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Ashear v. Sklarey

Florida Court of Appeals, Third District

January 17, 2018

Morris A. Ashear, Appellant,
v.
Seth Sklarey, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 10-43814, Gisela Cardonne Ely, Judge.

          P.A. Bravo, P.A., and Paul Alexander Bravo; Matthew Estevez, P.A., and Matthew Estevez, for appellant.

          Michael A. Vandetty, P.A., and Michael A. Vandetty, for appellee.

          Before SUAREZ, LAGOA, and SCALES, JJ.

          LAGOA, J.

         The appellant, Morris A. Ashear ("Ashear"), appeals from a final judgment vacating and setting aside a tax deed issued to him. We affirm in part, reverse in part, and remand for further proceedings.

         I. FACTUAL AND PROCEDURAL HISTORY

         The appellee, Seth Sklarey ("Sklarey"), was the owner of property located in Coconut Grove, Florida, on which a tax certificate had issued on June 1, 2007. On the morning of August 5, 2010, a tax deed auction took place, and Ashear was the successful bidder in the amount of $20, 700 for the certificate at issue. A tax deed was subsequently issued to Ashear on August 6, 2010.

         On August 12, 2010, Sklarey filed a complaint against Ashear, Harvey Ruvin, Clerk of the Circuit Court of Miami-Dade County ("the Clerk"), and Fernando Casamayor, Tax Collector of Miami-Dade County ("the Tax Collector"), seeking to set aside the tax deed issued to Ashear. Sklarey alleged that due to fraud, mistake, or wrongdoing that occurred at the tax deed auction on August 5, the property was not sold to the "highest and best bidder" in violation of Florida Statutes. Sklarey also alleged that after the auction, he tendered full payment of the taxes owed on the property on the afternoon of August 5, but that the Tax Collector's office refused his payment. Sklarey further alleged that the Clerk's office instructed him to return the next day, August 6, in order to speak with a supervisor in the Clerk's office. Sklarey arrived at the Clerk's office on August 6 at 8 a.m., and was informed shortly after 9 a.m. that the tax deed had been recorded at 8:38 a.m. that day. Sklarey claimed that the Tax Collector's office's refusal to accept his payment of the taxes, "despite the fact the sale was not complete and the Tax Deed had not yet been recorded, " violated Florida Statutes and that the tax deed must be vacated and set aside.

         The Tax Collector subsequently filed a motion to require Sklarey to deposit into the court registry the full sum required to redeem the property as of August 5, 2010. On October 18, 2010, the trial court entered an order directing Sklarey to deposit $20, 700 into the court registry. Sklarey deposited the funds into the court registry the same day.

         On January 19, 2012, Ashear filed an amended answer, affirmative defenses, counterclaim, crossclaim and third party complaint. Ashear alleged an action for quiet title, and pled in the alternative that if his tax deed were to be found invalid, that "the court [should] determine in its final judgment that . . . [Ashear] holds a good and valid lien on the subject real property for the amount of money paid by [Ashear] for the tax deed, together with interest, per annum, from the date of the tax deed."

         The matter proceeded to a bench trial on February 18, 2015. Sklarey presented the testimony of Luis Mendoza ("Mendoza"), the supervisor for delinquent real estate taxes at the Tax Collector's office. Mendoza testified regarding the process for paying taxes in the Tax Collector's office in August 2010. Mendoza testified that the Tax Collector's office does not accept payment from a property owner to redeem property if the Clerk's office has placed a "flag" on the property; a "flag" indicates that the tax certificate has been sold and that "the taxes are no longer due." The hours for the Tax Collector's office on August 5, 2010, were 8:00 a.m. to 4:30 p.m.

         Vanessa Ceide ("Ceide"), the tax deed operations officer for the Clerk also testified. Ceide testified that on August 6, 2010, she arrived at work before 8:00 a.m. and was advised that a person who had a complaint about a sale from the previous day was waiting to speak with her. At 9:00 a.m., when the Clerk's office opened to the public, she informed Sklarey that the deed had been recorded at 8:38 that morning. Ceide also testified that she reviewed the tax deed on the evening of August 5, but it contained a typographical error. She therefore instructed her assistant clerks to correct the error. As a result, Ceide executed the tax deed on the morning of August 6.

         Sklarey testified that he attended the tax deed auction on the morning of August 5, but was not the successful bidder. After the auction concluded, he went to the bank and returned on the afternoon of August 5 to the Tax Collector's office with two cashier's checks in an amount sufficient to redeem the property. Sklarey testified that he was at the tax collector's office "just after 4" on August 5, but that the cashier would not accept his payment. He went to the Clerk's office at 8:00 a.m. the following day, August 6, and was informed by Ceide shortly after 9:00 a.m. that the tax deed had been recorded that morning.

         Gideon Glatsiani ("Glatsiani") Ashear's business partner, testified on behalf of Ashear. Glatsiani bid on Ashear's behalf on the morning of August 5. Glatsiani testified that he placed the winning bid at the auction and that he made payment by cashier's check within an hour after the conclusion of the auction. Glatsiani also testified that he picked up the deed from the Clerk's office on August 6.

         The trial court entered final judgment on March 2, 2016. The trial court found that Sklarey "was ready, willing, and able to redeem the property on August 5, the day of the tax deed sale, and on August 6 during the Tax Collector's regular business hours, before the execution and recording of the tax deed. Although he tendered payment, it was not accepted through no fault of his own. Under such circumstances, the redemption should have been allowed." (emphasis in original) The trial court vacated and set aside the tax deed issued to Ashear. The trial court also ordered that the $20, 700 in funds held in the court registry "shall be disbursed forthwith ...


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