IN THE SUPREME COURT OF FLORIDA CASE NO. SC10-91 (Lower Tribunal Case Nos. 3D08-944; 03-14195) JOEL ROBBINS, as Miami-Dade County Property Appraiser, and IAN YORTY, as Miami-Dade County Tax Collector, et al., Petitioners, vs. VILLAGE OF DORAL PLACE ASSOCIATION, INC. Respondent. ON PETITION FOR DISCRETIONARY REVIEW FROM A DECISION OF THE THIRD DISTRICT COURT OF APPEAL JURISDICTIONAL BRIEF OF PETITIONERS JOEL ROBBINS AND IAN YORTY R. A. CUEVAS, JR. MIAMI-DADE COUNTY ATTORNEY Stephen P. Clark Center, Suite 2810 111 N.W. 1st Street Miami, Florida 33128 Telephone: (305) 375-5151 Facsimile: (305) 375-5611 By: Alexander S. Bokor, FBN 10288 Craig E. Leen, FBN 701696 Assistant County Attorneys
TABLE OF CONTENTS TABLE OF CITATIONS.....ii STATEMENT OF THE CASE AND OF THE FACTS.....1 SUMMARY OF THE ARGUMENT.....3 STANDARD OF REVIEW.....4 ARGUMENT.....4 I. THE THIRD DISTRICT S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS OF THE FLORIDA SUPREME COURT AND THE FOURTH DISTRICT..... 6 II. THE THIRD DISTRICT S DECISION EXPRESSLY AND DIRECTLY AFFECTS A CLASS OF CONSTITUTIONAL OR STATE OFFICERS...8 CONCLUSION.....9 CERTIFICATE OF SERVICE... 10 CERTIFICATE OF COMPLIANCE... 10 i
TABLE OF CITATIONS Cases Dade County Taxing Auths. v. Cedars of Lebanon Hosp. Corp., 355 So. 2d 1202 (Fla. 1978)...5, 7 Hidden Bay Master Association, Inc. v. Miami-Dade County, 938 So. 2d 599 (Fla. 3d DCA 2006).6, 7 Lake Worth Towers, Inc. v. Gerstung, 262 So. 2d 1 (Fla. 1972)...5, 7 Lanier v. Overstreet, 175 So. 2d 521 (Fla. 1965)...5, 7, 8 Parrish v. Pier Club Apartments, LLC, et al., 900 So. 2d 683 (Fla. 4 th DCA 2005) 5, 7, 8 Ward v. Brown, 894 So.2d 811, 816 (Fla. 2004)...5, 6, 7, 8 Zingale v. Powell, 885 So. 2d. 277, 285 (Fla. 2004).....5, 8 Other Authorities 194.171(2), Fla. Stat. (2003)... passim 718.107, Fla. Stat. (2003)....3 Fla. R. App. P. 9.030...4 Fla. R. App. P. 9.030(a)(2)(A)(iii)..5 Fla. R. App. P. 9.030(a)(2)(A)(iv)..5 ii
STATEMENT OF THE CASE AND OF THE FACTS 1 Joel Robbins, as Miami-Dade County Property Appraiser ( Property Appraiser ), and Ian Yorty, as Miami-Dade County Tax Collector ( Tax Collector ), have been sued in their official capacities for non-discretionary actions taken in their capacities as high-level County officials. 2 In response, the Property Appraiser and Tax Collector both raised the defense that this was a nonjusticiable claim under the tax non-claim statute. See 194.171(2), Fla. Stat. (2003). Additionally, the Property Appraiser and Tax Collector argued that the reading of the statutory scheme offered by respondent Village of Doral Place Association, Inc. (the Association ), would be contrary to public policy and burden the Property Appraiser or Tax Collector in the performance of their official duties by ignoring the statutorily-mandated January date for determining use of property and the statutory non-claim statute restricting an ad valorem tax assessment challenge to within sixty days. The trial court, relying on Third District Court of Appeal and Supreme Court precedent, held that the tax non-claim statute was clear on its face in barring this claim and accordingly granted summary judgment in favor of the Property 1 Please note that this case is pending consolidation with an appeal of petitioner RU4 Real, Inc., Case No. SC10-90. 2 By operation of law, the current officeholders are automatically substituted as parties.. The names have been retained throughout for ease of reference. 1
Appraiser and Tax Collector. On appeal, the Third District reversed the trial court in part and held that the non-claim statute does not apply in this instance because the Association challenged a tax deed sale resulting from nonpayment of an allegedly improper assessment, but did not challenge the underlying tax assessment. Third District Opinion filed October 14, 2009 ( Opinion or Third District s Opinion ), Appendix ( Appx. ) at 6. The fact pattern is well preserved in the Third District s Opinion. See Appx. at 2-3. The Village of Doral Place consists of 331 condominium units in Miami- Dade County. Id. at 2. On January 1st of a tax year, the Property Appraiser assesses properties and determines ownership at that time. On January 1st, 1998, the developer of the Village of Doral Place was the owner of the property at issue in this case, Tract F. See id. In June, 1998, the developer conveyed the property by quitclaim deed to the Association and the property record was changed to reflect the new ownership. See id. The developer retained a reversionary interest. The Property Appraiser valued Tract F at $83,464 and sent a notice of proposed taxes (trim notice) and subsequently, a tax bill of $2,593.85 to the agent of the owner as indentified on the record. See id. No one protested the trim notice; no one paid the bill. See id. A tax certificate was issued on the unpaid taxes and eventually conveyed it to RU4 Real and For Sale by Owner (collectively, the Buyers ). Two years later, the Buyers applied for a tax deed; notice of such 2
application was addressed to the Association and sent to the registered agent. No action was taken by the Association or its management company. Buyers subsequently purchased Tract F at public sale and took possession. The Association sued in circuit court, seeking access to Tract F and requesting the tax deed be set aside. The trial court granted declaratory relief allowing access to the swimming pool on Tract F for unit owners, but upheld the validity of the tax deed based on the fact that this was a challenge to the assessment of the property and therefore barred by the non-claim statute. See id. at 3. The Association and Buyers appealed. See id. The Third District Court reversed the trial court, holding that the tax deed sale violated section 718.107, Florida Statutes (2003). 3 See id. at 4. SUMMARY OF ARGUMENT The Property Appraiser and Tax Collector respectfully request that the Florida Supreme Court accept jurisdiction to determine whether the challenge of the sale of Tract F was in reality a challenge to the assessment barred by the tax non-claim statute. The Supreme Court has jurisdiction over this appeal under two provisions of Rule 9.030 of the Florida Rules of Appellate Procedure. 3 According to the Third District, the jurisdictional tax non-claim statute does not apply because this is a challenge to the impermissible sale of a common element. See id. at 6. In addition to ignoring the assessment as of the January 1 taxing date, the Opinion incorrectly determines that this property cannot meet the definition of common element as the grantor retained a reversionary interest. 3
The Supreme Court has jurisdiction because the decision expressly and directly conflicts on the same issue of law with (i) a prior Supreme Court decision expressly recognizing that the jurisdictional non-claim statute bars challenges to property assessments after sixty days, regardless of how that challenge is characterized, and (ii) a line of cases from the Supreme Court and a Fourth District opinion that expressly recognize that January 1st of a tax year is the date at which a property is assessed regardless of any changes that occur later during that tax year. See Fla. R. App. P. 9.030(a)(2)(A)(iv). The Supreme Court also has jurisdiction because the Third District s decision expressly affects a class of constitutional or state officers. See Fla. R. App. P. 9.030(a)(2)(A)(iii). The Opinion ignores the significance of the January 1st taxing date and therefore creates uncertainty in the assessment and budgetary process. Ad valorem assessment and taxation laws govern statewide, therefore this interpretation impacts every tax collector and property appraiser in the state. Moreover, the Third District s interpretation could result in the failure to capture tax revenue by allowing taxpayers greater leeway in challenging assessment years after the fact without ever paying the underlying tax. ARGUMENT The Supreme Court previously addressed the issue of whether a challenge to a tax assessment may survive if initiated after the sixty day statutory period. See 4
Ward v. Brown, 894 So.2d 811, 816 (Fla. 2004) (applying the mandatory sixty-day statutory bar regardless of whether a taxpayer was claiming an exception or claiming that the assessors action [was] illegal, unlawful or void as an improper classification or for some other reason ); 194.171(2), Fla. Stat. (2003). The Third District s Opinion conflicts with the holding in Ward and the plain language of 194.171(2) by allowing challenges to the assessment re-pled as a challenge to the issuance of a tax deed. The Supreme Court has long emphasized the importance of the January 1st taxing date. 4 The Fourth District Court of Appeal applied this logic to determine that a taxpayer was not entitled to an affordable housing tax exemption where the property was not used as affordable housing on January 1st of the tax year, despite its use the rest of the year. See Parrish v. Pier Club Apartments, LLC, et al., 900 So. 2d 683 (Fla. 4 th DCA 2005). The Third District s Opinion conflicts with both the holdings and logical underpinnings of the aforementioned cases. Therefore, this Opinion, by ignoring the significance of the January 1st date and the sixty-day tax-non claim statue, expressly and directly affects a class of constitutional or state 4 See, e.g., Dade County Taxing Auths. v. Cedars of Lebanon Hosp. Corp., 355 So. 2d 1202 (Fla. 1978); Lake Worth Towers, Inc. v. Gerstung, 262 So. 2d 1 (Fla. 1972); Lanier v. Overstreet, 175 So. 2d 521 (Fla. 1965). Additionally, the Supreme Court has held that strict statutory compliance with statutory deadlines prevents substantial uncertainty in taxing authorities' annual taxing and budgeting process. Zingale v. Powell, 885 So. 2d. 277, 285 (Fla. 2004). 5
officers. The effect of this Opinion is to disrupt the carefully delineated deadlines enacted by the legislature to ensure certainty, finality and predictability in the assessment and budgetary processes. I. The Third District s Decision Expressly And Directly Conflicts With Decisions Of The Florida Supreme Court And The Fourth District Indeed, the Third District s ruling in this case is contradicted by rulings of this Court in interpreting the sixty-day tax non-suit statute and the importance of the January 1st taxing date. Additionally, the Third District s Opinion creates an inter-district split or conflict with the Second Circuit regarding the taxing date. 5 Clear conflict exists between this Court s holding regarding the applicability of the tax non-suit statute, section 194.171(2), Fla. Stat. (2003), and the interpretation offered in the Opinion below. This mandatory sixty day provision of the tax nonsuit statute applies broadly to taxpayers actions challenging the assessment of taxes against their property regardless of the legal basis of the challenge Ward v. Brown, 894 So. 2d 811, 812. This Court held that the sixty-day statutory bar 5 The Opinion also conflicts with prior opinions of the Third District. The Opinion states that Hidden Bay Master Association, Inc. v. Miami-Dade County, 938 So. 2d 599 (Fla. 3d DCA 2006) is not on point. See Appx. at 6. Hidden Bay is directly on point in barring a challenge to the assessment no matter how it is pleaded, where, as here, a party argued that the assessment improperly characterized a common area separately. See id. The fact that Hidden Bay did not involve a challenge to the tax deed is immaterial. See id. at 7. The overriding statutory intent, as the Third District correctly held in Hidden Bay, is that a challenge to an assessment cannot survive after sixty days from assessment, despite its characterization. 6
applies regardless of whether the taxpayers were claiming an exemption or claiming that the assessors action [was] illegal, unlawful, or void as an improper classification or for some other reason. Id. at 816 (emphasis added). Instead of challenging the assessment, the Association brings this challenge after the tax sale was completed,. This is an untimely challenge to the assessment. This attempt to re-read the controlling statute and case law contravenes the clear public purpose policy behind the strict sixty day bar: The Ward court, guided by legislative intent and public policy, held that section 194.171 was adopted in order to ensure timely payment of taxes to facilitate the continuing function of county governments. Ward, 894 So.2d at 815. It relied on Lake Worth Towers, Inc. v. Gerstung, 262 So.2d 1 (Fla. 1972), to support its reasoning that there should be a limited time period when tax processes may be judicially disturbed because tax revenues are allocated or expended upon receipt. Ward, 894 So.2d at 815. Hidden Bay, 938 So. 2d 599, 603. The Third District Opinion receded from its panel decision in Hidden Bay and in doing so created conflict with settled decisional law of this Court. The Court should retain jurisdiction in order to correct this conflict. Additionally, this Opinion creates a clear conflict with a line of decisions from this Court and an inter-district conflict with the Fourth District Court of Appeal. See Dade County Taxing Auths. v. Cedars of Lebanon Hosp. Corp., 355 So. 2d 1202 (Fla. 1978); Lake Worth Towers, Inc. v. Gerstung, 262 So. 2d 1 (Fla. 1972); Lanier v. Overstreet, 175 So. 2d 521 (Fla. 1965); Parrish v. Pier Club 7
Apartments, LLC, et al., 900 So. 2d 683 (Fla. 4 th DCA 2005). Specifically, the Supreme Court cases interpret the relevant statutes to establish a clear requirement that the status of a property is determined on January 1 of a given tax year. The character of a particular parcel is determined as of January 1 and continues throughout the tax year regardless of any change in its character during that year. Overstreet, 175 So. 2d at 523-24 quoted in Parrish, 900 So.2d at 687. Accordingly, the Fourth District dismissed a challenge to an assessment because, although the use changed during the year, the determination made on January 1st was correct as of that date and is dispositive of [the property s] tax treatment for the tax year. Parrish, 900 So.2d at 687. The clear public policy intent is the same as discussed by the Court in Ward and Zingale it allows municipalities to plan on certain revenue and prepare accurate budgets. The Third District Opinion, however, ignores this requirement to give effect to the January 1st taxing date and therefore jurisdiction should be taken to correct the inter-district split and conflict with the opinions of this Court. II. The Third District s Decision Expressly And Directly Affects A Class Of Constitutional Or State Officers The determination by the Third District interferes with the statutorily mandated duties of every county property appraiser and tax collector charged with the duty to assess property, collect property taxes, sell tax deeds, or arrange and collect proceeds from tax sales. The Opinion would call into question the reliability 8
of the statutorily-enacted time frame for the orderly and date-certain assessment of property and collection of ad valorem tax revenue. The January 1st tax date, and the entire scheme culminating in the sixty day tax non-claim statute act to ensure a reliable and stable revenue collection process necessary for the operation of government. Similarly, revenue from tax sales would not escape uncertainty, as a tax sale or tax deed issuance could be challenged based on some allegedly improper assessment from years ago. This would not only interfere with the property appraiser and tax collector s role in the assessment and collection of taxes, it would inject uncertainty into a municipality s budget. CONCLUSION The Third District did not apply the law correctly and the Opinion creates great uncertainty and unintended consequences. The Third District s Opinion would have a chilling effect on both the initial collection of taxes, the ability to generate certain revenue through tax sales, and the certainty with which that revenue can be used in planning and creating budgets. Its Opinion conflicts with established precedent of this Court interpreting clear statutory schemes. Additionally, the Opinion directly and expressly affects every property appraiser and tax collector in the state. Accordingly, the Property Appraiser and Tax Collector respectfully request that the Florida Supreme Court accept jurisdiction. 9
Respectfully submitted, R. A. CUEVAS, JR. Miami-Dade County Attorney 111 N.W. First Street, Ste. 2800, Miami, FL 33128 Tel: 305-375-5151 Fax: 305-375-5611 By: Alexander S. Bokor, FBN 10288 Craig E. Leen, FBN 701696 Assistant County Attorneys CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing was served by e-mail and FedEx on February 13, 2010 to the Florida Supreme Court and by e-mail and U.S. Mail to Frank Colonnelli, Boyd Richards, Parker & Colonnelli, 100 SE 2nd Street, Ste. 3600, Miami, FL 33131; W. Todd Boyd, Boyd & Greene, 150 West Flagler Street, Ste. 2800, Miami, FL 33130, Deborah Marks, 999 Brickell Bay Drive, Suite 1809, Miami, FL 33131, and Steven L. Jones, Larson and Jones, 9999 NE 2nd Ave., Ste. 216, Miami Shores, FL 33138. CERTIFICATE OF COMPLIANCE Undersigned counsel certifies that this brief has been generated in Times New Roman 14-point font and complies with the font requirements of Rule 9.210(a) of the Florida Rules of Appellate Procedure. 10