Delta Property Management v. Profile Investments, Inc., 1D01-3181.

• Decision Date: 14 October 2002
• Docket Number: No. 1D01-3181.,1D01-3181.
• Citation: 830 So.2d 867
• Parties: DELTA PROPERTY MANAGEMENT, Appellant, v. PROFILE INVESTMENTS, INC., Appellee.
• Court: Florida District Court of Appeals

830 So.2d 867

DELTA PROPERTY MANAGEMENT, Appellant, v. PROFILE INVESTMENTS, INC., Appellee.

No. 1D01-3181.

District Court of Appeal of Florida, First District.

October 14, 2002.

Rehearing Denied November 21, 2002.

John R. Beranek of Ausley & McMullen, Tallahassee, and John R. Hargrove and W Kent Brown of Heinrich Gordon Hargrove Weihe & James, P.A., Ft. Lauderdale, for Appellant.

William S. Graessle of William S. Graessle, P.A., Jacksonville, for Appellee.

ALLEN, C.J.

The appellant, Delta Property Management, Inc. (Delta), challenges a final summary judgment in favor of the appellee, Profile Investments, Inc. (Profile), entered in this action to quiet title to real property purchased in a tax sale. Concluding that the clerk of the circuit court satisfied the statutory requirements in providing notice of the tax sale, we affirm the summary final judgment.

Prior to the sale, the property was owned by Delta. When Delta failed to pay its 1997 ad valorem taxes, a tax certificate was issued. After Delta failed to redeem the tax certificate within two years, Profile applied for a tax deed in April of 2000. Pursuant to section 197.502(4), Florida Statutes, the tax collector prepared a statement listing Delta as a party entitled to notice, and specified Delta's address as it appeared on the 1999 tax assessment roll, the most recent assessment roll at the time. The tax collector forwarded the statement to the clerk of the circuit court on May 30, 2000. The clerk then prepared a notice of tax sale and mailed it to Delta on September 4, 2000, at the address indicated in the statement. Because Delta was no longer located at the address specified in the statement, the notice was returned to the clerk as undeliverable. Profile thereafter placed the winning bid at the tax sale.

Profile brought an action to quiet title to the property in its favor, and Delta counterclaimed asserting that it was still the titleholder because the clerk had failed to provide proper notice of the sale. Profile and Delta each moved for summary judgment, with the dispositive legal issue being whether the clerk had complied with the statutory notice requirements of section 197.522(1), Florida Statutes, when he relied exclusively upon the tax collector's statement in preparing the notice of the tax sale. The trial court granted summary judgment in favor of Profile, concluding that the clerk was not required to look beyond the statement to determine whether the names and addresses of the parties were correctly listed on the tax collector's statement.

Section 197.502(4), Florida Statutes, provides that when the holder of a tax certificate applies for a tax deed, the tax collector must deliver to the clerk of the circuit court a statement that includes a list of persons to be notified prior to the sale of the property. Among those persons that must be listed is the legal titleholder. And if the legal titleholder as revealed by the public record is the same as the person to whom the property was last assessed, which both parties agree is the case here, "the notice may only be mailed to the address of the legal titleholder as it appears on the latest assessment roll." Section 197.522(1) then requires the clerk of the circuit court to notify by mail the persons listed in the tax collector's statement at least 20 days before the tax sale. Significantly, the statute provides that "[i]f no address is listed in the tax collector's statement, then no notice shall be required." And the statute further provides that "[t]he failure of anyone to receive notice as provided herein shall not affect the validity of the tax deed issued pursuant to the notice." The key issue with regard to the notification process is whether the clerk followed the proper procedures, not whether notice was actually received. Dawson v. Saada, 608 So.2d 806 (Fla.1992). Delta does not assert that the tax collector failed in any manner to properly perform his responsibilities under the statute when he accurately indicated in his statement that Delta was the legal titleholder as reflected by the public records, and specified Delta's address as it appeared in the then-most-recent tax assessment roll, the 1999 tax roll. Delta instead places blame upon the clerk, contending that the 2000 tax assessment roll had been prepared by the time the clerk mailed his notice of the tax sale, and that if the clerk had examined this more recent tax roll he would have learned that Delta's mailing address had changed between the times that the 1999 and 2000 rolls were prepared.

Although section 193.023(1), Florida Statutes, provides that the property appraiser shall complete his or her assessment of the value of all property no later than July 1 of each year (the statute also provides that, upon good cause shown, the Department of Revenue may grant an extension of this deadline), there is no evidence in the record in this case that the 2000 roll was indeed prepared, submitted, or certified by July 1, 2000, or that it was otherwise available to the clerk prior to his mailing of the required notice on September 4, 2000. The record includes a printout of the 2000 roll, which lists Delta's new address, but the printout does not contain any dates corresponding to the applicable time period here: May 30 to September 4, 2000. Because there is no indication in the record that the 2000 assessment roll was actually prepared, certified, or otherwise available to the clerk prior to September 4, 2000, Delta's argument lacks evidentiary foundation in the record. Nevertheless, because this case involves a summary final judgment, and because it is entirely possible that the 2000 tax roll was prepared, certified, or otherwise available to the clerk prior to September 4, 2000, we do not decide this case on the basis of the record's failure to confirm this fact. We instead conclude that the order under review must be affirmed even if the 2000 roll was available to the clerk prior to September 4, 2000. This is so because the clerk had no duty to look beyond the tax collector's statement in preparing the notice of tax sale.

Prior to 1985, the tax collector, as now, was required to deliver a statement to the clerk certifying the names and addresses of all persons entitled to notice of an upcoming tax sale. See § 197.241(2), Fla. Stat. (1983). The clerk was then required to perform a diligent search of the official public records, including the most current tax roll, and provide notice to the applicable parties at the addresses produced by the search. See § 197.256, Fla. Stat. (1983). If, after a diligent search, no address could be found, no notice was required. In 1985, however, the legislature altered these statutory procedures. It repealed section 197.241, replacing it with the newly-created section 197.502. See Ch. 85-342, § 126, at 2090; § 187, at 2118-20, Laws of Fla. It then deleted all requirements in section 197.256 (renumbered as 197.522) that the clerk perform a diligent search of the public records to ascertain the names and addresses of the parties entitled to notice, and instead provided, as reflected in the current statute, that the clerk would be required only to send notice to those parties listed in the tax collector's statement. See Ch. 85-342, § 189, at 2120-22, Laws of Fla. And if no address was listed on the statement, no notice was required. Accordingly, with the 1985 statutory amendments, the clerk has been relegated to performing a purely ministerial function when providing notice of an upcoming tax sale. The clerk is no longer required to ascertain which parties are entitled to notice and diligently search the public records for proper addresses, but can instead rely exclusively upon the information contained in the tax collector's statement. Because this is precisely what the clerk did in the present case, he fully satisfied his responsibilities.¹

Delta also complains that the clerk failed to provide a mortgagee with proper statutory notice of the tax sale. Without determining whether Delta has standing to assert this claim, we observe that the clerk also complied with the statutory requirements in providing notice to the mortgagee because the notice given was entirely consistent with the information contained in the tax collector's statement.

The summary final judgment is accordingly affirmed.

KAHN, J., CONCURS; ERVIN, J., DISSENTS WITH WRITTEN OPINION.

ERVIN, J., dissenting.

I respectfully dissent for two separate reasons. First, I cannot agree with the majority's conclusion that no evidentiary foundation supports appellant's argument that the clerk failed to rely on the 2000 tax assessment roll at the time he mailed the notice of tax sale to Delta, because nothing in the record shows the property appraiser prepared, submitted or certified the tax roll on or before the date of mailing. Neither can I agree with the majority's conclusion of law that even if the 2000 roll was available to the clerk as of the time of mailing, the clerk nevertheless complied with the statutory requirements by sending notice to appellant in accordance with the tax collector's statement.

As the majority's opinion reflects, this is an appeal from a final summary judgment. The rule in Florida has long been that the party moving for summary judgment bears the burden of proving the nonexistence of any genuine issue of material fact, and if the slightest doubt remains as to the presence of such issue, the doubt shall be resolved against the moving party and summary judgment denied. See Cole Taylor Bank v. Shannon, 772 So.2d 546 (Fla. 1st DCA 2000)

; Mayerlen v. Brumos Motor Cars, Inc., 765 So.2d 935 (Fla. 1st DCA 2000).

The record discloses that in December 1999, Delta provided the tax collector with its correct, current address in Hallandale, Florida. Thereafter, on May 30, 2000, the tax collector forwarded to the clerk of the circuit court Delta's former address in Duval County as it appeared on the 1999...