Morris A. Ashear, Appellant,
Seth Sklarey, Appellee.
final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 10-43814, Gisela Cardonne Ely, Judge.
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
SUAREZ, LAGOA, and SCALES, JJ.
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.
FACTUAL AND PROCEDURAL HISTORY
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.
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
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.
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."
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.
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.
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.
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
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 ...