Summary
In Merrick Park, a VAB decision reduced the valuations both of land owned by the City of Coral Gables and of separately assessed property improvements owned by the city's commercial tenant.
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Nos. 3D18-2090 & 3D18-1393
12-04-2019
MERRICK PARK, LLC, and The City of Coral Gables, Appellants, v. Pedro J. GARCIA, as Property Appraiser for Miami-Dade County, Florida, et al., Appellees.
Rennert Vogel Mandler & Rodriguez, P.A., and Thomas S. Ward, for appellants. Abigail Price-Williams, Miami-Dade County Attorney, and Ileana Cruz, Assistant County Attorney, for appellees.
Rennert Vogel Mandler & Rodriguez, P.A., and Thomas S. Ward, for appellants.
Abigail Price-Williams, Miami-Dade County Attorney, and Ileana Cruz, Assistant County Attorney, for appellees.
Before FERNANDEZ, MILLER, and GORDO, JJ.
FERNANDEZ, J.
In these two consolidated cases, Merrick Park, LLC ("Merrick") appeals the trial court's "Order Striking Count I of Second Amended Counterclaim and Dismissing Count II Thereof with Prejudice" in case number 3D18-2090. Appellant the City of Coral Gables ("the City") appeals the trial court's "Order on The City of Coral Gables' Motion to Join or Intervene" in case number 3D18-1393. This Court consolidated the appeals, and after careful consideration, we affirm both orders.
The Shops at Merrick Park is an outdoor commercial retail shopping mall located at 358 San Lorenzo Avenue, Coral Gables, Florida. The Shops at Merrick Park's Improvements, which include the buildings that make up the mall's retail space, was assigned tax folio number, 03-4120-067-0041, for ad valorem taxation. Merrick is the owner of the Improvements. It is also the tenant leasing the land from the City. As the owner of the Improvements, Merrick is responsible for paying taxes on the Improvements. § 192.001(13), Fla. Stat. (2017). Accordingly, the tax bill for the Improvements is addressed to Merrick and mailed to Merrick's P.O. Box in Chicago, Illinois.
The real property beneath The Shops at Merrick Park's Improvements was assigned a different tax folio number, 03-4120-067-0040, for ad valorem taxation of the City's Land. The City is the owner of the Land, which it leases to Merrick pursuant to a long-term written ground lease and pursuant to which Merrick is contractually responsible to the City for paying the ad valorem taxes on the Land. However, pursuant to section 192.001(13), as the owner of the Land, the City is the entity responsible for paying the ad valorem taxes on the Land. The tax bill for the Land is addressed to the City but mailed to Merrick at its P.O. Box in Chicago.
Pedro J. Garcia, the property appraiser for Miami-Dade County, Florida, preliminarily assessed Merrick's Improvements at $81,000,000.00 and the City's Land at $51,118,500.00, for the 2016 tax year. Merrick and the City each filed a petition with the Value Adjustment Board ("VAB"), pursuant to section 194.011, Florida Statutes (2017), challenging these assessments. After the hearing before the VAB, the VAB issued its written decision reducing the property appraiser's preliminary assessment of 1) the Improvements from $81,000,000.00 to $67,126,217.00.00, and 2) the Land from $51,118,500.00 to $43,450,725.00.
On July 11, 2017, the property appraiser and counterclaim-defendant Marcus Saiz de la Mora, as tax collector for Miami-Dade County (collectively, "the property appraiser"), filed a complaint under sections 194.171 and 194.181, Florida Statutes (2017), to contest the VAB's reduction of the 2016 tax assessment value of Merrick's Improvements. The property appraiser did not contest the VAB's reduction of the 2016 assessment value of the City's Land. In response, on July 28, 2017, Merrick filed an answer and a two-count counterclaim. First, in Count I of the Initial Counterclaim, Merrick sought yet another reduction of the Improvement's 2016 tax assessment value ("Improvements action"). Then, in Count II of the Initial Counterclaim, the City, as a counter-plaintiff, sought another reduction of the 2016 tax assessment value of the City's Land ("Land action") that it leases to Merrick and upon which the Improvements are built, claiming the property appraiser had still overassessed the Land. The City was not a named party-defendant in the property appraiser's lawsuit against Merrick and has never been a party to that lawsuit. In addition, the City had not yet filed a motion to join or intervene.
Because the City was not a party-defendant, the property appraiser on September 29, 2017, moved to dismiss or strike Count II of the Initial Counterclaim ("the First Strike Motion"). At a specially-set hearing before the trial court, the City argued that it decided to try to commence the Land action by filing it as a counterclaim in Merrick's case. The trial court did not agree with the City's position and found that the City was not a named party and not a proper party-defendant in the property appraiser's action against Merrick. On February 2, 2018, the trial court thus entered the First Strike Order and dismissed Count II of the Initial Counterclaim without prejudice, but without granting leave to amend. Merrick did not seek rehearing nor did it appeal the First Strike Order. After receiving the First Strike Order, the property appraiser filed his Answer to Count I of the Initial Counterclaim (Merrick's Improvements action pled in Count I of the Initial Counterclaim) on February 8, 2018.
Thereafter, on February 20, 2018, Merrick and the City again pled the City's Land action as an amended count II in Merrick's Amended Counterclaim, which was filed without seeking leave to amend, join, or intervene. Count II of the Amended Counterclaim was pled for the first time by Merrick, but jointly with the City. The property appraiser moved to strike the entire Amended Counterclaim, as well as moved to strike the City from this case. During a hearing on the property appraiser's motion, the trial court again found that the City was not a party in the proceeding. The trial court issued its Second Strike Order on April 11, 2018, striking the entire Amended Counterclaim and stated in its order, "Coral Gables is not a party to this suit." The trial court granted Merrick leave to file an amended counterclaim within twenty days.
On April 25, 2018, the City filed a motion under Florida Rule of Civil Procedure 1.530 to seek rehearing of the Second Strike Order. That same day, the City also filed a motion to join or intervene as a party. The property appraiser filed a motion for partial reconsideration of the Second Strike Order and a written objection to both motions filed by the City. During the rehearing, the trial court found that Count II of the Initial Counterclaim and Count II of the Amended Counterclaim were nullities filed by the City as a non-party without authorization. The trial court thus denied the City's rehearing motion and motion to join or intervene, as well as the property appraiser's partial reconsideration motion.
On June 19, 2018, Merrick filed its Second Amended Counterclaim. In Count II of this pleading, Merrick pled the Land action for the first time on behalf of only itself. On July 5, 2018, the property appraiser filed his Motion to Strike Count I and Dismiss Count II of Second Amended Counterclaim. On July 10, 2018, the City filed its Notice to Appeal the "Order on Property Appraiser's Motion to Strike The City of Coral Gables and the Amended Counterclaim" (the Second Strike Order), the "Order on the City of Coral Gables' Motion for Rehearing," and the Order on the City of Coral Gables' Motion to Join or Intervene. This Court assigned case number 3D18-1393 to the City's appeal.
On August 20, 2018, Merrick filed its Response to the property appraiser's motion to strike Count I and dismiss Count II of the Second Amended Counterclaim. After a hearing, the trial court entered its Third Strike Order on October 11, 2018, striking Count I of the Second Amended Counterclaim as a redundant pleading and dismissing Count II of the Second Amended Counterclaim with prejudice. The trial court ruled that Count II did not relate back to the July 28, 2017 Initial Counterclaim and was thus barred by section 194.171(2), the statute of nonclaim, for being filed outside of the sixty-day statutory period. Count I of the Initial Counterclaim by Merrick seeking a further reduction of the 2016 tax assessment value of the Improvements is thus the only count that remains pending before the trial court.
Also, on October 10, 2018, this Court entered its order dismissing the City's appeal of the Second Strike Order and Order Denying Rehearing in City of Coral Gables v. Garcia, ––– So.3d ––––, 2018 WL 4904915 (Fla. 3d DCA Oct. 10, 2018). This Court stated "[b]ecause the City was not a party to the case when it asserted its counterclaim against the Property Appraiser in the amended counterclaim, we grant the Property Appraiser's motion to dismiss the appeal as to the trial court's Second-Strike Order and the Order Denying Rehearing." Id. at ––––, at *3. The Court did not dismiss the City's appeal of the Order Denying Intervention. The Court stated, "on appeal, the City is limited to making arguments based on the trial court's denial of its Motion to Intervene in the case." Id. Thereafter, on October 16, 2018, Merrick filed its Notice to Appeal the Third Strike Order.
Merrick's appeal and the City's appeal in case number 3D18-1393 were consolidated under case number 3D18-2090.
In case number 3D18-2090, Merrick raises three issues on appeal: 1) did the trial court err when it dismissed the City's claim in Count II of the Initial Counterclaim (the First Strike Order); 2) did the trial court abuse its discretion when it struck the Amended Counterclaim due to Merrick's failure to obtain consent or leave to amend (the Second Strike Order); and 3) did the trial court err when it dismissed with prejudice Merrick's attempt to assert the City's claim in Count II of the Second Amended Counterclaim (the Third Strike Order). In case number 3D18-1393, the City raises one issue on appeal: did the trial court abuse its discretion in denying the City's motion to join or intervene.
Merrick first argues that the trial court erred when it dismissed the City's Land claim in Count II of the Initial Counterclaim (the First Strike Order). The standard of review on this issue is de novo . Hidden Bay Master Ass'n, Inc. v. Miami-Dade Cty. Dept. of Prop. Appraisal, 938 So. 2d 599, 601 (Fla. 3d DCA 2006). We agree with the property appraiser that this Court lacks jurisdiction to review the First Strike Order.
Under Florida Rule of Appellate Procedure 9.110(k), the First Strike Order is a partial final judgment. In addition, the City's counterclaim was a permissive counterclaim under Florida Rule of Civil Procedure 1.170(b), and not a compulsory one under Florida Rule of Civil Procedure 1.170(a), as it involved the City's Land action. Rule 1.170(a) and (b) state:
(a) Compulsory Counterclaims. A pleading must state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, provided it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. But the pleader need not state a claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon that party's claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on the claim and the pleader is not stating a counterclaim under this rule.
(b) Permissive Counterclaim. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim.
A counterclaim is permissive when it "is a separate and distinct cause of action which is not interdependent with other pleaded claims ...." Sarasota Cloth Fabric & Foam, Inc. v. Benes, 482 So. 2d 574, 575 (Fla. 5th DCA 1986). The City's Land action is a separate and distinct action from Merrick's Improvements action. Assessment of the Improvement's just value in the main action and Count I of the Initial Counterclaim does not depend upon assessment of the Land's just value in Count II. Accordingly, Count II was a permissive counterclaim.
As a permissive counterclaim, Count II was immediately appealable as a partial final judgment. Fla. R. App. P. 9.110(k) ; 4040 IBIS Circle, LLC v. JPMorgan Chase Bank, 193 So. 3d 957, 960 (Fla. 4th DCA 2016). Where the judgment totally disposes of the case as to any party, it must be appealed within thirty days of rendition. Fla. R. App. P 9.110(k) ; Let's Help Fla. v. DHS Films, Inc., 392 So. 2d 915, 915-16 (Fla. 3d DCA 1980). Here, the Land action in Count II of the Initial Counterclaim was pled by and on behalf of the City alone. The trial court's First Strike Order was rendered on February 2, 2018, and it disposed of the entire Land action. This Court has no jurisdiction to review it, as no appeal was filed within thirty days of the First Strike Order's rendition. Del Castillo v. Ralor Pharmacy, Inc., 512 So. 2d 315, 318 (Fla. 3d DCA 1987).
We further add that neither Merrick nor the City has standing to appeal the First Strike Order. This Court has already held in City of Coral Gables v. Garcia, supra, that the City cannot appeal any of the orders striking Count II because it was not a party to the proceedings below. Merrick has no standing to appeal the First Strike Order because Count II of the Initial Counterclaim was pled by and on behalf of the City, not Merrick. A party may appeal only from a decision adverse to him. Penabad v. A.G. Gladstone Assocs., Inc., 823 So. 2d 146, 147 (Fla. 3d DCA 2002). Accordingly, neither the City nor Merrick has standing to seek reversal of the trial court's dismissal of the City's Land value claim in Count II of the Initial Counterclaim.
Turning to Merrick's second point on appeal, it argues that the trial court abused its discretion when it struck its Amended Counterclaim in its entirety due to Merrick's failure to obtain consent or leave to amend. Merrick's appeal of this Second Strike Order is reviewed for abuse of discretion. Freeman v. Mintz, 523 So. 2d 606, 609 (Fla. 3d DCA 1988). Merrick argues that the property appraiser failed to "timely communicate[ ] an objection to the presence of the City or its Land value counterclaim in the lawsuit" prior to the expiration of the statutory nonclaim period.
First, the trial court stated in its Second Strike Order that the Amended Counterclaim was struck in its entirety and further stated, "Coral Gables is not a party to this suit." The record reflects that the trial court dismissed Count II without prejudice in the First Strike Order. However, the trial court did not grant Merrick leave to amend and did not dismiss Count I of the Initial Counterclaim. The appraiser answered the Initial Counterclaim. Two weeks later, Merrick filed an Amended Counterclaim where it pled for the first time Count II, together with the City. Merrick never sought the trial court's consent or leave to amend, nor did it seek leave to allow the City to join or intervene. The appropriate remedy, thus, was to strike the pleading where a party files an amended pleading without first obtaining leave. Freeman, 523 So. 2d at 609. Further, because Count I of the Initial Counterclaim remained pending before the trial court, it was a redundant pleading in the Amended Counterclaim and, thus, was properly stricken by the trial court. See Fla. R. Civ. P. 1.140(f) ; Dover v. Dover, 241 So. 2d 740 (Fla. 4th DCA 1970).
The trial court lost jurisdiction to grant leave to amend Count II when the time period to move for rehearing or appeal the dismissal of Count II expired without Merrick filing such motions.
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For its last issue on appeal, Merrick contends that the trial court erred when it dismissed with prejudice Merrick's attempt to assert the City's claim in Count II of the Second Amended Counterclaim (the Third Strike Order), as the trial court improperly concluded that Count II of the Second Amended Counterclaim did not relate back to Count II of the Initial Counterclaim. The standard of review on this issue is de novo . Hidden Bay Master Ass'n, Inc., 938 So. 2d at 601.
Merrick claims that the trial court failed to consider the four factors analyzed by this Court in Estate of Eisen v. Philip Morris, USA, Inc., 126 So. 3d 323 (Fla. 3d DCA 2013). We agree with the property appraiser that Eisen's four-factor analysis is inapplicable because Eisen is distinguishable from the facts in the case before us.
First, Eisen involved an original pleading filed by a named party, whereas the original pleading in the case before us was filed without authorization by a non-party. Thus, it is a legal nullity, as it did not commence an action to contest the tax assessment value of the land in question for 2016. Pleadings filed without authorization are appropriately stricken because non-parties do not have standing to request relief from a court. Giuffre v. Edwards, 226 So. 3d 1034, 1039 (Fla. 4th DCA 2017).
The City attempted to file Count II of the Initial Counterclaim on July 28, 2017. However, at that time, the City was not a party to the lawsuit, and no motion to join or intervene had been filed or granted. The pleading was filed under Merrick's name. Thus, the trial court did not err in concluding that Count II of the Initial Counterclaim was a legal nullity. Feltus v. U.S. Bank Nat. Ass'n, 80 So. 3d 375, 376 (Fla. 2d DCA 2012) ; Fusilier v. Markov, 676 So. 2d 1053 (Fla. 3d DCA 1996) (amended complaint filed without leave required no response).
Second, the Eisen analysis is inapplicable here because Eisen involved a relation back issue regarding a statute of limitations, not regarding a statute of nonclaim governing tax assessments contests, as in section 194.171(2) involved in the case before us. Section 194.171(2) requires that an action be brought during the sixty-day nonclaim period. Subsection (2) states:
(2) No action shall be brought to contest a tax assessment after 60 days from the date the assessment being contested is certified for collection under s. 193.122(2), or after 60 days from the date a decision is rendered concerning such assessment by the value adjustment board if a petition contesting the assessment had not received final action by the value adjustment board prior to extension of the roll under s. 197.323.
Noncompliance with this this sixty-day nonclaim statutory requirement deprives the court of subject matter jurisdiction. Markham v. Neptune Hollywood Beach Club, 527 So. 2d 814, 816 (Fla. 1988). Thus, the trial court had no jurisdiction over Count II of the Second Amended Counterclaim.
Count II of the Initial Counterclaim was filed by the City, a non-party, without authorization. As such, as previously discussed, it was a nullity when filed. If the nonclaim period expires and a valid pleading is not filed according to the statute, the claim cannot be revived under the relation back doctrine and is automatically barred. See Adhin v. First Horizon Home Loans, 44 So. 3d 1245, 1253 (Fla. 5th DCA 2010) ; Taylor v. City of Lake Worth, 964 So. 2d 243 (Fla. 4th DCA 2007). Thus, the 2016 tax assessment claim on the City's Land was extinguished, and the trial court no longer could acquire subject matter jurisdiction through the relation back doctrine. Consequently, the trial court correctly dismissed Count II of the Second Amended Counterclaim with prejudice.
Regarding the City's appeal, it claims the trial court abused its discretion in denying the City's Motion to Join or Intervene. The City's appeal of the "Order on the City of Coral Gables' Motion to Join or Intervene" under Florida Rule of Civil Procedure 1.230 is reviewed for an abuse of discretion. Racing Props., L.P. v. Baldwin, 885 So. 2d 881, 883 (Fla. 3d DCA 2004).
The City raises three arguments in support of its position: (1) its Motion to Intervene was timely, (2) the City is not a stranger to the property appraiser or to Merrick, and (3) if intervention is not granted, the City will not be able to pursue its Land action, which "will cost the City hundreds of thousands of dollars in ad valorem taxes," as claimed by the City in its Initial Brief. We agree with the property appraiser that the City's first two arguments are without merit because the trial court did not deny intervention on the grounds that the City's motion was untimely or that the City and the property appraiser were strangers to each other. The trial court denied intervention on the ground that the City was seeking to intervene to raise its own claim, the Land action, into the property appraiser's case against Merrick, which only dealt with the Improvements action. The Court stated at the June 4, 2018 hearing on the City's motion to join or intervene, "But if the point of the intervention is to reinstate that nullity of a ‘counterclaim,’ then the Court respectfully denies the motion." Thus, the City's first two arguments in support of its contention that the trial court abused its discretion in denying the City's Motion to Join or Intervene are meritless.
As its third argument to support its issue on appeal, the City claims that if intervention and "reinstatement" of Count II of the Initial Counterclaim are not granted, the City will not be able to pursue its Land action. This argument seeks reversal of the First Strike Order, and this Court has already ruled that the City has no standing to appeal any of the trial court's orders other than the "Order on the City of Coral Gable's Motion to Join or Intervene." City of Coral Gables v. Garcia, ––– So.3d at ––––, 2018 WL 4904915 at *3.
We are cognizant of appellants' assertion that affirming the trial court's orders on appeal will result in a scenario where neither Merrick nor the City can assert an additional challenge to the 2016 tax assessment value of the City's Land. However, as the Florida Supreme Court recognized in Bystrom v. Diaz, 514 So. 2d 1072, 1074 (Fla. 1987), "Although subsections 194.171(5) and (6) appear to be somewhat harsh, their meaning is clear." Section 194.171 states:
(1) The circuit courts have original jurisdiction at law of all matters relating to property taxation. Venue is in the county where the property is located, except that venue shall be in Leon County when the property is assessed pursuant to s. 193.085(4).
(2) No action shall be brought to contest a tax assessment after 60 days from the date the assessment being contested is certified for collection under s. 193.122(2), or after 60 days from the date a decision is rendered concerning such assessment by the value adjustment board if a petition contesting the assessment had not received final action by the value adjustment board prior to extension of the roll under s. 197.323.
(3) Before an action to contest a tax assessment may be brought, the taxpayer shall pay to the collector not less than the amount of the tax which the taxpayer admits in good faith to be owing. The collector shall issue a receipt for the payment, and the receipt shall be filed with the complaint. Notwithstanding the provisions of chapter 197, payment of the taxes the taxpayer admits to be due and owing and the timely filing of an action pursuant to this section shall suspend all procedures for the collection of taxes prior to final disposition of the action.
(4) Payment of a tax shall not be deemed an admission that the tax was due and shall not prejudice the right to bring a timely action as provided in subsection (2) to challenge such tax and seek a refund.
(5) No action to contest a tax assessment may be maintained, and any such action shall be dismissed, unless all taxes on the property assessed in years after the action is brought, which the taxpayer in good faith admits to be owing, are paid before they become delinquent.
(6) The requirements of subsections (2), (3), and (5) are jurisdictional. No court shall have jurisdiction in such cases until after the requirements of both subsections (2) and (3) have been met. A court shall lose jurisdiction of a case when the taxpayer has failed to comply with the requirements of subsection (5).
In Bryon, the taxpayers filed suit challenging a 1982 tax assessment. While the taxpayers' suit was pending, the 1984 taxes became delinquent by operation of law. Id. at 1073. Thus, pursuant to subsections 194.171(5) and (6), the tax collector filed a motion to dismiss. Id.
The taxpayers thereafter paid their taxes and filed a motion to amend their complaint under Florida Rule of Civil Procedure 1.190. In the same order, the trial court granted the motion to amend, but dismissed the taxpayers' action with prejudice because they failed to pay their 1984 taxes before they became delinquent in accordance with subsections 194.171(5) and (6). Id. at 1074. The Florida Supreme Court affirmed stating, "Subsection (6) expressly declares that these requirements are jurisdictional and that ‘[a] court shall lose jurisdiction of a case when the taxpayer has failed to comply with the requirements of subsection (5).’ The statute does not allow a court to retain jurisdiction once taxes become delinquent." Id. at 1075.
As pertinent to the case before us, subsection (6) states that the requirements of subsection (2) are jurisdictional. Thus, the statute does not permit a court to retain jurisdiction if the action to contest a tax assessment is not filed within the statutory period outlined in subsection (2). This strict construction of jurisdiction as outlined in section 194.171(2) might provide a "harsh" result, but section 194.171(2) is a jurisdictional statute of nonclaim that bars claims filed after the period expires, and "compliance with its provisions is mandatory regardless of the nature of the taxpayer's claim." Ward v. Brown, 894 So. 2d 811, 814 (Fla. 2004).
Accordingly, we affirm the trial court's orders under review.
Affirmed.