Lake Worth Towers, Inc. v. Gerstung

• Decision Date: 07 June 1971
• Docket Number: No. 70--223,70--223
• Court: Florida District Court of Appeals
• Parties: LAKE WORTH TOWERS, INC., Appellant, v. Gratton GERSTUNG et al., Appellees.

Page 27

251 So.2d 27

LAKE WORTH TOWERS, INC., Appellant, v. Gratton GERSTUNG et al., Appellees.

No. 70--223.

District Court of Appeal of Florida, Fourth District.

June 7, 1971.

Rehearing Denied Aug. 18, 1971.

Zell H. Altman, of Altman, Miner & Gabaldon, Lake Worth, for appellant.

Martin J. A. Yeager, of Harvey & Waddell, Lake Worth, for appellees.

REED, Judge.

This action was commenced on 14 March 1969 in the Circuit Court for Palm Beach County, Florida, by the plaintiff, Lake Worth Towers, Inc., against the defendants who are the tax collector, the tax assessor, the mayor, and city commissioners of the City of Lake Worth, Florida.

The plaintiff, Lake Worth Towers, Inc., filed a second amended complaint in which it alleged that it had owned real property in Palm Beach County since 1 January 1966 and that it built thereon in the form of a 195 unit apartment building, a home for the aged. The plaintiff alleged that it applied for a license from the State Board of Health in 1967 to operate the home, but did not receive the license until 11 June 1968. The second amended complaint also asserts that as of 1 January 1968 the construction on the apartment had reached 84% Completion, but was not completed and ready for occupancy until 1 March 1968. The complaint further alleges that because the plaintiff did not get its license from the State Board of Health until 11 June 1968 it could not make a timely application for an exemption from taxation for the year 1968 as required by Section 192.06(14), F.S.1967. ¹ Nevertheless, the plaintiff informally requested an exemption from the defendant tax assessor of the City of Lake Worth on 1 April 1968.

The tax assessor referred the matter to the Board of Tax Equalization of the City of Lake Worth. Pursuant thereto the plaintiff appeared before the board of equalization on 5 August 1968 and demanded a total exemption from taxation under the aforesaid statute. The board of equalization denied the claim for exemption and the plaintiff was eventually assessed for the year 1968 by the defendant tax assessor of the City of Lake Worth on the value of its aforesaid real property including the improvement which had not been completed thereon until on or about 1 March 1968.

The complaint demanded the following relief: (1) that the property be stricken from the tax rolls for the year 1968; (2) that the defendant be enjoined from causing the property to be placed on the tax rolls for subsequent years; and (3) as alternative relief, that the defendants be required to assess the property for 1968 as unimproved property.

Defendants' answer to a prior complaint stood over as the answer to the second amended complaint. The answer denied that the property was improperly assessed. It also alleged that the plaintiff's claim, to the extent that it attacked the assessment, was barred by the statute of limitations, Section 192.21(2), F.S.1967, and, as an alternate defense, that the plaintiff failed to exhaust its administrative remedies because it failed to call to the attention of the board of equalization of the City of Lake Worth its claim that the real property should have been assessed for the year 1968 as unimproved property.

After an evidentiary hearing the trial court entered a final judgment in which it dismissed the action. It is from the final judgment that this appeal is taken.

The first issue on appeal is whether or not the trial court erred in dismissing the claim of the plaintiff for a Total exemption under Section 192.06(14), F.S.1967, from the 1968 real and personal property tax. In our opinion this action by the trial judge was correct, not only for the reasons assigned by him in his written order, but also for the additional reason that the plaintiff's complaint showed on its face that it was not entitled to the exemption for the year 1968.

The pertinent statute provided an exemption from ad valorem taxation for property used by Florida corporations not for profit as a home for the aged and for uses related to such a home. Under the law of this state, the taxable status of property is determinable as of 1 January. See Section 192.04, F.S.1967 (now Section 192.042, F.S.1970) and Johnson v. Presbyterian Homes of Synod of Florida, Inc., Fla.1970, 239 So.2d 256, 259. For plaintiff to have been entitled to the exemption, the plaintiff would have had to have had the property in actual use as a home for the elderly on 1 January 1968. The plaintiff's second amended complaint affirmatively alleges that the property in question was not ready for occupancy as a home for the aged until March 1968. Therefore, the plaintiff's use of the property on the critical date--as shown by its own complaint--did not qualify it for the exemption. Compare Overstreet v. Indian Creek Village, Fla.App.1970, 239 So.2d 149.

The second issue is whether or not the trial court properly denied the plaintiff's claim for an adjustment of its 1968 tax assessment by reason of the admittedly erroneous inclusion by the municipal tax assessor in the 1968 assessment of the value of improvements on the plaintiff's real property which were not substantially completed until 1 March 1968. ² The trial judge disposed of plaintiff's claim for an adjustment on two grounds in both of which we concur. The plaintiff appeared before the Board of Adjustment of the City of Lake Worth in August of 1968 and demanded a total exemption for the property, but did not demand a reassessment to eliminate the...