IN THE SUPREME COURT OF FLORIDA CASE NO. SC06-2051 (Lower Tribunal Case No. 3D05-2129) REALTY INVESTMENT AND MORTGAGE CORPORATION, INC., Petitioner, vs. JOEL W. ROBBINS, as Property Appraiser for Miami-Dade County, Florida; IAN YORTY, as Tax Collector for Miami-Dade County, Florida Respondents. ON PETITION FOR DISCRETIONARY REVIEW FROM A DECISION OF THE THIRD DISTRICT COURT OF APPEAL AMENDED JURISDICTIONAL BRIEF OF RESPONDENT MURRAY A. GREENBERG MIAMI-DADE COUNTY ATTORNEY Stephen P. Clark Center, Suite 2810 111 N.W. 1st Street Miami, Florida 33128 Telephone: (305) 375-5744 Facsimile: (305) 375-5611 By: Eric A. Hernandez Assistant County Attorney Florida Bar No. 340730
TABLE OF CONTENTS TABLE OF CITATIONS... ii STATEMENT OF THE CASE AND OF THE FACTS... 1 SUMMARY OF THE ARGUMENT... 2 STANDARD OF REVIEW... 3 ARGUMENT Jurisdiction Must be Denied as the Decisions Cited by the Petitioner do not Conflict with the Third District s Decision Below.... 4 CONCLUSION... 10 CERTIFICATE OF SERVICE... 11 CERTIFICATE OF COMPLIANCE... 11 i
TABLE OF CITATIONS Cases Page(s) Adams v. Reid, 396 So. 2d 1182 (Fla. 4th DCA 1981)... 8 Allstate Insurance Co. v. Langston, 655 So. 2d 91 (Fla. 1995)... 3, passim BankUnited Fin. Corp. v. Markham, 763 So. 2d 1072 (Fla. 4th DCA 1999)...7, 8 Black v. Skinner Mfg. Co., 43 So. 919 (Fla. 1907)...10 Brown v. Snell, 6 Fla. 741 (1856)... 6 Ciongoli v. State, 337 So. 2d 780 (Fla. 1976)... 7 Dawson v. Saada, 608 So. 2d 806 (Fla. 1993)... 8 Fla. Dep t of Revenue v. Howard, 916 So. 2d 640 (Fla. 2005)... 8 Greenblatt v. Goldfin, 94 So. 2d 355 (Fla. 1957)...10 Miller v. Lindstrom, 45 Fla. 473 (Fla. 1903)... 8 Mystan Marine, Inc. v. Harrington, 339 So. 2d 200 (Fla. 1976)... 4 Palbicke v. Hanover Nat l Corp., 162 So. 694 (Fla. 1935)...6, 7 ii
TABLE OF CITATIONS (cont d) Cases Page(s) Pierson v. Bill, 182 So. 2d 631 (Fla. 1938)...10 Reaves v. State, 485 So. 2d 829 (Fla. 1986)...3, 4 R.J. Reynolds Tobacco Co. v. Kenyon, 882 So. 2d 986 (Fla. 2004)... 3 Rosado v. Vosilla, 909 So. 2d 505 (Fla. 5th DCA 2005)... 8 Southern Bell Tel. & Tel. Co. v. County of Dade, 275 So. 2d 4 (Fla. 1973)... 8 Traylor Brother, Inc. v. Shipman, 738 So. 2d 1028 (Fla. 1st DCA 1999)... 9 Trepal v. State, 754 So. 2d 702 (Fla. 2000)... 3 Ward v. Brown, 894 So. 2d 811 (Fla. 2004)... 8 Yorty v. Realty Investment & Mortgage Corp., Inc., 938 So. 2d 1 (Fla. 3d DCA 2006)... 1, passim Other Authorities Fla. Const. Art. V, 3(b)(3)... 3 177.021, Fla. Stat.... 5 177.101(2), Fla. Stat... 5 iii
TABLE OF CITATIONS (cont d) Other Authorities Page(s) 192.053, Fla. Stat.... 5 194.171, Fla. Stat.... 8 197.122(1), Fla. Stat... 5 197.373(1), Fla. Stat... 5 Florida Administrative Code Rule 12D-8.008(1)(a)1... 5 Florida Administrative Code Rule 12D-8.021... 7 28-1, 2, 3, County Code... 5 55-1, 2, 3, City Code... 5 Fla. R. App. P. 9.030(a)(2)(A)(iv)... 3 Fla. R. App. P. 9.120(d)...2, 3 Fla. R. App. P. 9.130(a)(3)(B)... 9 Fla. R. App. P. 9.210(a)...11 iv
STATEMENT OF THE CASE AND OF THE FACTS Petitioner Realty Investment & Mortgage Corp. Inc. ( RIM ) filed this lawsuit seeking a declaratory judgment and a writ of mandamus compelling the Taxing Authorities 1 to retroactively apportion years of delinquent tax liens attached to two tracts (the Tracts or Tracts A and B ) on the basis of recently obtained deeds to subtracts (the Subtracts ) situated within the larger Tracts. Yorty v. Realty Investment & Mortgage Corp., Inc., 938 So. 2d 1, 2-4 (Fla. 3d DCA 2006). The Taxing Authorities responded that the legislative authorities precluded the apportionment of the delinquent tax liens and required the assessment of taxes in accordance with the Tracts, which are a part of a recorded six-tract replat named the Wynwood Industrial Complex Plat (the WIC Plat ). Id. After enjoining a scheduled tax deed sale of the Tracts, the trial court granted RIM a partial summary judgment extending the injunction and mandating that the Taxing Authorities apportion the delinquent tax liens attached to the Tracts. Id. The Third District Court of Appeals reversed and ordered dismissal of the lawsuit, holding that under the pertinent legislative acts: (1) the recording of the WIC Plat established the official county subdivision map of all lands described in 1 Respondents, Ian Yorty and Joel W. Robbins, the Tax Collector and the Property Appraiser of Miami-Dade County, will be referred to collectively as the Taxing Authorities. On July 4, 2005, Frank Jacobs became the Appraiser of Miami-Dade County.
the WIC Plat and the Taxing Authorities properly relied on the recorded WIC Plat to assess and collect taxes on the Tracts; and (2) as the delinquent taxes became liens attached to the Tracts, RIM assumed those liens when it obtained an ownership interest to the Subtracts and it cannot receive an apportionment of those delinquent tax liens on the basis of its ownership interest to the Subtracts. Id. at 4-7. RIM has now filed its petition to invoke this Court s discretionary jurisdiction contending that the opinion of the Third District expressly and directly conflicts with several decisions of other district courts and of this Court on the same question of law. SUMMARY OF THE ARGUMENT Jurisdiction must be denied because RIM fails to demonstrate that the decision below expressly and directly conflicts with a decision of another district court or of this Court on the same question of law. In addition, in its zeal to invoke this Court s jurisdiction, RIM fails to restrict its brief to the threshold jurisdictional issue. Fla. R. App. P. 9.120(d)(Committee Notes: It is not appropriate to argue the merits of the substantive issues involved in the case or discuss any matters not relevant to the threshold jurisdictional issue. ). Instead, in a shotgun manner, RIM alleges express and direct conflict with twenty cases (including one 1856 case), several legislative acts, and rules of 2
procedure, many of which are not cited by the Third District and are not related in any manner to this case. See Allstate Insurance Co. v. Langston, 655 So. 2d 91, 93 n.1 (Fla. 1995). Indeed, RIM s jurisdictional brief inappropriately departs from the four corners of the opinion below, delves into the record, and reads like an outline of a brief on the merits. Id.; Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986). As such, RIM s petition should also be denied for the reason that it has failed for a second time to comply with the dictates of Rule 9.120(d). 2 STANDARD OF REVIEW The Florida Constitution permits this Court to exercise its discretionary conflict jurisdiction only when a lower court s decision expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law. Fla. Const. Art. V, 3(b)(3); accord Fla. R. App. P. 9.030(a)(2)(A)(iv). The express and direct conflict must appear within the four corners of the opinion sought to be reviewed and the record cannot be used to 2 RIM also inappropriately filed a petition for writ of certiorari with the Court, which includes a brief on the merits with two appendix volumes of the record. The 1980 amendment to article V, section 3(b)(3) of the Florida Constitution specifically eliminated certiorari review of the record from the Court s jurisdiction. Trepal v. State, 754 So. 2d 702, 706 (Fla. 2000)( This Court... does not have jurisdiction to entertain petitions for common law certiorari. ); R.J. Reynolds Tobacco Co. v. Kenyon, 882 So. 2d 986, 989 (Fla. 2004)( We have held on a number of occasions that it is improper for a party to seek to circumvent the restrictions on this Court s jurisdiction by filing a petition for extraordinary relief. ). 3
establish jurisdiction. Reaves, 485 So. 2d at 830. In addition, the law does not provide for jurisdiction on the basis of an alleged conflict with any legislative act, see Langston, 655 So. 2d at 93 n.1, and express and direct conflict jurisdiction cannot properly be alleged on the basis of dicta. Ciongoli v. State, 337 So. 2d 780, 781 (Fla. 1976). Accordingly, the Court has consistently refused to sit as a second court of appeal, selectively reversing decisions of the district courts with which it disagrees. See Mystan Marine, Inc. v. Harrington, 339 So. 2d 200, 201 (Fla. 1976). ARGUMENT Jurisdiction Must be Denied as the Decisions Cited by the Petitioner do not Conflict with the Third District s Decision Below. RIM first argues that Brown v. Snell, 6 Fla. 741 (1856) conflicts with the decision below. This 1856 opinion, which was not even cited by the Third District, is factually distinguishable and not relevant to any issue in this case as it was not decided under the current statutory scheme. In Brown, under the mistaken impression that the subject property belonged to the decedent s estate, the administrator of the estate repeatedly filed in error tax returns listing the subject property with other real property actually owned by the estate. 6 Fla. at 741, *1-2. When the administrator did not pay the taxes assessed on the lands of the estate, the tax collector, under the guise of the erroneous tax returns submitted by the administrator, advertised and sold the subject property with land that actually belonged to the estate. Id. Under the state of the law in 4
1856, this Court reversed the tax deed sale on the basis that the subject property of the plaintiff was erroneously sold for taxes that were owed on land owned by the estate. Id. In the first place, no conflict exists because the Third District held that no such assessment error was committed where the Taxing Authorities properly followed the pertinent legislative authorities in assessing the Tracts in conformity with the recorded WIC Plat and denying RIM s request to apportion the delinquent tax liens. Yorty, 938 So. 2d at 4-7. The Taxing Authorities followed Florida Administrative Code Rule 12D-8.008(1)(a)1 in properly assigning folio numbers in conformity with the subdivisions specifically designated by RIM s predecessor-ininterest (and former legal client of the president/owner of RIM) in the WIC Plat. Id.; see also 197.373(1), 177.021, 177.101(2), Fla. Stat.; 28-1, 2, 3, County Code; 55-1, 2, 3, City Code. Second, no conflict exists because pursuant to sections 197.122(1) and 192.053, ad valorem taxes are liens secured by the assessed property and are not personal debts; hence, the unpaid taxes on the Tracts (which were a matter of public record) became delinquent tax liens attached to the entirety of the Tracts. Id. RIM assumed these delinquent tax liens when it obtained its ownership interest to the Subtracts. Id. Thus, the pertinent legislative authorities precluded the Taxing Authorities retroactive apportionment of the years of delinquent tax liens on the 5
basis of deeds of annulled subdivisions that were recognized prior to the 1996 recording of the now legally recognized subdivisions designated in the WIC Plat. Id. As the 1856 Brown opinion bears no direct relation to the issues addressed in the Third District s opinion, there can be no conflict. RIM next argues that the decision below conflicts with the Court s decision in Palbicke v. Hanover Nat l Corp., 162 So. 694, 695 (Fla. 1935). Palbicke is not cited by the Third District, nor does it address the issues in this case decided under the current statutory scheme. In Palbicke, on a petition for rehearing the Court stated in dicta that a taxpayer could seek an equitable apportionment of taxes due where the tax assessor erroneously assessed a public street as part of the taxpayer s property. Id. However, the actual holding of the Court, which supports the Taxing Authorities, was that the pertinent statute made an erroneous listing of an owner on the tax roll an immaterial irregularity that does not affect the enforceability of unredeemed tax certificates sought to be foreclosed. Id. In contrast, the opinion below did not present the issue of an erroneous assessment of a public street. To the contrary, the Third District held that the Taxing Authorities followed the pertinent legislative authority to assess the Tracts on the basis of the recorded WIC Plat and RIM assumed the delinquent tax liens attached to the Tracts when it obtained an interest to the Subtracts. Yorty, 938 So. 2d at 4-5. Thus the Third District s decision certainly could not, and did not, 6
address any issue decided in Palbicke. Id. Moreover, RIM cannot properly allege express and direct conflict jurisdiction based on dicta. Ciongoli, 337 So. 2d at 781. RIM then alleges conflict with BankUnited Fin. Corp. v. Markham, 763 So. 2d 1072 (Fla. 4th DCA 1999). BankUnited, however, is completely distinguishable from this case. BankUnited involved a lawsuit filed by Tax Certificate Holders that purchased tax certificates for unpaid taxes on real estate planned to be part of a condominium s common elements, but still owned by the developer. Id. In subsequent tax years, although the common elements had not been deeded to the Association, the property appraiser changed his method of assessing the property and began placing the value of the common elements into the condominium units and valuing the common elements (on which the tax certificates were issued) at a minimal amount. Id. The Fourth District held under those facts that the Tax Certificate Holders, which were never the owners of the property or the taxpayers liable for the taxes, were not bound by the sixty-day statute of non-claim established by section 194.171, but instead could pursue their claim under Rule 12D-8.021 of the Florida Administrative Code. Id. 7
The Third District did not address whether RIM could circumvent the statute of non-claim to file this lawsuit. 3 Yorty, 938 So. 2d at 4-7. Moreover, unlike any issue addressed in BankUnited, the Third District held that no error of any kind was committed as the Taxing Authorities properly followed the pertinent legislative authorities in assessing the Tracts in accordance with the recorded WIC Plat and denying the request to apportion delinquent tax liens. Id. Thus, conflict between the two cases cannot exist. RIM then cites for conflict Miller v. Lindstrom, 45 Fla. 473 (Fla. 1903), Dawson v. Saada, 608 So. 2d 806 (Fla. 1993), Rosado v. Vosilla, 909 So. 2d 505 (Fla. 5th DCA 2005), Southern Bell Tel. & Tel. Co. v. County of Dade, 275 So. 2d 4 (Fla. 1973), Adams v. Reid, 396 So. 2d 1182 (Fla. 4th DCA 1981), and Fla. Dep t of Revenue v. Howard, 916 So. 2d 640 (Fla. 2005), contending that the Taxing Authorities somehow violated its constitutional rights. In contrast to the present case, these cases are factually distinguishable because they involved constitutional notice and due process issues in lawsuits to quiet title after a tax deed sale or timely equal protection challenges to tax assessments. The Third District s decision actually held that the Taxing Authorities correctly assessed the 3 BankUnited has little or no value as precedent after this Court s decision in Ward v. Brown, 894 So. 2d 811 (Fla. 2004), wherein the Court expressly overruled several district court decisions that allowed taxpayers to circumvent section 194.171 s statute of non-claim. Id. at 817. 8
Tracts, and RIM assumed the delinquent tax liens on the Tracts (which were a matter of public record) when it obtained an interest to the Subtracts. Yorty, 938 So. 2d at 4-7. Conflict cannot exist as the Third District s decision did not address any such constitutional issues. 4 With respect to RIM s inappropriate references to another owner of land situated within the WIC Plat, it suffices to state that the Third District did not address this at all. Id. Thus, there can be no conflict on the basis of references that are not at all mentioned within the four corners of the Third District s opinion. Reaves, 485 So. 2d at 830. Last, RIM cites to Traylor Brother, Inc. v. Shipman, 738 So. 2d 1028 (Fla. 1st DCA 1999) and other cases to argue that the nonfinal order, partially entitled Order Continuing the Stay of the Tax Deed Sale, was not appealable under Rule 9.130(a)(3)(B). Conflict jurisdiction cannot be established on the basis of an alleged conflict with a rule of procedure. Langston, 655 So. 2d at 93 n.1. Furthermore, the Third District found the trial court s nonfinal order denying the Taxing Authorities motion to dismiss was exceptional and appealable as it had 4 Moreover, RIM received notice that if the delinquent tax liens were not paid, then the Tracts would have been sold at a tax deed sale. Yorty, 938 So. 2d at 3. In addition, RIM only obtained an interest to the Subtracts in 2004, and prior to obtaining this interest, all notices regarding the Tracts were sent to the one mailing address provided by RIM s predecessor-in-interest and the other owner of land situated within the Tracts. Id. at 2. 9
injunctive effect. Yorty, 938 So. 2d at 4 n.3. Thus, the cases cited by RIM are distinguishable and no conflict exists. 5 CONCLUSION No decision cited by RIM addressed the applicable facts or legal issues regarding the particular legislative authorities addressed in the Third District s decision. Therefore, conflict does not exist and jurisdiction must be denied. Respectfully submitted, MURRAY A. GREENBERG MIAMI-DADE COUNTY ATTORNEY By: Eric A. Hernandez Assistant County Attorney Florida Bar No. 340730 Miami-Dade County Attorney s Office Stephen P. Clark Center 111 N.W. 1 st Street, Suite 2810 Miami, Florida 33128 Phone: (305) 375-5151 Fax: (305) 375-5611 Email: eah@miamidade.gov 5 RIM cites to Black v. Skinner Mfg. Co., 43 So. 919 (Fla. 1907) and Pierson v. Bill, 182 So. 2d 631, 635 (Fla. 1938), and argues that the decision below contradicts the proposition that the intention of the grantor controls the conveyance of property. Neither the Taxing Authorities, nor the decision of the Third District, quarrel with this general proposition. RIM then argues conflict with Greenblatt v. Goldfin, 94 So. 2d 355 (Fla. 1957). In Greenblatt, the Court held unconstitutional a mechanic s lien statute that impaired the freedom to contract. Greenblatt has nothing to do with any issue addressed in the decision below. 10
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed this day of November, 2006, to: Robert A. Stok, Esquire, Stok & Associates, P.A. 2875 N.E. 191st Street, Suite 304, Aventura, Florida 33180. Assistant County Attorney CERTIFICATE OF COMPLIANCE Undersigned counsel certifies that this brief complies with the font requirements of Rule 9.210(a) of the Florida Rules of Appellate Procedure. Assistant County Attorney 11