Opinion
2D20-2613
07-07-2023
GULF MARINE REPAIR CORPORATION, Appellant, v. BOB HENRIQUEZ, as Hillsborough County Property Appraiser; TAMPA PORT AUTHORITY; DOUG BELDEN, as Hillsborough County Tax Collector; and JIM ZINGALE, as Executive Director of the State of Florida Department of Revenue, Appellees.
Marie A. Borland and Robert E. V. Kelley, Jr., of Hill, Ward &Henderson, P.A., Tampa, and Chris W. Altenbernd of Banker Lopez Gassler P.A., Tampa, for Appellant. William D. Shepherd of Hillsborough County Property Appraiser's Office, Tampa, for Appellee Bob Henriquez. Ashley Moody, Attorney General, and Timothy E. Dennis, Assistant Attorney General, Tallahassee, for Appellee Jim Zingale.
Appeal from the Circuit Court for Hillsborough County; Martha J. Cook, Judge.
Marie A. Borland and Robert E. V. Kelley, Jr., of Hill, Ward &Henderson, P.A., Tampa, and Chris W. Altenbernd of Banker Lopez Gassler P.A., Tampa, for Appellant.
William D. Shepherd of Hillsborough County Property Appraiser's Office, Tampa, for Appellee Bob Henriquez.
Ashley Moody, Attorney General, and Timothy E. Dennis, Assistant Attorney General, Tallahassee, for Appellee Jim Zingale.
No appearance for remaining Appellees.
NORTHCUTT, Judge.
In this multifaceted litigation, Gulf Marine Repair Corporation appeals a judgment determining that property it leases from the Tampa Port Authority is not exempt from ad valorem taxes. The Port Authority was also a party in the proceedings below, and it filed a separate appeal from the same judgment. See Tampa Port Auth. v. Henriquez, No. 2D20-2605 (Fla. 2d DCA July 7, 2023). Both appellants asked us to refrain from consolidating the appeals, seeking instead to have them merely considered together (that is, for the cases to "travel together"). We granted the request, and today we announce in each case a separate decision affirming the judgment.
Gulf Marine is the lone appellant in the instant appeal, and therefore the Port Authority is nominally an appellee and is designated as such in the style of the case. See Fla. R. App. P. 9.020(g)(2) (defining "appellee" as every party in the lower court proceeding other than an appellant); Millar Elevator Serv. Co. v. McGowan, 804 So.2d 1271, 1273 (Fla. 2d DCA 2002) (observing that even a party aligned with the appellant in the lower court becomes an appellee on appeal under the rule). At the same time, Gulf Marine is a nominal appellee in the Port Authority's appeal, case no. 2D20-2605. In neither appeal did the parties realign themselves pursuant to Florida Rule of Appellate Procedure 9.360(a).
I. Background
The Port Authority is a government body that operates a deepwater port in Tampa. See ch. 95-488, §§ 4, 7, Laws of Fla. It owns the property at issue, comprising contiguous parcels on which Gulf Marine, a for-profit corporation, conducts a commercial shipyard business. Gulf Marine's lease obligates it to pay all ad valorem taxes on the property. The property had been taxed for many years when, in February 2014, Gulf Marine filed applications with the property appraiser to exempt the parcels from ad valorem taxes. It claimed entitlement to the exemptions on the ground that its use of the parcels was for a governmental purpose.
Gulf Marine's applications seemingly contravened section 196.011(1)(a), Florida Statutes (2013), which specifies that the person or organization "who . . . has the legal title" to the property must file the exemption application with the property appraiser. See Mastroianni v. Mem'l Med. Ctr. of Jacksonville, Inc., 606 So.2d 759, 761-62 (Fla. 1st DCA 1992) (citing statute, holding that only the legal owner of the subject property, and not the nonprofit hospital to which the property was leased, was authorized to apply for an ad valorem tax exemption and had standing to object to its denial). The parties have not addressed this deviation.
After inspecting the premises, the property appraiser issued written notices denying the exemption applications because the properties were "being used for proprietary purposes." Gulf Marine filed a timely petition to Hillsborough County's Value Adjustment Board (VAB) for relief pursuant to section 194.011, Florida Statutes (2014). The VAB's special magistrate conducted an evidentiary hearing on the petition in December 2014. Beforehand, the VAB clerk contacted the Port Authority to request its participation. The Port Authority's vice president for legal affairs briefly appeared at the hearing to advise that the Port Authority approved of Gulf Marine proceeding on its behalf.
Again, the property appraiser has not challenged Gulf Marine's standing to file the VAB petition. In 2016, the legislature amended section 194.011(3) to specify that "[a] petition to the value adjustment board must be signed by the taxpayer or be accompanied at the time of filing by the taxpayer's written authorization or power of attorney." Ch. 2016-128, § 8, Laws of Fla. (emphasis added). The statute did not contain that explicit direction when Gulf Marine filed its VAB petition in July 2014, but it clearly contemplated that a petitioner before that body would be a taxpayer. See § 194.011(3), Florida Statutes (2014) (directing the Department of Revenue to provide a form for petitioning the VAB which must be accepted by the property appraiser "if the taxpayer chooses to use it"), (3)(c) ("The petition shall state the approximate time anticipated by the taxpayer to present and argue his or her petition before the board."); see also Conage v. United States, 346 So.3d 594, 598 (Fla. 2022) (holding that when interpreting a statute, a court "must 'exhaust all the textual and structural clues' that bear on the meaning of a disputed text," quoting Alachua County v. Watson, 333 So.3d 162, 169 (Fla. 2022)). Throughout these proceedings, Gulf Marine has stressed that the Port Authority is the taxpayer, defined in section 192.001(13), Florida Statutes (2014), as "the person or other legal entity in whose name property is assessed." But Gulf Marine's VAB petitions named itself, not the Port Authority, as the supposed taxpayer. A Gulf Marine vice president signed each petition and certified under penalty of perjury that he was "the owner of the property described in the petition or the authorized agent of the owner for purposes of filing this petition."
In March 2015, the magistrate recommended denying Gulf Marine's petition. But in April 2015, the VAB granted the petition and awarded tax exemptions to the subject parcels. The property appraiser contested that decision by filing a de novo circuit court action in accordance with section 194.036 and naming Gulf Marine as the defendant.
The statute characterizes a property appraiser's circuit court challenge to a value adjustment board decision as an "appeal." § 194.036(1), Fla. Stat. (2014). But the Florida Supreme Court has clarified that, in fact, it is an original action. Crossings at Fleming Island Cmty. Dev. Dist. v. Echeverri, 991 So.2d 793, 801 n.6 (Fla. 2008).
The circuit court later permitted the property appraiser to amend his complaint to add the Port Authority as a defendant, and it denied the Port Authority's motion to dismiss on the ground that it had not been joined as a party to the VAB case during the statutory period for filing it. Gulf Marine, as well, unsuccessfully moved for judgment on the pleadings on that ground, arguing that the Port Authority was an indispensable party that had not been timely joined.
While the suit regarding the 2014 exemptions was pending, Gulf Marine filed additional exemption applications for each tax year from 2015 through 2019. As before, the property appraiser denied the applications. Following each denial, Gulf Marine filed suit against the property appraiser pursuant to section 194.171, asserting theories why each exemption disapproval was improper and should be overturned. The circuit court eventually consolidated the actions, and ultimately it awarded a summary judgment to the property appraiser as to them all.
II. The Tax Exemption Issue
The central issue posed in Gulf Marine's appeal is whether two laws, sections 196.012(6) and 196.199(2)(a), Florida Statutes (2014), together exempt the shipyard property from taxation. As will be seen, the Florida Supreme Court has long interpreted those statutes narrowly, beginning with Williams v. Jones, 326 So.2d 425 (Fla. 1975). In that pivotal decision, the Williams court established the "governmental-governmental" use test-the keystone principle that determines whether a particular use of privately leased government property exempts it from taxes. 326 So.2d at 433. Employing that test, the court below concluded that Gulf Marine's use of the property as a for-profit shipyard does not serve a governmental-governmental function and that therefore the property is not tax exempt. We agree.
When applying property tax exemption statutes such as the two involved here, courts must abide by several important precepts. These include the Florida constitutional requirement that, with few exceptions, all property in the state must be taxed. See art. VII, Fla. Const. The legislature's authority to exempt property from taxation is tightly fettered; lawmakers may only enact exemptions that are authorized in the Constitution. Art. VII, §§ 3, 4, Fla. Const.; Sebring Airport Auth. v. McIntyre (Sebring IV), 783 So.2d 238, 247 (Fla. 2001); Archer v. Marshall, 355 So.2d 781, 783 (Fla. 1978) (citing Presbyterian Homes of the Synod of Fla. v. Wood, 297 So.2d 556 (Fla. 1974)).
Consistent with that important constitutional limitation, statutory tax exemptions can only be created expressly, not by inference. Cap. City Country Club, Inc. v. Tucker, 613 So.2d 448, 452 (Fla. 1993); Volusia County v. Daytona Beach Racing &Recreational Facilities Dist., 341 So.2d 498, 502 (Fla. 1976). As such, courts must strictly construe tax exemption laws against the taxpayer. Cap. City Country Club, 613 So.2d at 452; Volusia County, 341 So.2d at 502. Further, the taxpayer has the burden to clearly prove its entitlement to a property tax exemption. Volusia County, 341 So.2d at 502.
Finally, as with all statutes, courts must interpret a tax exemption law in a manner that preserves its constitutionality when possible. Cap. City Country Club, 341 So.2d at 452; Fla. Dep't of Revenue v. City of Gainesville, 918 So.2d 250, 256 (Fla. 2005); Hillsborough Cnty. Aviation Auth. v. Walden, 210 So.2d 193, 195 (Fla. 1968).
Sections 196.012(6) and 196.199(2)(a) were created as part of comprehensive tax-reform legislation in 1971. Ch. 71-133, §§ 1, 11, Laws of Fla. The 2014 version of section 196.199(2)(a), in force when Gulf Marine applied for the exemptions at issue here, is materially unchanged from the original enactment. It provides that property owned by a government entity but used by a nongovernmental lessee is exempt from taxation "only when the lessee serves or performs a governmental, municipal, or public purpose or function, as defined in s. 196.012(6)."
In 1971 section 196.199(2)(a) read:
(2) Property owned by the following governmental units but used by nongovernmental lessees shall only be exempt from taxation under the following conditions:
(a) Leasehold interests in property of the United States, of the state or any of its several political subdivisions, or of municipalities, agencies, authorities, and other public bodies corporate of the state shall be exempt from ad valorem taxation only when the lessee serves or performs a governmental, municipal, or public purpose or function, as defined in § 196.012(5). In all such cases, all other interests in the leased property shall also be exempt from ad valorem taxation.ch. 71-133 § 11, Laws of Fla. The cited definitional statute was renumbered as section 196.012(6) in 1988, see ch. 88-102 § 1, Laws of Fla., and the citation to it in section 196.199(2)(a) was adjusted accordingly in a 1991 reviser's bill, see ch. 91-45 § 47, Laws of Fla.
The referenced definition in section 196.012(6) has been amended in the years since its inception in 1971. Importantly, however, the legislature has carried forward the definition's initial sentence with no material alteration. It reads:
Governmental, municipal, or public purpose or function shall be deemed to be served or performed when the lessee under any leasehold interest created in property of the United States, the state or any of its political subdivisions, or any municipality, agency, special district, authority, or other public body corporate of the state is demonstrated to perform a function or serve a governmental purpose which could properly be performed or served by an appropriate governmental unit or which is demonstrated to perform a
function or serve a purpose which would otherwise be a valid subject for the allocation of public funds.§ 196.012(6).
When the Williams court considered this law in 1975, the statute consisted entirely of just that sentence and two others. Construing it along with section 196.199(2)(a), the court was mindful of the constitutional mandate that all property in the state must be taxed. Subject to provisos not relevant here, article VII, section 4 of the Constitution directs that "[b]y general law regulations shall be prescribed which shall secure a just valuation of all property for ad valorem taxation." The Williams court observed that this passage in the Constitution "was clearly intended to be a check upon the Legislature so as to prohibit it from classifying property for ad valorem taxation in such a manner as to result in a valuation of any class of property at Less than just value." 326 So.2d at 430. In accordance with that prohibition and with the attendant principle that tax exemption laws must be strictly construed against exemption claimants, the court concluded that
In 1971 section 196.012(5), read in its entirety:
Governmental, municipal, or public purpose or function shall be deemed to be served or performed when the lessee under any leasehold interest created in property of the United States, the State of Florida or any of its political subdivisions, or any municipality, agency, authority or other public body corporate of the state is demonstrated to perform a function or serve a governmental purpose which could properly be performed or served by an appropriate governmental unit, or which is demonstrated to perform a function or serve a purpose which would otherwise be a valid subject for the allocation of public funds. The term "governmental purpose" shall include a direct use of property on federal lands in connection with the federal government's space exploration program. Real property and tangible personal property owned by the federal government and used for defense and space exploration purposes or which is put to a use in support thereof shall be deemed to perform an essential national governmental purpose and shall be exempt.Ch. 71-133, § 1, Laws of Fla.
[t]he exemptions contemplated under Sections 196.012(5) and 196.199(2)(a), Florida Statutes, relate to "governmental-governmental" functions as opposed to "governmental-proprietary" functions. With the exemption being so interpreted all property used by private persons and commercial enterprises is subjected to taxation either Directly or Indirectly through taxation on the leasehold.Id. at 433. "Thus," the court continued, "all privately used property bears a tax burden in some manner and this is what the Constitution mandates." Id.
As one writer observed, Williams "marked a dramatic turning point in extending ad valorem tax exemptions to governmentally owned property that is being used by nongovernmental persons or entities." David M. Hudson, Governmental Immunity and Taxation in Florida, 9 U. Fla. J.L. &Pub. Pol'y 221, 244 (1998).
No longer is it sufficient simply to find that the governmental entity is serving some broad "public purpose" and that the nongovernmental lessee is in some way furthering that public purpose in order for the property to be exempt. Now, the use to which the property is being put by the nongovernmental lessee must be scrutinized, and it will be exempt only if it is being used for a "governmental-governmental" purpose or function; a "governmental-proprietary" purpose or function will not suffice.Id. (footnote omitted).
Further,
[t]raditionally, a governmental purpose or function "has to do with the administration of some phase of government, that is to say, dispensing or exercising some element of sovereignty. In contrast, a proprietary purpose or function encompasses that broad range of activities in which a governmental entity may engage which "redounds to the public or individual advantage and welfare of the [governmental entity] or its people."Id. (footnotes omitted) (quoting Daly v. Stokell, 63 So.2d 644, 645 (Fla. 1953)).
Ensuing decisions confirmed this construction and its distinction between governmental-governmental functions and governmental-proprietary ones. Governmental-governmental uses are limited to the administration of some phase of government or some aspect of sovereignty; they do not include governmental-proprietary activities, defined as "when a nongovernmental lessee utilizes governmental property for-proprietary and for-profit aims." Sebring Airport Auth. v. McIntyre (Sebring II), 642 So.2d 1072, 1074 (Fla. 1994). "Proprietary functions promote the comfort, convenience, safety and happiness of citizens, whereas government functions concern the administration of some phase of government." Id. at 1074 n.1 (citing Black's Law Dictionary 1219 (6th ed. 1990)).
The property involved in this case fails the governmental-governmental use test because Gulf Marine's shipyard business has nothing to do with the administration of the Port Authority. The summary judgment record reflected, instead, that it is a commercial enterprise that sells inspection, repair, and maintenance services to ships that use the port. In its order, the VAB described this amenity as "integral" to the port. But, as Williams held, that is not the proper test. And for that matter, the VAB pointed to no law, regulation, or other factor that requires a port to offer shipyard services. To the contrary, the record disclosed that only two of Florida's fourteen deepwater ports have shipyards.
Rather, the presence of Gulf Marine's shipyard at the port is of strictly financial importance, in that it offers the port a competitive advantage. Gulf Marine acknowledged this in its briefing when it observed that, absent a shipyard, "ships that might otherwise pass through the Port would simply take their business elsewhere." But such does not change the governmental-proprietary nature of this use, as underscored by the Florida Supreme Court:
We certainly understand that there is enormous competition to secure professional athletic teams and other forms of entertainment and economic development which benefit Florida citizens. We also recognize the tremendous economic forces and implications that become involved in this type of issue and the good faith legislative attempts to balance these concerns. However, as long as the people of Florida maintain the constitution in the form we are required to apply today, neither we nor the Legislature may expand the permissible exemptions based on this type of argument.Sebring IV, 783 So.2d at 253.
See also Page v. City of Fernandina Beach, 714 So.2d 1070, 1075-77 (Fla. 1998) (airport property leased to others for commercial activities was not used for governmental-governmental purposes, and so was not tax-exempt; operating marina was not aspect of sovereignty and did not warrant tax exemption for marina leased to nongovernmental operator seeking profits); Canaveral Port Auth. v. Dep't of Revenue, 690 So.2d 1226, 1229-30 (Fla. 1996) (rejected port authority's claim to tax exemption for property used by private lessees for warehouses, gas stations, deli restaurants, fish markets, charter boat sites, and docks because uses were nongovernmental); Sebring II, 642 So.2d at 1073 (disagreed with assertion that government property leased to private party was exempt from ad valorem taxes if lessee's use served public purpose regardless of for-profit motive); Cap. City Country Club, 613 So.2d at 452 (city-owned golf course not exempt from taxation when leased to private operator); Volusia County, 341 So.2d at 498 (operating automobile racetrack for profit on property leased from legislatively created racing and recreational facilities district "not even arguably the performance of a 'governmental-governmental' function"); Turner v. Concorde Props., 823 So.2d 165, 167 (Fla. 2d DCA 2002) (public golf course situated on publicly owned property but operated by private for-profit partnership was proprietary, not tax-exempt governmental use); Mikos v. City of Sarasota, 636 So.2d 83, 85 (Fla. 2d DCA 1994) (marina operated by for-profit lessee on city-owned property was proprietary use and was not exempt); St. John's Assocs. v. Mallard, 366 So.2d 34, 37-38 (Fla. 1st DCA 1978), approved by Walden v. Hillsborough Cnty. Aviation Auth., 375 So.2d 283, 287 (Fla. 1979) (although activity was expressly permitted by port authority's enabling act, use of authority's property by for-profit lessee for storing cars before shipment by importer did not serve governmental purpose and was not tax exempt).
Nevertheless, Gulf Marine contends that because the Port Authority's enabling act, chapter 95-488, sections (3), 7(c), 7(k), Laws of Florida, permits it to maintain a shipyard, Gulf Marine's operation of a shipyard ipso facto exempts the property from taxation under section 196.012(6) because that is a function that "could properly be performed or served by an appropriate governmental unit." But the Florida Supreme Court rejected this very argument in Walden, 375 So.2d at 285-87. Applying the governmental-governmental use test, the Walden court held that public airport premises that were leased to private businesses for a bonded warehouse, concessions, and other for-profit commercial activities were not exempt from taxation even though those functions legally could have been performed by the aviation authority. Id. at 287.
The decisions discussed above, and thus our conclusion in this case, are grounded in the introductory sentence of section 196.012(6) as enacted in 1971 and construed by the Williams court in 1975. While the legislature has added language to the subsection over the years, that initial sentence and the courts' construction of it have remained unaltered since its creation.
Beginning in the 1990s, the legislature made amendments to the definition contained in subsection (6), always leaving the first sentence intact while adding verbiage related to sundry types of activities. By the time Gulf Marine applied for tax exemptions in 2014, section 196.012(6) had morphed into a single Gordian paragraph of almost 750 words. Among the added topics were airport and space exploration functions, ch. 93-233, § 1, Laws of Fla.; use for a "convention center, visitor center, sports facility with permanent seating, concert hall, arena, stadium, park, or beach," ch. 94-353, § 59, Laws of Fla. (later invalidated in Sebring IV); use of federally donated land for historical preservation, park, or recreational purposes, ch. 94-353, § 59, Laws of Fla.; and telecommunications activities, ch. 97-197, § 3, Laws of Fla.
For this reason, the legislature's addition of language regarding maritime functions, appended to section 196.012(6) in 1997 and included in the 2014 version of the statute, does not change the result of our governmental-governmental use analysis. See ch. 97-255, § 25; § 196.012(6). In pertinent part, that addition states:
Any activity undertaken by a lessee which is permitted under the terms of its lease of real property [. . .] which [is] located in a deepwater port identified in s. 403.021(9)(b) and owned by one of the foregoing governmental units, subject to a leasehold or other possessory interest of a nongovernmental lessee that is deemed to perform [a] . . . port purpose or operation shall be deemed an activity that serves a governmental, municipal, or public purpose.§ 196.012(6) . Nothing in that language alters the governmental-governmental use test attributed by Williams to the enduring prefatory sentence of section 196.012(6). Indeed, the supreme court has made clear that the legislature may not confer tax exemptions on governmental-proprietary activities simply by adding them to the definition of government purpose in section 196.012(6):
When viewed through the lens of the constitution, this amendment's approach [exempting sports facilities with permanent seating] cannot meet with success because mere labeling does not and cannot effectuate a transformation of constitutional acceptance. "[L]egislatively deeming a governmental-proprietary purpose to be a 'governmental-governmental' purpose does not change its true nature and does not result in the constitutional awarding of a tax exemption where, absent the legislation, there clearly could be no exemption."Sebring IV, 783 So.2d at 252 (quoting Hudson, 9 U. Fla. J.L. &Pub. Pol'y at 250).
Professor Hudson likened such efforts to "attempt[ing] to convert a donkey into a horse by legislatively labeling the donkey a 'horse.'" David M. Hudson, Governmental Immunity & Tax'n in Fla., 9 U. Fla. J.L. & Pub. Pol'y 221, 250 (1998).
Still, as previously mentioned, we must interpret the "port purpose" language in section 196.012(6) in a manner that preserves its validity if possible. To that end, it is significant that the legislature is presumed to have adopted prior judicial constructions of a statute unless a contrary intention is expressed. Fla. Dep't of Revenue v. City of Gainesville, 918 So.2d 250, 254 (Fla. 2005); Fla. Dep't of Child. &Fams. v. F.L., 880 So.2d 602, 609 (Fla. 2004). Here, the legislature has preserved undisturbed the initial sentence of section 196.012(6)-the provision on which a multitude of judicial decisions rests-despite making assorted amendments to the balance of the paragraph. In fact, the legislature has qualified its additions to the subsection with the phrase "[f]or purposes of the preceding sentence," confirming that the introductory sentence, the meaning of which is rooted in the Constitution, establishes the parameters within which the remainder of the definition operates. § 196.012.
Therefore, "any activity" by a lessee "that is deemed to perform [a] . . . port purpose or operation" still must satisfy the initial sentence of section 196.012(6) and the constitutional governmental-governmental use test arising from it, i.e., it must relate to the administration of government as opposed to the commercial endeavor of a private lessee. See id.
Further support for this constitutional construction of the law arises from the fact that when inserting the port-purpose passage into section 196.012(6), the legislature chose not to include language expressly granting a tax exemption for proprietary activities undertaken for profit. The legislature cannot create tax exemptions by inference, and thus we cannot read into the statute an exemption for private for-profit uses. See Cap. City Country Club, 613 So.2d at 452 (statute did not specifically exempt class of property from taxation, but did so only by inference; therefore, to preserve statute's constitutionality court would not interpret statute as exempting such property from taxes).
The property appraiser posits that "[w]ere the Tampa Port Authority to privatize the administration and operation of the port, that lessee would likely receive an exemption." Of course, that is not the situation in this case.
Simply put, Gulf Marine's use of its leased property for its own profit does not serve a governmental-governmental function. As such, the property is not tax-exempt.
III. The Property Appraiser's Standing
Gulf Marine maintains that the property appraiser lacked standing to challenge the VAB decision because the "true intent" of his suit was to "covertly" and improperly attempt to invalidate section 196.012(6). This argument distorts the property appraiser's position.
To be sure, state officers such as property appraisers have no standing in their official capacities to challenge the constitutionality of statutes. See Crossings at Fleming Island Cmty. Dev. Dist. v. Echeverri, 991 So.2d 793, 803 (Fla. 2008); State ex rel. Atl. Coast Line R. Co. v. State Bd. of Equalizers, 94 So. 681, 684 (Fla. 1922). But that is not what occurred here. Rather, the property appraiser proceeded under a longstanding judicial interpretation of the statute that comports with the constitution. Doing so did not equate to an attack on the statute's validity.
Gulf Marine's reliance on Turner v. Hillsborough County Aviation Authority, 739 So.2d 175 (Fla. 2d DCA 1999), in this regard is unavailing. That case involved an exemption application for land owned by the Hillsborough County Aviation Authority and leased to the Tampa Sports Authority, which in turn licensed it for use as a major league baseball facility. Id. at 176. The Aviation Authority applied for a property tax exemption under language in section 196.012(6), Florida Statutes (1997), that defined "governmental purpose" to include the use of government property for certain sports facilities. Id. The property appraiser, Turner, denied the application because he "was of the opinion that the sports facility exemption was unconstitutional." Id. at 178. Nevertheless, the VAB granted the exemption pursuant to the statute. Id. at 176. When Turner sued to overturn the VAB's decision, the circuit court dismissed his action. Id. at 177. On appeal, this court affirmed the dismissal because state officers lack standing to challenge the validity of statutes. Id. at 179. The court rejected the property appraiser's argument that his initial rejection of the exemption request should be upheld because it was consistent with the constitution and that his court challenge was to the VAB's decision to apply the unconstitutional statute rather than to the validity of the statute itself. Id. at 177. The court wrote that it "fail[ed] to see the distinction." Id.
Turner was without authority to change the legislature's definition of governmental purpose. Therefore, Turner's refusal to apply the statutory exemption and his subsequent filing of a complaint alleging that the VAB violated the constitution by granting the exemption are both acts that challenge the constitutionality of the statute.... Thus, we conclude that Turner initiated a challenge to the constitutionality of the statute first by refusing to apply it, and second by seeking to have its application by the VAB declared a violation of the constitution.Id. at 179.
In contrast, here the property appraiser did not deny Gulf Marine's applications on the ground that the statute it relied on was unconstitutional. Neither did he contend that the VAB erred by applying an invalid statute. Rather, he determined that Gulf Marine's use did not entitle the property to an exemption under the tax statutes as they have been construed by the courts. The property appraiser's circuit court suit alleged that the VAB's decision to the contrary contravened the constitution "and Florida Statute 196.199, as interpreted by the Florida courts." See § 194.036(1)(a) (when appealing VAB decision, property appraiser must affirmatively assert that there is a specific constitutional or statutory violation in the decision).
The property appraiser's assertion that he, the VAB, and the circuit court were bound by prior judicial interpretations that harmonized these statutes with the constitution is fully consistent with long-standing Florida law. See, e.g., Williams, 326 So.2d at 433 ("With the [statutory] exemption being so interpreted all property used by private persons and commercial enterprises is subjected to taxation .... Thus all privately used property bears a tax burden in some manner and this is what the Constitution mandates." (emphasis added)). Contrary to Gulf Marine's mischaracterization, construing and applying statutes in this manner preserves their validity. See Cap. City Country Club, 613 So.2d at 452 ("in order to sustain [statute's] constitutionality," court would not interpret statute as exempting subject property from ad valorem taxes).
IV. Procedural Issues
We also address several procedural issues raised by Gulf Marine, none of which support reversal.
We do not take up Gulf Marine's arguments that the property appraiser failed to follow certain procedures mandated in section 196.199. Gulf Marine acknowledged in the circuit court that those issues would be moot if the property was not exempt from taxes in 2014, as the circuit court and we have concluded.
A. The Pleadings
Gulf Marine contends that the property appraiser's pleadings failed to invoke a necessary statutory basis for his challenge to the VAB decision and that therefore the circuit court erred by entertaining it. As we have done in the Port Authority's appeal, we reject this argument.
The VAB appeal statute authorizes the property appraiser to contest a VAB decision in court if one or more of three conditions are met. § 194.036(1)(a)-(c), Fla. Stat. (2015). The condition relevant here, contained in subsection (1)(a), requires the property appraiser to determine and assert that there is a "specific constitutional or statutory violation" in the VAB's decision. Manifestly, the property appraiser's amended complaint did precisely that: "The Value Adjustment Board's decision violates Article VII, section 3(a) of the Florida Constitution, Article VII, section 4 of the Florida Constitution and Florida Statute 196.199 as interpreted by the Florida courts." (Emphasis added.)
Gulf Marine characterizes the complaint's allegations as merely "conclusory." This assertion mistakenly conflates the statutory directive with pleading requirements under the rules of civil procedure. But we have no difficulty concluding that the property appraiser met the latter standard, as well.
In addition to the foregoing paragraph, the complaint alleged that the lessee was a for-profit corporation "in the Dry dock/Repair business" which advertised a variety of related services on its website. Neither the lessee's business nor the offered services were exempt uses of the property. Thus, according to the amended complaint, the lessee's use of the property did not entitle it to an exemption under section 196.199. In sum, the property appraiser alleged that because the lessee was a for-profit corporation that did not perform an exempt activity on the subject property, the VAB improperly granted the exemption. Clearly, those allegations constituted a "short and plain statement of ultimate facts showing that the pleader [was] entitled to relief," as required by Florida Rule of Civil Procedure 1.110(b)(2). Gulf Marine's assertion that the property appraiser's pleadings failed to properly plead his statutory right to challenge the VAB decision is meritless.
B. The Late Joinder of the Port Authority as a Party Defendant
Gulf Marine contends that it should have prevailed in the property appraiser's VAB circuit court appeal because the Port Authority-the "taxpayer" as defined in section 192.001(13), Florida Statutes (2014)- was an indispensable party but was not added as a defendant until the statutory period for filing the action had lapsed. But under the "relation-back" principle contained in the rules of procedure, the Port Authority's late inclusion in the case was deemed timely because it related back to the timely initial complaint.
Florida Rule of Civil Procedure 1.190 governs amendments of pleadings. Subsection (c) states that "[w]hen the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading." (Emphasis added.) Generally, "the relation-back doctrine [is] to be liberally construed and applied." Smith v. Bruster, 151 So.3d 511, 515 (Fla. 1st DCA 2014) (applying the relation-back rule to authorize the addition of a new party where the interests of the original and new parties overlapped).
The instant proceeding arose under section 194.036, which authorized the property appraiser's challenge to the VAB decision. Per section 193.122(4), an action under section 194.036 must be filed within thirty days. Neither statute prohibits application of the relation-back rule. This distinguishes the case at hand from Wilkinson v. Reese, 540 So.2d 141 (Fla. 2d DCA 1989), on which Gulf Marine relies. There, taxpayers challenged an assessment by suing under a wholly different statute, section 194.171, Florida Statutes (1987), which requires such suits to be filed within sixty days after the assessment is certified for collection or after a decision regarding the assessment by the adjustment board. Wilkinson, 540 So.2d at 142.
Unlike the statutes governing this case, section 194.171 contains an explicit jurisdictional nonclaim provision, in subsection (6). It requires the taxpayer to meet specified presuit conditions, to file suit by a sixtyday deadline, and to continue complying with the preconditions after filing suit, failing which "[n]o court shall have jurisdiction." See § 194.171(6); see also Markham v. Neptune Hollywood Beach Club, 527 So.2d 814, 816 (Fla. 1988) (confirming that the addition of subsection (6) established section 194.171 as a jurisdictional statute of nonclaim rather than a statute of limitations). The Wilkinson taxpayers filed suit within the sixty-day period, but they had not satisfied the statutory presuit requirement to make a good faith payment of the tax they believed they owed. 540 So.2d at 142. They attempted to cure the defect by making the payment after the sixty-day deadline. Id. This court held that the late payment could not relate back. Id. at 143. "[A]t the time the payment was made," the court wrote, "'the action was legally dead for lack of jurisdiction; the late tender could not breathe life back into the action.' "Id. (quoting Clark v. Cook, 481 So.2d 929, 931 (Fla. 4th DCA 1985)).
In contrast, sections 194.036 and 193.122(4), which respectively authorized the property appraiser's VAB appeal and established the limitation period for filing it, contain no similar jurisdictional prohibition. The importance of that distinction was underscored in Wilkinson: the court noted that before the express jurisdictional nonclaim language was added to section 194.171 in 1983, the relation-back doctrine applied in actions under that statute. See Wilkinson, 540 So.2d at 143 (first citing Cowart v. Perkins, 445 So.2d 654 (Fla. 2d DCA 1984); and then citing Hilltop Ranch, Inc. v. Brown, 308 So.2d 124 (Fla. 1st DCA 1975)); see also ch. 83-204, § 7, Laws of Fla.) Thus, Wilkinson supports our conclusion that the relation-back rule applies when, as here, the controlling limitation statutes contain no jurisdictional nonclaim language.
Application of the relation-back rule in this case is unaffected by the fact, emphasized by Gulf Marine, that section 193.122(4) employs the word shall when establishing the limitations period in which a property appraiser must sue to challenge a VAB decision. The section shares this attribute with Florida's civil statutes of limitation generally: section 95.11, which prescribes limitations for civil lawsuits, states that "[a]ctions other than for recovery of real property shall be commenced as follows." (Emphasis added.) And section 95.011, Florida Statutes (2015), directs that a civil action shall be barred unless filed within the applicable limitation set forth in the chapter. Yet those limitation statutes do not preclude application of the relation-back principle. See, e.g., Kozich v. Shahady, 702 So.2d 1289, 1292 (Fla. 4th DCA 1997) (amendment of complaint to add indispensable party after statute of limitations for legal malpractice had expired related back to original complaint). Neither does the limitation statute applicable to the property appraiser's action.
Finally, although the relation-back rule typically does not apply to the addition of a party, the exception to the general rule applies here. An amendment adding a new party relates back to the original pleading when the new and former parties have an identity of interests such that the opponent is not prejudiced by the addition. See Smith, 151 So.3d at 515; Est. of Eisen v. Philip Morris USA, Inc., 126 So.3d 323, 329 (Fla. 3d DCA 2013); R.A. Jones &Sons, Inc. v. Holman, 470 So.2d 60, 67 (Fla. 3d DCA 1985).
The "touchstone" of this identity of interests exception is whether the party or parties knew or should have known of the existence and involvement of the new party. Lopez-Loarca v. Cosme, 76 So.3d 5, 10 (Fla. 4th DCA 2011). And the relation-back principle applies as liberally in such cases as in others. See Jefferson Realty of Fort Lauderdale, Inc. v. U.S. Rubber Co., 222 So.2d 738, 741 (Fla. 1969) (trial court properly allowed addition of party at conclusion of trial); Ding v. Jones, 667 So.2d 894, 897 (Fla. 2d DCA 1996) (referring to "liberal joinder provisions of Rule 1.210(a)"); Palm Beach County v. Savage Constr. Corp., 627 So.2d 1332, 1333 (Fla. 4th DCA 1993) ("It is well settled that [rule 1.190(c)] is to be construed liberally."). Of course, in this case Gulf Marine and the Port Authority had identical interests in having the property exempted from taxes. Moreover, all parties were fully aware of the Port Authority's involvement in the matter throughout, and Gulf Marine has not argued that it was prejudiced when the Port Authority became a party to the VAB appeal suit.
In short, the untimely inclusion of the Port Authority as a defendant to the VAB appeal was cured when the circuit court properly permitted the amendment to relate back to the property appraiser's original complaint.
C. The Sufficiency of the Denial Notices
Each of Gulf Marine's circuit court actions involving a tax year after 2014 included a count alleging that the notice of denial for that year was legally deficient. Gulf Marine claimed that this failing required the court to declare the shipyard property exempt from taxes, and it repeats that assertion on appeal. We disagree.
Gulf Marine's argument is founded on subsection (5) of section 196.193, Florida Statutes (2015). Paragraph (a) of that subsection provides that an exemption applicant must be notified in writing of a denial on or before July 1 of the year for which the application was filed. § 196.193(5)(a). Paragraph (c) directs that all notifications must advise the applicant of the right to appeal to the value adjustment board and specify the procedure for pursuing such an appeal. § 196.193(5)(c).
At issue here is the requirement in paragraph (b):
The notification must state in clear and unambiguous language the specific requirements of the state statutes which the property appraiser relied upon to deny the applicant the exemption with respect to the subject property. The notification must be drafted in such a way that a reasonable person can understand specific attributes of the applicant or the applicant's use of the subject property which formed the basis for the denial. The notice must also include the specific facts the property appraiser used to determine that the applicant failed to meet the statutory requirements. If a property appraiser fails to provide a notice that complies with this subsection, any denial of an exemption or an attempted denial of an exemption is invalid.§ 196.193(5)(b).
We concur in the circuit court's assessment that the disapproval notices and transmittal letters sent to Gulf Marine satisfied the statute. The property appraiser denied each of Gulf Marine's post-2014 tax exemption applications by sending a form notice along with a form transmittal letter that also advised that the application had not been approved. Every letter further informed Gulf Marine of its right to file a petition with the VAB, explained how and where to obtain a petition form, and noted that the deadline for filing a VAB petition was thirty days from the mailing of the denial notice. The notice of disapproval itself repeated the information about the right to file a VAB appeal.
For the 2015 and 2016 tax years, the notices also stated:
Your application was denied because on January 1 of the tax year, you did not: ....
Meet other statutory requirements specifically:
A physical inspection of the referenced property indicates it is being used for proprietary purposes as of January 1st. [FS 196.199, 196.012(6), Art VII Sec 3(a) FL Constitution].
The letter regarding the 2017 tax year stated the reason for denying the exemption: "Evidence property is leased to for profit entity." The accompanying notice of disapproval advised that the "[p]roperty does not meet statutory criteria for Government use. FS 196.199, FS 198.012, Art VII Sec 3(a) FL Constitution."
For the 2018 tax year, the transmittal letter stated that the exemption request was denied because there was "[e]vidence property is leased to for profit entity for proprietary purposes; Williams v. Jones, 326 So.2d 425 (Fla. 1975), Fla. Dep't of Revenue v. City of Gainesville, 918 So.2d 250 (Fla. 2005)." The disapproval notice echoed the 2017 form: "Property does not meet statutory criteria for Government use. FS 196.199, FS 196.012, Art VII Sec 3(a) FL Constitution."
As to the last tax year at issue, 2019, the denial letter stated:
• Property does not meet statutory criteria for Government use. FS 196.199, FS 196.12, Art VII Sec 3(a) FL Constitution.
• Case Law: Sebring Airport Auth. v. McIntyre 783 So. 2nd 238 (Fla.[ ]2001)[.]
• Property being used for non-exempt proprietary purposes.
• Property must be used for the administration of some phase of government.
That year the disapproval form reflected: "Applicant does not meet statutory criteria for Government entity. FS 196.199[,] FS 196.012, Art VII Sec 3(a) FL Constitution."
These notices were more than sufficient to satisfy the notice obligations under section 196.193(5)(b). Even supposing otherwise, however, Gulf Marine would not be entitled to relief on that account. Section 196.193(5) is a procedural due process provision. See Miller v. Nolte, 453 So.2d 397, 401 (Fla. 1984) (addressing statute that required property appraisal adjustment board to issue findings of fact and conclusions of law). It permits an unsuccessful exemption applicant to evaluate the reason for the denial before seeking relief from the value adjustment board or circuit court within the statutory filing period. See Cape Cave Corp. v. Lowe, 411 So.2d 887, 889 (Fla. 2d DCA 1982) (legislature intended that taxpayer have the benefit of property appraisal adjustment board's findings of fact and conclusions of law before deciding whether to seek judicial review). The proper remedy for a property appraiser's failure to give the statutory notice is to toll commencement of the filing period. City of Miami v. 346 N.W. 29th Street, LLC, 217 So.3d 143, 147 (Fla. 3d DCA 2017); Genesis Ministries, Inc. v. Brown (Genesis I), 186 So.3d 1074, 1082 (Fla. 1st DCA 2016); Chihocky v. Crapo, 632 So.2d 230, 232-33 (Fla. 1st DCA 1994).
Gulf Marine, which alleged that its use of the property had not changed since the 2014 tax year, certainly had actual knowledge of the property appraiser's reason for denying each year's exemption application by virtue of the litigation over the preceding years' denials. Moreover, it timely filed each of its post-2014 lawsuits within the sixtyday limit imposed by section 194.171(2). Thus, even if there were deficiencies in the disapproval notices, Gulf Marine suffered no prejudice whatsoever. See Schumacher v. Town of Jupiter, 643 So.2d 8, 9 (Fla. 1994) (landowner who had substantial and continuous knowledge of pending proceedings and who appeared at final hearing on proposed ordinance and expressed his objections was not prejudiced by defects in statutory notice); Krischer v. Sch. Bd. of Dade Cnty., 555 So.2d 436, 437 (Fla. 3d DCA 1990) (violation of statutory notice provision did not require reversal of order terminating teacher's employment where teacher had been given early and continual notice of her unsatisfactory performance, and so was not prejudiced).
Seemingly unhampered by any purported deficiency in the notice that denied its exemption application, Gulf Marine timely filed its first suit, directed to the 2015 tax year, in December 2015. It expressed no dissatisfaction with the contents of the notice until it filed an amended complaint following nine more months of litigation.
We are unpersuaded by Gulf Marine's reliance on Genesis Ministries, Inc. v. Brown (Genesis II), 250 So.3d 865, 869 (Fla. 1st DCA 2018), wherein, remarkably, the circuit court was directed to enter summary judgment awarding a religious-use tax exemption to a property that did not legally qualify for it solely because the property appraiser's denial notification did not inform the applicant of his right to file a VAB appeal. That unprecedented remedy is not authorized by the statute, either specifically or inferentially, nor could it be, because the legislature cannot exempt property from taxation unless the constitution provides for the exemption. Obviously, the courts cannot do so, either. See Sebring IV, 783 So.2d at 253 ("It is not for this Court or the Legislature to grant ad valorem taxation exemptions not provided for in the present constitutional provisions.").
V. Conclusion
There is no merit in Gulf Marine's assorted criticisms of the judgment under review. Accordingly, we affirm.
Affirmed.
SILBERMAN and LaROSE, JJ, Concur.
Opinion subject to revision prior to official publication.