NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING 

MOTION AND, IF FILED, DETERMINED 

IN THE DISTRICT COURT OF APPEAL 

OF FLORIDA 

SECOND DISTRICT 

VILLAGES OF AVIGNON ) 

COMMUNITY DEVELOPMENT ) 

DISTRICT, ) 

 ) 

 Appellant, ) 

 ) 

v. ) Case No. 2D16-1048 

 ) 

KEN BURTON, JR., MANATEE ) 

COUNTY TAX COLLECTOR, ) 

 ) 

 Appellee. ) 

 ) 

Opinion filed March 17, 2017. 

Appeal from the Circuit Court for Manatee 

County; John F. Lakin, Judge. 

Brian A. Crumbaker, Gary V. Perko, and 

Mohammad O. Jazil of Hopping Green & 

Sams, P.A., Tallahassee; and Scott D. Clark 

and Mitchell E. Albaugh of Clark & Albaugh, 

LLP, Winter Park, for Appellant. 

Janelle L. Esposito, Patrick G. Bryant, and 

Matthew E. Bobulsky of Esposito Law 

Group, P.A., Bradenton, for Appellee. 

VILLANTI, Chief Judge. 

 Villages of Avignon Community Development District (the Villages) seeks 

review of the final declaratory judgment entered in favor of Ken Burton, Jr., Manatee 
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County Tax Collector, in an action to determine the priority of competing liens held by 

the Villages and Manatee County against the same real property. The parties agreed 

on the facts, and the case was decided on the Villages' motion for judgment on the 

pleadings and the Tax Collector's motion for summary judgment. After extensive 

argument, the trial court held that the ad valorem tax liens held by the County were 

"superior" to the assessment liens held by the Villages, and it authorized the Tax 

Collector to issue tax certificates that would be sold subject to the Villages' assessment 

liens. After a thorough review of the record and the supplemental briefs filed by the 

parties, and after considering the points raised at oral argument, we affirm, but we write 

to certify a question of great public importance to the supreme court. 

 As noted, the facts are not in dispute and center on three parcels of real 

property in Manatee County. The County assessed ad valorem property taxes against 

these three parcels as authorized by article VII, section 9(a), of the Florida Constitution, 

which provides that counties and municipalities shall levy ad valorem taxes. Section 

197.122(1), Florida Statutes (2015), which codifies and effectuates this constitutional 

provision, provides, in pertinent part: 

All taxes imposed pursuant to the State Constitution and 

laws of this state shall be a first lien, superior to all other

liens, on any property against which the taxes have been 

assessed and shall continue in full force from January 1 of 

the year the taxes were levied until discharged by payment 

or until barred under chapter 95. 

Because the ad valorem taxes for these parcels are unpaid, the County requested that 

the Tax Collector issue tax certificates for the parcels, to be sold pursuant to section 

197.432(1). 
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 However, the parcels at issue are also part of the Villages of Avignon 

Community Development District. As a community development district (CDD), the 

Villages is authorized by statute to levy and collect special assessments for the 

development and maintenance of CDD facilities. See § 190.021(2), Fla. Stat. (2015). 

The Villages levied assessments on these same three parcels, those assessments were 

unpaid, and the Villages recorded liens for the unpaid assessments against the parcels. 

As was its prerogative, when the assessments remained unpaid, the Villages filed a 

foreclosure action against the properties, and it took title to the properties subject to the 

County's tax liens. 

 The dispute underlying this case arose when the County informed the 

Villages of its intent to have the Tax Collector issue tax certificates for the parcels in 

question to satisfy the County's liens. The Villages took the position that the Tax 

Collector could not legally issue tax certificates because doing so would impair the 

status of the Villages' assessment liens, which it argued were coequal with the County's 

tax liens under section 190.021(9). The Villages claimed that because its assessment 

liens were coequal with the County's tax liens, the Tax Collector could not issue tax 

certificates while the Villages owns the parcels because to do so would improperly "wipe 

out" its coequal assessment liens. In response to this dispute between the Villages and 

the County, the Tax Collector filed a declaratory judgment action to resolve the question 

of the relative priority of the liens and to obtain a determination of its obligations under 

chapter 197. In its final judgment, the trial court declared that the Tax Collector could 

issue tax certificates but that the certificates would be sold subject to the Villages' liens. 

The Villages has appealed this ruling. 
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 As an initial matter, we agree with the Villages that the trial court's 

decision regarding the relative priority of the parties' liens is incorrect, but we conclude 

that the error is a semantic, rather than substantive, one. In our view, the plain 

language of section 190.021(9) could not express a clearer intent. That statute plainly 

says that CDD liens are "coequal with the lien of state, county, municipal, and school 

board taxes." § 190.021(9). Therefore, the trial court's ruling that the County's tax liens 

were "superior" to the Villages' assessment liens is simply incorrect. Further, case law 

that determined the priority of these types of liens based on the relative "dignity" arising 

from their source, i.e., either constitutional or statutory, is no longer good law in light of 

the 1999 enactment of section 190.021(9). Therefore, to the extent that the trial court 

concluded that the County's tax liens were superior to the Villages' assessment liens, 

the trial court's ruling was incorrect. 

 However, that decision does not fully resolve the matter before this court. 

In both its answer and affirmative defenses and in its motion for judgment on the 

pleadings, the Villages argued that the coequal status of its lien meant that the County 

was prohibited from having the Tax Collector issue tax certificates to satisfy its liens 

until such time as the Villages conveyed the property to "a non-exempt entity or 

entities," and it affirmatively sought a ruling forbidding the issuance of the tax 

certificates. In making this argument, the Villages relied on the supreme court's 

decision in Kostecos v. Johnson, 85 So. 2d 594 (Fla. 1956), which dealt with coequal 

liens held by a county and a drainage district. As explained below, we do not believe 

Kostecos requires the result advocated by the Villages, and we question whether the 

"construct" set forth in Kostecos remains good law today. 
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 In Kostecos, Sarasota County had a lien against certain property for 

unpaid county taxes, and the Pearce Drainage District had a coequal lien against the 

same property for unpaid drainage district taxes. Id. at 595, 597. The county 

foreclosed first on its tax liens and issued a Veterans' Homestead Act deed to Johnson. 

Id. at 595. The drainage district foreclosed on its lien shortly thereafter (without making 

the county a party), and the court issued a Special Master's deed to Kostecos. Id. at 

596. Kostecos then sued Johnson for ejectment, claiming that his later deed was 

superior to Johnson's earlier deed. Id. 

 Kostecos argued that by foreclosing first, the county had traded its lien for 

a deed, making its deed subject to the drainage district's lien and making his deed from 

the drainage district lien proceedings superior to the earlier deed. Id. at 596-97. But the 

supreme court disagreed. The supreme court held that when the county converted its 

liens into title, it was simply holding title as security for the payment of taxes due to the 

government. Id. at 599. Therefore, "[t]he equality of position held by the governmental 

unit (the county) is not destroyed by substituting title to the land itself for the liens it 

formerly held absent legislative action so providing." Id. Instead, both liens were 

maintained and would have to be satisfied by the subsequent purchasers. To the extent 

that the court determined that the drainage district's lien was held in suspension while 

the county owned the property, it did so in large part because "no procedure was at that 

time provided for enforcing such drainage tax liens against the county after it acquired 

its title." Id. at 598. Under the statutory scheme then in effect, the drainage district 

simply had no ability to enforce its liens against the county. So to avoid the elimination 

of the drainage district's coequal lien, the supreme court created this construct of a 
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suspended lien in an effort to remedy "the failure of the Legislature to provide a 

procedure for bringing the county into court and enforcement of such 'equal dignity liens' 

of other taxing districts." Id. at 598. 

 Relying on Kostecos in the trial court, the Villages advocated for applying 

its suspended lien "construct" to the facts of this case, which would result in the 

County's liens remaining in suspension until such time as the Villages sells the parcels 

to third parties. However, we question whether Kostecos remains good law inasmuch 

as the legal landscape has changed significantly since 1956, thereby altering the rights 

of the parties before this court. Therefore, we do not agree that Kostecos is 

determinative of this issue for three reasons. 

 First, unlike the drainage district in Kostecos, the Villages had the 

statutory authority to join the County in an enforcement proceeding relating to its 

assessment liens. Under section 173.15, Florida Statutes (2015), the Villages could 

have made the County a party to its assessment lien foreclosure action, and the issue 

regarding the priority and satisfaction of the competing coequal liens could have been 

resolved before the Villages took title to the parcels. The Villages' decision to forego 

this opportunity does not mean that it can now strategically hold the County's liens 

hostage until such time as the Villages decides to sell the parcels. And while we 

recognize that this resolution may force the Villages to satisfy the County's tax liens if it 

wishes to continue to hold title to the parcels, we note that this is a problem of the 

Villages' own making. 

 Second, several statutes first enacted after Kostecos was decided seem 

to evidence the legislature's intent to remedy the problem that the Kostecos construct 
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was created to address. For example, section 197.552, enacted in 1972, specifically 

provides that an existing CDD lien will survive the issuance of a tax certificate: 

Except as specifically provided in this chapter, no right, 

interest, restriction, or other covenant shall survive the 

issuance of a tax deed, except that a lien of record held by a 

municipal or county governmental unit, special district, or 

community development district, when such lien is not 

satisfied as of the disbursement of proceeds of sale under 

the provisions of s. 197.582, shall survive the issuance of a 

tax deed. 

(Emphasis added.)1 Hence, the legislature clearly contemplated that buyers of tax 

certificates would hold those certificates subject to the CDD assessment liens—not that 

counties were barred from selling tax certificates by the existence of coequal CDD liens. 

 Similarly, section 190.024 provides that "[a] sale of any of the real property 

within the [CDD] for state and county or other taxes shall not operate to relieve or 

release the property so sold from the lien for subsequent district taxes or installments of 

district taxes, which lien may be enforced against such property as though no such sale 

thereof had been made." Thus, the legislature clearly anticipated the issuance of tax 

certificates despite the existence of CDD assessment liens on the same parcels, and it 

sought to preserve the right of CDDs to collect on their liens despite the issuance of 

such certificates. If we were to continue to apply the Kostecos construct, it would 

render sections 197.552 and 190.024 meaningless; something appellate courts will not 

do. See, e.g., Palm Beach Cty. Canvassing Bd. v. Harris, 772 So. 2d 1273, 1286 (Fla. 

2000) (holding that "[c]ourts should construe statutes to give effect to all provisions, and 

 1Because the issuance of a tax certificate is a prerequisite to the issuance 

of a tax deed, see § 197.502, a lien surviving the issuance of a tax deed must 

necessarily have survived the issuance of a tax certificate. 
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not to render any part meaningless"); Lewis v. City of Tampa, 64 So. 3d 143, 145 (Fla. 

2d DCA 2011); Stratton v. Sarasota County, 983 So. 2d 51, 55 (Fla. 2d DCA 2008) 

(citing Am. Home Assurance Co. v. Plaza Materials Corp., 908 So. 2d 360, 366 (Fla. 

2005); and Unruh v. State, 669 So. 2d 242, 245 (Fla. 1996)). Rather than continuing to 

apply the now-outdated Kostecos construct, this court will instead enforce the trial 

court's resolution, which comports with the entire statutory scheme enacted by the 

legislature and permits the Tax Collector to issue tax certificates subject to the Villages' 

liens. 

 Third, we conclude that continuing to follow the Kostecos construct would 

be directly contrary to the legislature's directive that the competing liens be considered 

coequal. Under the Kostecos construct, the first lienholder to foreclose is vested with 

the power to hold the other lien in abeyance until such time as the first lienholder 

decides to sell the property. But if the liens are truly coequal, one coequal lienholder 

should not be able to force the other coequal lienholder to wait until the first lienholder 

acts. To do so is to improperly subjugate the second lienholder's lien to the first 

lienholder's whims—the very antithesis of a status of coequal. Thus, the Kostecos 

construct appears to conflict with the current statutory scheme, leading us to question 

whether it remains good law. 

 In sum, we hold that while the trial court improperly determined that the 

County's liens were superior to those of the Villages, it properly authorized the Tax 

Collector to issue tax certificates that will be subject to the Villages' assessment liens. 

Therefore, we affirm the trial court's ruling to this extent. See Robertson v. State, 829 

So. 2d 901, 906 (Fla. 2002) (explaining the "longstanding principle of appellate law" that 
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the appellate court may "affirm a trial court that 'reaches the right result, but for the 

wrong reasons' so long as 'there is any basis which would support the judgment in the 

record' " (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 

1999))). 

 Moreover, given the current volume of foreclosure litigation and the 

questionable viability of Kostecos in light of subsequent legislative enactments, we 

certify the following question to the Florida Supreme Court as being one of great public 

importance: 

WHEN A COUNTY HOLDS AN AD VALOREM TAX LIEN 

AGAINST PROPERTY AND A COMMUNITY 

DEVELOPMENT DISTRICT (CDD) FORECLOSES ON A 

COEQUAL ASSESSMENT LIEN ON THE SAME 

PROPERTY WITHOUT JOINING THE COUNTY IN THE 

FORECLOSURE ACTION, MAY THE COUNTY ISSUE A 

TAX CERTIFICATE ON THE PROPERTY SUBJECT TO 

THE CDD ASSESSMENT LIEN OR IS THE COUNTY'S TAX 

LIEN HELD IN SUSPENSION UNTIL THE CDD SELLS THE 

PROPERTY TO A THIRD PARTY PURSUANT TO 

KOSTECOS V. JOHNSON, 85 SO. 2D 594 (FLA. 1956)? 

Affirmed; question certified. 

SLEET and LUCAS, JJ., Concur.