FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Citrus County, Patricia V. Thomas,
K. Dixon, of Kevin K. Dixon, P.A., Inverness, for Appellant.
Russell W. LaPeer, of Landt, Wiechens, LaPeer & Ayres,
LLP, Ocala, for Appellee.
M., ASSOCIATE JUDGE.
Ketan Patel appeals the trial court's order disbursing
the proceeds from the sale of property, which was the subject
of an action for partition, without first holding an
evidentiary hearing. We agree with Appellant that he is
entitled to an evidentiary hearing to determine the
appropriate liabilities and credits due each party, and
therefore reverse for further proceedings.
parties were joint owners of commercial real property that
was mortgaged to secure a note on which they were jointly and
severally liable. In 2014, Appellee Ramanlal Patel filed an
action for partition of real property by sale, reimbursement
of attorney's fees and costs, reimbursement for rental
value during Appellant's tenancy, and equitable
distribution of sale proceeds between the parties. Appellant
filed a confession of judgment of partition and arrangements
were made for the sale of the property.
parties first attempted a private sale but when that failed,
Appellee moved the court for entry of summary judgment and an
order that the property be sold at public auction. The
parties eventually reached an agreement on the language to be
included in the Second Amended Final Judgment
("Judgment"). The trial court entered the agreed
upon Judgment and set the sale at public auction.
property was sold at auction to Appellant, as the highest
bidder, and the proceeds were placed into the registry of the
court. Appellant then moved for the proceeds to be disbursed
to satisfy the outstanding mortgage. On the other hand, Appellee
moved for the proceeds to be disbursed equally to the
parties. The court granted Appellee's motion and ordered
the proceeds disbursed equally between the two parties
without having held an evidentiary hearing to determine any
appropriate credits or set-offs due either side.
partition is a subject of equitable jurisdiction, a trial
court will be affirmed unless it is shown that the trial
court abused its discretion in determining whether credits or
set-offs are appropriate. Wood v. Friedman, 388
So.2d 1355, 1358 (Fla. 5th DCA 1980). Partition principles
are applied in a flexible manner "in order to arrive at
a fair, equitable, and just decree." Fernandez v.
Gonzalez, 758 So.2d 1192, 1193 (Fla. 3d DCA 2000)
argues that the following language in paragraph 4 of the
Judgment supports the court's order of disbursement:
The Clerk of this Court . . . shall sell the real property .
. . free and discharged of any and all claims, liens,
encumbrances, rights, equity and interest of the parties. The
mortgage and any and all claims, liens, encumbrances, rights,
equity and interest of any person or entity not a party to