IN THE SUPREME COURT OF FLORIDA. CASE NO. SC10-90 / SC10-91 (Consolidated) (Lower Tribunal Case No. s 3D08-944, )

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC10-90 / SC10-91 (Consolidated) (Lower Tribunal Case No. s 3D08-944, ) JOEL W. ROBBINS (Miami-Dade County Property Appraiser); IAN YORTY (Miami-Dade County Tax Collector) and RU4REAL, INC. Petitioners, vs. VILLAGE OF DORAL PLACE ASSOCIATION, INC. Respondent. ON PETITION FOR DISCRETIONARY REVIEW OF A DECISION OF THE THIRD DISTRICT COURT OF APPEAL VILLAGE OF DORAL PLACE ASSOCIATION, INC. S ANSWER BRIEF IN OPPOSITION TO JURISDICTIONAL BRIEFS FILED BY PETITIONERS Miami Tower 100 S.E. Second Street, 36 th Floor Miami, Florida Telephone: (786) Facsimile: (786) Frank Colonnelli, Jr. Esq. Florida Bar No fcolonnelli@boydlawgroup.com Attorneys for Respondent Village of Doral Place Association, Inc.

2 TABLE OF CONTENTS A. TABLE OF AUTHORITIES iii-iv B. SUMMARY ARGUMENT.. 1 C. STATEMENT OF CASE AND FACTS D. PETITIONERS REQUEST FOR DISCRETIONARY REVIEW MUST BE DENIED BECAUSE THE THIRD DISTRICT COURT S DECISION IS NOT IN DIRECT OR EXPRESS CONFLICT WITH ANY DECISIONS OF THE FLORIDA SUPREME COURT OR ANY OTHER DISTRICT COURT OF APPEAL 3-7 E. PETITIONERS REQUEST FOR DISCRETIONARY REVIEW MUST BE DENIED BECAUSE THE THIRD DISTRICT COURT S DECISION DOES NOT EXPRESSLY OR DIRECTLY AFFECT A CLASS OF CONSTITUTIONAL OR STATE OFFICERS. 7-8 F. CONCLUSION.. 8 G. CERTIFICATE OF SERVICE. 10 H. CERTIFICATE OF COMPLIANCE 11 ii

3 A. TABLE OF AUTHORITIES CASES Bank United Financial Corp. v. Markham 763 So.2d 1072 (Fla. 4 th DCA 1999)... 4, 6-7 Dade County Taxing Auths v. Cedars of Lebanon Hosp. Corp. 355 So.2d 1202 (Fla. 1978).. 4, 6-7 Evans v. State 229 So.2d 261 (Fla. 1969) 7-8 First Union Nat l Bank v. Turney 832 So.2d 768, 769 (Fla.1 st DCA 2002) 4 Hidden Bay Master Assoc, Inc., v. Miami-Dade County 938 So.2d 599 (Fla. 3 rd DCA 2006).. 4, 6-7 Lake Worth Towers, Inc. v. Gerstung 262 So.2d 1 (Fla. 1972). 4-5, 6-7 Lanier v. Overstreet 175 So.2d 521 (Fla. 1965). 5, 6-7 Overstreet v. Frederick B. Cooper Co. 134 So.2d 224 (Fla. 1961). 7 Parrish v. Pier Club Apartments, LLC 900 So.2d 683 (Fla. 4 th DCA 2005).. 5, 6-7 School Board of Pinellas County v. District Court of Appeal, Second 467 So.2d 985 (Fla. 1985).. 7 Village of Doral Place Association, Inc. v. RU4Real, Inc., et al. 22 So.3d 627 (Fla. 3d DCA 2009). 1-3 iii

4 Ward v. Brown 894 So.2d 811, 816 (Fla. 2004) 5, 6-7 Zingale v. Powell 885 So.2d 277, 285 (Fla. 2004) 5, 6-7 STATUTES Section (1), Florida Statutes (2003). 3 Section (5), Florida Statutes (2003).. 2 Section (2), Florida Statutes (2003) Section (2)(a), Florida Statutes (2003).. 6 Section , Florida Statutes (2003) , 5-6 Section (1), Florida Statutes (2003).. 2 RULES OF APPELLATE PROCEDURE Fla. R. App. P (a)(2)(A)(iii-iv)... 1 OTHER AUTHORITIES Article V, Section 3(b)(3) of the Florida Constitution 4-7 iv

5 B. SUMMARY ARGUMENT Petitioners Miami-Dade County Property Appraiser and Tax Collector ( Miami-Dade County ) and RU4Real, Inc. ( RU4Real ) seek to invoke the Florida Supreme Court s discretionary jurisdiction to review a written opinion entered by the Third District Court of Appeal on October 14, 2009 (the Third District Court s Decision ) pursuant to Fla. R. App. P (a)(2)(A)(iii-iv). See Village of Doral Place Association, Inc. v. RU4Real, Inc., et al., 22 So.3d 627 (Fla. 3d DCA 2009)(Rehearing and Rehearing En Banc denied Dec. 15, 2009). The Third District Court s Decision effectively denied the Petitioners attempt to uphold an illegal tax sale of condominium property. This decision does not directly or expressly conflict with any decisions of the Florida Supreme Court or any other District Court of Appeal. It also does not affect other constitutional or state officers and has no adverse impact whatsoever on the collection of property taxes or proceeds from tax sales in the State of Florida. Indeed, Petitioner s attempt to uphold an illegal tax sale is not a matter of exceptional importance for Florida jurisprudence and there is no legal basis to invoke the Florida Supreme Court s discretionary jurisdiction to review this decision. Accordingly, the Petitioners request to invoke the Florida Supreme Court s discretionary jurisdiction must be denied. 1

6 C. STATEMENT OF THE CASE AND FACTS The Village of Doral filed its action in the 11 th Circuit Court of Miami-Dade County, Florida to set aside an erroneous and illegal tax deed after its condominium property and swimming pool was sold in a tax sale and to restore the unit owner s access to such property. The 11 th Circuit Court declined to set aside the tax deed, but concluded that the tax deed purchasers took title subject to the unit owners rights to use and enjoy the swimming pool. The Village of Doral appealed and the purchasers cross-appealed. Village of Doral, 22 So.3d at 627. The main question on appeal was whether a part of the condominium s common area, the swimming pool, could be sold by tax deed after the Association failed to pay the tax bill. 1 The Third District Court of Appeal concluded that the answer is no and held that (1) the swimming pool was a common element of the condominium that could not be separately sold pursuant to Section , Florida Statutes (2003); (2) Section (2), Florida Statutes (2003) was not 1 Taxes for this Common Area and Swimming Pool were not paid because the proper and appropriate taxpayers were never provided notice of any property taxes being owed, despite statutory requirements which obligate the local taxing authority to proportionately tax the unit owners, rather than the Association as a whole. See Sections (5) and (1), Florida Statutes. Consequently, no taxes were paid and this Common Area and Swimming Pool were sold in an erroneous and illegal tax sale which is expressly prohibited by law. See Section , Florida Statutes. In deed, the unit owners were not even provided notice of the impending tax sale, which was also a violation of their constitutional right to due process. 2

7 applicable as this statute bars actions to contest tax assessments more than sixty (60) days after the assessment is certified for collection; and (3) Section (1), Florida Statutes (2003) was also not applicable because this statute provides that no attack on a tax deed shall be made other than when the taxes had been paid before issuance of the tax deed. Village of Doral, 22 So.3d at The Petitioners now challenge and disagree with the Third District Court of Appeal s conclusions and proceed with rearguing the entire merits of the case in an attempt to uphold the illegal tax sale. It is the Village of Doral s position that the Third District Court of Appeal correctly concluded that Florida Statutes will not be construed to reach an absurd result as sought by Petitioners. This matter was already considered and passed upon by a unanimous panel decision, which concluded that Section , Florida Statutes retains its field of operation and prohibits separate sale of the common elements of a condominium, including separate sale for a tax deed. Id. at 631. D. PETITIONERS REQUEST FOR DISCRETIONARY REVIEW MUST BE DENIED BECAUSE THE THIRD DISTRICT COURT S DECISION IS NOT IN DIRECT OR EXPRESS CONFLICT WITH ANY DECISIONS OF THE FLORIDA SUPREME COURT OR ANY OTHER DISTRICT COURT OF APPEAL Petitioners request the Florida Supreme Court to invoke its discretionary jurisdiction to review the Third District Court s Decision because they argue that it 3

8 expressly and directly conflicts with a decision of another district court of appeal or of the Florida Supreme Court on the same question of law. However, review under Article V, Section 3(b)(3) of the Florida Constitution (requiring express and direct conflict) is unavailable where the opinion below establishes no point of law contrary to a decision of th[e Supreme] Court [of Florida] or another district court. First Union Nat l Bank v. Turney, 832 So.2d 768, 769 (Fla.1 st DCA 2002)(citing The Florida Star v. B.J.F., 530 So.2d 286, 289 (Fla. 1988). There is no conflict with any other opinions or other rules of law cited in the Petitioners Jurisdictional Briefs. This is because they rely upon legal authority and opinions which do not involve the same controlling facts. Petitioners have attempted to shoe-horn this case into an assessment value or classification issue. Petitioners primarily rely upon Section (2), Florida Statutes ( the Sixty- Day Jurisdictional Statute of Non-Claim) which they argue barred the Village of Doral s action to challenge the illegal tax sale of their condominium common area. In support of their appellate arguments, Petitioners rely upon case law which has no application to the facts of this case. See Bank United Financial Corp. v. Markham, 763 So.2d 1072 (Fla. 4 th DCA 1999); Dade County Taxing Auths v. Cedars of Lebanon Hosp. Corp., 355 So.2d 1202 (Fla. 1978); Hidden Bay Master Assoc, Inc., v. Miami-Dade County, 938 So.2d 599 (Fla. 3 rd DCA 2006); Lake 4

9 Worth Towers, Inc. v. Gerstung, 262 So.2d 1 (Fla. 1972); Lanier v. Overstreet, 175 So.2d 521 (Fla. 1965); Parrish v. Pier Club Apartments, LLC, 900 So.2d 683 (Fla. 4 th DCA 2005); Ward v. Brown, 894 So.2d 811, 816 (Fla. 2004) and Zingale v. Powell, 885 So.2d 277, 285 (Fla. 2004). All cases cited by the Petitioners have absolutely no application to challenging the legal basis of a tax sale, especially when as here, the tax sale was prohibited by law. Section (2) provides that no action shall be brought to contest a tax assessment after sixty (60) days from the date the assessment being contested is certified for collection. The legal authority relied upon by the Petitioners only bar actions which seek relief to reduce tax revenue or to dispute the value of any taxes owed or assessment values that are determined on January 1 st of every year. Generally, every case challenging the Sixty-Day Statute on Non- Claim does so to obtain a reduction or adjustment in the amount of taxes owed. Here, the Village of Doral never attempted to seek any relief which would have reduced the tax revenue that was already collected or potentially expended, nor did it challenge the assessment value or any taxes owed. However, the Village of Doral did claim that its common area, condominium property, was prohibited from being sold separately pursuant to Section Accordingly, Section (2) is inapplicable to the facts of this case. 5

10 The Third District Court of Appeal agreed that the Village of Doral s claim was not a challenge to the assessment, and thus was not barred by Section (2). Moreover, the Third District Court of Appeal further acknowledged that the legislature has specifically provided that there shall pass with each condominium unit an undivided share in the common elements, that the separate sale of such common elements is prohibited and the share in the common elements pertinent to a unit cannot be conveyed or encumbered except together with the unit. See Sections (2)(a) and (2). These concepts are basic to the ownership interests in a condominium. The Third District Court of Appeal fully explained its analysis, conclusions and all of these same factual and legal issues had already received careful attention by the judges on appeal. The panel s unanimous decision further concluded that statutes will not be construed so as to reach an absurd result and that Section retains its field of operation and prohibits separate sale of the common elements of a condominium, including separate sale for a tax deed. None of the cases cited by Petitioners in support of their Jurisdictional Briefs involve any facts related to tax deeds or whether the common elements of a condominium property could be separately sold. Thus, Bank United, Dade County Taxing Auths., Hidden Bay, Lake Worth Towers, Lanier, Parrish, Ward and 6

11 Zingale do not involve the same controlling facts, and therefore, there is no conflict. E. PETITIONERS REQUEST FOR DISCRETIONARY REVIEW MUST BE DENIED BECAUSE THE THIRD DISTRICT COURT S DECISION DOES NOT EXPRESSLY OR DIRECTLY AFFECT A CLASS OF CONSTITUTIONAL OR STATE OFFICERS Petitioners also request the Florida Supreme Court to invoke its discretionary jurisdiction to review the Third District Court s Decision because they allege it expressly and directly affects a class of constitutional or state officers. However, review under Article V, Section 3(b)(3) of the Florida Constitution is unavailable where there is nothing in the district court decision that affects other constitutional or state officers. School Board of Pinellas County v. District Court of Appeal, Second, 467 So.2d 985 (Fla. 1985). The Third District Court s Decision denied the Petitioners attempt to uphold an illegal tax sale of condominium property. Clearly, there is nothing in this decision which would affect other constitutional or state officers, nor would it adversely affect the collection of property taxes or proceeds from tax sales in the State of Florida. Id.; see also Overstreet v. Frederick B. Cooper Co., 134 So.2d 224 (Fla. 1961)(action to annul property tax assessment was not one affecting class of constitutional or state officers); Evans v. State, 229 So.2d 261 (Fla. 7

12 1969)(decisions concerning jurisdictional time limits do not affect a class of constitutional or state officers). The statutorily-enacted time frame for the orderly and date-certain assessment of property on January 1 st of every year and the collection of ad valorem tax revenue remains unaffected by the Third District Court s Decision which merely holds that part of a condominium common area, such as a swimming pool, cannot be sold by tax deed pursuant to Florida law. The reasons cited by the Third District Court of Appeal are supported by the basic concepts of Florida condominium law. F. CONCLUSION The Petitioners attempt to uphold an illegal tax sale of condominium property is not a matter of exceptional importance for Florida jurisprudence and there is no legal basis to invoke the Florida Supreme Court s discretionary jurisdiction to review the Third District Court of Appeal s Decision. There is no direct or express conflict with any decisions of the Florida Supreme Court or any other District Court of Appeal and there is no express or direct affect on a class of constitutional or state officers. Accordingly, the Petitioners request to invoke the Florida Supreme Court s discretionary jurisdiction must be denied. 8

13 Dated: March 4, 2010 Miami, Florida Respectfully submitted, Miami Tower 100 S.E. Second Street, 36 th Floor Miami, Florida Telephone: (786) Facsimile: (786) Frank Colonnelli, Jr. Esq. Florida Bar No Attorneys for Respondent Village of Doral Place Association, Inc. 9

14 G. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of The Village of Doral Place, Inc. s Answer Brief in Opposition to Jurisdictional Briefs filed by Petitioners has been furnished via U.S. Mail and this 4 th day of March 2010 to: R.A. Cuevas, Jr. Esq., Alexander S. Bokor, Esq. and Craig Leen, Esq., Miami-Dade County Attorney, 111 N.W. First Street, Suite 2800, Miami, Florida 33128; Deborah Marks, Esq., 999 Brickell Bay Drive, Suite 1809, Miami, Florida and Steven L. Jones, Esq., Jones, Larson and Jones, 9999 NE 2 nd Avenue, Suite 216, Miami Shores, Florida Miami Tower 100 S.E. Second Street, 36 th Floor Miami, Florida Telephone: (786) Facsimile: (786) Frank Colonnelli, Jr. Esq. Florida Bar No fcolonnelli@boydlawgroup.com Attorneys for Respondent Village of Doral Place Association, Inc. 10

15 H. CERTIFICATE OF COMPLIANCE FRANK COLONNELLI, JR., ESQ. and attorney authorized to practice law before the courts of the State of Florida, certifies as follows: Respondent The Village of Doral Place Association, Inc. s Answer Brief in Opposition to Jurisdictional Briefs filed by Petitioners complies with the typeface requirements of Fla. R. App. P (a)(2) as this Answer Brief has been prepared in proportionally-spaced typeface using Microsoft Word in Times New Roman 14- point type. Dated: March 4, 2010 Miami, Florida Miami Tower 100 S.E. Second Street, 36 th Floor Miami, Florida Telephone: (786) Facsimile: (786) Frank Colonnelli, Jr. Esq. Florida Bar No fcolonnelli@boydlawgroup.com Attorneys for Respondent Village of Doral Place Association, Inc. 11