author: COBB, Judge.

text:
    FLAGSHIP STATE BANK OF JACKSONVILLE, a banking corporation, Appellant, v. DREW EQUIPMENT COMPANY, a Florida corporation; Horace Drew and Betty Drew, his wife; Horace Drew and Sherwood Drew Robinson, as Personal Representatives of the Estate of Jessie deBelle Drew, Deceased, Appellees.
    No. 79-319.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 1981.

      Calvin E. Hayden, Jacksonville, for appellant.
    William L. Coalson, Jacksonville, for ap-pellees.
   COBB, Judge.

The appellant, Flagship State Bank of Jacksonville, obtained a foreclosure judgment against the appellee mortgagors in the total amount of $604,729.40. At the foreclosure sale, the clerk sold the property to third parties, whose high bid was $440,-000.00. The appellant then moved for a deficiency judgment, claiming a balance due it, after application of other credits, in the sum of $99,729.40. The trial court held a hearing on the motion and heard the testimony of two real estate appraisers, an officer of the appellant, and also “considered the appraisal report of Earl B. Miller.” The trial court found that the value of the foreclosed property exceeded the debt owed to the appellant and denied the motion, citing Hamilton Investment Trust v. Escambia Developers, Inc., 352 So.2d 883 (Fla. 1st DCA 1977). Appellant has appealed that denial.

At the hearing, Richard M. Hamilton, a qualified appraiser, testified that in his opinion the value of the real property as of July 20,1979, the date of public sale, was $352,000. Raymond O. Miller, a senior vice president of the appellant, testified at length as to the unsuccessful effort of one of the appellee mortgagors to sell the realty in order to discharge the mortgage loan. The appraisal report by Earl B. Miller, referred to in the order of the trial court, was dated April 4,1979 and was not offered into evidence at the hearing. This appraisal, which evaluated the property at $846,-000.00, was attached to a post-hearing motion by one of the appellees to vacate the sale because of an alleged inadequacy of the sale price. The consideration by the trial court of the Earl B. Miller appraisal was erroneous for two reasons: (1) it was not properly admitted into evidence at the hearing, Bosem v. ARA Corp., 350 So.2d 526 (Fla. 3d DCA 1977); Simpson v. Woodham, 332 So.2d 693 (Fla. 1st DCA 1976); and (2) the Earl B. Miller appraisal did not evaluate the property as of the date of sale. Symon v. Charleston Capitol Corp., 242 So.2d 765 (Fla. 4th DCA 1971).

The appellees also presented testimony at the hearings from Roy F. Smith, Jr., another qualified real estate appraiser, who evaluated the property as of the sale date at $652,000.00. The appellees argue that even if it was error for the trial court to consider the Earl B. Miller appraisal, there was ample evidence to support the order of the trial court because of the Smith appraisal. Since there is discretion vested in the trial judge by statute to grant or deny a deficiency judgment, contend the appellees, the trial court’s finding cannot be held to be a clear abuse of that discretion, even if the Miller appraisal was improperly considered. See S/D Enterprises, Inc. v. Chase Manhattan Bank, 374 So.2d 1121, 1122 (Fla. 3d DCA 1979); Spencer v. American Advisory Corp., 338 So.2d 62 (Fla. 3d DCA 1976).

On the other hand, appellant argues that it is a gross abuse of sound judicial discretion to absolve the appellees of a debt of $99,729.40 based solely on an appraisal exceeding the amount of a bona fide public sale to independent third parties, which sale does not inure to the benefit of the mortgagor other than in the realization of the sale price to partially discharge the outstanding debt.

In order to properly analyze the conflicting positions of the parties to this appeal, an historical review of the development of the concept of deficiency judgments in this state is appropriate.

In the early days of Florida chancery courts, a mortgage foreclosure action was an equity action and the chancellor could not enter a decree for a deficiency in the absence of a statute or rule. The mortgage holder had to bring a separate action at law on the note for any deficiency. Then, in 1873, the Florida Supreme court adopted Equity Rule 89, which provided:

In suits in equity for the foreclosure of mortgages, a decree may be rendered for any balance that may be found due to the plaintiff over and above the proceeds of the sale or sales, and execution may issue for the collection of the same as is prescribed in the rule regulating the equity practice where the decree is solely for the payment of money.

See Etter v. State Bank of Florida, 76 Fla. 203, 79 So. 724 (1918); Webber v. Blanc, 39 Fla. 224, 22 So. 655 (1897). This rule allowed equity courts a discretionary power to grant deficiency decrees so that the courts could consider the conduct of the mortgagee and decide whether he should be estopped from a deficiency. Realty Mortgage Co. v. Moore, 80 Fla. 2, 85 So. 155 (1920).

In 1919, Florida enacted Chapter 7839, Florida Statutes (1919), that required chancellors to enter deficiency decrees. The Florida Supreme Court interpreted this statute as directory and permissive, rather than mandatory. Fagan v. Robbins, 96 Fla. 91, 117 So. 863 (1928). This meant that a deficiency decree was still subject to judicial discretion. Fagan v. Robbins, supra. However, if a chancellor did not exercise his discretionary jurisdiction to consider the issue of a deficiency, the holder could still sue on the note at law for a deficiency judgment. Coffrin v. Sayles, 128 Fla. 622, 175 So. 236 (1937); Cragin v. Ocean & Lake Realty Co., 101 Fla. 1324, 133 So. 569 (1931).

In determining whether to enter a deficiency decree, the chancellor could consider the fact that the mortgagee purchased the property at a foreclosure sale for substantially less than the price covered by the mortgage. Atlantic Shores Corp. v. Zetterlund, 103 Fla. 761, 138 So. 50 (1931); Taylor v. Prine, 101 Fla. 967, 132 So. 464 (1931). However, a chancellor’s discretion in granting or denying a deficiency decree was not unbridled, but had to be supported by established equitable principles applied to the facts of the case. Carlson v. Becker, 45 So.2d 116 (Fla.1950); Weinstein v. Park Manor Const. Co., 166 So.2d 842 (Fla. 2d DCA 1964); Kurkjian v. Fish Carburetor Corp., 145 So.2d 523 (Fla. 1st DCA 1962).

It had become established law prior to 1967 that if the mortgagor had notice of the foreclosure sale and could have been present to bid up the sale price, and there was no charge that the sale was unfair or that there was a fraud, then the price bid at the foreclosure sale, as between the parties, was the conclusive test of the value of the property sold. Southern Realty & Utilities Gorp. v. Belmont Mortgage Corp., 186 So.2d 24 (Fla.1966); Penn Mut. Life Ins. Co. v. Moscovitz, 119 Fla. 708, 161 So. 80 (1935); Etter v. State Bank of Florida, 76 Fla. 203, 79 So. 724 (1918); Tendler v. Gottlieb, 126 So.2d 308 (Fla. 3d DCA 1961); 2 Wiltsie, Mortgage Foreclosure § 973 (1927); 3 Jones on Mortgages § 2206 (1928).

Despite the holdings of the Florida Supreme Court in Southern Realty, supra, and Penn Mut. Life, supra, two Florida district courts subsequently held that the bid price at foreclosure sale was not conclusive evidence as to the value of the property for purposes of a deficiency decree. Fulton v. R. K. Cooper Const. Co., 208 So.2d 863 (Fla. 3d DCA 1967); Bobby Jones Garden Apartments v. Connecticut Mut. Life Ins. Co., 202 So.2d 226 (Fla. 2d DCA 1967). These later cases reasoned that since the mortgagor usually bids less than the market value, of the property and the fact of inadequacy of price alone would not be sufficient to set aside a sale, that it was therefore inappropriate to preclude the equitable defense of inadequate price at the deficiency hearing.

The Florida Supreme Court granted cer-tiorari review of the Fulton case. In a four to three decision, the court held that the bid price paid in a foreclosure sale conducted under Chapter 702, Florida Statutes, though such sale is final in all other respects, is not conclusive in a subsequent law action for a judgment upon the note. R. K. Cooper Const. Co. v. Fulton, 216 So.2d 11 (Fla.1968). The facts underlying the Cooper decision are significant: In that case the mortgagee was the purchaser at sale and bid the property in for $10.00, which was clearly only a nominal bid. In the following action at law to recover upon the note itself, the obligors defended on the ground that the property had a value considerably in excess of $10.00. The Supreme Court held that when a foreclosure sale is held in accordance with statutory procedures, and title confirmed by the filing of the certificate of title without objection, then:

The value of the property as established by the sale is conclusive insofar as consideration to support title to the property in the purchaser, but the statutory automatic approval cannot bind the trial court when a suit at law is filed to enforce collection of the remaining amount due on the note. A shockingly inadequate sale price in the foreclosure proceeding can be asserted as an equitable defense and the trial judge has the discretion and duty to inquire into the reasonable and fair market value of the property sold, the adequacy of the sale price, and the relationship, if any, between the foreclosing mortgagee and the purchaser at the sale, before entering a judgment on the note.

R. K. Cooper, supra, at 13.

We do not believe there is any distinction between a deficiency judgment entered in the foreclosure action itself and one entered in a separate and subsequent action on the note insofar as it is required of the trial court to follow and consider the factors enumerated in Cooper in determining whether or not to enter a deficiency judgment and the amount thereof. In the instant case, there was not a shockingly inadequate sale price as there was in Cooper; there is no contention or suggestion in the record before us of any relationship between the foreclosing mortgagee and the purchasers at sale; the sale was not fraudulent; and the price was well within reason, based on the admissible appraisals, rather than unconscionable.

We disagree with the holding of Hamilton Investment Trust v. Escambia Developers, Inc., supra, which was followed by the trial court below, that the trial judge, in the exercise of his discretion, may review the entry of a deficiency judgment solely on the basis of opinion evidence that the fair market value of the foreclosed property is greater than the price paid by a third-party purchaser at a public sale where that sale is untinged by fraud or unconscionability. We believe the Hamilton holding is a distortion of Cooper and disregards the factors enumerated in that opinion, as well as the precedents that have evolved in the law of Florida regarding deficiency judgments during the past 130 years. We agree with the Third District Court of Appeal’s opinion in S/D Enterprises, Inc. v. Chase Manhattan Bank, supra, which clearly indicates that it is still the law that the granting of a deficiency judgment is the rule rather than the exception unless there are facts and circumstances creating equitable circumstances justifying the court’s denial of the deficiency.

The order of the trial court denying the deficiency judgment is reversed, and this cause remanded for entry of a deficiency judgment in favor of the appellant/mortgagor, Flagship State Bank, in the amount of $99,729.40, plus any subsequently accrued interest and appropriate costs to be determined by the trial court.

REVERSED and REMANDED.

ORFINGER, J., and CLARK, HAROLD, R., Associate Judge, concur.

      . § 702.06, Fla.Stat. (1979) reads in part:
      In all suits for the foreclosure of mortgages heretofore or hereafter executed the entry of a deficiency decree for any portion of a deficiency, should one exist, shall be within the sound judicial discretion of the court, but the complainant shall also have the right to sue at common law to recover such deficiency

      . Under the old procedure that required judicial confirmation of the sale, if the judge was of the opinion that the amount bid at the sale was inadequate and inequitably less than the real value of the property, he should not have confirmed the sale, but ordered a resale of the property. Penn Mut. Life, supra. Present statutory law does not require confirmation, but allows the sale to become final if no objections are filed. § 45.031, Fla.Stat.

      . In 1971, section 45.031(7), Florida Statutes, was amended to reflect the Cooper decision. It now reads:
      Value of property. — The amount of the bid for the property at the sale shall be conclusively presumed to be sufficient consideration for the sale. Any party may serve an objection to the amount of the bid within ten (10) days after the clerk files the certificate of sale. If timely objections to the bid are served, the objections shall be heard by the court. Service of objections to the amount of the bid does not affect or cloud the title of the purchaser in any manner. If the case is one in which a deficiency judgment may be sought and application is made for a deficiency, the amount bid at the sale may be considered by the court as one of the factors in determining a deficiency under the usual equitable principles.


source: Caselaw Access Project

license: Public Domain

text:
    Herman Eugene PUTNAL, Appellant, v. Debbie Douglas PUTNAL, Appellee.
    No. 80-419.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 1981.

      R. William Lyng, III, Kissimmee, for appellant.
    R. Stephen Miles, Jr., of Miles & Cumbie, P. A., St. Cloud, for appellee grandparents.
    No appearance for appellee Debbie Douglas Putnal.
   COBB, Judge.

The husband appeals from an amended order modifying a final judgment of dissolution of marriage wherein the court determined that it would be in the best interests of the children to allow the maternal grandparents to have visitation with the children once a month.

Herman and Debbie Putnal were granted a divorce in 1974 and the wife was granted permanent custody of the two minor children. Approximately three years later the children were adjudicated dependent, and placed in the custody of Rosetta and Roy Land, the step-sister to the wife and her husband.

In January of 1979, the appellant, Herman Putnal, petitioned for modification of the final judgment of dissolution, alleging a change in circumstances and reciting the facts concerning the dependency adjudication. A default was entered against the wife. By a temporary order filed in June of 1979, the trial court granted the Lands’ motion for investigation and social study by the Florida Department of Health and Rehabilitative Services (HRS); granted the father temporary custody of the children subject to the further order of the court; and ordered that the father would insure that the children would have visitation with their maternal grandfather at least once a week. In September of 1979, the Lands and the grandparents, Joseph O’Mary and Louella O’Mary moved for child support for the Lands and for visitation by the grandparents to be established in detail, on the grounds that the husband had failed and refused to afford the grandparents reasonable visitation. After a hearing, the court in October of 1979 ordered the maternal grandparents to be entitled to reasonable visitation once a month. After a report was filed by HRS in December of 1979, the court entered an order in February, substituted by a later amended order in March, 1980, modifying the final judgment of dissolution of marriage and awarding the husband custody of the minor children and providing for visitation by the maternal grandparents.

The sole issue presented is whether the trial court erred by allowing the maternal grandparents to appear and subsequently awarding them visitation.

The appellant cites the controlling statutes which provide:

(b) The court shall award custody and visitation rights of minor children of the parties as a part of proceeding for dissolution of marriage in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction Act. Upon considering all relevant factors, the father of the child shall be given the same consideration as the mother in determining custody. The court may award the grandparents visitation rights of a minor child if it is deemed by the court to be in the child's best interest. Nothing in this section shall be construed to require that grandparents be made parties or given notice of dissolution pleadings or proceedings, nor shall such grandparents have legal standing as “contestants” as defined in s. 61.1306. No court shall order that a child be kept within the state or jurisdiction of the court solely for the purpose of permitting visitation by the grandparents, (emphasis added).

§ 61.13(2)(b), Fla.Stat. (1979).

(1) “Contestant” means a person, including a parent, who claims a right to custody or visitation rights with respect to a child.

§ 61.1306(1), Fla.Stat. (1979).

Appellant’s argument that section 61.13 does not authorize the grandparents to become parties to the litigation itself is based on Shuler v. Shuler, 371 So.2d 588 (Fla. 1st DCA 1979). In Shuler, the court cites the rule in Florida prior to amendment of section 61.13 that non-parents normally had no independent visitation (as distinguished from custody) rights with minor children. The First DCA ruled that this statute does not confer standing to maintain such an independent action. However, Shuler is distinguishable on the grounds that in that case the grandparents initiated and independently filed a petition for modification of the final judgment of dissolution of marriage. In the present case, there was no independent filing of a petition for modification by the grandparents, but at the time they were awarded visitation rights the contestants were appellant/husband and the persons actually caring for the children, the Lands.

Section 61.13(2)(b) gives a trial court the discretionary authority to grant grandparents visitation rights. Grandparents may be allowed to participate in order for the trial court to have a basis for the exercise of that discretion. In the present case, the petition for modification was initiated by the husband, and the temporary award of custody to the husband in that action included granting visitation to the grandparents. This case is not like Shuler, since there was an action pending, initiated by a “contestant,” the father, at the time of the initial award of visitation to the grandparents. Compare Whitehead v. Hewett, 380 So.2d 492 (Fla. 1st DCA 1980). We hold that it was not error to entertain a joint motion by the Lands, who had custody and who did have standing, and the grandparents, seeking a more specific order concerning grandparent visitation rights prior to entry of the order awarding permanent custody to the husband. The trial court would have erred had it refused to allow the grandparents to participate. See Ramey v. Thomas, 382 So.2d 78 (Fla. 5th DCA 1980). Accordingly, the order appealed is

AFFIRMED.

SHARP and COWART, JJ., concur.

      . See Tamargo v. Tamargo, 348 So.2d 1163 (Fla.2d DCA 1977); Sheehy v. Sheehy, 325 So.2d 12 (Fla.2d DCA 1975); Rodriguez v. Rodriguez, 295 So.2d 328 (Fla.3d DCA 1974).

      . Those persons actually caring for minor children have standing to participate in litigation concerning their custody. See Cone v. Cone, 62 So.2d 907 (Fla.1953).


author: BOARDMAN, Acting Chief Judge.

text:
    Charles F. LEE, Appellant, v. STATE of Florida, Appellee.
    No. 80-673.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 1981.

      Jack T. Edmund and Marshall Glenn Slaughter, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Charles F. Lee appeals his placement on probation for possession of more than twenty grams of marijuana, contending that his motion to suppress the evidence should have been granted. We agree and reverse.

Captain Stephens of the Hardee County Sheriff’s Department testified at the hearing on appellant’s motion to suppress that on October 16,1979, he received a call from a confidential informant, an undercover police officer whom Stephens had known for a month, who stated that he thought a drug sale was being transacted at a Shop and Go convenience store in Bowling Green, Hardee County, Florida. The informant told Stephens that he had seen a car with three occupants drive up to the convenience store at the same time as a pickup truck. The truck driver got out and exchanged a few words with the people in the car, went to the pay phone, made a call, got back into the pickup truck, and left. The people in the car never got out, but turned their car around, pulled up to the edge of the street, and parked, as if they were waiting.

On receiving this call from the undercover officer, Stephens went to the scene in an unmarked car. The informant walked down to his car and told Stephens that the black Volvo with an out-of-county, temporary tag was the car and the occupants were in it. The informant then went back to the Shop and Go.

Stephens saw a black Ford pickup truck pull alongside the Volvo. The Volvo driver got out of his car and got into the pickup, while the other passengers remained in the Volvo. The pickup then drove off, going south on U.S. 17. Stephens stayed with the Volvo, and several minutes passed while he tried to get another officer to assist him. The Ford pickup truck came back and parked in approximately the same position. The Volvo driver got out of the truck, placed a brown paper bag in the trunk of the Volvo, and drove off in the car. The bag was a typical brown grocery bag and appeared to have something in it.

Both the car and the pickup truck left the Shop and Go and headed north on U.S. 17. Stephens followed in one car, and Deputy Maddox, the officer who had arrived to assist Stephens, was in another unmarked vehicle. Stephens and Maddox followed by switching off between Maddox’s truck and Stephens’ car. The Volvo was speeding. At one point, the Volvo pulled off to the side of the road for a few minutes, so that both Stephens and Maddox had to pass it.

The Volvo was eventually stopped in Bar-tow by officers from the Polk County Sheriff’s Department. Its occupants were removed from the car and frisked; then one of them was placed in Stephens’ car and two in another car.

Investigator Kendrick of the Polk County Sheriff’s Department asked the Volvo’s driver, appellant, for permission to search the car, which request was refused. A search was nevertheless conducted. When the trunk was opened, a closed brown paper bag was found. The officers opened the bag and saw what appeared to be cannabis.

Appellant first contends that there was not even enough information available to Stephens for a person to have a reasonable suspicion. While we are inclined to agree, we reach no conclusion as to this contention. However, it is clear that at best the officers involved here had no more than a reasonable or founded suspicion, entitling them only to briefly detain the Volvo’s occupants and search them only to the extent necessary to disclose a weapon. § 901.151, Fla.Stat. (1979); Schnick v. State, 362 So.2d 423 (Fla. 4th DCA 1978); State v. Lundy, 334 So.2d 671 (Fla. 4th DCA 1976).

The state contends that the search was proper under Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and section 933.19(1), Florida Statutes (1979), which adopts the Carroll doctrine. Carroll held that an automobile may be searched without a warrant if the officer conducting the search has probable cause to believe that contraband is being transported therein.

We are mindful that a trial court’s ruling on a motion to suppress comes to the appellate court with a presumption of correctness. McNamara v. State, 357 So.2d 410 (Fla.1978). However, having interpreted the evidence and all reasonable inferences that may be drawn therefrom in a light most favorable to sustaining the trial court’s conclusion, we must still resolve any doubt as to the propriety of a search in favor of the defendant, Taylor v. State, 355 So.2d 180 (Fla. 3d DCA), cert. denied, 361 So.2d 835 (Fla.1978); Miller v. State, 137 So.2d 21 (Fla. 2d DCA 1962).

Having more than a mere doubt as to the correctness of the searching officers’ actions here, we are unable to uphold the trial court’s implicit finding of probable cause. Since we have determined that probable cause was lacking here, Carroll and section 933.19(1) are inapplicable.

The officers here exceeded the scope of any authority to search that they may have had under section 901.151. Stephens made no assertion that he was conducting a search for weapons. He was undisputedly looking only for drugs. A search pursuant to section 901.151 is limited to a search for weapons. The search of the trunk of the Volvo and the subsequent search of the paper bag found therein were clearly impermissible, and appellant’s motion to suppress should have been granted.

Accordingly, the order of probation and the order denying appellant’s motion to suppress are REVERSED, and the cause is REMANDED with instructions to discharge appellant.

DANAHY and CAMPBELL, JJ., concur.


author: PER CURIAM.

text:
    Henry J. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 80-1351.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 1981.

      Jack 0. Johnson, Public Defender, Bar-tow, and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was convicted of two separate offenses, which were (1) possession and sale of heroin and (2) conspiracy to sell a controlled substance. On the first offense, appellant was sentenced to incarceration for a year and a day and then to be on probation for the remainder of the fifteen years. On the second offense appellant was given five years on probation. The court revoked appellant’s probation because of violation and imposed a single term of five years.

We affirm the revocation but vacate the sentence imposed because a general sentence is impermissible. Dorfman v. State, 351 So.2d 954 (Fla.1977); Worth v. State, 380 So.2d 553 (Fla. 2d DCA 1980). We also affirm his conviction for possession of heroin which was the cause of the revocation of his probation.

We vacate the sentence and remand for the trial court to impose an appropriate sentence.

SCHEB, C. J., and BOARDMAN and OTT, JJ., concur.