CopyPublished | Florida 3rd District Court of Appeal
...The property was
subsequently sold to E Coast via a tax deed sale on December 16, 2021.
Less than a month later, E Coast filed a complaint for ejectment against
Delia and Ana Virginia Delia.1 The complaint was later amended to include
a cause of action for a writ of possession, asserting that pursuant to section
197.562, Florida Statutes (2022), E Coast was entitled to immediate
possession of the property. In December 2022, E Coast moved for issuance
of an immediate writ of possession pursuant to section 197.562.
The matter proceeded, and in early June 2023, Delia filed an answer
to the operative complaint, affirmative defenses, and a motion for extension
of time to file a counterclaim....
...or June 21, 2023. The day before the
1
Claims against Ana Virginia Delia were dismissed pursuant to a settlement
agreement.
2
hearing, Delia filed an objection to the hearing arguing that: (1) pursuant to
section 197.562, the hearing was meant to be a trial on the motion for a writ
and the proper procedures to schedule a trial had not been followed; and (2)
that the hearing was premature because he had not yet filed his
counterclaim.
At the...
...of statutes
is de novo. Sommers v. Philip Morris USA, Inc., 49 Fla. L. Weekly D518
(Fla. 3d DCA Mar. 6, 2024) (citing Velez v. Miami-Dade Cnty. Police Dep’t,
934 So. 2d 1162, 1164 (Fla. 2006)).
Analysis
Section
197.562 provides:
3
Any person, firm, corporation, or county that is the
grantee of any tax deed under this law shall be
entitled to the immediate possession of the lands
described in the deed....
...Upon
service of the responsive pleadings, if any, the matter
shall proceed as in chancery cases. If the court finds
for the applicant, an order shall be issued by the court
directing the sheriff to put the grantee in possession
of the lands.
§ 197.562, Fla. Stat. (2022).
Pursuant to the plain language of section 197.562, a tax deed recipient
may petition the trial court for a writ after providing notice to the party in
possession. § 197.562, Fla....
...with a tax deed . . . to
4
recover possession of the lands described therein when the owner or person
in possession refuses to surrender possession.” Whittington v. Davis,
32 So.
2d 158, 160 (Fla. 1947). Section
197.562’s statement that the matter must
proceed “in chancery” does not undermine this.
Florida law has established that when a matter “proceeds in chancery”
it means that the matter is meant to be determined by the trial judge
considering all of the remedies and defenses available in equity....
...rdicts.” However, at issue
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with this finding is that E Coast’s claim for ejectment is entirely based on its
claim to immediate possession of the property pursuant to the tax deed and,
by implication, section 197.562....
...In this case, there is no
potential for the trial court to make findings that are mutually exclusive. If the
trial court were to consider the merits E Coast’s complaint and motion and
the defenses presented by Delia and determine that E Coast was entitled to
immediate possession under section 197.562, then logically E Coast’s
ejectment claim would be moot. E Coast would not need to pursue a claim
for ejectment if the writ were granted because the trial court would issue an
order “directing the sheriff to put” E Coast in possession of the property. §
197.562, Fla....
...The trial court thus erred in denying the motion for writ on
this basis. Accordingly, we reverse and remand with instructions for the trial
court to conduct a hearing on E Coast’s motion for a writ of possession
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consistent with section 197.562.2
Reversed and remanded with instructions.
2
E Coast and Delia both discuss the merits of Delia’s defenses in their briefs.
However, as the trial court did not address this issue below, this court will
not do so in the first instance on appeal....
