HUTCHINSON ISLAND REALTY v. Babcock

867 So. 2d 528, 2004 Fla. App. LEXIS 2351
CourtDistrict Court of Appeal of Florida
DecidedFebruary 27, 2004
Docket5D02-3179, 5D03-718
StatusPublished
Cited by7 cases

This text of 867 So. 2d 528 (HUTCHINSON ISLAND REALTY v. Babcock) 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.

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HUTCHINSON ISLAND REALTY v. Babcock, 867 So. 2d 528, 2004 Fla. App. LEXIS 2351 (Fla. Ct. App. 2004).

Opinion

867 So.2d 528 (2004)

HUTCHINSON ISLAND REALTY, INC., et al., Appellant,
v.
BABCOCK VENTURES, INC., Appellee.

Nos. 5D02-3179, 5D03-718.

District Court of Appeal of Florida, Fifth District.

February 27, 2004.

*529 Robert Bruce Snow of Robert Bruce Snow, P.A., Brooksville, for Appellant.

Alan S. Zimmet and Julia Mandell Cole of Zimmet, Unice, Salzman & Feldman, P.A., Clearwater, for Appellee.

PETERSON, J.

Hutchinson Island Realty, Inc. et al. ("Hutchinson"), appeals a final judgment in which the title to real property was quieted in favor of Babcock Ventures, Inc. ("Babcock"), who acquired title by a tax deed.

Hutchinson acquired a parcel of realty in 1987 by a warranty deed that indicated Hutchinson's address as "1920 Palm Beach Lakes Boulevard, West Palm Beach, Florida" ("West Palm Beach address"). In 1991, it sold a portion of the realty, leaving a remainder of 21.3 acres, the title to which creates the controversy in the instant case ("Property"). Hutchinson also granted a mortgage on the Property to Appellant, T. Brayl Copp ("Copp"), in 1991, and the address shown on the mortgage as Copp's address was also the same West Palm Beach address used by Hutchinson.

From 1991 through 1997, Hutchinson received the tax notices in the name of Hutchinson Isle Realty, Inc. at the West Palm Beach address, but failed to pay the real estate taxes on the Property for the tax years 1991 through 1994. A tax certificate holder made an application for a tax deed in 1996, and after the clerk of the circuit court for Hernando County sent a notice of the tax deed application to Hutchinson Isle Realty, Inc. at the West Palm Beach address, Hutchinson paid the outstanding taxes thereby avoiding a tax sale.

However, in 1997, after Hutchinson again failed to pay real estate taxes on the Property for the tax year 1996, another tax certificate was issued and that holder applied later for a tax deed.[1] When the tax certificate holder applied for a tax deed sale, the tax collector engaged a private firm, Accu-Search Title Examination ("Accu-Search"), to conduct a title search. Following the title search, the tax collector prepared a statement as required by section 197.502(4), Florida Statutes (2000), and forwarded it to the clerk of court for the purpose of giving notice to the title and lienholders so that the sale may be conducted. The tax collector's statement:

1. Described the property as "21.3 Acres MOL in SE 1/4 Lying E of Springwood Est. & N of Spring Hill Blvd.;"
2. Named the apparent title holder as "Hutchinson Island Realty, Inc.;"
3. Named the owner to whom taxes were assessed on the current role as "Hutchinson Isle Realty, Inc.;"
4. Named the mortgagee as "T. Brayl Corp."

(Emphasis added). Apparently, the legal description was an abbreviated one used by the taxing authorities to facilitate record *530 keeping and does not include a section, township, range or even the county in which the Property is located. The erroneous name of the corporation shown on the assessment role also appears to be an effort to abbreviate "Island" to "Isle" and the error showing the mortgagee as "Corp." rather than "Copp" must have been an error committed by the tax collector since a copy of the mortgage with the correct spelling of Copp's name was attached to Accu-Search's title report.

Hutchinson's and Copp's inattention to the ad valorem taxation process compounded the taxing authorities' deficiencies. Although Hutchinson had avoided a tax sale in 1996 for non-payment of taxes for 1991 through 1994, it again failed to pay taxes for 1996, 1997 and 1998 on property assessed for $213,000. Additionally, Hutchinson closed its West Palm Beach office in 1997 or 1998 where all previous tax bills and notices had been sent, but failed to notify the tax collector of a new address.

The clerk of court properly relied on the statement supplied by the tax collector, and thereby, innocently perpetuated the deficiencies by including them in four attempts to notify Hutchinson of the impending tax sale. Separate notices were sent by certified mail to Hutchinson Isle Realty, Inc. and T. Brayl Corp. to the West Palm Beach address. Not surprisingly, these notices were returned to the clerk as undeliverable because Hutchinson had closed the office at that address. Notice of the application was published for four consecutive weeks in a newspaper located in the county where the Property was located employing the abbreviated word "Isle" for "Island" and the abbreviated property description. The Palm Beach county sheriff also attempted personal service at the West Palm Beach address. Finally, a notice was posted upon a parcel of the Property.[2]

On October 4, 2000, the clerk conducted a sale of the Property. Babcock submitted the highest and winning bid and a tax deed was recorded containing the tax collector's abbreviated description of the Property.

Having acquired title by the tax deed, Babcock filed an action to quiet title. Hutchinson filed a counterclaim seeking to set aside the tax deed claiming that it and the mortgagee were misnamed and that the abbreviated legal description of the Property contained in the documents prepared, issued and advertised in connection with the tax deed sale were defective, vague, and indefinite and failed to properly identify the Property sufficient to put Hutchinson on notice of the sale. Hutchinson claimed that because title to the Property was taken from it without due process of law, the tax deed was void.

I. NOTICE REQUIREMENTS

Hutchinson and Copp contend that they have been deprived of their respective interest in the Property without due process of law because the notice requirements of section 197.522(1), Florida Statutes (2000), were not met when the clerk failed to mail a notice to Hutchinson Island Realty, Inc. and Copp, and only mailed notices to Hutchinson Isle Realty, Inc. and T. Brayl Corp.

Upon receipt of an application from a certificate holder for a tax deed, the tax collector prepares a statement with the names of the persons to be notified prior to the sale of the property. § 197.502(4) Fla. Stat. (2000). Among the persons to be named by the tax collector under section 197.502(4) are: (a) any legal titleholder *531 of record; (b) any mortgagee of record; and (c) any person whom the property was assessed on the tax roll for the year the property was last assessed. §§ 197.502(4)(a), (c), (f), Fla. Stat. (2000). The tax collector then delivers the statement to the clerk of the circuit court.

Upon receipt of the tax collector's statement, the clerk is required to notify the persons listed in it. § 197.522(1), Fla. Stat. (2000); Dawson v. Saada, 608 So.2d 806 (Fla.1992). Section 197.522(1) provides:

The clerk of the circuit court shall notify, by certified mail with return receipt requested or by registered mail if the notice is to be sent outside the continental United States, the persons listed on the tax collector's statement pursuant to s. 197.502(4) that an application for a tax deed has been made. Such notice shall be mailed at least 20 days prior to the date of sale. If no address is listed in the tax collector's statement, then no notice shall be required.[3]

The clerk is not required to search all public records available to determine the actual status of ownership. E.g., Bostwick v. Clukies, 801 So.2d 961, 962 (Fla. 5th DCA 2001); see also Baron v.

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