IN THE SUPREME COURT OF FLORIDA CASE NO. SC LOWER TRIBUNAL CASE NO. 4D

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC LOWER TRIBUNAL CASE NO. 4D MARYLIN BARON, individually and as trustee, and RONALD I. BARON, individually, Petitioners, vs. ERRICT RHETT, and ERRICT RHETT YOUTH FOUNDATION, INC., a Florida nonprofit corporation, Respondents. ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT RESPONDENTS ANSWER BRIEF ON THE MERITS FELDMAN, GALE & WEBER, P.A. Gregg H. Metzger, Esq. Jeffrey D. Feldman, Esq. Miami Center, 19th Floor 201 South Biscayne Boulevard Miami, Florida Telephone:

2 TABLE OF CONTENTS INTRODUCTION.. 1 STATEMENT OF THE CASE AND FACTS. 5 STATEMENT REGARDING WHETHER OR TO WHAT EXTENT THIS COURT SHOULD DECLINE JURISDICTION. 21 SUMMARY OF THE ARGUMENT ON THE MERITS. 24 ARGUMENT ON THE MERITS I. The Fourth District Correctly Held When the clerk Fails To Schedule a Tax Sale and Mail Notice Thereof Within a Reasonable Time After The Filing of an Application For a Tax Deed, And a New Tax Roll Assessment Intervenes During such Period Of Delay, The Clerk Must Obtain An Updated Statement From The Tax Collector For Notification Purposes Under Section (1)(A), Florida Statutes and Requiring A Current Tax Collector s Statement Comports With The Due Process Requirements of Chapter 197 To Provide Notice To Interested Persons Before Real Property is Sold For The Collection of Delinquent Taxes. 26 II. III. The Fourth District Correctly Upheld The Trial Court s Ruling That The Administrator Breached Its Obligation To Schedule A Tax Sale of The property and Mail Statutory Notice Thereof Within A Reasonable Time After The Filing Of The Application For Tax Deed With Respect to Mr. Rhett.. 35 The Fourth District Correctly Adopted The Reasoning Of Judge Ervin s Dissent In Delta. 44 CONCLUSION 46 i

3 TABLE OF AUTHORITIES Page(s) 1. Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corporation 537 So.2d 726, 562 (Fla. 1989) Bullock v. Houston Realty & Investment, Inc. 739 So.2d 1251, 1253 (Fla. 4 th DCA 1999) Dawson v. Saada 608 So.2d 806 (Fla. 1992) 20, 28, 31, 32, 33, 34, 35, 36, 40, Delta Property Management v. Profile Investments, Inc. 830 So.2d 867 (Fla. 1 st DCA 2002) 22, 23, 24, 25, 37, Evans v. Ireland, 707 So.2d 1135 (Fla. 2 nd 1998) 19, 20, 42, 43, HRS v. Franklin, 630 So.2d 661 (Fla.2 nd DCA 1994) Kelly v. Community Hospital of the Palm Beaches, Inc. 818 So.2d 469, 470 n. 1 (Fla. 2002) Kerr v. Broward County, 718 So.2d 197, 199 (Fla. 4 th DCA 1998) Mennonite Board of Missions v. Adams 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983) 27, 28, 29, 32, 33, 34, 35, 36, 38, 39, 41, 47, Mullane v. Central Hanover Bank & Trust 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). 27, 29, 31, 32, 33, 34, 35 ii

4 11. State v. Brake, 796 So.2d 522 (Fla. 2001) Terra Mar Capital, Inc. v. T.D. Realty, Inc. 694 So.2d 779 (Fla. 4 th DCA 1997) Zipperer v. City of Fort Myers, 41 F.3d 619, (11 th Cir. 1995) 39 Other Authorities Florida Statutes , 20, 29, 31, 32, 33, 40, 41, 42, 46, 49 Florida Statutes , 4, 5, 19, 21, 23, 28, 30, 31, 33, 34, 35, 36, 37, 39, 49 iii

5 INTRODUCTION Petitioners, Marilyn S. Baron and Ronald I. Baron (collectively the Barons ), seek reversal of the cancellation of their tax deed and quieting title in favor of Respondent, Errict Rhett. The trial court ruled in favor of Mr. Rhett and Respondent, Errict Rhett Youth Foundation, Inc. (the Foundation ), upon holding that the Broward County Administrator (the Administrator ) failed to comply with its statutory, or alternatively constitutional, obligation to schedule a tax sale on the subject property and mail statutory notice thereof to interested persons of record within a reasonable time after the filing of the application for tax deed. The District Court of Appeal of Florida, Fourth District (the Fourth District ) affirmed, specifically holding: [W]hen the clerk fails to schedule a tax sale and mail notice thereof within a reasonable time after the filing of an application for a tax deed, and a new tax roll assessment intervenes during such period of delay, the clerk must obtain an updated statement from the tax collector for notification purposes under section (1)(a), Florida Statutes. This requirement calls for no independent research and imposes minimal efforts on the clerk's part. More important, requiring a current tax collector's statement comports with the due process requirements of Chapter 197 to provide notice to interested persons before real property is sold for the collection of delinquent taxes. A. 1 at 4. 1 (Emphasis supplied). Significantly, in neither the trial court, the Fourth District nor even this proceeding have the Barons attempted to take issue with the basic proposition that the clerk, or in the case of Broward County, the 1 The symbol A. at refers to portions of the Appendix to this Answer Brief and specific pages of such portions. A. 1 refers to the Fourth District s decision of filed on May 14, The decision is reported at 847 So.2d

6 Administrator, has a statutory, or alternatively constitutional, obligation to schedule a tax sale and mail statutory notice thereof to interested persons of record within a reasonable time after the filing of the application for tax deed. Nevertheless, the Barons continue to fight tooth and nail to reap an unconscionable windfall at the expense of Respondents and the underprivileged family for whose benefit Respondents expended approximately $80,000 to purchase the subject residential property and make it fit for occupancy. The Administrator waited more than five months after the April 5, 2001 filing of an application for tax deed to schedule an October 17, 2001 tax sale of the subject property and mail notice thereof. By the time the Administrator set the October 17 th tax sale and mailed notice thereof on September 27, 2001, Mr. Rhett: (i) already had acquired a record interest in the subject property: (ii) Mr. Rhett already had made substantial improvements to the subject property over the course of several months pursuant to county permits, (iii) the subject property already had been assessed to Mr. Rhett on the county s tax roll, and (iv) Mr. Rhett already had been sent notice as the property s taxpayer of record, and the tax collector s April 16, 2001 title search, upon which the Administrator relied on September 27, 2001 when it finally sent notice of the impending October 17 th tax sale, had become stale. The Administrator thus did not mail advance notice of the impending tax sale to Mr. Rhett, even though Mr. Rhett held an interest of record and was the taxpayer of record with respect to the subject property at the time the Administrator mailed the notice on September 27, The Administrator s delay in setting the tax sale and mailing notice thereof, and its consequential reliance upon 2

7 a stale title search enabled the Barons to procure their tax deed for only $1, at enormous cost to Respondents as well as the underprivileged family for whom Respondents spent their time, effort and money on the subject property during the months that the Administrator sat on the application for tax deed. One of the more outrageous facets of this case is the Barons treatment of Florida s property tax scheme as some kind of an in your face game. Mr. Baron undisputedly boasted to Mr. Rhett that he observed Mr. Rhett s work on the subject property over the course of the several months that preceded the tax sale. The Barons are now vying to win this game of theirs in a quest to enjoy the fruits of the money and labor that Respondents poured into the subject property, for a charitable purpose no less, while the Barons secretly watched up to the day of the tax sale. The Baron s jaded view, however, thankfully does not carry the day. The law, as well as simple justice, supports the trial court s Final Summary Judgment for Plaintiffs/Counter-Defendants Quieting Title to Real Property (the Final Summary Judgment ) and the Fourth District s decision affirming it. 3

8 STATEMENT OF THE CASE AND FACTS The Barons Omissions The Barons make short shrift of the detailed undisputed facts upon which the trial court rested its well-reasoned Final Summary Judgment and the Fourth District affirmed. See Petitioners Initial Brief at 1-6. Omitted from their Statement of the Case and Facts is a recitation of, inter alia, undisputed particulars concerning: (i) Mr. Rhett s acquisition of a publicly recorded interest in the subject property, (ii) Mr. Rhett s overt record activity and treatment as the property s owner, and (iii) the county s having assessed the property to Mr. Rhett on the county s tax roll by the time the Administrator scheduled the October 17, 2001 tax sale and mailed notice thereof on September 27, (R at 3-11 & 20-21; R & 97-98; R at 3-13; R ; R at 3-7; R ; R at 1-9, & 40). 2 The Barons also fail to recount various salient aspects of the proceedings below or even to articulate, completely and accurately, the Fourth District s holding below. Respondents therefore consider it necessary to provide a more complete presentation of the undisputed facts and of the proceedings below. 2 Whenever used herein, the symbol R. at refers to portions of the original record on appeal in accordance with the Index to Volume on Appeal prepared by the trial court s Appellate Division and specific pages or paragraphs of such portions of the original record. The symbol T. at shall hereinafter refer to specific pages of the transcript of the June 11, 2002 summary judgment hearing with which the Barons moved to supplement the record in the Fourth District. 4

9 The Undisputed Facts On June 26, 2001, Deryl P. Lane and Mr. Rhett agreed that Mr. Rhett would purchase from Mr. Lane the subject residential property (the Property ) located in Broward County. (A. 1 at 1; R at 3; R at 3-4; R at p.2, 1). 3 The purchase price was $20,000, which Mr. Rhett paid. (A. 1 at 1; R at 3, 10 and 11; R at 3, 4, 10 and 11; R at p. 2, 1 and p. 3, 8 and 9). In connection with Mr. Rhett s purchase of the Property, Mr. Rhett met with Mr. Lane on June 26, 2001 at the office of Notary Public, Henry Lloyd, in Fort Lauderdale. (R at 4; R at 5; R at 4; R at p. 2, 2). 4 Mr. Lane met with Mr. Rhett on that occasion for the purpose of transferring the Property to Mr. Rhett by way of a certain Quitclaim Deed (the Deed ) that was subsequently recorded on June 28, 2001 in the Public Records of Broward County at Official Records Book 31782, Page (R at 5; R at 6; R at 5; R at p. 2, 3). Also in attendance at the meeting at Mr. Lloyd s office were Sterling Palmer and Alexander Robinson, who were to act as witnesses. (R at 6; R at 7; R at 6; R at p. 2, 4). Although Mr. Palmer and Mr. Robinson signed the Deed as witnesses, Mr. Rhett did not realize that Mr. Lane 3 R refers to the Affidavit of Errict Rhett, R refers to the Affidavit of Deryl P. Lane, and R refers to the Final Summary Judgment. 4 R refers to the Affidavit of Alexander Robinson. 5

10 had omitted to sign the Deed when Mr. Rhett had the Deed recorded June 28, (R at 7; R at 8; R at 7; R at p. 2, 5). When Mr. Rhett had the Deed recorded, it was his understanding and belief that Mr. Lane had conveyed the Property to him during the meeting of June 26, 2001 at Mr. Lloyd s office. (R at 8; R at p. 3, 6). Mr. Lane never had or voiced any concern or objection over Mr. Rhett s recordation of the Deed on June 28, (A. 1 at 1; R at 9; R at 9; R at p. 3, 7). In fact, Mr. Lane would later sign a corrective deed for no further consideration. (A. 1 at 1; R at 34; R at p. 8, 30). Mr. Rhett acquired the Property from Mr. Lane to pursue charitable endeavors by making it possible for a family in need to own and enjoy the Property as a home of its own. 5 (R at 14; R at p. 4, 12). At the time Mr. Rhett acquired the Property, a partially constructed home (the Home ) was situated thereon. (R at 15; R at p. 4, 13). Mr. Rhett, as well as his Foundation, would have to invest a substantial amount of money, time and labor for the Home to be completed and fit for occupancy. (R at 15 & 17-18; R at p. 4-5, 13 & 15-16). In or about 5 Mr. Rhett was a professional football player who was born and raised in Broward County. (R at 12; R at p. 3, 10). Mr. Rhett played in the N.F.L. through the season. (Id.). In or about May, 2000, Mr. Rhett decided it was time to give something back to his home community. (R at 13; R at p. 3, 11). On May 10, 2000, Mr. Rhett organized the Foundation to implement and fund charitable activities to make it possible for underprivileged families in Broward County to obtain homes of their own. (Id.). 6

11 July 2001, Mr. Rhett slated single mother, Sandra Davenport and her five children, to be the prospective beneficiaries of his charitable activities in connection with the Property. Mr. Rhett planned a step-by-step approach to enable Ms. Davenport and her children to live on the Property once the Home was completed and eventually to purchase the Property on terms that would be highly favorable to Ms. Davenport. 6 (R at 16; R at p. 4, 14). At the inception of the proceedings before the Fourth District, the Home was just short of being ready for a certificate of occupancy and the Home was even appointed with major appliances, flooring and a computer for each bedroom. (R at 18; R at p. 5, 16). 7 From June 28, 2001 to about November 10, 2001, Mr. Rhett, through the Foundation, expended approximately $60,000 toward completion of the Home. 6 After completion of the Home (including furnishing it with major appliances, flooring and even a computer for each bedroom), Mr. Rhett would lease the Property to Ms. Davenport for one year at a nominal monthly rent. (R at 16; R at p. 4, 14). At or near inception of Ms. Davenport s lease year, Mr. Rhett would obtain a $60, mortgage loan on the Property to carry the approximate amount expended by him, through the Foundation, to complete the Home. (Id.). If, during the course of the lease year, Ms. Davenport faithfully paid the nominal rent and otherwise met certain conditions of good standing (by acting responsibly while in possession of the Property), Rhett would arrange to sell the Property to Ms. Davenport on terms that were highly favorable to her. (Id.). Ms. Davenport would be permitted to purchase the Property either by assuming Mr. Rhett s then existing mortgage loan or, if more appropriate, by way of refinancing arranged by Mr. Rhett. (Id.). Mr. Rhett would thereby enable Ms. Davenport to purchase a home for herself and her children at a price that would be far less than the Home s actual value and without having to post any down payment. (Id.). 7 During the course of the Fourth District proceedings, the Property s status progressed, which will be the subject of Respondents Motion to Supplement the Record Concerning Present Status of Subject Property. 7

12 (A. 1 at 1; R at 17; R at p. 5 & 9, 15 & 39). These expenditures included sums for materials to meet mechanical, structural and other zoning requirements. (R at 17; R at p. 5 & 9, 15 & 39). The aforesaid expenditures were over and above the $20,000 that Mr. Rhett initially paid to purchase the Property. (A. at 1; R at 18; R at p. 5, 16). During that period, Mr. Rhett also invested a substantial amount of his own time and labor toward completion of the Home. (Id.). When the subject litigation ensued, the Home was just short of being ready for a certificate of occupancy and the Home was even appointed with major appliances, flooring and a computer for each bedroom. 8 (Id.). In connection with Mr. Rhett s work on the Home, Broward County performed inspections and issued building and zoning permits to Mr. Rhett as the Property s owner of record. (A. 1 at 1; R at 19; R at p. 5, 17). In or about August 2001, Broward County sent Mr. Rhett a 2001 Notice of Proposed Property Taxes and Proposed or Adopted Non-Ad Valorem Assessments on the Property at his home address reflected in the Deed, and in or about November 2001, Broward County also sent Mr. Rhett a Notice of Ad Valorem Taxes and Non-Ad Valorem Assessments on the Property for the year 2001 (the 2001 Tax Bill ), again at Mr. Rhett s home 8 After commencement of the proceedings before the Fourth District, Mr. Rhett discovered that the Home was burglarized and certain items were stolen from the premises. Mr. Rhett, at his own expense, took efforts to secure the Property while it remained unoccupied. 8

13 address reflected in the Deed. 9 (A. 1 at 1; R at 20-21; R at p. 5, 18-19). As Mr. Rhett, his grantor, Mr. Lane, and the County regarded Mr. Rhett as the Property s owner of record, Mr. Rhett paid, and the county accepted, all taxes due on the 2001 Tax Bill. (A. 1 at 1; R at 21; R at p. 5, 19). On or about November 17, 2001, Mr. Rhett applied to Ameriquest Mortgage Company ( Ameriquest ) for a mortgage loan on the Property while preparing to lease the Property to Ms. Davenport for one year. (A. 1 at 1; R at 22; R at p. 6, 20). While processing Mr. Rhett s loan application, a representative of Ameriquest, Christopher Mobias, informed Mr. Rhett that the Property had been purportedly sold at an October 17, 2001 tax sale for the sum of $1, and the resulting tax deed was issued to Marylin S. Baron, Trustee. (Id.; R. 121). Prior to having learned, on or about November 17, 2001, about the occurrence of the October 17, 2001 tax sale and the issuance of the tax deed, Mr. Rhett had no prior actual knowledge of the scheduled tax sale nor did he even have knowledge of the subject tax certificate on the Property. (A.1 at 1; R at 23; R at p. 6, 21). Prior to the October 17, 2001 tax sale, Mr. Rhett never received any mailed or personally served notice of the then upcoming tax sale. (R at 24; R at p. 6, 22). Mr. Rhett could have redeemed the subject tax certificate in advance of the tax sale for only $ if paid by September 28, 2001 or for 9 These notices are sent to the person to whom the property is assessed on the county s tax roll. See , and , Fla. Stat. (2001). 9

14 only $ if paid sometime between September 28, 2001 and October 17, (R. 117; R at p. 6, 23). The October 17 th tax sale had been held pursuant to an application for tax deed that the holder of a certain 1999 tax certificate had filed more than six months earlier on or about April 5, (A. 1 at 1; R & 121; R at p. 8, 31). The tax collector s resulting title search revealed that Mr. Lane was then the Property s owner. (R ; R at p. 8, 33). The tax collector s title search was forwarded to the Administrator on April 16, (A. 1 at 1; R. 114; R at p. 8, 32). The county took no meaningful action on the application for tax deed until September 7, 2001, more than five months after the application for tax deed was made. (R ; R at p. 8, 34). On September 7, 2001, the Administrator issued a certain Notice of Application for Tax Deed, which reflected that a tax sale would be conducted on October 17, (R. 116; R at p. 8, 35). On September 27, 2001, the Administrator issued a certain Certificate of Mailing Notices (Tax Deed No ). (A. R. 118; R at p. 9, 36). The aforesaid Certificate of Mailing Notices reflected the persons to whom the Administrator mailed the aforesaid Notice of Application for Tax Deed on September 27, (A. 1 at 1; R. 118; R at p. 9, 37). Mr. Rhett s name and address were excluded from the Certificate, and Mr. Rhett, in fact, never received advance notice of the October 17 th tax sale either by mail or personal service. (R. 118; R at p. 9, 38). If the Administrator had sent Mr. 10

15 Rhett advance notice of the tax sale in September, 2001, Mr. Rhett would have paid the sum required to redeem the Property prior to the tax sale on October 17 th. (R at 26; R at p. 9, 41). After learning of the tax deed on or about November 17, 2001, Mr. Rhett contacted Mr. Baron. (R at 28; R at p. 6, 24). Mr. Baron admitted to Mr. Rhett that he had observed his work on the Home over the course of the several months that preceded the tax sale and therefore was aware of his improvement of the Property prior to bidding at the tax sale. 10 (R at 29; R at p. 7, 25). Mr. Rhett s attempts to resolve this matter with the Barons on reasonable terms were unavailing. (R at 30-31; R at p. 7, 26-27). Mr. Rhett thus sought assistance from the county to help him resolve this matter. (R at 31; R at p. 7, 27). Mr. Rhett eventually was able to get county staff to review the matter. (R at 32; R at p. 7, 28). However, county employee, Matt Lalla, informed Mr. Rhett that county staff had concluded only the court, not the county, could grant Mr. Rhett relief from the tax deed. (Id.). At that time, Mr. Lalla also made Mr. Rhett aware of the fact that the signature of his grantor, Mr. Lane, did not 10 During the course of the proceedings in the trial court, Mr. Rhett learned that Mr. Baron was engaged in ongoing business dealings with Sterling Palmer with respect to several real property investments. Mr. Palmer was the person from whom Mr. Lane acquired the Property before Mr. Lane sold it to Mr. Rhett and was the payee of the cashier s check that Mr. Rhett issued in connection with the purchase of the Property. Mr. Palmer, acting as a witness, also signed Mr. Rhett s original Deed to the Property recorded on June 28, (R at 5-6). 11

16 appear on the original recorded Deed. (Id.) On or about December 28, 2001, Mr. Rhett alerted Mr. Lane to the fact that he had not signed the Deed. (R at 33; R at p. 7, 29). Mr. Lane therefore executed, at Mr. Rhett s request and without requiring any further consideration, a certain corrective Deed that was recorded on January 10, 2002 in the Public Records of Broward County at Official Records Book 32605, Page (A. 1 at 1; R at 34; R at p. 8, 30). The Proceedings Below and Procedural History On February 12, 2002, Mr. Rhett commenced the action in the trial court seeking, inter alia, cancellation of the Barons tax deed and a quiet title decree in his favor. (A. 1 at 2; R. 1-15). On May 10, 2002, the Barons moved for summary judgment. (A. 1 at 2; R ). The Barons premised their motion upon the contention that Mr. Rhett was never a person entitled to notice of the impending tax sale under Chapter 197, Florida Statutes because Mr. Lane did not sign the his original Deed recorded on June 28, (R ). The only document submitted in support of the Barons motion was a copy of Mr. Rhett s original deed. The Barons submitted no affidavits or any other papers reflecting or otherwise addressing the timing of events leading up to the October 17 th tax sale. On May 24, 2002, Respondents filed a Cross-Motion for Summary Final Summary Judgment (the Cross-Motion ). (A. 1 at 2; R ). Respondents Cross-Motion was supported by several detailed affidavits establishing, inter alia, Mr. Rhett s record ownership interest and was also 12

17 supported by county records showing, inter alia, the events that led to the October 17 th tax sale. (R ). Respondents supporting affidavits were respectively executed by Mr. Rhett himself, his grantor, Mr. Lane, and Alexander Robinson who was one of the persons who signed Mr. Rhett s original Deed recorded on June 28, 2001 as a witness. (R ; R ; R ). In their Cross-Motion, Respondents maintained that Chapter 197, Florida Statutes must be reasonably construed to require that the county clerk (or in the case of Broward County, the Administrator) set a tax sale and mail the required advance notice thereof within a reasonable time after the filing of the application for tax deed. (R at pp. 7-8). If the statute were not so reasonably construed, it would be permissible for the clerk to rely upon a stale title search to mail notice of an impending tax sale pursuant to sections (1)(a) and (4), Florida Statutes, whenever the clerk might wait an unreasonable amount of time after the filing of the application for tax deed before setting the tax sale and mailing notice thereof. (R at p. 8). Respondents further maintained in their Cross-Motion that Chapter 197 would be unconstitutional as applied to persons such as Mr. Rhett if it were not so reasonably construed. (R at p. 8). It was noted in the Cross-Motion that the Administrator had waited more than five months to schedule the tax sale and thus relied upon a stale title search when, on September 27, 2001, it finally mailed notice of the belatedly scheduled October 17 th tax sale by which time Mr. Rhett s interest already was reflected in the public record and the county had assessed the 13

18 Property to Mr. Rhett on the county s tax roll. (R at pp. 3-8). It was also noted that Mr. Rhett even paid the 2001 property taxes for the Property, which the county accepted. (Id.) Through the conclusion of the June 11, 2002 summary judgment hearing in the trial court, the Barons did not submit one single affidavit in support of their own motion or in opposition to Respondents Cross-Motion, nor did they otherwise dispute any of the facts established in Respondents supporting affidavits and papers. The Barons likewise did not assert any objections to any of Respondents supporting affidavits and other papers or to any of the contents thereof. During the June 11, 2002 summary judgment hearing, the Barons continued to press the argument that Mr. Rhett was never a person entitled to notice of an impending tax sale pursuant to section (4)(a), Florida Statutes even on September 27, 2001 when the Administrator finally mailed notice of the impending October 17 th tax sale because, the Barons argued, the original Deed was not signed by Mr. Lane. (T. at pp. 4-5). The Barons further argued that Mr. Rhett was not alternatively entitled to such mailed notice as the person to whom the property was assessed on the tax roll for the year in which the property was last assessed as of September 27, 2001 pursuant to section (4)(f), Florida Statutes. (T. at pp. 5-7). In presenting that argument during the summary judgment hearing, the Barons, for the first time in the trial court, cited Evans v. Ireland, 707 So.2d 1135 (Fla. 2 nd 1998) and contended that Evans applied because Mr. Rhett was added to the tax rolls for the 14

19 Property by mistake. (T. at pp. 5-7). After the summaru judgment hearing, while the trial court still had the parties respective summary judgment motions under advisement, Respondents had an opportunity to review the Evans decision, discovered it to be completely inapposite to the case sub judice and submitted a Supplemental Memorandum of Law that debunked the Barons misplaced reliance on Evans. (R ). The trial court thereafter ruled in favor of Respondents and against the Barons, and on July 5, 2002, entered the Final Summary Judgment canceling the Barons tax deed and quieting title in favor of Mr. Rhett. (A. 1 at 2; R ). The Final Summary Judgment also provided that, pursuant to section , Florida Statutes, Marilyn S. Baron, Trustee is due reimbursement for the amount paid by or on behalf of her for the tax deed, together with 12% per year from October 17, 2001 to the date of payment. 11 (R at p. 21, 7). The Barons appealed to the Fourth District. (A. 1 at 2). As in the trial court, the Barons did not take issue with the key proposition that the clerk, or 11 Section , Florida Statutes contemplates that a court might set aside a tax deed in a quiet title suit and thus provides for reimbursement to the holder of a cancelled tax deed for the amount expended for its purchase, plus interest. See also, Dawson v. Saada, 608 So.2d 806, 810 (Fla. 1992) (Failure to comply with mandatory statutory notice requirements invalidates issuance of a tax deed); Terra Mar Capital, Inc. v. T.D. Realty, Inc., 694 So.2d 779 (Fla. 4 th DCA 1997)(Affirming setting aside of a tax deed for county s failure to comply strictly with the requirements of section , Florida Statutes.) At the summary judgment hearing, Respondents had advised the trial court of the existence of section , Florida Statutes and of Respondents willingness to pay the sum required thereby upon Respondents prevailing. (T. at 15). 15

20 in the case of Broward County, the Administrator, has a statutory, or alternatively constitutional, obligation to schedule a tax sale property and mail statutory notice thereof to interested persons of record within a reasonable time after the filing of the application for tax deed. (A. 2; A. 3). 12 Instead, they continued to argue that Mr. Rhett was never a person entitled to notice of the impending tax sale under Chapter 197, Florida Statutes because, the Barons argued, Mr. Lane did not sign the his original Deed recorded on June 28, 2001 and Mr. Rhett had been assessed the subject property s taxes when the Administrator finally set the tax sale and mailed notices thereof on September 27, 2001, by mistake. (A. 2 at 13-18; A. 3). On May 14, 2003, the Fourth District issued its unanimous decision affirming the Final Summary Judgment, reasoning and holding as follows: The Barons claim that because Florida law requires that the clerk notify only those people listed on the tax collector's statement, and the law does not require the clerk to do any independent research to uncover additional interested parties, the trial court's decision was error. We disagree. The trial court did not rule that the clerk had a ministerial duty under Chapter 197 to conduct its own title search before mailing notice of the impending tax sale. Instead, the court determined that because the clerk failed to set the October 17 tax sale and mail notice thereof within a reasonable time after the application for tax deed was filed, the clerk could not rely upon the stale April 16 tax collector's statement in discharging its statutory and constitutional duty to provide notice of the tax sale to interested persons. * * * [T]here could come a point in time when the tax collector s 12 A. 2 and A. 3 refer to the Barons Initial Brief and Reply Brief, respectively, in the Fourth District Appeal. 16

21 statement no longer represents those who are entitled to notice. That is precisely what happened here. The clerk waited approximately five months before noticing and setting the tax deed sale; during the time lapse, the name on the tax assessment roll changed. * * * Rhett, having been assessed the subject property s 2001 ad valorem taxes and paid them, fit within this category of interested persons and was thus entitled to be mailed advance notice of the tax sale. [W]hen the clerk fails to schedule a tax sale and mail notice thereof within a reasonable time after the filing of an application for a tax deed, and a new tax roll assessment intervenes during such period of delay, the clerk must obtain an updated statement from the tax collector for notification purposes under section (1(a), Florida Statutes. This requirement calls for no independent research and imposes minimal efforts on the clerk's part. More important, requiring a current tax collector's statement comports with the due process requirements of Chapter 197 to provide notice to interested persons before real property is sold for the collection of delinquent taxes. (A. 1 at 2, 3 and 4). The Fourth District also expressly adopted the reasoning of Judge Ervin s dissent in Delta Property Management v. Profile Investments, Inc. 13, and certified a conflict with that decision. (A. 1 at 3). Rehearing and Rehearing En Banc were thereafter denied. At the time the Fourth District rendered its decision, pending in this Court, in case number SC , was a decision whether or not to exercise discretionary jurisdiction to review Delta. After the Fourth District rendered its decision below, this Court decided to accept jurisdiction to review Delta in case So.2d 867 (Fla. 1st DCA 2002) 17

22 number SC , which has since been briefed on the merits. On October 30, 2003, this Court informed the parties that it had postponed its decision on jurisdiction in this proceeding, and directed the parties to brief the merits pursuant Rules 9.120(e) and (f), Florida Rules of Appellate Procedure. 18

23 STATEMENT REGARDING WHETHER OR TO WHAT EXTENT THIS COURT SHOULD DECLINE JURISDICTION This Court has postponed its decision on jurisdiction in this proceeding and directed the parties to brief the merits pursuant Rules 9.120(e) and (f), Florida Rules of Appellate Procedure. Before proceeding to the merits, Respondents respectfully suggest this Court should exercise its discretion to decline jurisdiction to review the Fourth District s decision in this proceeding, in whole or in part, notwithstanding the Fourth District s certification of a conflict with Delta. Respondents agree with the Fourth District s adoption of the reasoning of Judge Ervin s dissent in Delta, which Respondents themselves alternatively argued the Fourth District should have done in the proceedings below. Adopting Judge Ervin s dissent, however, was supportive, but not essential, to the Fourth District s ultimate holding below. The Delta majority simply did not address the key question that the trial court and Fourth District answered in the affirmative in the case sub judice: Whether the clerk (or in the case of Broward County, the Administrator) has a statutory or constitutional duty to schedule a tax sale and mail notice thereof within a reasonable time after the filing of an application for tax deed. The Delta majority did not address the timing of the scheduling of the tax sale and the mailing of the notice in Delta, in relation to the filing of the application for tax deed. Hence, the majority s holding in Delta, on its face, is not necessarily in conflict with the Fourth District s holding that the clerk must obtain an updated statement from the tax collector before mailing 19

24 notice of an impending tax sale when the clerk fails to schedule a tax sale and mail notice thereof within a reasonable time after the filing of an application for a tax deed, and a new tax roll assessment intervenes during such period of delay and that requiring a current tax collector's statement comports with the due process requirements of Chapter 197 to provide notice to interested persons before real property is sold for the collection of delinquent taxes. (A. 1 at 4). Moreover, the Barons in this proceeding continue to avoid the key point addressed by the trial court and the Fourth District below, and instead continue to hinge their position upon the absurd notion that Mr. Rhett was never a person entitled to notice of an impending tax sale, an argument rejected by the trial court and the Fourth District that has nothing to do with the purported conflict with the majority s decision in Delta. At the very least, Respondents respectfully suggest this Court should exercise its discretion to decline jurisdiction to review the question of whether Mr. Rhett was ever a person entitled to notice of an impending tax sale, which the Barons continue to press, absurdly so. That question has nothing to do with the purported conflict between the Fourth District s decision in this case and the majority s holding in Delta. See Kelly v. Community Hospital of the Palm Beaches, Inc., 818 So.2d 469, 470 n. 1 (Fla. 2002)(wherein this Court declined to address the issues raised by the petitioner beyond the scope of the basis for conflict jurisdiction); Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corporation, 537 So.2d 726, 562 (Fla. 1989)(same). 20

25 SUMMARY OF ARGUMENT ON THE MERITS The Fourth District correctly held when the clerk fails to schedule a tax sale and mail notice thereof within a reasonable time after the filing of an application for a tax deed, and a new tax roll assessment intervenes during such period of delay, the clerk must obtain an updated statement from the tax collector for notification purposes under section (1)(a), Florida Statutes and requiring a current tax collector's statement comports with the due process requirements of Chapter 197 to provide notice to interested persons before real property is sold for the collection of delinquent taxes. That holding is premised upon the unavoidable conclusion that the clerk has a statutory, or alternatively constitutional, obligation to schedule a tax sale and mail notice thereof to interested persons within a reasonable time after the filing of the application for tax deed so as to avoid reliance upon a stale tax collector s title search when the clerk belatedly sets the sale and mails notice thereof. Such a statutory construction is supported by the guiding principles of the decisions of the Supreme Court of the United States in Mennonite Board of Missions v. Adams 14 and Mullane v. Central Hanover Bank & Trust 15 and the decision of this Court in Dawson v. Saada 16. Furthermore, this salient proposition remains unchallenged by the Barons U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983) U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950) So.2d 806 (Fla. 1992) 21

26 The Fourth District correctly upheld the trial court s ruling that the Administrator breached its obligation to schedule a tax sale of the property and mail statutory notice thereof within a reasonable time after the filing of the application for tax deed with respect to Mr. Rhett. The Barons contention that Mr. Rhett was never a person entitled to mailed notice of an impending tax sale, even on September 27, 2001, is patently absurd. In light of Mennonite, the Fourth District correctly held that Mr. Rhett was a person entitled to mailed notice on September 27, (4)(f), Florida Statutes because Mr. Rhett was the taxpayer of record at that time. Additionally, the trial court s ruling not directly addressed by the Fourth District due to lack of necessity that Mr. Rhett was alternatively entitled to such notice pursuant to (4)(a), Florida Statutes based upon his recorded deed was also correct in light of Mennonite. Finally, the Fourth District also correctly adopted the reasoning of Judge Ervin s dissent in Delta, even though the express adoption of that reasoning was not essential to the Fourth District s ultimate holding.. 22

27 ARGUMENT ON THE MERITS I. THE FOURTH DISTRICT CORRECTLY HELD WHEN THE CLERK FAILS TO SCHEDULE A TAX SALE AND MAIL NOTICE THEREOF WITHIN A REASONABLE TIME AFTER THE FILING OF AN APPLICATION FOR A TAX DEED, AND A NEW TAX ROLL ASSESSMENT INTERVENES DURING SUCH PERIOD OF DELAY, THE CLERK MUST OBTAIN AN UPDATED STATEMENT FROM THE TAX COLLECTOR FOR NOTIFICATION PURPOSES UNDER SECTION (1(A), FLORIDA STATUTES AND REQUIRING A CURRENT TAX COLLECTOR'S STATEMENT COMPORTS WITH THE DUE PROCESS REQUIREMENTS OF CHAPTER 197 TO PROVIDE NOTICE TO INTERESTED PERSONS BEFORE REAL PROPERTY IS SOLD FOR THE COLLECTION OF DELINQUENT TAXES. A. Florida s statutory scheme for the assessment and enforcement of property taxes set forth in Chapter 197, Florida Statutes has its underpinnings in Mennonite Board of Missions v. Adams as well as its predecessor Mullane v. Central Hanover Bank & Trust. In Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), the Supreme Court of the United States held that an Indiana statute violated the Fourteenth Amendment in that it failed to afford due process to a mortgagee with an interest in certain real property that was sold at a tax sale. This constitutionally infirm statute required that advance notice of an impending tax sale be mailed to the property owner, but only required posting and publishing of such notice for the benefit of any other interested persons, including the mortgagee even though the mortgagee s interest in the subject property was reasonably identifiable in the public record. The Supreme Court held that due process, at a minimum, required that 23

28 the taxing authority mail the mortgagee advance notice of the tax sale so as to make a reasonable attempt to provide actual notice to a person with a reasonably identifiable interest in the subject property. In so holding, the Supreme Court stated: Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable. 460 U.S. at 800 (Emphasis in original). Florida s statutory scheme for the assessment and enforcement of property taxes is set forth in Chapter 197, Florida Statutes. Section (4), Florida Statutes enumerates certain categories of persons who have a reasonably ascertainable interest of record and, by statutory mandate, are to be mailed advance notice of an impending tax sale. These enumerated categories of persons include, without limitation: (i) Any legal titleholder of record if the address of the owner appears on the record of conveyance of lands to the owner...; and (ii) Any person to whom the property was assessed on the tax roll for the year in which the property was last assessed. See (4)(a) and (f), Fla. Stat. (2001). Section , Florida Statutes provides: (1)(a) The clerk of the circuit court 17 shall notify, by certified mail with return receipt requested or by registered mail if the notice is to be sent outside the continental United States, the persons listed in the tax collector's statement pursuant to s (4) that an application for a tax deed has been made. Such notice shall be mailed at least 20 days prior to the date of sale. If no address is listed in the tax collector's statement, then no notice shall be required. 17 In Broward County, the duties of the clerk of court are performed by the Broward County Administrator. 24

29 (b) The clerk shall enclose with every copy mailed a statement as follows: WARNING: There are unpaid taxes on property which you own or in which you have a legal interest. The property will be sold at public auction on (date) unless the back taxes are paid. To make payment, or to receive further information, contact the clerk of court immediately at (address), (telephone number). (c) The clerk shall complete and attach to the affidavit of the publisher a certificate containing the names and addresses of those persons notified and the date the notice was mailed. The certificate shall be signed by the clerk and the clerk's official seal affixed. The certificate shall be prima facie evidence of the fact that the notice was mailed. If no address is listed on the tax collector's certification, the clerk shall execute a certificate to that effect. * * * This Court, in Dawson v. Saada, 608 So.2d 806 (Fla. 1992), expressly recognized that this statutory scheme is designed with the purpose of affording due process to interested persons before real property is sold at a tax sale, as was addressed in Mennnonite and Mullane v. Central Hanover Bank & Trust, 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). See also, Bullock v. Houston Realty & Investment, Inc., 739 So.2d 1251, 1253 (Fla. 4 th DCA 1999) ( The notice requirements of Chapter 197 are essential to assuring that due process is complied with in the sale of property for the collection of delinquent taxes... ); Kerr v. Broward County, 718 So.2d 197, 199 (Fla. 4 th DCA 1998)( Based on Dawson... it is clear that the purpose of sections and is to provide adequate notice to those holding an interest in the property. ) Hence, as the Fourth District observed below, the statutory scheme has its underpinnings in [Mennonite], as well as its predecessor Mullane v. Central Hanover Bank & Trust, 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). (A. 1 at 4). 25

30 B. In light of Mullane, Mennonite and Dawson, the Fourth District correctly held when the clerk fails to schedule a tax sale and mail notice thereof within a reasonable time after the filing of an application for a tax deed, and a new tax roll assessment intervenes during such period of delay, the clerk must obtain an updated statement from the tax collector for notification purposes under section (1(a), Florida Statutes and requiring a current tax collector's statement comports with the due process requirements of Chapter 197 to provide notice to interested persons before real property is sold for the collection of delinquent taxes. The Fourth District approvingly discussed the trial court s unchallenged conclusion that the Administrator had a statutory, or alternatively constitutional, obligation to schedule a tax sale of the Property and mail notice thereof to interested persons of record within a reasonable time after the filing of the application for tax deed. (A. 1 at 3-4). In that connection, the Fourth District noted: [T]here could come a point in time when the tax collector s statement no longer represents those who are entitled to notice. That is precisely what happened here. The clerk waited approximately five months before noticing and setting the tax deed sale; during the time lapse, the name on the tax assessment roll changed. (A. 1 at 3). The Fourth District ultimately held as follows: [W]hen the clerk fails to schedule a tax sale and mail notice thereof within a reasonable time after the filing of an application for a tax deed, and a new tax roll assessment intervenes during such period of delay, the clerk must obtain an updated statement from the tax collector for notification purposes under section (1(a), Florida Statutes. This requirement calls for no independent research and imposes minimal efforts on the clerk's part. More important, requiring a current tax collector's statement comports with the due process requirements of Chapter 197 to provide notice to interested persons before real property is sold for the collection of delinquent taxes. (A. 1 at 4) (Emphasis supplied). The correctness of this holding and its basis is beyond question in light of Mullane, Mennonite and Dawson. As the Fourth District, as well as the trial court, correctly observed,... section 26

31 does not state how soon after the filing of an application for tax deed the clerk must set the tax sale and mail notice thereof to the required persons. (A. 1 at 3). As the Fourth District also approvingly quoted from the trial court s Final Summary Judgment, [i]t would, however, be absurd to view the absence of such an explicit provision to mean that the clerk was intended to have no time limit to act after the filing of and application for tax deed. (A. 1 at 3-4.) 18 If the statute were otherwise construed to allow the clerk to wait as long it wants after the filing of an application for tax deed before it sets a tax sale and mails notice thereof, there would be no legal impediment to the clerk, when it finally sets a tax sale and mails notice thereof to interested persons, using a tax collector s title search that has long since become stale. Construing section , Florida Statutes to require the clerk to schedule a tax sale and mail notice thereof to interested persons of record within a reasonable time after the filing of the application for tax deed is not only abundantly logical, it is valid of necessity in light of the very decision of this Court that upheld the statute s facial constitutionality. This Court examined and upheld the facial constitutionality of section , Florida 18 The absence of any express guidance as to how long after the filing of an application for tax deed the clerk must act on it rendered the statute ambiguous in the view of the trial court. (R at p. 14). To resolve this ambiguity, this Court must look to the object of the statute, the evil or mischief which it is designed to remedy, and apply a reasonable construction which best accomplishes the statute s purpose. HRS v. Franklin, 630 So.2d 661 (Fla.2 nd DCA 1994). (Id.) Moreover, the statute should be construed, if possible, so as to uphold its constitutionality. State v. Brake, 796 So.2d 522 (Fla. 2001). (Id.) 27

32 Statutes in Dawson v. Saada, Supra. In rendering its constitutional evaluation, this Court employed a fundamental principle of due process that the U.S. Supreme Court had laid down in Mullane, upon which the U.S. Supreme Court would later expressly base its holding in Mennonite. See Mennonite, 462 U.S. at 795, 103 S.Ct. at Specifically, this Court in Dawson as a precursor to upholding section , Florida Statutes as facially constitutional quoted from Mullane and expressly adopted the following as a basic rule of constitutional law: In any proceeding which is to be accorded finality, due process requires notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). See 608 So.2d at 808 (Emphasis supplied). 19 This Court went on to hold [s]ection (1) meets constitutional due process requirements by mandating notice reasonably calculated to apprise landowners of the pending deprivation of their property. Id. (Emphasis supplied). In so evaluating the facial constitutionality of section , 19 Moreover, as this Court astutely noted in Dawson: [K]nowledge of delinquency in the payment of taxes is not equivalent to notice that a tax sale is pending. Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800, 103 S.Ct. 2706, 2712, 77 L.Ed.2d 180 (1983). [T]he state [is not relieved] of its constitutional obligation to inform interested parties of the pendency of a tax sale. See id. at 799, 103 S.Ct. at See 608 So. 2d at