Cape Atlantic Landowners Ass'n v. County of Volusia

Citations: 581 So. 2d 1384; 1991 Fla. App. LEXIS 5646; 1991 WL 105618Docket: No. 90-703

Court: District Court of Appeal of Florida; June 20, 1991; Florida; State Appellate Court

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An appellate court reversed and remanded the dismissal of a third amended complaint concerning the improper issuance of a tax deed for subsurface property rights in Volusia County. The appellant, a plaintiff, claimed the county failed to adhere to statutory notice requirements and improperly issued a single tax deed for multiple parcels, affecting various fee simple title owners. Key allegations included the failure to provide individual notices of tax delinquency to fee owners, the lack of opportunity for fee owners to purchase individual tax certificates, insufficient publication of the tax deed sale notice, and non-compliance with statutes requiring separate tax deeds for each parcel.

The defendant's motion to dismiss argued that the statutes did not mandate individual certificates for subsurface rights, that violations of statutory procedures did not confer rights to the plaintiff, and that the plaintiff lacked standing, with co-plaintiff failing to demonstrate ownership interest. The trial court dismissed the complaint, referencing Florida Statutes allowing for separate taxation of subsurface rights and asserting that notice of the tax deed sale was published correctly.

Relevant statutory provisions cited include section 197.343, which requires notice of delinquency to fee owners and the right to purchase tax certificates, and section 197.502, governing applications for tax deeds by certificate holders.

An application for a tax deed may be made for an entire property or any separable part, allowing for consolidated applications on multiple tax certificates. Each parcel on a tax certificate requires a separate statement and tax deed as per specified statutes. Upon receiving the application and payment, the clerk must publish a notice weekly for four weeks in a designated newspaper, with a minimum 80-day wait before a tax deed sale can occur. If no newspaper is available, the clerk must file a certificate stating where and when notices were posted. Following the application’s outcome, the clerk must record the notice and advertising certificates in public records.

The trial court's order was flawed as it acknowledged the separate taxation of subsurface rights but overlooked the plaintiff's primary complaint regarding the lack of notice under section 197.343(2), which mandates registered mail notification to the fee owner about delinquent taxes on subsurface rights not held by them. This section implies a preference for reunifying subsurface and fee interests, giving the fee owner a chance to purchase the tax certificate. The failure to provide the required notice deprived the plaintiff of the opportunity to purchase and merge the titles, rendering the tax deed potentially void due to noncompliance with notice requirements. The court erred in dismissing the complaint, as the plaintiff adequately alleged a cause of action for cancellation based on the county's lack of proper notice.

Cape Atlantic's standing to sue as a representative of individual lot owners was previously questioned, but the trial court's dismissal of the second amended complaint allowed for an amendment that confirmed Cape Atlantic's authorization by its member property owners. The county did not cross-appeal this order, so the standing issue is not up for review. The county also argued that co-plaintiff Powell lacked sufficient ownership claims regarding the property described in the tax deed; however, this issue was not the basis for the trial court's dismissal and is not raised on appeal, leaving it for potential consideration on remand.

Regarding the publication of notice for the tax deed application, the court referenced the mortgage book and found that notice had indeed been published four times, contradicting plaintiffs' claims. A motion to dismiss tests the legal sufficiency of a pleading and accepts all well-pleaded allegations, excluding extrinsic facts. The trial court erred in dismissing the third amended complaint based on its finding about notice publication.

Cape Atlantic's complaint asserted that Florida Statutes require separate tax deeds for each parcel listed in a tax certificate, but the court found no such requirement for separate deeds when only the subsurface rights of one parcel were involved. Although some claims lacked merit, others, such as failure to provide notice by registered mail, warranted the complaint's continuation. The dismissal was reversed as the deficiencies in the third amended complaint did not justify a dismissal with prejudice. The court clarified that a 'parcel' refers to an interest in real property as defined by the county property appraiser, encompassing multiple lots, and the relevant statutes support the necessity for separate deeds for multiple tax certificates even when applied for together. The dismissal order is reversed and the case is remanded.