County of Volusia v. Passantino

364 So. 2d 730, 1978 Fla. App. LEXIS 17039
CourtDistrict Court of Appeal of Florida
DecidedSeptember 13, 1978
DocketNos. BB-193, BB-194
StatusPublished
Cited by1 cases

This text of 364 So. 2d 730 (County of Volusia v. Passantino) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
County of Volusia v. Passantino, 364 So. 2d 730, 1978 Fla. App. LEXIS 17039 (Fla. Ct. App. 1978).

Opinions

MILLS, Judge.

Volusia County (County) appeals from a final judgment entered in favor of Passan-tino, Schwartz and Maraville Estates, Inc. (Passantino) following a jury trial in an action brought by Passantino to set aside a tax deed given by the County to the Kents. The County also appeals from the final judgment entered in favor of the Kents on the crossclaim the Kents brought against the County seeking money damages for the value of the property conveyed to them by the tax deed in the event the tax deed was set aside. The appeals have been consolidated for our consideration.

Although the parties have raised a number of issues, the issue which is determinative of this appeal is whether the final judgment entered by the trial court on 11 December 1970 in an in rem quiet title action brought by the County against the property involved in this action, as provided by Section 197.650, Florida Statutes (1969), bars this action under the doctrine of res judicata. The County contends the judgment bars this action. Passantino contends the judgment is void because the court lacked jurisdiction to enter it.

The property involved in this litigation is Lots 1 through 16, Block 3, East Highlands, Daytona Beach. It was purchased in the names of Samuel H. Schwartz and Charles Passantino. Lots 5-16 were purchased in 1959. Lots 1-4 were purchased in 1964. In 1964, Passantino and wife conveyed a 25 percent interest in Lots 1-16 to Maraville Estates, Inc. in which they were the principal stockholders. Schwartz and Passantino also owned Lot 14, Block 56, which is adjacent to Lots 1-16. Although not involved in this litigation, Lot 14 is material to the discussion of this case.

Schwartz is a resident of Miami. Passan-tino, an active real estate broker in Florida for 25 years, is a resident of Palm Beach Towers, Palm Beach.

In 1960, Lots 5-16 were assessed on the tax rolls to Samuel A. Schwartz and Charles Passantino, 400 Broadway, Daytona Beach. In 1961, the address was changed to Box 1133, Daytona Beach. In 1962, the address was changed to c/o Anzac of Florida Realty, 205 Worth Avenue, Palm Beach. In 1963, the address was changed to Palm Beach Towers, Palm Beach. In 1965, the property description on the rolls was changed to Lots 1-16 and the name of the parties to whom assessed was changed to Samuel A. Schwartz, et al. From 1965 through 1970, Lots 1 — 16 were assessed to Samuel A. Schwartz, et al., Palm Beach Towers, Palm Beach, Florida. However, in 1966 the rolls reflect the property was subject to tax sale certificate No. 2,800 of 1967. Commencing in 1967 and continuing through 1970, the rolls reflect the property was under a county tax certificate. In 1971 and 1972, the property was assessed to Vol-usia County.

In 1959, Lot 14 was assessed to Samuel A. Schwartz, et al., 321 S. Shore Street, Miami Beach. In 1961, the address was changed to c/o Anzac of Florida Realty, Inc., 205 Worth Avenue, Palm Beach. In 1963, the address was changed to Palm Beach Towers, Palm Beach. In 1966, the name of the parties to whom assessed was changed to Charles Passantino and Samuel A. Schwartz. From 1966 through 1972, the tax rolls reflect Lot 14 was assessed to Charles Passantino and Samuel A. Schwartz, Palm Beach Towers, Palm Beach.

Passantino received and paid tax bills on Lots 5-16 for the years 1960,1961 and 1962. The 1960 tax bill was mailed to Samuel A. Schwartz and Charles Passantino, 400 Broadway, Daytona Beach. The 1961 tax bill was mailed to Samuel A. Schwartz & Charles Passantino, c/o Anzac of Florida Realty, Inc., 205 Worth Avenue, Palm Beach. The 1962 tax bill was mailed to Samuel A. Schwartz and Charles Passanti-no, c/o Anzac of Florida Realty, Inc., Palm Beach Towers, Palm Beach.

The 1963 and 1964 tax notices were mailed to Samuel A. Schwartz and Charles Passantino, Palm Beach Towers, Palm Beach. Passantino denied receiving these notices but contacted the tax collector’s office and timely paid the taxes due. At the time he paid the taxes, he requested the collector to send future tax notices to him at Palm Beach Towers, Palm Beach.

[732]*732Passantino denied receiving the 1965 tax bill on Lots 1-16 but again contacted the tax collector’s office and timely paid the taxes due. Upon payment of the taxes, Passantino penciled on the tax receipt a request that the records be changed to delete Schwartz, thus, leaving only his name on the rolls. There is no indication in the record that Passantino’s request was acted upon.

In 1964, Passantino received three separate tax notices: one for Lots 5-16, one for Lots 1-4 and one for Lot 14. In 1965, Passantino received two tax notices: one for Lots 1-16 and one for Lot 14.

In 1966, Passantino received only one tax notice and that was for Lot 14. The legal description in this tax notice was more lengthy than the legal description in the 1965 tax notice and Passantino was under the impression that the 1966 tax notice covered Lots 1-16 and Lot 14. He paid the taxes required by the 1966 tax notice. He did not pay the 1966 taxes due on Lots 1-16.

The description set forth in the 1965 tax notice for Lot 14 read:

“Lot 14 Blk 56 Daytona Exc Canal Rwy & Exc Lots 62 63 & 71 to 74 Inc in Blk 3 Resub Cypress Park MB 9 PG 191”

The description set forth in the 1966 tax notice for Lot 14 read:

“Lot 14 Blk 56 Daytona Exc Canal Rtwy & Exc Lots 32 to 35 Inc Blk 1 Resub Cypress Park MB 9 PG 191 & Inc vacated Lime St Exc S 20 Ft of E 180 Ft & Inc vacated Jones St. & Exc Lots 62 63 & 71 to 74 Inc in Blk 3 Resub Cypress Park Mb Pg 191”

In the tax sale of the county in 1967, the 1966 taxes on Lots 1 — 16 were delinquent and because there were no private bidders at the tax sale to bid on the property, it was stricken off to the County. The property became the subject of an in rem quiet title suit filed by the County on 10 November 1969. The Clerk forwarded a registered letter addressed to “Mr. Samuel A. Schwartz, et al., Palm Beach Towers, Palm Beach, Florida” which contained a newspaper copy of the notice of sale, and a slip warning “property in which you are interested is listed in copy of the enclosed notice”. The letter was returned unopened with the address stricken over and a printed stamp stating “not at Palm Beach Towers”. A default was entered against Lots 1 — 16 and subsequently on 11 December 1970 a final judgment quieting title in the County was entered by the court.

On 13 December 1971, Passantino sent a letter with his 1971 tax notice to the tax collector. He enclosed a map of the property which he believed he still owned and asked the collector’s office to outline the area included in his 1971 tax notice. The tax assessor’s office complied with Passanti-no’s request and outlined in red the property included in the legal description of the 1971 tax notice received by Passantino. It erroneously included Lots 1 — 16, the property which was vested in the County by the in rem quiet title judgment of December 1970.

On 21 July 1972, the Kents purchased Lots 1-16 from the County for the sum of $13,665. The money received from the sale was distributed by the Clerk pursuant to state statutes to the municipality and various taxing agencies.

Passantino argues that the errors by the tax collector and the tax assessor which caused the tax delinquency to take place also caused Passantino not to receive the notice of the in rem quiet title suit, thus, the trial court lacked jurisdiction to enter the judgment.

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Bluebook (online)
364 So. 2d 730, 1978 Fla. App. LEXIS 17039, Counsel Stack Legal Research, https://law.counselstack.com/opinion/county-of-volusia-v-passantino-fladistctapp-1978.