United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE, UNITED STATES DISTRICT JUDGE.
THE COURT are Respondent's Motion for
Appointment of the Clerk to Conduct Public Auction of
Manasota Key Road (Dkt. 116) and Petitioner's Motion for
Extension of Time to Effectuate Private Sale (Dkt. 108). Upon
consideration, Respondent's motion for a public auction
(Dkt. 116) is GRANTED and Petitioner's
motion for extension (Dkt. 108) is DENIED.
The real property located at 6811 Manasota Key, Englewood,
Sarasota County, Florida (the "Subject Property")
shall be sold at a public auction to the highest and best
brought this action to partition real property he jointly
owns with Respondent. (Petition, Dkt. 2). The case was tried
before the Court, after which an Order of partition was
entered pursuant to FLA. Stat. § 64.051 on July 7, 2017.
(Order, Dkt. 99). The parties were directed to effectuate a
private sale of the property by October 31, 2017, with
jurisdiction reserved to order a public auction pursuant to
Fla. Stat. § 64.071 if they were unable to effectuate a
private sale. The parties failed to stipulate to terms for a
private sale of the property within the deadline.
October 13, 2017, Respondent's motion to credit bid at a
public auction was granted. (Dkt. 107). That Order provided
that "[e]ither party may file, after October 31, 2017, a
motion for an order appointing the Clerk to conduct a public
auction of the property to the highest bidder pursuant to
section 64.071, Florida Statutes." (Id. at p.
5). Respondent has filed the motion to appoint the Clerk to
conduct a private auction. (Motion, Dkt. 116). Petitioner
moves for an extension of the time to conduct a private sale,
arguing that a property appraiser hired by Respondent
undervalued the Subject Property at $650, 000, a comparable
property recently sold at a higher price, and an extension
will allow the parties to procure a buyer. (Motion for
Extension, Dkt. 108). Respondent filed an opposition to
Petitioner's request for an extension, arguing that the
property discussed by Petitioner is not comparable to the
Subject Property in relevant respects, and that the appraised
value of the Subject Property is accurate based on the sale
prices of other properties that are, in fact, comparable.
(Response, Dkt. 109 at ¶¶ 3-5). However, the
dispositive point of Respondent's opposition is her
statement that she will not stipulate to a private sale of
the Subject Property to a third party because she intends to
attempt to purchase the property at a public auction.
(Id. at ¶ 5).
court finding that a parcel of real property in Florida is
not reasonably susceptible to an equitable physical division
has "three options for ordering a partition sale: (1) a
judicial sale by public auction under section 64.071, (2) a
private sale conducted by the clerk or a magistrate under
section 64.061(4), or (3) a private sale based on the
stipulation of the parties in accordance with
Carlsen." Marks v. Stein, 160 So.3d 502, 508
(Fla. Dist. Ct. App. 2015) (citing Carlsen v.
Carlsen, 346 So.2d 132 (Fla. Dist. Ct. App. 1977)).
"Absent the parties' agreement, resort to a private
sale as a means of selling the property in a partition action
is disapproved." Id. at 507.
Subject Property is not susceptible to an equitable physical
division. (Order, Dkt. 99 at p. 16). As noted, the parties
failed to stipulate to terms for a private disposition of the
Subject Property within the time required by Order of
partition. (Id. at p. 24); see also
Carlsen, 346 So.2d at 134 ("The trial court may
provide a reasonable period of time for the parties to
conclude any private arrangements for sale or disposition ...
."). Respondent establishes that the parties will not
stipulate to a private sale of the property and, therefore, a
judicial sale of the property by public auction in accordance
with Fla. Stat. § 64.071 is necessary. See
Marks, 160 So.3d at 507 ("[I]f disposition of the
[property] is not amicably resolved within a specified
reasonable period of time, judicial sale of the property
shall take place in accordance with chapter 64."
(quotation marks omitted)).
Respondent's Motion for Appointment of the Clerk to
Conduct Public Auction of Manasota Key Road (Dkt. 116) is
GRANTED to the extent that a judicial sale
of the Subject Property by public auction shall be conducted
by the United States Marshal. Petitioner's Motion for
Extension of Time to Effectuate Private Sale (Dkt. 108) is
DENIED. A separate judgment will follow.
Because Florida law requires a
judicial sale when the parties in a partition action are
unable to stipulate, and Respondent effectively refuses to
stipulate to anything other than a public auction,
Petitioner's reply relating to his motion for extension
of time to effectuate a private ...