# Third District Court of Appeal

State of Florida

Opinion filed March 21, 2018.

Not final until disposition of timely filed motion for rehearing.

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Nos. 3D17-1198 & 3D17-1197

Lower Tribunal Nos. 16-26521 and 16-26529

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### Central Carillon Beach Condominium Association, Inc., et al.,

Petitioners,

vs.



### Pedro J. Garcia, etc., et al.,

Respondents.

On Petitions for Writs of Certiorari from the Circuit Court for Miami-Dade

County, Monica Gordo, Judge.

Rennert Vogel Mandler & Rodriguez, P.A., and Thomas S. Ward and Jason

R. Block, for petitioners.

Abigail Price-Williams, Miami-Dade County Attorney, and Jorge MartinezEsteve and Daija Page Lifshitz, Assistant County Attorneys, for respondent Pedro

J. Garcia

.

Before SALTER, EMAS and FERNANDEZ, JJ.

SALTER, J.In these consolidated cases, two condominium associations (“Associations”)

seek a writ of certiorari quashing orders denying their motions for certification of a

class of the defendant unit owners in their respective associations. The

plaintiff/respondent in each case is the property appraiser of Miami-Dade County,

Florida (“Appraiser”). We treat the cases as appeals from non-final orders

determining “whether to certify a class,” 1 and affirm the orders below.

The interplay between (a) the condominium statute authorizing a

condominium association to sue and be sued “on behalf of all unit owners

concerning matters of common interest,” section 718.111(3), Florida Statutes

(2016), and (b) the statute requiring the “taxpayer” to be the party defendant in a

circuit court action brought by a county property appraiser to appeal an

administrative determination of the county’s value adjustment board, section

194.181(2), Florida Statutes (2016), apparently presents a case of first impression

in Florida’s appellate courts. As the issue turns on the meaning and application of

the two statutes, our review of the circuit court orders denying class certification is

de novo. Borden v. East-European Ins. Co.

, 921 So. 2d 587, 591 (Fla. 2006).

Proceedings Below

Central Carillon Beach Condominium is condominium with some 140

residential units and various common elements. It is operated and maintained by

1 Fla. R. App. P. 9.130(a)(3)(C)(vi).

2petitioner/appellant Central Carillon Beach Condominium Association. Similarly,

2201 Collins Avenue Condominium has some 180 residential units and various

common elements, all operated and maintained by petitioner/appellant 2201

Collins Avenue Condominium Association.

For tax year 2015, each of the Associations filed, with the approval of its

board of directors, a single joint petition with the Miami-Dade County Value

Adjustment Board (the “VAB”) challenging the Appraiser’s proposed assessments

for all of the units within the applicable condominium building. 2 Such a joint

petition by an association on behalf of the unit owners is expressly authorized by a

provision within the ad valorem tax statutes, though it is subject to (1) a

determination by the property appraiser that the units “are substantially similar

with respect to location, proximity to amenities, number of rooms, living area, and

condition,” and (2) notice by the association to each unit owner of a twenty-day

right to opt out of inclusion in the joint petition. 3 These conditions were satisfied

in the present case, and the joint petitions were heard administratively and ruled

upon by the VAB.

2 The common elements are not separately assessed. §§ 193.023(5), and

718.120(1), Fla. Stat. (2016). Each residential unit owner’s undivided interest in

those common elements is taxed as a part of the residential unit.

3 These conditions are detailed in section 194.011(3)(e), Florida Statutes (2016).

3Each Association obtained, for its respective unit owners, substantial

reductions in assessed value in the VAB decision

— approximately 20% in the case

of Central Carillon, and approximately 40% in the case of 2201 Collins Avenue.

As further permitted by the ad valorem statutes, the Appraiser appealed those VAB

determinations to the circuit court in separate lawsuits for each condominium.

Each lawsuit, however, named each of the individual unit owners as a defendant; it

did not sue the applicable Association “on behalf of” all of the unit owners.

In response, each Association moved to dismiss the lawsuit and to strike the

unit owners as defendants. Each Association sought joint representation of all unit

owners in its condominium, as a defendants’ class action (joint, representative

defense, versus the joint, representative petition protesting the assessments, as had

been the case before the VAB). The Appraiser opposed the motions to dismiss and

moved to default all of the condominium unit owners for failing to file an

individual responsive pleading. These motions were further briefed by counsel and

then heard on the same day by the trial court. 4

The trial court entered separate, but (appropriately) nearly identical orders in

each case, denying each Association’s motion to dismiss and also denying its

4 The separate lawsuits for each condominium and Association were defended by

the same law firm. Because the same legal issues were presented in each lawsuit,

the same trial judge heard and decided the motions applicable to each of the two

Associations.

4motion for certification of the unit owners as a defense class with the Association

as the owners’ class representative. These appeals followed.

Analysis

Allowing an Association to represent the interests of its hundred-plus unit

owners in the Appraiser’s appeal from the VAB reductions seems eminently

logical. If a joint petition can be pursued before the VAB, why shouldn’t a joint

defense be allowed in the Appraiser’s appeal from the VAB’s determinations?

The answer is found in the plain language of section 194.181, “Parties to a

tax suit.” Subparagraph (2) of that statute states that the “taxpayer” shall be the

party defendant in an action brought by the county property appraiser to appeal a

decision of the VAB. 5 “Taxpayer” is defined in section 192.001(13) to mean “the

person or other legal entity in whose name property is assessed, including an agent

of a timeshare period titleholder.” The individual condominium units at issue in

this case, together with each unit’s undivided interest in the common elements, are

assessed in the name of the individual owners

— not their Association.

In response, the Associations argue that those statutes are contrary to the

specific rights of collective representation given to them in the condominium law,

section 718.111(3), and in Rule 1.221, Florida Rules of Civil Procedure. We

disagree.

5 It is undisputed that the Appraiser had a right to appeal the VAB decision

pursuant to section 194.036(1), Florida Statutes (2016).

5Section 718.111(3) provides, in pertinent part:

The association may contract, sue, or be sued with respect to the

exercise or nonexercise of its powers. For these purposes, the powers

of the association include, but are not limited to, the maintenance,

management, and operation of the condominium property. After

control of the association is obtained by unit owners other than the

developer, the association may institute, maintain

, settle, or appeal

actions or hearings in its name on behalf of all unit owners

concerning matters of common interest to most or all unit owners

, including, but not limited to

, the common elements; the roof and

structural components of a building or other improvements;

mechanical, electrical, and plumbing elements serving an

improvement or a building; representations of the developer

pertaining to any existing or proposed commonly used facilities; and

protesting ad valorem taxes on commonly used facilities and on

units ; and may defend actions in eminent domain or bring inverse

condemnation actions. If the association has the authority to

maintain a class action, the association may be joined in an action

as representative of that class with reference to litigation and

disputes involving the matters for which the association could

bring a class action.

(Emphasis provided).

The provision only addresses ad valorem taxes in one phrase: “protesting ad

valorem taxes on commonly used facilities and on units.” The Associations

protested the ad valorem taxes administratively on behalf of all units, but the

lawsuits brought by the Appraiser against the unit owners are not “protests”

— they

are judicial review proceedings in which the unit owners are defendants. The

specific cases in which an association may defend on behalf of all unit owners are

“actions in eminent domain.”

6The Associations also argue that because they could bring a class action if

they were appealing a decision of the VAB as plaintiff, the Associations “may be

joined in an action as a representative of that class with reference to litigation,”

namely the actions brought by the Appraiser. But section 718.111(3), with its lack

of precise application to the Appraiser’s lawsuits against the unit owners, is no

match for the precise requirement imposed by the ad valorem litigation provision,

section 194.181(2), that when the Appraiser is the plaintiff seeking circuit court

review of the VAB decision, “the taxpayer shall be the party defendant.”

(Emphasis provided).

Rule 1.221 essentially repeats the language in 718.111(3) in its enumeration

of the circumstances in which an association may act on behalf of “association

members.” The defense of a circuit court ad valorem tax suit brought by a county

property appraiser is not specifically mentioned in the Rule, while “defense of

actions in eminent domain” is singled out for approved collective representation of

owners by an association. Again, the oblique examples and categories within Rule

1.221 must yield to the precise legislative directive in section 194.181(2); “the

taxpayer shall be the defendant.” The Associations simply do not pay the taxes in

question.

The numerous cases cited by the Associations approving collective or class

representation of condominium unit owners by their condominium association do

7not involve, as the present cases do, a separate statute specifying that each

individual unit owner must be a party defendant. See, e.g.

, Trintec Const., Inc. v.

Countryside Village Condo. Ass’n, Inc.

, 992 So. 2d 277, 281 (Fla. 3d DCA 2008)

(permitting association as class representative as defendant on behalf of unit

owners in contractor lien foreclosure case); Four Jay’s Const., Inc. v. Marina at

Bluffs Condo. Ass’n, Inc.

, 846 So. 2d 555 (Fla. 4th DCA 2003) (permitting

association as defense class representative in breach of contract case); Kesl, Inc. v.

Racquet Club of Deer Creek II Condo., Inc.

, 574 So. 2d 251 (Fla. 4th DCA 1991)

(permitting association as defense class representative in suit for fees due from

owners).

Our holding in these cases regarding property tax appeals brought by a

county property tax appraiser against condominium unit owners does not dilute or

qualify the continued amenability of other types of lawsuits to the common

representation of unit owners by their association as permitted by section

718.111(3) and Rule 1.221.

Conclusion

Although we appreciate the Associations’ arguments that judicial efficiency

would be better served by allowing the Associations to represent the 140 (Central

Carillon) or 180 (2201 Collins Avenue) unit owners as a defense class in the

8lawsuits brought by the Appraiser, those arguments must be presented to the

Legislature rather than the courts if they are to be effectual.

The orders denying class certification are affirmed.

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