IN THE SUPREME COURT OF FLORIDA CASE NUMBER SC06-2351 Lower Court Case Number 4D04-3895 ELLER DRIVE LIMITED PARTNERSHIP, Petitioner, vs. BROWARD COUNTY, a political subdivision of the STATE OF FLORIDA, Respondent. RESPONDENT BROWARD COUNTY S BRIEF ON JURISDICTION JEFFREY J. NEWTON Broward County Attorney ANDREW J. MEYERS Chief Appellate Counsel JAMES D. ROWLEE Assistant County Attorney Governmental Center, Suite 423 115 South Andrews Avenue Ft. Lauderdale, Florida 33301 Telephone: (954) 357-7600 Facsimile: (954) 357-7641 i
TABLE OF CONTENTS TABLE OF AUTHORITIES...ii STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF THE ARGUMENT...2 ARGUMENT...3 THE COURT LACKS JURISDICTION BECAUSE THE DISTRICT COURT DECISION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH ANY DECISION OF THIS COURT ON THE SAME QUESTION OF LAW CONCLUSION...6 CERTIFICATE OF SERVICE...7 CERTIFICATE OF COMPLIANCE...7 i
TABLE OF AUTHORITIES Cases Page Bell v. Bryan, 505 So.2d 690 (Fla. 1 st DCA 1987)...3 Broward County v. Eller Drive Limited Partnership, 939 So.2d 130 (Fla. 4 th DCA 2006)...1, 3, 4, 5, 6 Dept. of Revenue v. Morganwoods Greentree, Inc., 341 So.2d 756 (Fla. 1977)... 4, 5 Helvering v. F. & R. Lazarus & Co., 308 U.S. 252 (1939)...6 Hillsborough County Aviation Authority v. Walden, 210 So.2d 193 (Fla. 1968)... 4, 5 Homer v. Dadeland Shopping Center, Inc., 229 So.2d 834 (Fla. 1970)... 4, 5 Marathon Air Servs., Inc. v. Higgs, 575 So.2d 1340 (Fla. 3d DCA 1991)... 3, 4 Markham v. Broward County, 825 So.2d 472 (Fla. 4 th DCA 2002)... 1, 3 Parker v. Hertz Corp., 544 So.2d 249 (Fla. 2d DCA 1989)... 3, 4 Park-N-Shop, Inc. v. Sparkman, 99 So.2d 571 (Fla. 1958)... 4, 5 Florida Statutes 195.027(1), Fla. Stat. (2004)...6 196.199(2), Fla. Stat. (2004)... 3, 5, 6 Florida Administrative Code Fla. Admin. Code R. 12C-2.010(1)(m)(2)...6 Rules of Procedure Fla. R. App. P. 9.030(a)(2)(A)(iv)...3 ii
STATEMENT OF THE CASE AND FACTS The sole issue in this case was who owns an office building constructed by a private party on county-owned land. Petitioner, Eller Drive Limited Partnership ( Eller Drive ), is a long-term ground lessee of land owned by Broward County (the County ). Eller Drive s predecessor-in-interest had constructed an office building on the leased land. Eller Drive intervened into Markham v. Broward County, 825 So.2d 472 (Fla. 4 th DCA 2002), at the trial court level, and sought a declaration that the office building was owned by the County and was therefore immune from ad valorem taxation. In 2002, the Fourth District Court of Appeal decided Markham, ruling, based on uniform case precedent, that county-owned property is immune from ad valorem taxation, even when that property is used for nongovernmental purposes. 825 So.2d at 472. The Markham decision, however, did not address who owned the office building constructed by Eller Drive s predecessor. After Markham was decided, the trial court, based solely on its construction of the ground lease, declared that the office building was owned by the County and was therefore immune from ad valorem taxation. Broward County v. Eller Drive Limited Partnership, 939 So.2d 130, 132 (Fla. 4 th DCA 2006). The Fourth District Court of Appeal reversed, ruling that an examination of the lease and relevant case law compels the conclusion that Eller Drive owns the building. Id. Eller Drive moved for rehearing and rehearing en banc, both of which were denied. Eller Drive now seeks review in this Court. 1
SUMMARY OF THE ARGUMENT Eller Drive alleges the lower court decision conflicts with four decisions of this Court on the same question of law. First, there is no conflict. Second, none of the allegedly conflicting decisions addresses the question of law addressed by the lower court. In fact, none of those decisions was relied upon by the lower court or even referenced in the lower court decision. Because there is no express and direct conflict with any decision of this Court, this Court lacks jurisdiction to review the lower court decision. 2
ARGUMENT THE COURT LACKS JURISDICTION BECAUSE THE DISTRICT COURT DECISION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH ANY DECISION OF THIS COURT ON THE SAME QUESTION OF LAW Under Rule 9.030(a)(2)(A)(iv), Florida Rules of Appellate Procedure, this Court has discretion to review district court decisions that expressly and directly conflict with a decision of... the supreme court on the same question of law. Eller Drive asserts that the district court decision expressly and directly conflicts with four decisions of this Court. 1. The District Court Decision. Under uniform Florida case precedent, as recognized in Markham, countyowned property is immune from taxation. The only issue addressed by the district court in Eller Drive was whether the building built on County land was owned by the County or by Eller Drive, the ground lessee. Eller Drive, 939 So.2d at 132. The district court referenced section 196.199(2), Florida Statutes, which shows the Florida Legislature has expressly recognized that buildings constructed on government land may be owned by the ground lessee and, if they are, the buildings may be subject to ad valorem taxation. Id. The district court also relied on three cases, all directly on point, showing that a lessee of county land may own the improvements constructed on that land, which improvements would then be subject to ad valorem taxation. Id., citing Marathon Air Servs., Inc. v. Higgs, 575 So.2d 1340 (Fla. 3d DCA 1991); Parker v. Hertz Corp., 544 So.2d 249 (Fla. 2d DCA 1989); and Bell v. Bryan, 505 So.2d 690 (Fla. 1 st DCA 1987). The district court then performed the same analysis of the applicable ground lease that the First District Court of Appeal 3
did in Bell, the Second District Court of Appeal did in Parker, and the Third District Court of Appeal did in Marathon Air. 2. The Decisions Eller Drive Alleges are in Express and Direct Conflict. Eller Drive claims the district court decision conflicts with four decisions of this Court. As stated above, none of these decisions conflicts with the district court decision, none addressed the same question of law, and none was even mentioned by the district court. First, Eller Drive asserts (p. 2 of jurisdictional brief) the district court decision is contrary to the holdings in Park-N-Shop and Walden that county-owned real property, including improvements to real property, is immune from taxation. Park- N-Shop, Inc. v. Sparkman, 99 So.2d 571 (Fla. 1958); Hillsborough County Aviation Authority v. Walden, 210 So.2d 193 (Fla. 1968). Second, Eller Drive asserts (p. 3 of jurisdictional brief) the district court decision conflicts with the holdings in Homer and Morganwoods by creating separate subclasses of real property, land versus buildings, as well as distinct and separate owners of such subclasses of real property. Homer v. Dadeland Shopping Center, Inc., 229 So.2d 834 (Fla. 1970); Dept. of Revenue v. Morganwoods Greentree, Inc., 341 So.2d 756 (Fla. 1977). In Park-N-Shop, ownership was not at issue; it was undisputed that the County owned the land. 99 So.2d at 571. As such, regardless of its use, the Court ruled that the land was immune from taxation. Id. at 573. The district court decision in Eller Drive is perfectly consistent with Park-N-Shop. 1 Nor was the issue of ownership in 1 Unlike in Eller Drive where the sole issue was ownership, the issue in Park-N- Shop was whether a leasehold interest could be taxed as tangible personal property. 4
dispute in Walden. 210 So.2d 193. The Walden Court merely stated that property owned by a county is immune from taxation, a rule of law followed by the Fourth District in Eller Drive. Id. at 195. Thus, not only is there no conflict between the lower court decision in Eller Drive and this Court s decisions in Park-N-Shop and Walden, the cases did not address the same question of law. 2 Eller Drive s assertion that the lower court decision conflicts with Homer and Morganwoods is equally baseless. Homer and Morganwoods had nothing to do with the issue of who owns a building constructed on government land subject to a longterm ground lease. Homer recognized that, when assessing property, subordinate interests in the land (such as easements) should not be assessed separately from the land. 229 So.2d at 836-37. This was confirmed in Morganwoods, which acknowledged the general rule that in the levy of property tax the assessed value of the land must represent all the interests in the land. 341 So.2d at 758, citing Homer (other citation omitted) (underline added). Homer also acknowledged that the Legislature may define how taxes may be assessed. Here, the Legislature has expressly recognized that buildings constructed by private lessees on government land may be separately assessed. 196.199(2), Fla. 2 On page 4 of its jurisdictional brief, Eller Drive also claims the lower court decision conflicted with Park-N-Shop because the lower court confused the issues of exemption and immunity. Specifically, Eller Drive claims, without any basis, that the Fourth District held that the office building was not statutorily exempt from taxation. Contrary to Eller Drive s claim, the Fourth District consistently recognized the issue was tax immunity, not exemption, and properly based its entire analysis on whether the County owned the building. 5
Stat. (2004). Section 196.199(2) addresses buildings owned by the ground lessee. Under Eller Drive s argument that the government landowner owns the building as a matter of law, a building could not be owned by a ground lessee. The plain language of 196.199(2) defeats Eller Drive s argument, 3 and there is nothing in Homer or Morganwoods that conflicts with either that plain statutory language or the lower court s decision in Eller Drive. Finally, Eller Drive attempts to buttress its argument for jurisdiction by asserting (p. 6 of jurisdictional brief) that the district court decision violates the Florida Constitution by somehow conferring a county with the right to impose a tax merely by specifying ownership in a lease. To the contrary, the district court acknowledged that, in matters of taxation, courts must focus on substance and reality and not on written characterizations. Eller Drive, 939 So.2d at 133, citing Helvering v. F. & R. Lazarus & Co., 308 U.S. 252, 255 (1939). More importantly, because the district court did not expressly construe a provision of the state constitution, Eller Drive s final argument does not establish jurisdiction. CONCLUSION The lower court decision does not expressly and directly conflict with any decision of this Court on the same question of law. This Court should, therefore, decline review. 3 The Legislature also delegated to the Florida Department of Revenue the authority to enact rules for the assessment of property taxes. 195.027(1), Fla. Stat. (2004). One such rule, Fla. Admin Code R. 12C-2.010(1)(m)(2), confirms that, under Florida law, lessees of governmental property may, for ad valorem tax purposes, own buildings they construct on that property. 6
CERTIFICATE OF SERVICE The undersigned certifies a copy hereof was mailed December 13, 2006, to Clifford M. Stein, Esquire, 5345 Pine Tree Drive, Miami Beach, Florida 33140. point font. CERTIFICATE OF COMPLIANCE The undersigned certifies this brief was prepared in Times New Roman 14- Respectfully submitted, Jeffrey J. Newton Broward County Attorney Governmental Center, Suite 423 115 South Andrews Avenue Fort Lauderdale, Florida 33301 Telephone: (954) 357-7600 Fax: (954) 357-7641 By: s/andrew J. Meyers Andrew J. Meyers Chief Appellate Counsel Florida Bar No. 709816 James D. Rowlee Assistant County Attorney Florida Bar No. 0120110 7