IN THE SUPREME COURT OF FLORIDA CASE NO. SC06-2051 L.T. Case No. 3D05-2129 REALTY INVESTMENT & MORTGAGE CORPORATION, INC., a Florida corporation, Petitioner, vs. JOEL W. ROBBINS, in his official capacity as a property appraiser for Miami-Dade County, Florida, and IAN YORTY, in his official capacity as a tax collector for Miami-Dade County, Florida, Respondents. ON APPEAL FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT AMENDED BRIEF OF PETITIONER, REALTY INVESTMENT & MORTGAGE CORPORATION, INC., IN SUPPORT OF MOTION TO INVOKE DISCRETIONARY JURISDICTION ROBERT A. STOK Fla. Bar No. 857051 ERIC R. THOMPSON Fla. Bar No. 888931 Attorneys for Petitioner Turnberry Plaza, Suite 304 2875 N.E. 191 st Street Telephone: (305) 935-4440 Facsimile: (305) 935-4470 E-Mail: support@stoklaw.com
TABLE OF CONTENTS Page TABLE OF CITATIONS AND OTHER AUTHORITIES...ii PREFACE...iv STATEMENT OF THE CASE AND FACTS...1 STATEMENT OF JURISDICTION ON MOTION FOR DISCRETIONARY REVIEW...1 SUMMARY OF THE ARGUMENT...2 ARGUMENT...2 I. MULTIPLE FEE-SIMPLE OWNERS ARE ENTITLED TO SEPARATE ASSESSMENTS ON THEIR RESPECTIVE OWNERSHIP INTERESTS IN REAL PROPERTY...2 II. III. IV. A TAX ASSESSMENT BASED UPON TAX ROLLS THAT DO NOT LIST THE OWNER OF THE ASSESSED PROPERTY IS ILLEGAL...5 TAX ASSESSMENTS MAY NOT BE ARBITRARY OR CAPRICIOUS...7 DENIAL OF MOTION TO DISMISS IS A NON- APPEALABLE ORDER...8 CONCLUSION...9 CERTIFICATE OF SERVICE... 11 CERTIFICATE OF COMPLIANCE... 12 -i-
TABLE OF CITATIONS AND OTHER AUTHORITIES Page CASES: Adams v. Reid, 396 So. 2d 1182 (Fla. 4th DCA 1981)...6 Bankunited Fin. Corp. v. Markham, 763 So. 2d 1072 (Fla. 4th DCA 1999)... 4, 5 Black v. Skinner Mfg. Co., 43 So. 919 (Fla. 1907)... 4, 5 Brown v. Snell, 6 Fla. 741 (1865)... 3, 4, 5 CMR Distribs., Inc. v. Resolution Trust Corp., 593 So. 2d 593 (Fla. 3d DCA 1992)...9 Dawson v. Saada, 608 So. 2d 806 (Fla. 1993)...6 Fla. Dep t of Revenue v. Howard, 916 So. 2d 640 (Fla. 2005)...7 Greenblatt v. Goldin, 94 So.2d 355 (Fla. 1957)... 3, 4, 5 Khandjian v. Compagnie Financiere Mediterranee Cofimed, S.A., 619 So. 2d 348 (Fla. 2d DCA 1993)... 8, 9 Marathon Resort & Marina, Ltd. v. Ditocco Konstruction, Inc., 857 So. 2d 898 (Fla. 3d DCA 2003)...9 Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983)...6 Miller v. Lindstrom, 33 So. 521 (Fla. 1923)... 5, 6 Palblcke v. Hanover Nat l Corp., 120 Fla. 299 (1935)... 4, 5 -ii-
TABLE OF CITATIONS AND OTHER AUTHORITIES (cont'd) CASES: Page Pierson v. Bill, 182 So. 631 (Fla. 1938)... 4, 5 Rosado v. Vosilla, 909 So. 2d 505 (Fla. 5th DCA 2005)...6 Sioux City Bridge Co. v. Dakota County, 260 U.S. 441 (1923)...6 Southern Bell Tel. & Tel. Co. v. County of Dade, 275 So. 2d 4 (Fla. 1973)...6 Terex Trailer Corp. v. McIlwain, 579 So. 2d 237 (Fla. 1st DCA 1991)...9 Traylor Brother, Inc. v. Shipman, 738 So. 2d 1028 (Fla. 1st DCA 1999)... 8, 9 STATUTES: 177.031(14), Fla. Stat...3 197.502, Fla. Stat... 5, 6 OTHER AUTHORITIES: Fla. Admin. Code 12D-8.007... 5, 6 Fla. Admin. Code 12D-8.021(4)... 4, 5 RULES: Fla. R. App. P. 9.030(a)(2)(A)(iv)...1 Fla. R. App. P. 9.030(a)(2)(v)...2 Fla. R. App. P. 9.130(a)(3)(B)...9 CONSTITUTIONAL PROVISIONS: U.S. Const. amend. XIV...6 -iii-
PREFACE Throughout this Brief, the Petitioner, Realty Investment & Mortgage Corporation, Inc., the Appellant in the Third District Court of Appeal, will be referred to as RIMCI. The property owned by RIMCI that is the subject of this appeal will be referred to as the Property. The Wynwood Industrial Complex Plat, in which the Property is located, will be referred to as the WIC Plat. Wynwood Industrial Development Corp., an owner of land in the WIC Plat, will be referred to as Wynwood. Baylor Finance Corporation, a former owner of land in the WIC Plat, will be referred to as Baylor. Respondent Joel W. Robbins will be referred to as the Property Appraiser. 1 Respondent Ian Yorty will be referred to as the Tax Collector. The Respondents, the Appellees in the Third District Court of Appeal, will collectively be referred to as the Taxing Authorities. The Third District Court of Appeal will be referred to as the District Court, and the District Court s opinion of June 21, 2006, a copy of which is attached hereto, will be referred to as the Opinion. 1 On July 4, 2005, Frank Jacobs became the property appraiser for Miami-Dade County, Florida. -iv-
STATEMENT OF THE CASE AND FACTS This matter concerns RIMCI s efforts to obtain judicial intervention to remedy an erroneous property tax assessment. The erroneous property tax assessment resulted in RIMCI having a lien on its Property for unpaid taxes due and owing on land located in the WIC Plat by Wynwood, a separate and distinct party with no relation to RIMCI. The trial court judge granted RIMCI s Motion for Partial Summary Judgment and denied the Taxing Authorities Motion to Dismiss, ordering the Taxing Authorities to provide RIMCI with a separate tax bill for the taxes due and owing only on RIMCI s Property. The District Court reversed. The District Court failed to address the undisputed fact that the Taxing Authorities issued a separate tax bill to Baylor, a third party similarly situated to RIMCI, whose land was also located in the WIC Plat. The District Court reversed the trial court judge s order denying the Taxing Authorities Motion to Dismiss RIMCI s Complaint. STATEMENT OF JURISDICTION ON MOTION FOR DISCRETIONARY REVIEW Under Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv), this Court has discretionary jurisdiction to review decisions of the district courts of appeal that expressly and directly conflict with a decision of another district court of appeal, or of this Court, on the same question of law. Fla. R. App. P. 9.030(a) (2)(A)(iv). -1-
SUMMARY OF THE ARGUMENT The District Court, in reversing the trial court s ruling granting RIMCI s Motion for Partial Summary Judgment and denying the Taxing Authorities Motion to Dismiss, contradicted the following well-settled precedents of this Court and of Florida s other district courts of appeal, ignoring RIMCI s due process rights: (1) the law prohibits subjecting the property of one man to the payment of a debt due exclusively by another; (2) platting does not constitute the conveyance of land; (3) a tax assessment based upon tax rolls that do not list the owner of the assessed property is illegal; (4) tax assessments may not be arbitrary or capricious; and, (5) the denial of a motion to dismiss is a non-appealable, interlocutory order. In order to prevent conflicting decisions between the District Court, on the one hand, this Court and Florida s other district courts of appeal, on the other, this Court should exercise its discretionary jurisdiction, pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(v), and reverse the District Court s Opinion. ARGUMENT I. MULTIPLE FEE-SIMPLE OWNERS ARE ENTITLED TO SEPA- RATE ASSESSMENTS ON THEIR RESPECTIVE OWNERSHIP INTERESTS IN REAL PROPERTY. The District Court, in overruling the trial court s ruling, determined that one landowner can be assessed taxes for property owned by another party, from which property the assessed landowner obtains no benefit. -2-
Contrary to the District Court s holding, in the seminal case of Brown v. Snell, 6 Fla. 741 (1865), this Court set forth the ineluctable principle that, to subject the property of one man to the payment of a debt due exclusively by another [is] a result which cannot be sustained upon any principle of law or equity. Id. Moreover, this Court has held that a landowner cannot be saddled with the burdens of property ownership without also receiving the benefits therefrom. See Greenblatt v. Goldin, 94 So.2d 355, 357 (Fla. 1957). In explaining its erroneous conclusion that RIMCI is responsible for the taxes of land it never owned, the District Court noted that, [i]t is significant that, in RIMCI s Complaint, RIMCI acknowledges that its [Property is], currently platted with parcels of other real property in the WIC Plat and that past due taxes are owed on the [Property] and other property. (Opinion at p. 12). The District Court treated the platting of RIMCI s Property together with Wynwood s land in the WIC Plat as a conveyance of such lands for tax assessment purposes. However, a plat is merely a map or delineated representation of the subdivision of lands and does not effectuate a transfer of any interest in real property. 177.031(14), Fla. Stat. In determining what land has been transferred in any particular instance, this Court has determined that the intention of the -3-
grantor is the controlling consideration. Black v. Skinner Mfg. Co., 43 So. 919 (Fla. 1907); Pierson v. Bill, 182 So. 631, 635 (Fla. 1938). 2 Furthermore, this Court, in Palblcke v. Hanover Nat l Corp., 120 Fla. 299 (1935), determined that the appropriate remedy in this exact situation, the remedy which the lower court granted but which the District Court reversed, is an equitable apportionment of the taxes due in accordance with the respective ownership interests of the land taxed. In addition, an equitable apportionment and correction of the erroneous tax assessments that were made is required pursuant to Florida Administrative Code 12D-8.021(4) and Bankunited Fin. Corp. v. Markham, 763 So. 2d 1072 (Fla. 4th DCA 1999) which, when read together, stand for the principle that errors made by the property appraiser in erroneously identifying the owner of land may be corrected at any time. In overruling the lower court, the District Court found that the trial court s decision, entered in accordance with this Court s binding precedents in Brown v. Snell, Greenblatt v. Goldin, and Palblcke v. Hanover, the Fourth District Court of Appeal s opinion in Bankuunited v. Markham, and Florida Administrative Code 2 In the case at bar, it is undisputed that the intent of all of the relevant parties in the chain of title was to convey to RIMCI only the Property, no more and no less. The deeds pursuant to which RIMCI acquired its title in the Property as well as the deeds, pursuant to which RIMCI s predecessor in interest acquired its interest in the Property, contain a clear legal description of the land conveyed. The Taxing Authorities should have had no difficulty in identifying RIMCI s predecessor in interest as the owner of the Property when they made their initial assessment that created the resulting mischief. Instead, they assessed the Property erroneously by misidentifying the ownership interests therein. -4-
12D-8.021(4), was not supported by a proper application of law. (Opinion at p. 11). The platting in the WIC Plat of Wynwood s Property was not of any significance to the issues on appeal as the intention of the grantors, and not how the property is platted, is the controlling consideration in determining what property has been conveyed in any particular instance. Black v. Skinner, 43 So. at 919; Pierson v. Bill, 182 So. at 631. The District Court s finding to the contrary is in direct conflict with the binding precedents of this Court in Black and Pierson, this Court s fundamental holdings in Brown v. Snell, Palblcke v. Hanover, Greenblatt v. Goldin, and with the Fourth District Court of Appeal s decision in Bankunited Fin. Corp. v. Markham. II. A TAX ASSESSMENT BASED UPON TAX ROLLS THAT DO NOT LIST THE OWNER OF THE ASSESSED PROPERTY IS ILLEGAL. This Court, in Miller v. Lindstrom, 33 So. 521 (Fla. 1923), determined that a description of land on the assessment roll so faulty as to not warn the owner of the charge upon his land will invalidate the assessment. Id. This basic postulate of real property taxation has been codified by section 197.502, Florida Statutes, and Florida Administrative Code 12D-8.007, each of which requires that the tax roll, at a minimum, list the owner of record of each parcel of real property against which taxes are assessed for the prior year. -5-
This Court s decision in Miller v. Lindstrom, section 197.502, Florida Statutes, and Florida Administrative Code 12D-8.007 are each designed to protect the property owner as the party responsible for payment of taxes that accrue on their land by providing the owner with notice of their tax obligation. In support of that objective, this Court together with the United States Supreme Court and other Florida district courts of appeal have recognized numerous times that notice of a tax deed sale is jurisdictionally defective if it does not satisfy the requirements of due process and must provide, at a minimum, actual notice to the owner of the outstanding obligation. Dawson v. Saada, 608 So. 2d 806, 809 (Fla. 1993); see also Rosado v. Vosilla, 909 So. 2d 505 (Fla. 5th DCA 2005); Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800 (1983). This Court has determined that the imposition of a disproportionately greater taxation burden upon a particular taxpayer compared to the taxation of property generally is a violation of such taxpayer s due process rights under the Fourteenth Amendment to the United States Constitution. Southern Bell Tel. & Tel. Co. v. County of Dade, 275 So. 2d 4, 8 (Fla. 1973); see also Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 446 (1923); Adams v. Reid, 396 So. 2d 1182, 1184 (Fla. 4th DCA 1981). Not only did the tax roll not list RIMCI as owner of record of the Property, the notice of the tax deed sale saddles RIMCI with the burden of being required to -6-
pay taxes on both its Property and land owned by a third party. Hence, RIMCI s tax burden is greater than the burden of every other taxpayer in the State of Florida. The Taxing Authorities erroneous assessment burdens RIMCI in a manner in which no other taxpayer is burdened, rendering the notice jurisdictionally defective, purposefully discriminatory and void. Consequently, the District Court has failed to follow binding precedent of this Court and its Opinion is in conflict with an opinion of the Fifth District Court of Appeal. III. TAX ASSESSMENTS MAY NOT BE ARBITRARY OR CAPRI- CIOUS. This Court, in accordance with the Florida and Federal Constitutions, has held that the property appraiser cannot, arbitrarily classify some property for favored tax treatment, if such classification could, lead to [certain] property carrying a disproportionate share of the tax burden. Fla. Dep t of Revenue v. Howard, 916 So. 2d 640, 642 (Fla. 2005). RIMCI and Baylor were, at all material times, similarly situated in that: (1) both Baylor s property and RIMCI s Property are located in the WIC Plat; (2) both Baylor and RIMCI obtained title to their respective lands by foreclosure; (3) Baylor and RIMCI s apportionment requests occurred just three months apart; and, (4) the legal descriptions of Baylor s property as well as of RIMCI s Property each referenced the same plat, the plat which preceded the WIC Plat. Notwith- -7-
standing the foregoing similarities, in contrast to RIMCI s unsuccessful efforts to obtain a delinquent carve-out, Baylor was able to obtain a delinquent carve-out on its land in the WIC Plat just three months prior to RIMCI s apportionment request by making a simple request for one to the Taxing Authorities. The District Court failed to address the Taxing Authorities disparate treatment of RIMCI and Baylor. By doing so, the District Court completely disregarded the fundamental principle that the taxation of real property can be neither arbitrary nor capricious. RIMCI should not be required to carry a disproportionate share of the tax burden, especially where Baylor, a party similarly situated to RIMCI, was not required to do so. RIMCI is protected from such a result by the United States and Florida Constitutions, as well as by binding precedents of this Court. IV. DENIAL OF MOTION TO DISMISS IS A NON-APPEALABLE ORDER. This Court and other Florida district courts have held that orders denying a motion to dismiss are interlocutory and non-appealable. Traylor Brother, Inc. v. Shipman, 738 So. 2d 1028 (Fla. 1st DCA 1999); Khandjian v. Compagnie Financiere Mediterranee Cofimed, S.A., 619 So. 2d 348 (Fla. 2d DCA 1993). However, the District Court permitted the Taxing Authorities to appeal the trial court s denial of their Motion to Dismiss, stating that the Taxing Authorities, are -8-
allowed to complain on appeal about any interlocutory ruling by the trial court which led up to the issuance of the injunction. 3 The District Court s decision to reverse the denial of the Taxing Authorities Motion to Dismiss squarely conflicts with the First District Court of Appeal s decision in Traylor Brother as well as with the Second District Court of Appeal s decision in Khandjian, each of which decisions hold that the denial of a motion to dismiss is an interlocutory, non-appealable order. CONCLUSION For all of the reasons set forth herein, RIMCI shows that the District Court erroneously reversed the trial court s order directing the Taxing Authorities to apportion the taxes due and owing on RIMCI s Property in accordance with the separate ownerships therein. 3 The District Court and the First District Court of Appeal have held that the denial of a motion to dismiss can have an injunctive effect and, thus, in some circumstances can qualify as an appealable non-final order pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B). Marathon Resort & Marina, Ltd. v. Ditocco Konstruction, Inc., 857 So. 2d 898 (Fla. 3d DCA 2003); CMR Distribs., Inc. v. Resolution Trust Corp., 593 So. 2d 593, 594 (Fla. 3d DCA 1992), and Terex Trailer Corp. v. McIlwain, 579 So. 2d 237, 241-42 (Fla. 1st DCA 1991). However, the denial of the Taxing Authorities Motion to Dismiss in the trial court could not be gainsaid to have an injunctive effect since, when it was denied on July 14, 2005, there was already an appealable temporary injunction in place since May 4, 2005 which the Taxing Authorities never appealed. Therefore, the denial of the Taxing Authorities Motion to Dismiss did not, lead up to the issuance of an injunction (Opinion at p. 5 n.3) as the District Court erroneously determined in its decision denying RIMCI s Motion to Dismiss and to Strike since, obviously, the injunction was already in place before the Taxing Authorities Motion to Dismiss was denied and after the time to appeal the injunction had expired. -9-
The District Court s decision, if left undisturbed, would : (1) have an unsettling effect on the marketability and stability of land titles; (2) allow a county to create tax obligations for one party for another s property with unfettered discretion; and, (3) create a class of appealable non-final orders not proscribed by this Court, all in derogation of binding precedent and in conflict with this Court and other district courts of appeal. WHEREFORE, RIMCI requests this Court exercise its discretionary jurisdiction over this matter and reverse the District Court s decision in order to resolve conflicts between the decisions of the District Court with the binding decisions of this Court and Florida s other district courts of appeal. -10-
CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing Amended Brief of Petitioner, Realty Investment & Mortgage Corporation, Inc., in Support of Motion to Invoke Discretionary Jurisdiction, was mailed this 20 th day of October, 2006, to ERIC A. HERNANDEZ, ESQ. and ROBERT A. GINSBURG, ESQ., Miami-Dade County Attorney s Office, Stephen P. Clark Center, Suite 2810, 111 N.W. First Street, Miami, Florida 33128-1993. ROBERT A. STOK Fla. Bar No. 857051 Attorneys for Petitioner Turnberry Plaza, Suite 304 2875 N.E. 191 st Street Telephone: (305) 935-4440 Facsimile: (305) 935-4470 E-Mail: support@stoklaw.com -11-
CERTIFICATE OF COMPLIANCE The undersigned counsel hereby certifies that this Brief of Petitioner, Realty Investment & Mortgage Corporation, Inc., complies with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2). ROBERT A. STOK -12-