Sylvia Higgins and Collier Higgins v. Dyck O'Neal, Inc.

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
SYLVIA HIGGINS and
COLLIER HIGGINS,
Appellants,
v.
CASE NO. 1D15-4784
DYCK O'NEAL, INC.,
Appellee.
_____________________________/
Opinion filed September 28, 2016.
An appeal from the Circuit Court for Duval County.
Lawrence P. Haddock, Judge.
Austin T. Brown of Parker & DuFresne, P.A., Jacksonville, for Appellant.
Susan B. Morrison of Law Offices of Susan B. Morrison, P.A., Tampa, for
Appellee.
OPINION ON MOTION FOR REHEARING
PER CURIAM.
Appellee’s “Motion for Rehearing and Motion for Certification to the
Florida Supreme Court of this Court’s Opinion dated June 9, 2016,” dated June 24,
2016, is DENIED. Appellee’s “Motion for Rehearing En Banc of this Court’s
Opinion dated June 9, 2016,” dated June 24, 2016, is DENIED.
B.L. THOMAS and LEWIS, JJ., CONCUR; MAKAR, J., DISSENTING.
MAKAR, J., DISSENTING.
Dyck-O’Neal, Inc., asks that we certify conflict with the uniformly favorable
decisions it has obtained in Third and Fourth District cases on the same issue
presented in this case. 1 Doing so would relieve the company from having to
convince the Florida Supreme Court that “express and direct” conflict jurisdiction
exists; certification results in per se jurisdiction. State v. Vickery, 961 So. 2d 309,
312 (Fla. 2007) (“The difference is that a certification of conflict provides us with
jurisdiction per se.”). It is a small ask because the majority explicitly rejects the
Third District’s decision in Garcia, which began the unbroken string of district
courts (save for ours) that have upheld the clear language of section 702.06,
Florida Statutes. The drum beat has gone on. The Fifth District recently held that
the “plain language” of section 702.06 permitted the company to pursue the
“deficiency judgment in a separate action, as opposed to reopening the original
foreclosure proceeding[.]” Dyck-O’Neal, Inc. v. Rojas, 41 Fla. L. Weekly D1636
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See Dyck-O’Neal, Inc. v. Weinberg, 190 So. 3d 137, 138-39 (Fla. 3d DCA 2016)
(reversing an order dismissing for lack of jurisdiction based on “unambiguous” and
“plain language of the statute”); Garcia v. Dyck-O’Neal, Inc., 178 So. 3d 433, 436
(Fla. 3d DCA 2015) (“When the clear and unambiguous language of a statute
commands one result, as here, . . . we must apply the statute so as to give effect to
legislative intent.”); see also Cheng v. Dyck-O’Neal, Inc., 41 Fla. L. Weekly
D1076b (Fla. 4th DCA May 6, 2016) (following holdings in Garcia and
Weinberg). The Fourth recently certified the existing conflict with this case in
Dyck-O’Neal, Inc. v. Stavola, No. 4D15-4057, 2016 WL 4470148 (Fla. 4th DCA
Aug. 24, 2016), and Dyck-O’Neal, Inc. v. McKenna, No. 4D15-3571, 2016 WL
426111 (Fla. 4th DCA Aug. 12, 2016).
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(Fla. 5th DCA July 15, 2016); indeed, in two recent cases it held that the “plain
language” of the statute is “unambiguous” in allowing the company to bring a
separate suit to recover a deficiency judgment, both certifying conflict with the
decision in this case. Dyck-O’Neal, Inc. v. Hendrick, 41 Fla. L. Weekly D1551b
(Fla. 5th DCA July 1, 2016); Dyck-O’Neal, Inc. v. Beckett, 41 Fla. L. Weekly
D1551a (Fla. 5th DCA July 1, 2016). And the Second District recently
characterized section 702.06 as allowing the “filing of the statutorily permitted
independent action to pursue the deficiency” at issue in that case, Aluia v. Dyck-
O’Neal, Inc., 41 Fla. L. Weekly D1660 (Fla. 2d DCA July 15, 2016), and even
more recently certified conflict with this case, finding the “plain language” of the
statute that allows pursuit of an independent deficiency action. Gdovin v. Dyck-
O’Neal, Inc., 41 Fla. L. Weekly D1839b (Fla. 2d DCA Aug. 10, 2016). Indeed,
even our court has allowed an independently filed complaint for a deficiency
judgment under section 702.06 to proceed. See Dyck-O’Neal, Inc. v. Huthsing, 181
So. 3d 555 (Fla. 1st DCA 2015). Because all other districts are aligned against us,
certifying conflict is appropriate; alternatively, we should grant the company’s
motion to review this case en banc and alleviate the need for supreme court review
altogether.
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