Ashear v. Sklarey , 239 So. 3d 786 ( 2018 )

Third District Court of Appeal
State of Florida
Opinion filed March 7, 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.
ON MOTION FOR APPELLATE ATTORNEY’S FEES AND COSTS
Appellant, Morris A. Ashear (“Ashear”), seeks appellate attorney’s fees and
costs pursuant to Florida Rule of Appellate Procedure 9.400 and section
197.602(2), Florida Statutes (2017), in connection with his appeal from a final
judgment vacating and setting aside a tax deed in Ashear v. Sklarey, 43 Fla. L.
Weekly D181 (Fla. 3d DCA Jan. 17, 2018). We deny the motion.
Appellee, Seth Sklarey (“Sklarey”), owned property located in Coconut
Grove, Florida. A tax certificate issued on the property, and a tax deed auction for
the property occurred on August 5, 2010. Ashear was the successful bidder, and a
tax deed issued to Ashear the following day. On August 12, 2010, Sklarey filed a
complaint against Ashear and others, seeking to set aside the tax deed issued to
Ashear. The matter proceeded to trial, and the trial court entered final judgment
vacating and setting aside the tax deed issued to Ashear. Ashear appealed to this
Court, raising the following three issues: (1) whether the trial court’s factual
findings were supported by the evidence presented at trial; (2) whether “the trial
court’s erroneous legal conclusion resulted from its application of the wrong legal
standard”; and (3) whether the trial court erred in failing to require Sklarey to
reimburse Ashear the amount paid for the tax deed and interest from the date the
tax deed was issued as required by section 197.602. This Court affirmed the final
judgment in part, finding that the trial court’s findings of fact were supported by
competent, substantial evidence and that the trial court applied the correct legal
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standard, and reversed in part, finding that Ashear was entitled to reimbursement
from Sklarey. See Ashear, 43 Fla. L. Weekly at D181.
Ashear now seeks appellate attorney’s fees and costs under the current
version of section 197.602(2), which provides that “[i]n an action to challenge the
validity of a tax deed, the prevailing party is entitled to all reasonable litigation
expenses, including attorney’s fees.”1 We find no entitlement to attorney’s fees
1 Section 197.602, Florida Statutes (2017), states in its entirety:
(1) If a party successfully challenges the validity of a tax
deed in an action at law or equity, but the taxes for which
the tax deed was sold were not paid before the tax deed
was issued, the party shall pay to the party against whom
the judgment or decree is entered:
(a) 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;
(b) All legal expenses in obtaining the tax deed,
including publication of notice and clerk’s fees for
issuing and recording the tax deed; and
(c) The fair cash value of all maintenance and permanent
improvements made upon the land by the holders under
the tax deed.
(2) In an action to challenge the validity of a tax deed, the
prevailing party is entitled to all reasonable litigation
expenses, including attorney’s fees.
(3) The court shall determine the amount of the expenses
for which a party shall be reimbursed. The tax deed
holder or anyone holding under the tax deed has a prior
lien on the land for the payment of the expenses that must
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and costs as the version of section 197.602 in force at the time the tax sale
certificate issued did not contain any provision for an entitlement to attorney’s
fees to the prevailing party in an action challenging the validity of the tax deed. As
the Florida Supreme Court explained in Culmer v. Office Realty Co., 189 So. 52,
54 (Fla. 1939):
When the tax sale certificates are issued at the tax sales to
private purchasers who pay the amounts due as taxes and
costs, or when such certificates are issued to, and
afterward are duly transferred by, the State to private
parties, the rights of such private purchasers are
governed by the law in force at the time the tax sale
certificates are issued to them or to their assignors at
the tax sale or at the time the State transfers the
certificates to private purchasers.
(emphasis added); see also Holliday v. Wade, 117 F.2d 154, 157 (5th Cir. 1941).
Unlike the current version of the statute, the 2010 version of section 197.602 did
not provide for an entitlement to attorney’s fees to the prevailing party in an action
challenging the validity of the tax deed.2 Subsection (2), providing for entitlement
be reimbursed to such persons.
2 In its entirety, the 2010 version of section 197.602 read as follows:
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
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to attorney’s fees, was added to section 197.602 in 2011, and became effective on
July 1, 2011. Because the tax deed was issued to Ashear on August 6, 2010, the
2010 version of the applicable statute governs. Accordingly, Ashear is not entitled
to an award of attorney’s fees and costs pursuant to section 197.602, effective at
the time the tax sale certificate was issued.
Moreover, even if the current version of section 197.602(2) were applicable
here, Ashear would not be entitled to attorney’s fees as he is not the prevailing
party on appeal. In Moritz v. Hoyt Enterprises, Inc., 604 So. 2d 807, 810 (Fla.
1992), the Florida Supreme Court defined the prevailing party for purposes of
attorney’s fees and costs as “the party prevailing on the significant issues in the
litigation.” Where appellate litigation ends in a “tie,” with each party prevailing in
party 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.
§ 197.602, Fla. Stat. (2010).
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part and losing in part on the “significant issues,” it is appropriate to deny a motion
for appellate fees. See Loy v. Loy, 904 So. 2d 482, 484 (Fla. 3d DCA 2005).
Here, Ashear failed to prevail on two separate and significant issues.
Specifically, Ashear failed to prevail on the following issues: (1) whether the trial
court’s findings were contrary to the evidence (both testimony and documents)
presented at trial; and (2) whether the trial court’s “erroneous legal conclusion
resulted from its application of the wrong legal standard” under section 197.122,
Florida Statutes (2010), and section 197.472, Florida Statutes (2010). Ashear
prevailed on appeal only with regard to his argument that he was entitled to
reimbursement for the purchase price of the property along with interest. Because
this Court affirmed the trial court’s judgment vacating the tax deed, and reversed
on only one of the issues raised by Ashear, he cannot be considered the prevailing
party on the “significant issues” and is therefore not entitled to attorney’s fees on
this basis as well. Accordingly, we deny Ashear’s motion for appellate attorney’s
fees and costs.
Motion denied.
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