Delta Prop. Mgmt. v. Profile Invs., Inc.

• Decision Date: 04 May 2012
• Docket Number: No. SC09–2075.,SC09–2075.
• Citation: 87 So.3d 765
• Parties: DELTA PROPERTY MANAGEMENT, etc., Petitioner, v. PROFILE INVESTMENTS, INC., et al., Respondents.
• Court: Florida Supreme Court

87 So.3d 765

DELTA PROPERTY MANAGEMENT, etc., Petitioner,

v.PROFILE INVESTMENTS, INC., et al., Respondents.

No. SC09–2075.

Supreme Court of Florida.

March 8, 2012.

Rehearing Denied May 4, 2012.

John R. Hargrove and W. Kent Brown of Hargrove Pierson and Brown, P.A. Boca Raton, FL, and John R. Beranek of Ausley and McMullen, Tallahassee, FL, for Petitioner.

William S. Graessle, Jacksonville, FL, for Respondent.

Kenza van Assenderp and Timothy R. Qualls of Young van Assenderp, P.A., on behalf of the Florida Tax Collectors, Inc.; Loree L. French, Senior Assistant General Counsel, Jacksonville, FL, on behalf of the Property Appraiser, Tax Collector and Clerk of the Circuit and County Courts for Duval County, FL; and Elliott Messer and Thomas M. Findley of Messer, Caparello and Self, P.A., Tallahassee, FL, on behalf of Florida Association of Property Appraisers, as Amici Curiae.

CANADY, C.J.

This case presents the latest round in protracted litigation regarding the validity of a tax deed. Delta Property Management seeks review of Profile Investments, Inc. v. Delta Property Management, Inc. (Delta V), 19 So.3d 1013 (Fla. 1st DCA 2009), in which the First District Court of Appeal reversed a summary judgment voiding a tax deed and quieting title to certain real property in Delta. In its decision, the First District concluded that because Delta had not previously argued—in an earlier round of litigation which resulted in an appeal—that once notice sent by certified mail was returned undeliverable the Clerk of the Circuit and County Courts for Duval County was required to take additional steps to provide notice to the property owner of the tax sale, the trial court was bound by the law of the case and therefore erred in applying Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006), and Vosilla v. Rosado, 944 So.2d 289 (Fla.2006), cases which recognized the due process requirements for adequate notice of an impending tax sale. The First District's conclusion that a question of law not litigated on appeal may constitute the law of the case expressly and directly conflicts with Florida Department of Transportation v. Juliano, 801 So.2d 101, 107 (Fla.2001), which held that the law-of-the-case doctrine “bars consideration only of those legal issues that were actually considered and decided in a former appeal.” We have jurisdiction. Seeart. V, § 3(b)(3), Fla. Const.

We conclude that the First District improperly applied the law-of-the-case doctrine and that the validity of the tax deed in this case should be determined by applying Jones and Vosilla. We further conclude that because the Clerk failed to take reasonable, additional steps to provide notice to Delta upon learning that the notice sent by certified mail was not successfully delivered, the tax deed is invalid. We, therefore, quash the First District's decision and remand with instructions that the trial court's grant of summary judgment in favor of Delta be affirmed.

I. BACKGROUND

In 1997, Delta owned a commercial property located in Jacksonville, Florida. Delta failed to pay the 1997 ad valorem taxes on that property, and as a result, the Duval County Tax Collector issued a tax certificate. In 1998, Profile purchased the tax certificate, and two years later after Delta failed to redeem the tax certificate, Profile applied for a tax deed on the property pursuant to section 197.502(1), Florida Statutes (1999). Thereafter, the Tax Collector, pursuant to section 197.502(4), Florida Statutes (1999), prepared a statement, specifying Delta as a party entitled to notice of the sale of the property and listing Delta's address as it appeared on the 1999 tax assessment roll—8701 Phillips Highway, # 104, Jacksonville, Florida 32256.

On May 30, 2000, the Tax Collector forwarded the statement to the Clerk. The Clerk prepared a notice of tax sale, which on September 1, 2000, was mailed by certified mail to Delta at the address indicated in the Tax Collector's statement. Because Delta was no longer located at the address specified in the statement, the notice was returned to the Clerk as undeliverable. Subsequently, on September 27, 2000, Profile placed the winning bid at the tax sale.

Following issuance of the tax deed, Profile brought an action to quiet title to the property. Delta counterclaimed, asserting that the Clerk was required to check the 2000 tax assessment roll, which contained its new address—410 East Hallandale Beach Boulevard, # 201, Hallandale, Florida 33009—before issuing the tax sale notice.

Profile and Delta both moved for summary judgment. Profile asserted that the tax deed was valid because it was undisputed that notice was sent to Delta in accordance with section 197.522(1)(a), Florida Statutes (1999). In contrast, Delta asserted that the tax deed was invalid because the Clerk failed to comply with the notice requirements of sections 197.502 and 197.522, Florida Statutes (1999). The trial court granted final summary judgment in favor of Profile, concluding that the Clerk was not required to look beyond the Tax Collector's statement to determine whether the names and addresses of the parties were correctly listed.

On appeal, the First District Court of Appeal agreed with the trial court's analysis and affirmed the final summary judgment. Delta Prop. Mgmt. v. Profile Invs., Inc. (Delta I), 830 So.2d 867, 870 (Fla. 1st DCA 2002). Judge Ervin dissented, reasoning that the Florida Statutes required the Clerk to mail the notice of the tax sale to the address of the legal titleholder as listed in the latest tax assessment roll, which on September 1, 2001, was presumptively the 2000 tax assessment roll. Id. at 872 (Ervin, J., dissenting).

This Court granted review of Delta I on the basis that the decision affected a class of constitutional officers—circuit court clerks. Delta asserted that the First District erred by “ignor[ing] due process” and “fail [ing] to give meaning to the controlling statutes.” We found Judge Ervin's dissent persuasive and determined that

the clerk of the circuit court, when mailing the notice of a tax deed sale to the titleholder of the affected property, must mail the notice to the address of the titleholder as listed in the latest tax assessment roll. If the tax assessment roll is updated after the clerk receives a statement from the tax collector but prior to mailing the notice to the titleholder, the clerk must look at the new assessment roll to see if the titleholder's address has changed and, if the clerk finds that the address has changed, the clerk must mail the notice to the new address listed in the latest assessment roll.

Delta Prop. Mgmt., Inc. v. Profile Invs., Inc. (Delta II), 875 So.2d 443, 443–44 (Fla.2004). After noting that the Clerk waited more than three months before setting the tax sale and sending notice, we determined that the Clerk should have mailed the notice to Delta's new address if that address was “reasonably ascertainable” from the latest tax assessment roll. Id. at 448 (quoting Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983)). Accordingly, we quashed the First District's decision and remanded for further proceedings. Id.

On remand, Delta filed a motion to implement this Court's mandate, and Profile again moved for summary judgment. Profile contended that because the 2000 assessment roll had not been certified prior to the Clerk's mailing notice to Delta, the 2000 assessment role was unavailable to the Clerk when notice was sent to Delta. The trial court denied Profile's motion for summary judgment and granted Delta's motion to implement the mandate. The trial court reasoned that because in the earlier proceedings Profile asserted that there were no disputed factual issues and the Clerk's reliance on the tax collector's statement had been legally sufficient, Profile should not be permitted to present new evidence and raise a new defense on remand. The trial court then issued an order granting summary judgment in Delta's favor.

On appeal, the First District reversed the trial court's order, holding that summary judgment was not appropriate because there was a material factual dispute about whether Delta's new address was reasonably ascertainable from the latest tax assessment roll available at the time the Clerk mailed notice. The First District remanded the case, directing the trial court to hold an evidentiary hearing. Profile Invs., Inc. v. Delta Prop. Mgmt., Inc. (Delta III), 913 So.2d 661, 662 (Fla. 1st DCA 2005), review denied,929 So.2d 1052 (Fla.2006).

Back at the trial court, Profile and Delta again filed dueling motions for summary judgment. The trial court found that the preliminary 2000 tax assessment roll was available to the Clerk in September 2000 and that had the Clerk requested the preliminary roll, it “could have been used to verify and update the addresses and names of addressees for its notices.” The trial court declined, however, to make a finding regarding whether Delta's updated address was reasonably ascertainable from the latest assessment roll. The trial court concluded that the question was rendered moot by two intervening decisions: Jones and Vosilla.

Specifically, the trial court accepted Delta's argument that Jones and Vosilla require a clerk to take additional steps—beyond those mandated by statute—to provide notice to a titleholder if the clerk has reason to believe that the address to which notice was sent by certified mail is no longer the titleholder's correct address. The trial court reasoned that once the mailed notice was returned as undeliverable, the Clerk had reason to believe that the Tax Collector's statement no longer reflected the titleholder's correct address and should have taken additional reasonable measures to notify Delta. Accordingly, the trial court granted Delta's motion for summary judgment and adjudged Profile's tax deed to be void.

The First District dismissed the resulting...