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MEGAN LEIGH MORRISON vs TIMOTHY D. SMOLARICK
Date: 02-20-2022
Case Number: 20-2693
Judge: Patricia J. Kelly
Court:
DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
On appeal from The Circuit Court for Sarasota County
Plaintiff's Attorney:
Tampa, FL - Best Property Lawyer Directory
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Defendant's Attorney: Gregg Horowitz
Description:
The parties owned a home as joint tenants with the right of
survivorship. Mr. Smolarick filed a complaint for partition and
asked the court to order a private sale of the property and hold the
proceeds in escrow pending a judicial determination of the interests
of the parties to the proceeds. See §§ 64.061(4), .071. The court
ordered the sale of the property and appointed a special master to
effectuate the sale. The court also ordered each party to pay half of
any fees required by the special master. This order constituted a
final order of partition because it directed the sale of the property.
See Camp Phosphate Co. v. Anderson, 37 So. 722, 726 (Fla. 1904)
(holding that an order of partition is final when the court orders the
sale of the property). A partition order directing the sale of property
is final even when the court retains jurisdiction "for the purpose of
adjusting, by a further decree, the accounts between the parties."
Id. (quoting Bellamy v. Bellamy, 4 Fla. 242, 254 (1851)). No appeal
was taken from the final order of partition.
The property sold at a price below the amount owed on the
mortgage resulting in zero net profit from the sale. Thus, there
3
were no funds to be deposited into the registry of the court and
divided among the parties. See § 64.071(1). In fact, there was a
deficit that the parties were ordered to pay in addition to the special
master's fees and costs. The order compelling the payment of these
sums was not appealed.
Notwithstanding the fact that after the sale there were no
funds left to be divided, Mr. Smolarick noticed the case for trial and
filed witness and exhibit lists in anticipation of a trial at which the
court could determine the amount of reimbursable expenses he was
entitled to recover. Ms. Morrison objected arguing a trial was
unnecessary because there were no funds to distribute and that
because Mr. Smolarick's complaint only sought partition, he was
not entitled to a money judgment reimbursing him for the expenses.
The trial court went forward with the trial and entered a money
judgment in favor of Mr. Smolarick in an amount representing
reimbursable expenses Mr. Smolarick paid when the parties were
co-owners.
On appeal, Ms. Morrison argues that neither chapter 64 nor
the case law applying it authorize entry of a money judgment where
only partition is sought and the partition sale resulted in zero
4
proceeds. We agree. A partition action commences a legal
proceeding to divide cotenants' interests in a real property. See
Condrey v. Condrey, 92 So. 2d 423, 426 (Fla. 1957) (noting that
partition actions are a matter of right), superseded by statute on
other grounds as stated in Durand v. Durand, 16 So. 3d 982, 984
(Fla. 4th DCA 2009); see also Green v. Green, 16 So. 3d 298, 301
(Fla. 1st DCA 2009) (explaining that partition proceedings are
equitable in nature). Partition is achieved by ordering the physical
division of the property or, if indivisible, by sale after which the
proceeds are divided. § 64.061(4) (providing that where property is
indivisible, the court may order it sold); § 64.071(1) ("[T]he court
may order the land to be sold . . . by the commissioners or the clerk
and the money arising from such sale paid into the court to be
divided among the parties in proportion to their interest.").
After the sale, "the court impounds the fund consisting of the
proceeds of sale and conducts proceedings to establish the credits
due to the parties and to determine the final amount awarded to
each." McFall v. Trubey, 992 So. 2d 867, 870 (Fla. 2d DCA 2008).
"[A] cotenant paying obligations of the property is entitled to a credit
from the proceeds of the sale for the other cotenant's proportionate
5
share of those expenses." Biondo v. Powers, 743 So. 2d 161, 164
(Fla. 4th DCA 1999). Neither the statute nor the case law provides
for an award of money damages in lieu of a credit against the
proceeds of the sale. Nor would it be consistent with the nature of
the remedy of partition—either the property is divided or, if it
cannot be divided, the funds from its sale are divided. As this court
explained in McFall, 992 So. 2d at 870, the amounts sought after a
partition sale are not "damages" but rather are simply "credits" to
be awarded in the allocation of the fund.
Tampa, FL - Property lawyer represented Appellant with appealing from a final money judgment.
The parties owned a home as joint tenants with the right of
survivorship. Mr. Smolarick filed a complaint for partition and
asked the court to order a private sale of the property and hold the
proceeds in escrow pending a judicial determination of the interests
of the parties to the proceeds. See §§ 64.061(4), .071. The court
ordered the sale of the property and appointed a special master to
effectuate the sale. The court also ordered each party to pay half of
any fees required by the special master. This order constituted a
final order of partition because it directed the sale of the property.
See Camp Phosphate Co. v. Anderson, 37 So. 722, 726 (Fla. 1904)
(holding that an order of partition is final when the court orders the
sale of the property). A partition order directing the sale of property
is final even when the court retains jurisdiction "for the purpose of
adjusting, by a further decree, the accounts between the parties."
Id. (quoting Bellamy v. Bellamy, 4 Fla. 242, 254 (1851)). No appeal
was taken from the final order of partition.
The property sold at a price below the amount owed on the
mortgage resulting in zero net profit from the sale. Thus, there
3
were no funds to be deposited into the registry of the court and
divided among the parties. See § 64.071(1). In fact, there was a
deficit that the parties were ordered to pay in addition to the special
master's fees and costs. The order compelling the payment of these
sums was not appealed.
Notwithstanding the fact that after the sale there were no
funds left to be divided, Mr. Smolarick noticed the case for trial and
filed witness and exhibit lists in anticipation of a trial at which the
court could determine the amount of reimbursable expenses he was
entitled to recover. Ms. Morrison objected arguing a trial was
unnecessary because there were no funds to distribute and that
because Mr. Smolarick's complaint only sought partition, he was
not entitled to a money judgment reimbursing him for the expenses.
The trial court went forward with the trial and entered a money
judgment in favor of Mr. Smolarick in an amount representing
reimbursable expenses Mr. Smolarick paid when the parties were
co-owners.
On appeal, Ms. Morrison argues that neither chapter 64 nor
the case law applying it authorize entry of a money judgment where
only partition is sought and the partition sale resulted in zero
4
proceeds. We agree. A partition action commences a legal
proceeding to divide cotenants' interests in a real property. See
Condrey v. Condrey, 92 So. 2d 423, 426 (Fla. 1957) (noting that
partition actions are a matter of right), superseded by statute on
other grounds as stated in Durand v. Durand, 16 So. 3d 982, 984
(Fla. 4th DCA 2009); see also Green v. Green, 16 So. 3d 298, 301
(Fla. 1st DCA 2009) (explaining that partition proceedings are
equitable in nature). Partition is achieved by ordering the physical
division of the property or, if indivisible, by sale after which the
proceeds are divided. § 64.061(4) (providing that where property is
indivisible, the court may order it sold); § 64.071(1) ("[T]he court
may order the land to be sold . . . by the commissioners or the clerk
and the money arising from such sale paid into the court to be
divided among the parties in proportion to their interest.").
After the sale, "the court impounds the fund consisting of the
proceeds of sale and conducts proceedings to establish the credits
due to the parties and to determine the final amount awarded to
each." McFall v. Trubey, 992 So. 2d 867, 870 (Fla. 2d DCA 2008).
"[A] cotenant paying obligations of the property is entitled to a credit
from the proceeds of the sale for the other cotenant's proportionate
5
share of those expenses." Biondo v. Powers, 743 So. 2d 161, 164
(Fla. 4th DCA 1999). Neither the statute nor the case law provides
for an award of money damages in lieu of a credit against the
proceeds of the sale. Nor would it be consistent with the nature of
the remedy of partition—either the property is divided or, if it
cannot be divided, the funds from its sale are divided. As this court
explained in McFall, 992 So. 2d at 870, the amounts sought after a
partition sale are not "damages" but rather are simply "credits" to
be awarded in the allocation of the fund.
Outcome:
Accordingly, the final money judgment entered in favor of Mr. Smolarick is reversed and we remand for the trial court to vacate that judgment.
Reversed and remanded.
Reversed and remanded.
Plaintiff's Experts:
Defendant's Experts:
Comments:
About This Case
What was the outcome of MEGAN LEIGH MORRISON vs TIMOTHY D. SMOLARICK?
The outcome was: Accordingly, the final money judgment entered in favor of Mr. Smolarick is reversed and we remand for the trial court to vacate that judgment. Reversed and remanded.
Which court heard MEGAN LEIGH MORRISON vs TIMOTHY D. SMOLARICK?
This case was heard in <center><h4><b>DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT </b> <br><br> <font color="green"><i>On appeal from The Circuit Court for Sarasota County </i></font></center></h4>, FL. The presiding judge was Patricia J. Kelly.
Who were the attorneys in MEGAN LEIGH MORRISON vs TIMOTHY D. SMOLARICK?
Plaintiff's attorney: Tampa, FL - Best Property Lawyer Directory Tell MoreLaw About Your Litigation Successes and MoreLaw Will Tell the World. Re: MoreLaw National Jury Verdict and Settlement Counselor: MoreLaw collects and publishes civil and criminal litigation information from the state and federal courts nationwide. Publication is free and access to the information is free to the public. MoreLaw will publish litigation reports submitted by you free of charge Info@MoreLaw.com - 855-853-4800. Defendant's attorney: Gregg Horowitz.
When was MEGAN LEIGH MORRISON vs TIMOTHY D. SMOLARICK decided?
This case was decided on February 20, 2022.