IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA MELANIE J. HENSLEY, successor to RON SCHULTZ, as Citrus County Property Appraiser, etc., vs. Petitioner, Case No.: SC LT Case No.: 5D TIME WARNER ENTERTAINMENT COMPANY, L.P., et al., Respondent. AMENDED JURISDICTIONAL BRIEF OF PETITIONER On Petition for Review of a Decision of the District Court of Appeal, Fifth District, State of Florida Denise A. Lyn Florida Bar No DENISE A. LYN, P.A. 121 N. Apopka Ave. Inverness, FL (352) Attorney for Petitioner

2 TABLE OF CONTENTS TABLE OF CITATIONS... iii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 2 JURISDICTIONAL STATEMENT... 3 ARGUMENT... 3 BY HOLDING THAT A PROPERTY APPRAISER MAY BE SANCTIONED FOR DEFENDING A DECISION THAT IS PRESUMED CORRECT BY AND IS MADE WITHIN THE DISCRETION OF THE OFFICE OF THE PROPERTY APPRAISER, THE FIFTH DISTRICT S OPINION EXPRESSLY AFFECTS A CLASS OF CONSTITUTIONAL OFFICERS... 3 CONCLUSION... 5 CERTIFICATE OF SERVICE... 5 CERTIFICATE OF COMPLIANCE... 6 APPENDIX ii

3 TABLE OF CITATIONS CASES Blake v. Xerox, 447 So.2d 1348, 1350 (Fla. 1984)... 4 Bystrom v. Whitman, 488 So.2d 520, 520, 530 (Fla. 1986)... 3, 4 District School Board of Lee County v. Askew, 278 So. 2d 272, 275 (Fla. 1973)... 4 Mazourek v. Wal-Mart Stores, Inc., 831 So.2d 85, 86 (Fla. 2002)... 3 Schultz v. Timer Warner Entertainment Company, L.P., 861 So. 2d 466 (Fla. 5 th DCA 2003)... 1 CONSTITUTIONAL PROVISIONS AND STATUTES Art. V, 3(b)(3) Fla. Const., , Fla. Stat.... 1, , Fla. Stat.... 2, 3, 4 COURT RULES Fla. R. Civ. P (a)(2)(A)(iii)... 3 iii

4 STATEMENT OF THE CASE AND FACTS In 1994, Respondent, Time Warner Entertainment Company, L.P., ( Time Warner ) sued Petitioner, Ron Schultz, as Citrus County Property Appraiser, ( Schultz ), challenging its tangible personal property assessment. Thereafter, Time Warner challenged each of its assessments for the years 1995, 1996, 1997, 1998, and The assessment challenges were consolidated and were eventually tried in a bench trial in November, The trial judge ruled in Time Warner s favor for each year challenged. Schultz appealed portions of the trial court s substantive order finding that certain items of Time Warner s tangible personal property were non-taxable. While Schultz s appeal was pending at the district court level, Time Warner sought sanctions against Schultz pursuant to Section , Florida Statutes, for defending his assessments. The trial judge sanctioned Schultz for his defense of his assessments. Schultz was ordered to pay Time Warner s attorney fees in the amount of $185,000. Following the trial court s sanction order, the Fifth District Court of Appeals reversed a portion of the trial court s substantive order pursuant to Schultz s appeal and remanded the case for further proceedings. See Schultz v. Timer Warner Entertainment Company, L.P., 861 So. 2d 466 (Fla. 5 th DCA 2003). 1

5 Schultz appealed the sanction order to the district court arguing among other issues, that the presumption of correctness together with other statutory and constitutional provisions provided a basis for his defense of the assessments. Schultz also argued that the fact that the district court s reversal of the trial court s substantive order in and of itself provided a basis for his defense. The district court affirmed the trial court s sanction order by opinion dated March 4, (App.). Schultz timely filed a motion for rehearing which was denied by order dated July 11, SUMMARY OF THE ARGUMENT This Court has discretionary jurisdiction to review the decision of the district court because the decision expressly affects a class of constitutional officers. The Florida Legislature has created a statutory presumption of correctness relating to a property appraiser s ad valorem property tax assessment , Fla. Stat. (2004). When a county property appraiser makes the determination of an assessment, that determination is placed upon the county tax rolls and is presumed correct until the tax payer challenges that assessment and brings forth sufficient evidence to overcome the presumption of correctness By sanctioning a property appraiser for defending his assessments, the trial court s order directly affects the powers and duties of the property appraisers and casts doubt upon 2

6 whether Section may be relied upon by the county property appraisers. JURISDICTIONAL STATEMENT This Court has discretionary jurisdiction to review a decision of a district court of appeal that expressly affects a class of constitutional officers. Art. V, 3(b)(3) Fla. Const. 1980; Fla.R.App.P (a)(2)(A)(iii). This Court has previously accepted jurisdiction to review cases involving property appraisers pursuant to this Courts discretionary jurisdiction. See Bystrom v. Whitman, 488 So. 2d 520, 520 (Fla. 1986) (exercising discretionary jurisdiction where the case expressly affected a class of constitutional officers); Mazourek v. Wal-Mart Stores, Inc., 831 So. 2d 85, 86 (Fla. 2002) (exercising discretionary jurisdiction based upon conflict jurisdiction and because the decision affected a class of state or constitutional officers). ARGUMENT BY HOLDING THAT A PROPERTY APPRAISER MAY BE SANCTIONED FOR DEFENDING A DECISION THAT IS PRESUMED CORRECT BY AND IS MADE WITHIN THE DISCRETION OF THE OFFICE OF THE PROPERTY APPRAISER, THE FIFTH DISTRICT S OPINION EXPRESSLY AFFECTS A CLASS OF CONSTITUTIONAL OFFICERS. County property appraisers are a class of constitutional officers. See Art. V, 3(b)(3) Fla. Const. (providing for the election of a property appraiser for each 3

7 county). See also Bystrom v. Whitman, 488 So. 2d 530 (Fla. 1986) (recognizing that property appraisers are constitutional officers). The powers and duties of the county property appraisers in making assessment determinations have been described by this Court when it stated, [T]he property appraiser s determination of assessment value was an exercise of administrative discretion within the officer s field of expertise. Blake v. Xerox Corp., 447 So. 2d 1348, 1350 (Fla. 1984). See also District School Board of Lee County v. Askew, 278 So. 2d 272, 275 (Fla. 1973). As such, the property appraiser s determination is presumed correct by the courts , Fla. Stat. This presumption of correctness remains in tact until a taxpayer satisfies its burden as provided within Section The district court s decision holds that a property appraiser may be sanctioned pursuant to Section , Florida Statutes for his defense of an assessment regardless of the fact that the assessment arrived to the court with a strong presumption of correctness. With the entry of the Fifth District Court of Appeals decision below, an air of doubt has been cast upon the ad valorem assessment process and the assessment challenge process for property appraisers across the state. The uncertainty regarding the property appraiser s ability to rely on the long standing presumption may have a chilling effect upon the property 4

8 appraisers and their ability to exercise the discretion long provided to the constitutional office. The case also signals an erosion into the separation of powers where, without application of the presumption of correctness, it appears that the court has substituted its discretion for that of the property appraiser. CONCLUSION Based upon the foregoing argument and authority, this Honorable Court is respectfully requested to exercise its discretionary jurisdiction and to accept this case for review. Respectfully Submitted, Denise A. Lyn Florida Bar No DENISE A. LYN, P.A. 121 N. Apopka Ave. Inverness, FL (352) Counsel for Petitioner, Citrus County Property Appraiser CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has furnished via U. S. Mail to John P. Harllee, III, Esq., Harllee & Bald, P.A., 202 Old Main St., Bradenton, FL 34205, and Mark T. Aliff, Esq., Assistant Attorney 5

9 General, Tax Section, The Capitol, Tallahassee, FL , this day of September, DENISE A. LYN, P.A. 121 N. Apopka Ave. Inverness, FL (352) Counsel for Petitioner Denise A. Lyn Florida Bar No CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this response complies with the font requirements of Fla. R. App. P (a)(2) of the Florida Rules of Appellate Procedure. DENISE A. LYN, P.A. 121 N. Apopka Ave. Inverness, FL (352) Counsel for Petitioner Denise A. Lyn Florida Bar No