Patricia Weingarten Associates, Inc. v. Jocalbro, Inc.

974 So. 2d 559, 2008 Fla. App. LEXIS 2036, 2008 WL 397388
CourtDistrict Court of Appeal of Florida
DecidedFebruary 15, 2008
Docket5D06-4233
StatusPublished
Cited by4 cases

This text of 974 So. 2d 559 (Patricia Weingarten Associates, Inc. v. Jocalbro, Inc.) 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
Patricia Weingarten Associates, Inc. v. Jocalbro, Inc., 974 So. 2d 559, 2008 Fla. App. LEXIS 2036, 2008 WL 397388 (Fla. Ct. App. 2008).

Opinion

974 So.2d 559 (2008)

PATRICIA WEINGARTEN ASSOCIATES, INC., Appellant,
v.
JOCALBRO, INC. and Joe C. Brown, etc., Appellee.

No. 5D06-4233.

District Court of Appeal of Florida, Fifth District.

February 15, 2008.

*561 Peter N. Price, of Peter N. Price, P.A., Hollywood, for Appellant.

Garry D. Adel, of Blanchard, Merriam, Adel & Kirkland, P.A., Ocala, for Appellee.

ORFINGER, J.

Patricia Weingarten Associates, Inc. timely appeals from a final judgment in favor of Jocalbro, Inc. and Joe C. Brown, trustee for Jocalbro, Inc. Profit Sharing Plan Trust, quieting title to fourteen parcels of real property in the Rainbow Park subdivision, Marion County, Florida. On appeal, Weingarten argues that the notice given prior to the tax sale, or more accurately, the lack of notice, deprived it of property without due process. We agree and reverse.

In March and May 2004, following applications for tax deeds, Marion County conveyed seven parcels of real property to Jocalbro, Inc. and seven parcels to Joe C. Brown, trustee for Jocalbro, Inc. Profit Sharing Plan Trust. Prior to the tax deed conveyances, record title was in Weingarten's name. The tax deeds were issued as the result of Weingarten's failure to pay the 1993 taxes on the parcels of real property and its subsequent failure to satisfy the tax certificates sold in December 2000. Several months later, Jocalbro, Inc. and Joe C. Brown (collectively "Jocalbro") filed a complaint to quiet title to the parcels. Weingarten filed an answer, denying the relevant allegations of the complaint, and a counterclaim, seeking to cancel the tax deeds. In its answer, Weingarten alleged it had notified the Marion County Tax Collector of its correct mailing address in Missouri and that the Tax Collector failed to update the tax rolls with the new address. Weingarten alleged that it had not received any notice of the tax deed sale and became aware of the sale only when the quiet title suit was filed. Weingarten further noted it had received tax bills for the years 2001, 2002 and 2003 for other properties it owned in Marion County with its correct mailing address.

After final judgment was entered quieting title to the fourteen parcels of land in favor of Jocalbro, Weingarten appealed to this Court. While the appeal was pending, the United States Supreme Court issued its opinion in Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006), holding that when, as here, `a mailed notice of a tax sale is returned unclaimed, the state, as a matter of due process, must take additional reasonable steps to attempt to provide notice to the property owner before selling the property, if it is practicable to do so. The Court further held that a taxpayer's failure to keep his address updated with the taxing authorities did not serve to forfeit constitutionally sufficient notice.

Based on the holding in Jones, we reversed the final judgment and remanded the case, writing:

In the present case, Weingarten alleges the notice sent by the Clerk pursuant to the mandatory notice requirements of section 197.522, Florida Statutes, was returned as undeliverable. However, we are unable to determine this from the record before us. Nor are we able to determine if additional reasonable steps to attempt to provide notice to Weingarten were taken because no testimony was presented from the Clerk or the Tax Collector. The record does indicate that" other properties owned by Weingarten, upon which taxes were paid, had the correct address because the Clerk had complied with a change of address notice Weingarten had previously sent to the Tax Collector.
Because the parties did not have the benefit of Jones at the time of the trial,
*562 we reverse and remand to the court below to reconsider the notice issue. On remand, the parties may present additional evidence and argument to determine whether Weingarten received constitutionally sufficient notice of the tax sale and whether the Clerk took additional reasonable steps to provide notice after return on the unclaimed notice.

Patricia Weingarten Assocs., Inc. v. Jocalbro, Inc., 932 So.2d 587, 587-88 (Fla. 5th DCA 2006) (internal footnote omitted).

On remand, the evidence before the trial court showed that, other than a published notice in the newspaper, no additional steps were taken by the Clerk after the mailed notices were returned unclaimed. Further, the evidence demonstrated that pursuant to a letter from Weingarten sent sometime between 1999 and 2001, the Tax Collector mailed the tax bills to the Missouri address for several other parcels of property that Weingarten owned in the same subdivision, but inexplicably, failed to update the addresses used for the fourteen parcels at issue here.[1] Again, the trial court entered judgment quieting title in favor of Jocalbro. This appeal followed.

Weingarten argues that constitutionally adequate notice, which is a prerequisite to the issuance of a tax deed, was not given, and, as a result, the tax deeds should be cancelled. Weingarten contends that it notified the Tax Collector of its change of address, and that the Tax Collector should have updated all of its records since it had Weingarten's correct address at hand. Weingarten also argues that the Clerk failed to satisfy the standard established in Jones, as there was no follow-up after the mailed notices were returned. Jocalbro responds that the procedure utilized satisfied due process requirements because the taxing authorities followed the statutory scheme for providing notice of the tax sale.

Chapter 197 governs tax collections, sales, and liens. Section 197.522, Florida Statutes (2004), prescribes the procedures for notifying a property owner when an application for a tax deed has been made for his property. Relevant to this appeal is section 197.522(1)(a), which mandates that 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 in 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.

Section 197.502(4)(a), Florida Statutes (2004), provides in pertinent part:

(4) The tax collector shall deliver to the clerk of the circuit court a statement that payment has been made for all outstanding certificates or, if the certificate is held by the county, that all appropriate fees have been deposited, and stating that the following persons are to be notified prior to the sale of the property:
(a) Any legal titleholder of record if the address of the owner appears on the record of conveyance of the lands to the owner. However, if the legal titleholder of record is the same as the person to whom the property was assessed on the tax roll for the year in which the property *563 was last assessed, then the notice may only be mailed to the address of the legal titleholder as it appears on the latest assessment roll.

Read together, these statutes "require the clerk to mail a notice of tax deed sale to the legal titleholder at the titleholder's address as it appears on the latest assessment roll." Delta Prop. Mgmt., Inc. v. Profile Invs., Inc., 875 So.2d 443, 447 (Fla.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Errol Rainess v. Jose Perez 1031 4, LLC
District Court of Appeal of Florida, 2024
Horne v. Miami-Dade County
89 So. 3d 987 (District Court of Appeal of Florida, 2012)
South Inv. Properties, Inc. v. Icon Investments, LLC.
988 So. 2d 1114 (District Court of Appeal of Florida, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
974 So. 2d 559, 2008 Fla. App. LEXIS 2036, 2008 WL 397388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patricia-weingarten-associates-inc-v-jocalbro-inc-fladistctapp-2008.