decree appealed from be and the same is hereby affirmed.

Affirmed.

ALLEN, C. J., and SHANNON, J., concur.


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Citator

Cited By

  • Vanguard Constr. Co., Inc. v. The Lewis State Bank, 348 So. 2d 72 (Fla. 1st DCA 1977)
    …the hearing on deficiency issues. The trial court treated the issue as litigated, at least by argument, and ruled on the issue when entering the deficiency judgment. The necessity for pleadings required by Diversified Ent. of Florida, Inc. v. Holt, 188 So. 2d 693 (Fla. 2d DCA 1966) was therefore waived. See Fla.R.Civ.P. 1.190(b). However, the trial court’s consideration of argument on the issue cannot here obviate the endorser’s lack of evidence showing error in the ruling. Except for the absence of their en…

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