# Third District Court of Appeal

State of Florida

Opinion filed March 22, 2017.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D16-2053

Lower Tribunal No. 13-37260

________________



### City of Miami

, Petitioner,

vs.



### 346 NW 29th Street, LLC, et al.

,

Respondents.

A Case of Original Jurisdiction

– Prohibition.

Victoria Méndez, City Attorney, and Henry J. Hunnefeld, Sr., Senior

Assistant City Attorney, and Kerri L. McNulty and Joseph A. Ruiz, Assistant City

Attorneys

, for petitioner.

Pardo Jackson Gainsburg, Stevan J. Pardo and Nicole R. Rekant

, for

respondents.

Before LAGOA, SALTER and EMAS, JJ.

EMAS, J.The City of Miami filed a petition, seeking a writ of prohibition quashing

the circuit court’s partial summary judgment on liability in favor of the Plaintiff

class, 346 N.W. 29 th Street, LLC, d/b/a Museo Vault and others (“the Class”). In its

petition, the City contends that the trial court acted in excess of its jurisdiction by

granting the Class’ motion, and offers various arguments in support of this

contention. We conclude that these issues are either without merit or are not

cognizable by prohibition. 1 Accordingly, we deny the City’s petition but write to

address the City’s principal argument: that the Class claims were barred by the

sixty-day jurisdictional non-claim statute (§ 194.171(2), Fla. Stat.), thus depriving

the trial court of jurisdiction over this action.

1 The City argues, for example, that the lower court exceeded its jurisdiction in

granting partial summary judgment where the Class failed to join indispensable

parties, including the Miami-Dade County Property Appraiser. This argument is

not properly raised in a petition for writ of prohibition, as the alleged failure to join

an indispensable party is ordinarily not an error which deprives the court of subject

matter jurisdiction. See City of Miami v. Vill. of Key Biscayne

, 199 So. 3d 300,

302 n. 3 (Fla. 3d DCA 2016) (noting “that rule 1.140(h) of the Florida Rules of

Civil Procedure suggests that a party's failure to join an indispensable party is more

akin to a failure to state a cause of action than to a depriving of the trial court of

subject matter jurisdiction.”). See also Snipes v. Fla. Elections Comm'n

, 19 So. 3d

1178 (Fla. 4th DCA 2009) (holding: “Prohibition lies to prevent a lower tribunal

from acting in excess of its jurisdiction, but not to prevent an erroneous exercise of

jurisdiction”); Fla. R. Civ. P. 1.140 (h)(2) (providing: “The defenses of failure to

state a cause of action or a legal defense or to join an indispensable party may be

raised by motion for judgment on the pleadings or at the trial on the merits in

addition to being raised either in a motion under subdivision (b) or in the answer or

reply. The defense of lack of jurisdiction of the subject matter may be raised at any

time”). We do not reach the merits of the City’s claim that the Class failed to join

certain indispensable parties.

2Pursuant to a 2001 referendum, City of Miami voters approved a proposal to

permit certain new and expanding businesses located within the City to apply for

an ad valorem tax exemption. In 2002, the City enacted sections 56-110 through

56-122 of the City of Miami Code, an ordinance entitled “Ad Valorem Tax

Exemption for Enterprise Zone Businesses.” The purpose of the ordinance was to

revitalize and rehabilitate distressed areas identified as “enterprise zones” within

the City. The ordinance provided specific qualifying requirements as well as

procedures for submitting an application, review and approval (or denial) of an

application, and appeal from a denial of an application. If approved, the tax

exemption was for a term of one year, and could be renewed annually thereafter

for a maximum of ten years. See generally Miami, Fla., Code art. V, §§ 56-112

through 56-122 (2002).

In 2013, the Class representative filed a two-count complaint against the

City and others, alleging that the City failed to review and approve (or deny)

applications submitted pursuant to the City ordinance. Between 2004 and 2011,

approximately sixty-seven businesses, each purportedly within the Miami

Enterprise Zones, filed applications with the City, seeking approval of an ad

valorem tax exemption. It is undisputed that, during the relevant time period, no

applicant in this case received written approval of an ad valorem tax exemption

3pursuant to the City ordinance. It is also undisputed that, during the same relevant

time period, no applicant received a written denial of their application.

The City argues that the sixty-day non-claim provision of section 194.171(2)

bars the action below and deprives the trial court of jurisdiction. Section

194.171(2) provides:

No action shall be brought to contest a tax assessment after 60

days from the date the assessment being contested is certified

for collection under s. 193.122(2), or after 60 days from the

date a decision is rendered concerning such assessment by the

value adjustment board if a petition contesting the assessment

had not received final action by the value adjustment board

prior to extension of the roll under s. 197.323.

Section 194.171(6) provides that the “requirements of subsection[] (2)

. . . are

jurisdictional” and that “[n]o court shall have jurisdiction in such cases until after

the requirements of [] subsection[] (2)

. . . have been met.”

While we are doubtful that section 194.171(2) applies to the instant case, we

need not decide that issue. 2 Even if section 194.171(2) does apply, the City’s

2 The Class does not challenge any action of the county in its tax assessment or

certification of the tax roll; instead, the Class challenges the City’s action (or

inaction) under its own ordinance for approval or denial of applications for a tax

exemption. That ordinance contains no provision for issuing a denial within a

timeframe that permits the applicant to appeal the denial prior to certification of the

tax rolls, or to otherwise contest the denial within sixty days after certification. If

we were to hold that the sixty-day non-claim provision of section 194.171(2)

applies to this case, the City could wait until the tax rolls are certified and, sixtyone days later, issue its denial of the application for tax exemption. Under this

scenario, by the time the City issues its notice of denial, the applicant would

already be barred by the non-claim statute from filing an action to contest the

denial.

4position is nevertheless unavailing, because the City did not provide any Class

member with a notice of denial of tax exemption in accordance with state law or in

compliance with the City’s own ordinance. Section 196.193(5), Florida Statutes,

which is part of the same statutory framework encompassing section 191.171,

provides:

(5)(a) If the property appraiser determines that any property

claimed as wholly or partially exempt under this section is not

entitled to any exemption or is entitled to an exemption to an

extent other than that requested in the application, he or she

shall notify the person or organization filing the application on

such property of that determination in writing on or before July

1 of the year for which the application was filed.

(b) The notification must state in clear and unambiguous

language the specific requirements of the state statutes which

the property appraiser relied upon to deny the applicant the

exemption with respect to the subject property. The notification

must be drafted in such a way that a reasonable person can

understand specific attributes of the applicant or the applicant's

use of the subject property which formed the basis for the

denial. The notice must also include the specific facts the

property appraiser used to determine that the applicant failed to

meet the statutory requirements. If a property appraiser fails to

provide a notice that complies with this subsection, any denial

of an exemption or an attempted denial of an exemption is

invalid.

(c) All notifications must specify the right to appeal to the value

adjustment board and the procedures to follow in obtaining

such an appeal

. Thereafter, the person or organization filing

such application, or a duly designated representative, may

appeal that determination by the property appraiser to the board

at the time of its regular hearing. In the event of an appeal, the

property appraiser or the property appraiser's representative

shall appear at the board hearing and present his or her findings

5of fact. If the applicant is not present or represented at the

hearing, the board may make a determination on the basis of

information supplied by the property appraiser or such other

information on file with the board.

(Emphasis added.)

It is undisputed that the City did not provide notice in compliance with

section 196.193(5). Further, the City failed to comply with its own ordinance in

reviewing and determining the Class members’ applications for ad valorem tax

exemptions. Section 56-116 of the City of Miami Code provides:

All applications shall be reviewed by the Department [of

Economic Development] which shall transmit its findings to the

city manager, who shall either recommend approval to the city

commission or decline to recommend approval.

The ordinance further provides:

In the event the city manager declines to recommend approval

of an application to the city commission, the applicant shall

have the option to appeal the city manager's recommendation

directly to the city commission.

Notice to appeal must be presented to the city manager no later

than 30 days from the date applicant was notified of denial by

the Department. Copies of the original application and notice of

denial must accompany appeal

. Appeal must offer compelling

reasons why the city commission should consider the

application for approval.

Miami, Fla., Code art. V, § 56-117 (2002) (emphasis added).

As set forth above, the City ordinance provides a mechanism for appeal

from a denial of an application, but the timeframe within which to appeal (thirty

6days) commences on “the date applicant was notified of denial” by the City’s

Department of Economic Opportunity. Id. That notification of denial never

occurred. Further, the ordinance provides that the City’s “notice of denial must

accompany appeal.” Id. It stands to reason that, if the City never denied the

application and never issued its notice of denial, the applicant could not appeal or

comply with the ordinance’s directive that the City’s “notice of denial must

accompany the appeal.” Id.

The City counters that, notwithstanding the City’s failure to provide the

Class members with a notice of denial of their applications, the county’s issuance

of annual TRIM notices 3 is the equivalent of a denial and, thus, sufficient to trigger

commencement of the sixty-day non-claim period under the statute. However, a

similar argument was rejected by the First District in Genesis Ministries, Inc. v.

Brown

, 186 So. 3d 1074 (Fla. 1st DCA 2016). In Genesis

, the First District held

that the failure of a property appraiser to strictly comply with statutory notice

provisions in section 196.193(5) tolled the running of the sixty-day period within

which to bring an action contesting a tax assessment. In reaching its decision, the

court explained:

3 Pursuant to sections 200.065 and 200.069, Florida Statutes, the county property

appraiser is required each year to prepare and mail, to each taxpayer in the county,

a notice of proposed property taxes. This is commonly referred to as a “TRIM”

( TR uth I n M illage) notice.

7The Legislature has made clear that the property

appraiser's failure to comply with the notice requirements

in section 196.193(5) has consequences: “If a property

appraiser fails to provide a notice that complies with this

subsection, any denial of an exemption or an attempted

denial of an exemption is invalid.” § 196. 193(5)(b), Fla.

Stat. This statutory provision would be meaningless if, as

Appellees argue, Genesis was barred from challenging

the denial of its exemption for 2013 when it was not

provided notice of the denial simply because its property

was listed on the 2013 tax rolls and Genesis did not file

suit within 60 days after the tax rolls were certified.

Id. at 1082. See also Chihocky v. Crapo

, 632 So. 2d 230 (Fla. 1st DCA 1994)

(holding that failure of the property appraiser to strictly comply with statutory

notice provisions tolls the running of the sixty-day period within which to bring an

action contesting a tax assessment).

We agree with the First District’s decision in Genesis and find its reasoning

applicable to the instant case. The City did not provide the Class members with a

notice of denial in compliance with section 193.193(5)(b); nor did the City provide

the Class members a notice of denial in compliance with the City’s own ordinance.

We hold that the sixty-day non-claim statute did not bar the action or deprive the

trial court of jurisdiction.

The City’s petition for writ of prohibition is denied.

8