South Inv. Properties, Inc. v. Icon Investments, LLC.

988 So. 2d 1114, 2008 Fla. App. LEXIS 10913, 2008 WL 2774441
CourtDistrict Court of Appeal of Florida
DecidedJuly 18, 2008
Docket5D07-1316
StatusPublished

This text of 988 So. 2d 1114 (South Inv. Properties, Inc. v. Icon Investments, LLC.) 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
South Inv. Properties, Inc. v. Icon Investments, LLC., 988 So. 2d 1114, 2008 Fla. App. LEXIS 10913, 2008 WL 2774441 (Fla. Ct. App. 2008).

Opinion

988 So.2d 1114 (2008)

SOUTH INVESTMENT PROPERTIES, INC., etc., et al., Appellants,
v.
ICON INVESTMENTS, LLC, Appellee.

No. 5D07-1316.

District Court of Appeal of Florida, Fifth District.

July 18, 2008.
Rehearing Denied August 12, 2008.

*1115 Christopher C. Cathcart of Ossinsky & Cathcart, P.A., Winter Park, for Appellants.

Matthew G. Brenner and Gregory S. Slemp of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Appellee.

SAWAYA, J.

South Investment Properties, Inc., and Surna Construction, Inc., as trustee (hereinafter collectively "South Investment"), appeal the Final Summary Judgment Ordering Cancellation of Tax Deeds entered in favor of Icon Investments, LLC (hereinafter "Icon"). Three tax deeds conveying three condominium units—units 403, 404, and 405, Spring Lake View Condominium—to South Investment are the subject of these proceedings. As to the tax deed conveying unit 405, we affirm the final summary judgment in favor of Icon without further comment. Hence, the remainder of this opinion will address the issues relating to units 403 and 404. As to these two units, South Investment argues the final summary judgment should be reversed because the clerk followed the statutory procedure for a valid tax deed sale and the failure of Icon to receive notice resulted solely because of Icon's failure to notify the tax appraiser of address changes.

The two condominium units are located at 7345 Sand Lake Road, Orlando, Florida (hereinafter "Sand Lake Road address"). The legal description contained in the warranty deed that originally conveyed the units to Icon in October 2001 identified the property in pertinent part as "Unit 403[and] 404 ... SPRING LAKE VIEW CONDOMINIUM...." The same legal description of the property is contained in the mortgage agreement entered between Icon and First Commercial Bank of Florida at the time of the conveyance. The warranty deed and the mortgage both listed Icon's mailing address as 8129 Sandpointe Boulevard, Orlando, Florida (hereinafter "Sandpointe address"). The Sandpointe address was not only Icon's principal business location at the time but also the residence of Icon's owner, Scott James, who is and has been a real estate broker since 2000. Prior to that, James was a real estate salesperson for approximately five years.

Subsequently, Icon and James moved. However, they did not provide the post office with a forwarding address, and they did not notify the property appraiser, tax collector, or clerk of court of any address change.

*1116 Icon failed to pay property taxes on units 403 and 404 for tax years 2002, 2003, and 2004. James claims that he thought the mortgage company was making the payments. Accordingly, tax certificates were sold for the two units for tax years 2002 and 2003, and, in 2005, application was made for issuance of a tax deed for each unit.

The tax collector then proceeded to follow its normal procedures for compiling the names and addresses of persons to be notified of the pending tax deed sales, and it delivered the appropriate forms for each unit to the clerk of court. As to each unit, the tax collector's certification identified Icon and the Sandpointe address as the name and address of the property owner to be notified. The Sandpointe address was also the mailing address for Icon listed on the latest assessment roll.

Because each condominium unit is a separate parcel of real property with its own separate parcel identification number, the clerk treated each of the units separately. Each unit had its own separate file and each was sold separately. The following notification procedure was used by the clerk.

1. Pursuant to section 197.522(1)(a), Florida Statutes (2005), the clerk sent notice of application for tax deed by certified mail to the Sandpointe address. The return receipts indicate that these notices were received.
2. The clerk sent copies of the notices to the sheriff to be served in accordance with Florida law, and the sheriff posted notice at the Sandpointe address.
3. The clerk also published notice of the pending tax deed sale in the Orlando Sentinel newspaper for 30 days, pursuant to section 197.512, Florida Statutes (2005).[1]

The tax deed sale was held on November 3, 2005, and South Investment was the successful bidder for both units. Thus, the clerk issued tax deeds to South Investment for each unit. Icon filed an action to cancel and set aside the two tax deed sales. South Investment answered the complaint and counterclaimed to quiet title as to both tax deeds. The trial court granted Icon's motions for summary judgment and entered final summary judgment in favor of Icon, canceling the tax deeds for each unit.

South Investment argues the trial court erred by entering summary judgment in favor of Icon. "Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Volusia County v. Aberdeen at Ormond Beach, 760 So.2d 126, 130 (Fla.2000). The burden falls on the moving party to make this showing. Fla. R. Civ. P. 1.510; Rodriguez v. Saenz, 866 So.2d 184, 186 (Fla. 5th DCA 2004) ("A party moving for summary judgment has the burden of demonstrating that there is no genuine issue as to any material fact, and that the movant is entitled to a judgment as a matter of law." (citing rule 1.510(c); Holl v. Talcott, 191 So.2d 40 (Fla. 1966))); see also Roach v. State Farm Mut. Auto. Ins. Co., 892 So.2d 1107, 1110 (Fla. 2d DCA 2004) (same), quashed on other grounds, 945 So.2d 1160 (Fla.2006); Dahly v. Dep't of Children & Family Servs., 876 So.2d 1245 (Fla. 2d DCA 2004) (same). The standard of review is de *1117 novo. Aberdeen, 760 So.2d at 130. Here, South Investment contends the trial court erred by determining that, as a matter of law, the tax deed sales for units 403 and 404 were void for lack of proper notice.

The law relating to the notice requirements for tax sales for unpaid real property taxes was analyzed by the Florida Supreme Court in Vosilla v. Rosado, 944 So.2d 289 (Fla.2006). In that case, unlike the instant case, the property owners had delivered written notice to the tax collector and the clerk of court that their address had changed, and they informed the clerk and the tax collector of their new address. Despite this notice, their address was not updated on the tax assessment roll and, when the property owners failed to pay their real property taxes, the notice regarding application for the tax deed was mailed to the former address. Nevertheless, the court discussed the law regarding the notice requirements when a notice of address change is not provided by the property owner. The court explained:

Chapter 197 governs tax collections, sales, and liens in this state. Section 197.522(1)(a) states 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.
(Emphasis supplied.) Section 197.502(4)(a) provides in pertinent part:
(4)

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Bluebook (online)
988 So. 2d 1114, 2008 Fla. App. LEXIS 10913, 2008 WL 2774441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/south-inv-properties-inc-v-icon-investments-llc-fladistctapp-2008.