# Third District Court of Appeal

State of Florida

Opinion filed January 17, 2018

. Not final until disposition of timely filed motion for rehearing.

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No. 3D16-888

Lower Tribunal No. 10-43814

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### Morris A. Ashear

, Appellant,

vs.



### Seth Sklarey

, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, 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

2at 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

3regarding 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

4the 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 to the Miami-Dade County Tax Collector and applied towards the

currently delinquent property taxes assessed against the subject property.” This

appeal ensued.

II. STANDARD OF REVIEW

5In reviewing a judgment rendered after a bench trial, “the trial court’s

findings of fact come to the appellate court with a presumption of correctness and

will not be disturbed unless they are clearly erroneous.” Emaminejad v. Ocwen

Loan Servicing, LLC

, 156 So. 3d 534, 535 (Fla. 3d DCA 2015) (quoting Stone v.

Bank United

, 115 So. 3d 411, 412 (Fla. 2d DCA 2013)). “Thus, they are reviewed

for competent, substantial evidence.” Underwater Eng’g Servs., Inc. v. Util. Bd. of

City of Key West

, 194 So. 3d 437, 444 (Fla. 3d DCA 2016); see also Hall v. Hall

,

190 So. 3d 683, 684 (Fla. 3d DCA 2016). A trial court’s application of the

relevant statutes to its factual determinations is reviewed de novo. See Stock Bldg.

Supply of Fla, Inc. v. Soares Da Costa Constr. Servs.

, 76 So. 3d 313, 316 (Fla. 3d

DCA 2011).

III. ANALYSIS

On appeal, Ashear argues that the trial court’s finding that Sklarey was

“ready, willing, and able to redeem the property” is not supported by the evidence

presented at trial. Our review of the record reveals that the trial court’s findings of

fact on this issue are supported by competent, substantial evidence. We note that

Mendoza’s testimony neither supported nor contradicted Sklarey’s assertion that

he was prevented from paying his taxes at the Tax Collector’s office. 1

Additionaly, Sklarey did not present bank records in support of his claim that he

1 Indeed, Mendoza testified that he had no personal knowledge of Sklarey’s

transaction.

6tendered full payment of taxes owed under the tax certificate. Nonetheless, the

trial court’s conclusion that Sklarey was “ready, willing, and able to redeem the

property on August 5, the day of the tax deed sale” is supported by Skalarey’s own

testimony:

Q. And how did you know that you should go to the tax

collector’s office to redeem the taxes as opposed to the

clerk’s office?

A. Because they’re the tax collector.

Q. Did they accept your money?

A. No.

. . . . Q. At 3:30 on August the 5th, did you have the funds

necessary to redeem the property

- - I’m sorry, at four

o’clock?

A. At four, just after four, yes.

The trial court clearly found Sklarey to be a credible witness, despite Ashear’s

argument to the contrary, 2 and Ashear cites to no case for the proposition that

testimony of the plaintiff alone does not constitute competent, substantial evidence

to support the trial court’s findings in this instance. 3

2 Ashear alleges that Sklarey is a non-credible witness, repeatedly claiming that

Sklarey engaged in “shill bidding” at the auction. The issue of whether Sklarey

engaged in any improper activities at the auction was not determined by the trial

court and is not at issue here.

3 In his reply brief, Ashear argues that the only testimony in support of the trial

court’s finding that Sklarey “was ready, willing, and able to redeem the property”

was hearsay testimony. This issue was not raised in the initial brief and may not be

considered on appeal. See Parker-Cyrus v. Justice Admin. Comm’n

, 160 So. 3d

926, 928 (Fla. 1st DCA 2015) (stating that an issue not raised in an initial brief is

deemed abandoned and may not be raised for the first time in a reply, as

“‘[w]ithout strict adherence to this rule, the appellees are left unable to respond in

7Additionally, the evidence that the tax deed was executed and recorded on

August 6 is uncontroverted. First, the face of the tax deed shows that it was signed

by Ceide, as Deputy Clerk of the Circuit Court in Miami-Dade County, witnessed

by two witnesses, and attached with the official seal on August 6. The face of the

tax deed also shows that it was recorded at 8:38 a.m. on August 6, and Glatsiani

testified that he picked up the deed from the Clerk’s office on August 6. Finally,

Ceide testified that she signed the deed on the morning of August 6 because there

was a typographical error on the deed which prevented her from signing it on

August 5, the day of the sale.

As the trial court’s factual finding are not clearly erroneous, we find no

merit to Ashear’s argument. See Stone v. BankUnited

, 115 So. 3d 411, 412 (Fla.

2d DCA 2013) (“When reviewing a judgment rendered after a nonjury trial, the

trial court’s findings of fact come to the appellate court with a presumption of

correctness and will not be disturbed unless they are clearly erroneous.”); Fito v.

Attorneys’ Title Ins. Fund, Inc.

, 83 So. 3d 755, 757 (Fla. 3d DCA 2011) (“A

factual finding made by a trial court in a non-jury trial is clearly erroneous only

when there is no substantial evidence to sustain it, it is clearly against the weight of

the evidence or it was induced by an erroneous view of the law.”).

writing to new issues presented by the appellants’” (quoting Snyder v. Volkswagen

of Am., Inc.

, 574 So. 2d 1161, 1161-62 (Fla. 4th DCA 1991))); Gen. Mortg.

Assocs., Inc. v. Campolo Realty & Mortg. Corp.

, 678 So. 2d 431 (Fla. 3d DCA

1996).

8We also find that the trial court applied the correct law to the facts in

vacating and setting aside the tax deed issued to Ashear. Both parties agree that

the applicable statutes at issue are section 197.472(1), Florida Statutes (2010), and

section 197.122(1), Florida Statutes (2010). Section 197.472(1) 4 provides in

relevant part as follows:

(1) Any person may redeem a tax certificate or purchase

a county-held certificate at any time after the certificate is

issued and before a tax deed is issued or the property is

placed on the list of lands available for sale.

Section 197.122(1) 5 states in relevant part:

(1)

. . . . No sale or conveyance of real or personal

property for nonpayment of taxes shall be held invalid

except upon proof that:

4 Effective July 1, 2014, section 197.472(1), was amended to provide that “[a]

person may redeem a tax certificate at any time after the certificate is issued and

before a tax deed is issued unless full payment for a tax deed is made to the clerk

of the court, including documentary stamps and recording fees.” § 197.472(1), Fla.

Stat. (2017).

5 Section 197.122(1) was amended effective July 1, 2011, to provide:

(1)

. . . . A sale or conveyance of real or personal

property for nonpayment of taxes may not be held invalid

except upon proof that:

. . . .

(c) The real property was redeemed before receipt by the

clerk of the court of full payment for a deed based upon a

certificate issued for nonpayment of taxes, including all

recording fees and documentary stamps.

§ 197.122(1), Fla. Stat. (2017).

9. . . .

(c) The real property had been redeemed before the

execution and delivery of a deed based upon a certificate

issued for nonpayment of taxes.

Ashear argues that the trial court did not apply the correct legal standard

under sections 197.472 and 197.122 because the final judgment refers to the

execution and recording of the tax deed rather than to its issuance. 6 We disagree.

First, the fact that the final judgment refers to the execution of the tax deed rather

than its issuance in determining when Sklarey’s right to redeem the tax certificate

terminated is of no moment. The term “execution” is equivalent to the term

“issue” as used in the statutes addressing tax certificates. See Lance v. Smith

, 167

So. 366, 369 (Fla. 1936) (“The words ‘issuing’ and ‘execution,’ used in the statutes

in relation to the passing of title by a tax deed, are used as interchangeable

6 Although Ashear repeatedly refers to the “issuance” of the tax deed, he fails to

define what actions or process constitutes the “issuance” of a tax deed. Section

197.552, Florida Statutes (2010), provides in relevant part:

All tax deeds shall be issued in the name of a county and

shall be signed by the clerk of the county. The deed shall

be witnessed by two witnesses, the official seal shall be

attached thereto, and the deed shall be acknowledged or

proven as other deeds.

. . . All deeds issued pursuant to

this section shall be prima facie evidence of the regularity

of all proceedings from the valuation of the lands to the

issuance of the deed, inclusive.

(emphasis added).

10terms.”). Second, the final judgment does not erroneously rely on the recording of

the tax deed as a legally significant event. Section 197.122 mandates that no sale

of real property for the failure to pay taxes shall be held invalid unless redemption

occurred before delivery of a tax deed. It is well established that the recording of a

deed is evidence of its delivery. See Wise v. Wise

, 184 So. 91, 96 (Fla. 1938);

Lance

, 167 So. at 369; Kerr v. Fernandez

, 792 So. 2d 685, 687 (Fla. 3d DCA

2001). For these reasons, we conclude that the trial court applied the correct legal

standard set forth in sections 197.472 and 197.122 when it determined that Sklarey

was ready, willing, and able to exercise his right of redemption “ before the

execution and recording of the tax deed.” (emphasis in original)

Finally, Ashear argues that the trial court’s order contravenes section

197.602, Florida Statutes (2010). Specifically, Ashear argues that the trial court

erred by failing to apply provisions in section 197.602 mandating that Sklarey

reimburse him the amount paid for the tax deed together with twelve percent

interest from the date the tax deed was issued and for the value of any

improvements. We agree. Section 197.602, Florida Statutes (2010), provides:

If, in an action at law or in equity involving the validity

of any tax deed, the court holds that the tax deed was

invalid at the time of its issuance and that title to the land

therein described did not vest in the tax deed holder,

then, if the taxes for which the land was sold and upon

which the tax deed was issued had not been paid prior to

issuance of the deed, the party in whose favor the

judgment or decree in the suit is entered shall pay to the

11party against whom the judgment or decree is entered the

amount paid for the tax deed and all taxes paid upon the

land, together with 12-percent interest thereon per year

from the date of the issuance of the tax deed and all legal

expenses in obtaining the tax deed, including publication

of notice and clerk's fees for issuing and recording the tax

deed, and also the fair cash value of all permanent

improvements made upon the land by the holders under

the tax deed. The amount of the expenses and the fair

cash value of improvements shall be ascertained and

found upon the trial of the action, and the tax deed holder

or anyone holding thereunder shall have a prior lien upon

the land for the payment of the sums.

Section 197.602 clearly and unambiguously requires that a purchaser of a

tax deed determined to be invalid at the time of issuance is entitled to be

reimbursed all sums paid to acquire the tax deed and to twelve percent interest on

that amount. Turnberry Invs., Inc. v. Streatfield

, 48 So. 3d 180, 182 (Fla. 3d DCA

2010). Upon the trial court’s determination that the tax deed was to be vacated

and set aside, Ashear was entitled to an award from Sklarey of the reimbursements

provided for in section 197.602. The trial court’s failure to make such an award

was error. For that reason, the provision in the final judgment ordering that the

$20,700 Sklarey placed in the court registry be disbursed to the Tax Collector

cannot stand. Indeed, Sklarey concedes that the funds held in the court registry

should be disbursed to Ashear, although he does not acknowledge the statutory

requirements concerning interest.

12Ashear also argues on appeal that he is entitled to an award, pursuant to

section 197.602, for the value of improvements to the land. At trial, however,

Ashear failed to present any evidence regarding such improvements. We therefore

cannot conclude it was error for the trial court not to include such amounts in the

final judgment.

Accordingly, we affirm in part, reverse in part, and remand with instructions

to the trial court to enter an amended final judgment in favor of Sklarey ordering

that the $20,700 in funds held by the Clerk in the court registry be disbursed to

Ashear, together with an award of interest in accordance with section 197.602.

Affirmed in part, reversed in part, and remanded.

13