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Docket Number

No. 77-925.

Attorney(S)

John T. Allen, Jr., P.A., St. Petersburg, for appellant. David B. Kesler of Law Offices of W.A. Heth, St. Petersburg, for appellee Allen. No appearance for appellee R.M. Crow Co.

Judges

GRIMES, Acting Chief Judge.

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Smart Summary

Summary of Opinion — James Hellinger a/k/a Jim Hellinger v. Larry K. Allen and R.M. Crow Company

Factual and Procedural Background

R.M. Crow Company obtained a final judgment for $408.94 against James Hellinger on July 22, 1971, in the Civil and Criminal Court of Record of Pinellas County. A writ of execution was issued on July 27, 1971, and docketed with the sheriff's department the following day. The writ remained dormant for several years as the judgment was deemed uncollectible.

In 1976 Crow discovered Hellinger owned an office building described in the record (addressed in various parts of the record as 2640 Central Avenue and 2646 Central Avenue, St. Petersburg, Florida). Instructions for levy were issued to the sheriff's department. On November 22, 1976, the sheriff's department mailed a notice of sheriff's sale and instructions for levy to the appellant at 2640 Central Avenue. That mailed notice stated the property would be sold on Monday, January 3, 1976, at 11:00 a.m.

The sheriff also published a statutory notice in a Pinellas County newspaper on November 26 and December 3, 10, and 17, 1976. The published notice contained an erroneous statement of the date of execution issuance and an erroneous sale date (it stated the sale would occur January 3, 1976). A deputy hand-delivered instructions for levy and a notice of levy to one of Hellinger's sons inside the premises and posted notice on the door; these hand-delivered notices did not state the sale date.

Hellinger took the instructions for levy to his attorney, who communicated with Crow's counsel; the attorney later was informed the judgment had not been paid. Hellinger's counsel was not made aware of the sale date. The sheriff conducted the sale on Monday, January 3, 1977, at 11:00 a.m., at which Larry Allen bid $40.30 and a sheriff's deed issued to Allen.

After learning of the sale, Hellinger filed a motion to vacate the sale. Crow responded and Allen intervened. At the hearing Hellinger testified regarding the property's purchase price (about $45,000 roughly a year earlier), improvements of about $5,000, mortgages encumbering the property (mortgages of $17,400 and $15,000, with the balance on the first mortgage approximately $15,000), and other unsatisfied judgments totaling $460.88. The trial court denied the motion to vacate. Hellinger appealed the post-judgment order; this opinion is the appellate disposition of that appeal.

Legal Issues Presented

Whether the published notice of sheriff's sale was defective (including whether errors in the published notice concerning the issuing court, date of issuance of the execution, property address, and the sale date rendered the notice invalid).
Whether the levy was improper because it was based on a writ of execution issued by the Civil and Criminal Court of Record of Pinellas County, a court that the appellant contends was abolished by the 1972 amendment to Article V of Florida's Constitution, requiring reissuance of a writ by the successor county court.

Arguments of the Parties

Appellant's Arguments

The published notice was defective because it identified the issuing court as the "County Civil and Criminal Court of Record," a court which the appellant asserts no longer exists following the 1972 constitutional amendment.
The notice misstated the date of issuance of the execution (the published notice stated the execution issued on July 22, 1976, whereas the execution was in fact issued on July 27, 1971).
The property address in the published notice was incorrect (the notice stated 2640 Central Avenue while the correct address was 2646 Central Avenue, according to the appellant).
The published notice stated the sale date as January 3, 1976, whereas the sale actually occurred on January 3, 1977.
The levy itself was improper because it was based on a writ issued by a court that appellant contends had been abolished; Crow should have applied to the current county court for issuance of a new writ.

The opinion does not set out a detailed account of the appellees' legal arguments in the record.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ohio Realty Investment Corp. v. Southern Bank of West Palm Beach, 300 So.2d 679 (Fla. 1974)	That a defective notice of sale, when coupled with evidence of an inadequate bid, is sufficient to set aside a judicial sale.	The court invoked this precedent to support the conclusion that the defective published notice (incorrect sale date) together with evidence of an inadequate bid warranted setting aside the sale.
Ruff v. Guaranty Title Trust Co., 99 Fla. 197, 126 So. 383 (1930)	That mere inadequacy of price alone usually does not invalidate a judicial sale, but inadequacy connected with mistake, accident, surprise, misconduct, fraud, or irregularity will generally justify setting aside the sale.	The court cited this authority to explain the established rule that inadequacy of price combined with irregularity (here, defective notice) permits setting aside the sale.

Court's Reasoning and Analysis

The court first stated it need not address appellant's attack on the writ of execution (the contention concerning the abolished court and reissuance of a writ). Instead, the court focused on the published notice of sale. The court determined the published notice was defective because it incorrectly published the sale date (it stated January 3, 1976, rather than the actual sale date of January 3, 1977).

The court explained that although the law trends toward disregarding mere technicalities, publication of a proper notice of sale is more than a technicality. The purpose of publication is to inform the public so that competitive bidding will more likely achieve a sale price reasonably commensurate with market value. Therefore, at minimum, the notice must advise prospective bidders of the correct date, time, and place of the sale.

The court rejected any notion that it could take judicial notice of a common habit of referring to the prior year when stating dates (the opinion quoted the statement: ". . . every January of every new year, many, many people refer to the prior year in using the date.") and said no authority allowed that approach to supply a correct sale date in a published notice. The court observed that even if appellant might be charged with knowledge of when the sale would occur, that personal knowledge does not satisfy the statutory requirement of proper public notice.

The court then applied the principle from Ohio Realty — that a defective notice combined with evidence of an inadequate bid suffices to set aside a judicial sale — and the Ruff rule that inadequacy linked to an irregularity justifies vacation of a sale. Based on the defective published notice (wrong sale date) and the circumstances (including the inadequacy of the bid of $40.30 compared to the property's purchase price and encumbrances), the court concluded the sale should be set aside.

Holding and Implications

Holding: The appellate court reversed the trial court's order denying the motion to vacate and set aside the sheriff's sale.

Implications:

Direct effect: The order denying the motion to vacate is reversed and the sale is set aside; the property may be resold at judicial sale upon proper notice.
Scope: The court expressly did not resolve the appellant's challenge to the validity of the original writ based on the alleged abolition of the issuing court; that issue was not reached.
Precedential effect: The opinion rests on established Florida authority (Ohio Realty and Ruff) applying the principle that an inadequate sale price coupled with a procedural irregularity (defective notice) justifies setting aside a judicial sale. The opinion does not announce a new legal rule beyond those cited; it applies those precedents to the facts at hand.

If any particular category above contained no information in the provided opinion, a standardized explanatory note was used in place of missing content as required.

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JAMES HELINGER A/K/A JIM HELINGER, APPELLANT, v. LARRY K. ALLEN AND R.M. CROW COMPANY, APPELLEES.

GRIMES, Acting Chief Judge.

This appeal attacks the propriety of a sheriff's sale which was conducted to satisfy a judgment lien.

On July 22, 1971, R.M. Crow Company obtained a final judgment of $408.94 against the appellant in the Civil and Criminal Court of Record of Pinellas County. A writ of execution was issued on July 27, 1971, and was docketed with the sheriff's department the following day. The writ of execution laid dormant for several years because the judgment was deemed to be uncollectible.

In 1976 Crow learned that the appellant owned some real property which would lend itself to levy. The property was an office building located at 2646 Central Avenue, St. Petersburg, Florida. Instructions for levy were issued to the sheriff's department.

On November 22, 1976, the sheriff's department mailed a notice of sheriff's sale and a copy of the instructions for levy to the appellant at 2640 Central Avenue, St. Petersburg, Florida. The notice stated that the property would be sold at public sale on Monday, January 3, 1976, at 11:00 a.m.

Pursuant to Section 56.21, Florida Statutes (1975), the sheriff's department also caused the following notice to be published in a Pinellas County newspaper on November 26 and December 3, 10, 17, 1976:

"NOTICE OF SHERIFF'S SALE IN THE CIVIL AND CRIMINAL COURT OF RECORD OF PINELLAS COUNTY, FLORIDA

Case # 32,889

R.M. CROW COMPANY PLAINTIFF VS. JAMES HELINGER, ETC. DEFENDANT

NOTICE IS HEREBY GIVEN that I, WM. T. `BILL' ROBERTS, Sheriff of Pinellas County, Florida, by virtue of an Execution issued out of the above styled court on the 22nd day of July A.D., 1976, in the above styled cause, on behalf of the Plaintiff, R.M. CROW COMPANY have made levy upon the following described property:

Lot 6, Block 23, Hall's Central Avenue, Sub # 1, Plat Bk 3, Page 39, Pinellas County, Florida aka 2640 Central Avenue, St. Petersburg, Florida

as the property of the above name defendant, JAMES HELINGER and further, I shall offer this property for sale `AS IS' `WHERE IS' and subject to all prior liens and encumbrances, if any, and without recourse, on Monday, the 3rd day of January A.D., 1976, at 11:00 A.M. at 315 Haven Street, Clearwater, Florida and will sell to the highest cash bidder, all right, title and interest of said defendant, JAMES HELINGER in said property.

DATED at Clearwater, Pinellas County, Florida, this 19th day of November A.D., 1976.

WM. T. `BILL' ROBERTS, Sheriff Pinellas County, Florida By /s/ Robert J. Falk, Lieutenant Services Division

NIXON and FARNELL, Attys. 521 Oak Avenue Clearwater, Florida 33516 PR — November 26; December 3, 10, 17, 1976"

A deputy sheriff hand delivered a copy of the instructions for levy and a sheriff's notice of levy to one of the appellant's sons inside the premises which were to be sold. The deputy also posted a copy of the notice of levy on the door of the premises. The date of the sale was not mentioned in either the instructions for levy or the notice of levy.

Appellant took the instructions for levy to his lawyer. The appellant's attorney told Crow's counsel that appellant thought he had paid the judgment. Crow's lawyer said he would check this out and call back. He later advised appellant's attorney that Crow had not been paid. Appellant's counsel was never aware of the sale date, though he obviously had to have known that a sale was in the offing. While the scheduled date of the sale was not discussed during the two telephone conversations, there was nothing said between counsel which could be construed as a promise by Crow's attorney to forego the sale.

The property was auctioned off at the courthouse on Monday, January 3, 1977, at 11:00 a.m. Larry Allen bid in the property for $40.30. A sheriff's deed was issued to Mr. Allen.

Appellant learned of the sale a short time after it took place. He filed a motion to vacate the sale. Crow responded and Larry Allen intervened. At the hearing on the motion to vacate, appellant testified that he had purchased the property about a year before for $45,000 and had since made about $5,000 worth of improvements on it. The record reflected that the property was encumbered by mortgages of $17,400 and $15,000. Appellant testified that the balance owed on the first mortgage was approximately $15,000. He contended that the second mortgage had been paid, but there was no satisfaction on record. The record also contained at least two other unsatisfied judgments against appellant totalling $460.88. The appellant admitted receiving the instructions for levy mailed by the sheriff. He denied knowing of the date of the sale until after it occurred. The court denied the motion to vacate, and appellant has filed this interlocutory appeal from the post-judgment order.

Appellant argues that the published notice was defective because:

(1) The court is wrong. There is no longer a County Civil and Criminal Court of Record. Its jurisdiction has been replaced by the County Court.

(2) The date of issue of the execution is wrong since the notice stated it to be the 22nd day of July, 1976, when the execution was actually issued on the 27th day of July, 1971.

(3) The address of the property is stated incorrectly as 2640 Central Avenue whereas the correct address is 2646 Central Avenue.

(4) The date of sale is incorrectly stated in the notice as the 3rd day of January, 1976, when the correct date of the sale was the 3rd day of January, 1977.

Appellant also argues that the levy was improper because it was based upon a writ of execution issued by the Civil and Criminal Court of Record of Pinellas County which was abolished by the 1972 amendment to Article V of Florida's Constitution. He contends that Crow should have applied to the present county court for issuance of a second writ of execution upon the judgment.

We need not reach appellant's attack on the writ of execution. We hold that the notice of sale was defective because the date of the sale was incorrectly published. The defective notice when coupled with evidence of an inadequate bid is sufficient to set aside the sale. Ohio Realty Investment Corp. v. Southern Bank of West Palm Beach, 300 So.2d 679 at 681 (Fla. 1974).

The trend of the law is to disregard technicalities. Yet, the publication of a proper notice of sale is more than a technicality. The purpose behind requiring publication of a notice of sale is that if the public at large knows of a forthcoming sale, there is more likelihood of the property being sold at a price which is reasonably commensurate with its full market value. At the very least, the notice should advise prospective bidders of the correct date, time, and place of the sale. We know of no authority which permitted the court below to take judicial notice that

". . . every January of every new year, many, many people refer to the prior year in using the date."

While under the facts of this case appellant could probably be charged with the knowledge of when the sale was going to take place, this does not satisfy the requirement of proper notice to the public.

As the Supreme Court said in Ruff v. Guaranty Title Trust Co., 99 Fla. 197, 126 So. 383 (1930):

". . . [T]he general rule is that mere inadequacy of price is not sufficient to set aside a judicial sale, but, `where such inadequacy is connected with, or shown to result from, any mistake, accident, surprise, misconduct, fraud, or irregularity, the sale will generally be set aside.' . . ."

The order denying the motion to vacate is reversed, and the sale is hereby set aside. The property may be resold at judicial sale upon proper notice.

OTT, J., and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.

HELINGER v. ALLEN