Markham v. Friedland

• Decision Date: 19 February 1971
• Docket Number: No. 69--777,69--777
• Citation: 245 So.2d 645
• Parties: William MARKHAM, as Tax Assessor of Broward County, Florida; W. H. Meeks, Jr., as Tax Collector of Broward County; Broward County, Florida, and Fred O. Dickinson, Jr., as Comptroller of the State of Florida, Appellants, v. Samuel FRIEDLAND, as Trustee, and Samuel Friedland, individually, joined by his wife, Hattie Friedland; and Irving Cowan, Gerald Taines, Harold Z. Taines, and Presidential Towers, Inc., parters associated in business under the common name and style of 'Presidential Towers Associates,' Appellees.
• Court: Florida District Court of Appeals

Page 645

245 So.2d 645

William MARKHAM, as Tax Assessor of Broward County, Florida; W. H. Meeks, Jr., as Tax Collector of Broward County; Broward County, Florida, and Fred O. Dickinson, Jr., as Comptroller of the State of Florida, Appellants, v. Samuel FRIEDLAND, as Trustee, and Samuel Friedland, individually, joined by his wife, Hattie Friedland; and Irving Cowan, Gerald Taines, Harold Z. Taines, and Presidential Towers, Inc., parters associated in business under the common name and style of 'Presidential Towers Associates,' Appellees.

No. 69--777.

District Court of Appeal of Florida, Fourth District.

Feb. 19, 1971.

Rehearings Denied April 5, 1971.

Regis Reasbeck, Hollywood, and Gaylord A. Wood, Jr., Fort Lauderdale, for appellant Markham.

William H. Meeks, Of McCune, Hiaasen, Crum & Ferris, Fort Lauderdale, for appellant Meeks.

John U. Lloyd, County Atty., and Betty Lynn Lee, Asst. County Atty., Fort Lauderdale, for appellants Broward County and Fred O. Dickinson, Jr.

Hugh S. Glickstein, of Law Offices of Judson A. Samuels and Hugh S. Glickstein, and Thomas A. Thomas, Hollywood, for appellees.

WALDEN, Judge.

This appeal is taken from a summary judgment in favor of the fee owner and lessees of certain real property located in Broward County in an action to enjoin the Tax Assessor and Tax Collector of said County, as well as the County and the Comptroller of Florida, from assessing and collecting ad valorem taxes upon said property for the year 1968.

We affirm.

We adopt the text of the comprehensive and well-considered order entered by Judge LaMotte in the circuit court, as follows:

'This action was brought in 1969 by the fee owner and lessees of certain real property located in Broward County to enjoin the Tax Assessor and Tax Collector of said County as well as the County and the Comptroller of Florida, from assessing and collecting ad valorem taxes upon said property for the year 1968.

'The property is described as follows:

Lots 1, 2 and 3 in Block 14, of BEVERLY BEACH, according to the Plat thereof, recorded in Plat Book 22, Page 13, of the Public Records of Broward County, Florida.

'Under the terms of the lease between the Plaintiffs, the lessees are obligated to pay any ad valorem taxes assessed upon the property.

'The Complaint alleges that in 1968 the then Tax Assessor of Broward County, who is no longer in office, assessed the property for ad valorem taxes for that year in the sum of Fourteen Thousand Seven Hundred Fourteen and 46/100 ($14,714.46) Dollars; that the final Tax Roll for 1968 was certified with said assessment; that the Plaintiff-owner was billed by the Tax Collector of said County for said ad valorem tax; that the tax was paid in full by the Plaintiffs-lessees; and that the aforesaid Tax Collector delivered to the Plaintiff-owner a receipt, a true copy of which was attached to the Complaint, for the full complete and proper payment of the ad valorem tax upon said real property for 1968.

'The Complaint further alleges that the present Tax Assessor of Broward County, in April, 1969, executed and delivered to the Board of Commissioners of said County a Certificate of Correction, a certified copy of which was attached to the Complaint, for the purpose of back assessing the aforesaid real property for additional ad valorem tax in 1968; and that said Board approved said Certificate.

'The Answer of the present Tax Assessor alleges that in the absence of injunction he will increase the ad valorem tax upon said property for 1968; that on January 1, 1968, the building then being constructed upon said property was 'substantially complete'; that the property should have been valued at $8,302,070.00; and that by 'error, omission, oversight or fraud' the final, certified tax roll included the 'real property' only at an assessed value of.$540,000.00.

'The Court has considered all of the pleadings as well as all affidavits and counter-affidavits that have been filed by any party through the date hereof. Although the Court, at the outset of the second hearing, verbally denied the Tax Assessor's Motion for Leave to file Amendment to Affidavits, the Court has considered as true all of those matters contained in the affidavits offered by the Tax Assessor as are alleged to be within the personal knowledge of the particular affiant.

'The Court notes that the Tax Collector, as well as Broward County and the Comptroller of Florida, filed no affidavits in opposition to Plaintiffs Motion for Summary Judgment.

'The Court has considered the Memoranda of Law submitted by the Plaintiffs and the Tax Assessor and has also considered the oral arguments made by said parties.

'The affidavits of the Plaintiffs, SAMUEL FRIEDLAND, who is the fee owner, and IRVING COWAN, who is one of the lessees, substantiate all of the aforesaid allegations of their Complaint.

'In addition, the affidavit of William G. Zinkil, who was the Tax Assessor of Broward County in 1968, establishes without contradiction that he had personal knowledge of the assessment of the subject property in 1968; that after examining the circumstances and discussing the matter with his attorneys' he determined in 1968 that the improvements being constructed were not 'substantially complete' on January 1, and were not to be included in the valuation of the property; that without his knowledge the improvements were inadvertently included on the Primary Tax Roll in the valuation of the property; that he, as the Tax Assessor, determined in 1968, after 'very careful consideration, examination of the law made available to him, and after discussing the matter with his attorneys' the building should be stricken from the primary assessment roll; and that he ordered it removed from the primary assessment roll.

'Accordingly, the Court makes the following findings:

'1. That the Court has jurisdiction over the parties and the subject matter.

'2. That William G. Zinkil, as Tax Assessor of Broward County, Florida, in the exercise of his judgment, determined that the improvements being constructed upon the real property in question were not 'substantially complete', within the meaning of Florida Statutes, Section 193.11(4) (F.S.A.), on January 1, 1968, and that said real property should be taxed in 1968 as unimproved land.

'3. That the aforesaid improvements were inadvertently included in the valuation of the subject property on the Primary Tax Roll for 1968, and that the said William G. Zinkil, as Tax Assessor for Broward County, Florida, ordered the removal of same pursuant to his decision that the subject real property be taxed as unimproved land.

'4. That the subject real property was placed upon the final, certified tax roll for 1968 as unimproved land and was identified thereon by Folio No. 1124 01 040.

'5. That the subject real property was assessed for real estate taxes in the sum of Fourteen Thousand Seven Hundred Fourteen and 46/100 ($14,714.46) Dollars, by the said William G. Zinkil, as Tax Assessor of Broward County; and that the final tax roll for said County for the year 1968 was duly certified with said assessment.

'6. That a Tax Notice was sent by the Tax Collector of Broward County to the Plaintiff fee owner of the subject real property in accordance with the aforesaid final, certified assessment; and that the total aforesaid real estate tax, less the statutory discount, was paid by the Plaintiffs-lessees to the Defendant, W. H. MEEKS, JR., as Tax Collector of Broward County, pursuant to the lessees' obligation to pay said real estate tax is accordance with their lease.

'7. That upon payment of said real estate tax the aforesaid Tax Collector returned to the Plaintiff fee owner the aforesaid Tax Notice as a receipt for the full and complete payment of all real estate taxes upon the subject real property for 1968.

'8. That the Defendant, WILLIAM MARKHAM, having been elected to the office of Tax Assessor of Broward County, Florida, and having assumed said office on or about January 7, 1969, executed a Certificate of Correction on April 22, 1969, as to the subject real property for 1968, which Certificate constituted a reassessment of said property for said year on the basis of improved land.

'The sole question is whether a successor tax assessor can back assess real property as improved land after his predecessor has determined that real property should be taxed as unimproved land and after the certified assessed real estate tax has been fully paid. This raises a question of law which may be decided on motion for summary judgment.

'Once the Tax Assessor has certified the tax roll and the tax levied thereon paid on particular described property, said property cannot again be taxed for that particular year. Okeelanta Sugar Refinery, Inc. v. Maxwell, Fla.App.1966, 183 So.2d 567, 568.

'Back taxing of property by an Assessor pursuant to Florida Statutes, Section 193.23 (F.S.A.), is only allowable as to property which has escaped taxation.

'It is elementary that in Florida improvements are material to 'valuation' but are not a separate category for taxation. Florida Statutes, Section 192.02 (F.S.A.). Accordingly, improved land, taxed as unimproved land, has not escaped taxation and is not the same as 'omitted property'. Attorney General Opinions 068--84, 064--139; 84 C.J.S., Taxation, Section 508, page 959; Tradewell Stores, Inc. v. Snokomish (Snohomish) County, (69 Wash.2d 352) Wash., 1966, 418 P.2d 466; Palmer v. Beadle County, S.D.1944, (70 S.D. 99) 15 N.W.2d 6; Hunt v. District of Columbia, C.A.D.C. 1939 (71 App.D.C.143) 108 F.2d 10, 12.

'It is equally clear that the Certificate of Correction issued by the present Tax Assessor was not an alteration of the purely ministerial or administrative type subject to correction under Florida Statutes, Section 192.21 (F.S.A.). Allen v. Dickinson, Fla.1969, 223 So.2d 310; Homer v. Connecticut General Life Insurance Company, Fla.App.1968, 211 So.2d 250; writ discharged (Fla.) 220 So.2d...