IN THE SUPREME COURT OF THE STATE OF FLORIDA CLIFFORD KORNFIELD, ET AL. CASE NO. SC03-300 Plaintiffs/Petitioners v. JOEL ROBBINS, ETC, SPRING TERM, A.D. 2003 Defendants/Respondents / ON APPEAL FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT Case No. 3D02-2118 PETITIONERS FIRST AMENDED BRIEF ON SUPREME COURT JURISDICTION
Alan Kluger, Esq. F.B.N. 200379 KLUGER PERETZ KAPLAN & BERLIN 201 S. Biscayne Blvd./Ste. 1700 Miami, FL 33131 Tel: (305) 379-9000 Fax: (305) 379-3428 Email: akluger@kpkb.com Counsel for Appellees Clifford Kornfield, Esq. F.B.N. 449512 CLIFFORD KORNFIELD, P.A. 11400 S.W. 68 th Street Miami, FL 33156 Tel: (305) 666-7202 Fax: (305) 666-7721 Email: clifkorn@bellsouth.net Counsel for Appellees I. TABLE OF CONTENTS..........................................i TABLE OF CITATIONS............................................ii I. STATEMENT OF THE CASE...6 II. SUMMARY OF ARGUMENT.................................... 2 ARGUMENT...3 A. JURISDICTION IS BASED ON THE CONFLICT WITH THIS COURT S PRIOR DECISION....................................... 3 B. JURISDICTION IS BASED ON THE FLORIDA CONSTITUTION... 6 C. THE LOWER COUR DECLARED THE STATUTE VALID......... 7 D. THIS DECISION EXPRESSLY CONFLICTS WITH DECISIONS OF THE SECOND AND FOURTH DISTRICT COURTS OF APPEAL....... 9
CONCLUSION...10 CERTIFICATE OF SERVICE...................................... 11 CERTIFICATE OF COMPLIANCE................................. 11 i 3
TABLE OF AUTHORITIES Cases: Page(s) Smith v. Welton 729 So.2d 371 (FL 1999)................................ 1, 2, 3, 4, 5, 7, 8 Shands Teaching Hospital and Clinics, Inc. v. Smith, 480 So2d. 1366 (Fla 1 st DCA 1985)........................................................ 7 Markham v. Friedland, 245 So.2d 645, 651............................ 10 Countryside Country Club, Inc., v. Smith, 573 So2d. 14 (2 nd DCA 1991)....10 Ostendorf v. Turner, 426 So2d. 539, 544 (Fla. 1982)..................... 8 Other Authorities: FSA 193.155................................................. 3, 7, 8 Article VII 4 (c) of the Florida Constitution................ 1, 2, 3, 6, 7, 9
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I. STATEMENT OF THE CASE This is an appeal from a decision by the Third District Court of Appeal which reversed a final summary judgment by the Circuit Court. Homeowners/Petitioners (Homeowners) had filed suit in the Dade County Circuit Court for a declaratory judgment to determine that the Dade County Property Assessor (Tax Assessor) was prohibited in 1999 from back-assessing improvements made to their home in 1991 and prior to the passage of ARTICLE VII 4(C) of The Florida Constitution, The Save Our Homes Amendment. The Circuit Court entered summary final judgment with opinion in favor Homeowners and against the Tax Assessor ruling that the Tax Assessor was prohibited by The Florida Constitution and the Supreme Court decision in Smith v. Welton, 729 So.2 nd 371 (Fl. 1999) from reassessing improvements made in 1991, eight years earlier. The Third District Court of Appeal reversed the summary judgment and directed that judgment be entered in favor of the Tax Assessor. The Summary Judgment was based on these stipulated facts. Homeowners purchased their home in 1987 and have lived continuously on the property as husband and wife. In 1991, Homeowners applied to Dade County for permits to add an addition to the home. The addition was on the existing home and not a separate structure. Construction permits were duly applied for and issued thus disclosing the 1
Petitioners construction. Dade County issued a Certificate of Occupancy when the construction was finished on July 22, 1991 evidencing the Tax Assessor s knowledge of the improvements. In 1999, Respondents reassessed the property and raised the assessed value on this single family home by approximately fifty (50) per cent, after Homeowners applied for and received permits and a certificate of occupancy for an additional improvement, the conversion of a third of garage into a playroom. II. SUMMARY OF ARGUMENT It is essential that this Court take jurisdiction in this case for several reasons. In the near decade since the citizens of Florida constitutionally established this framework of protection for homeowners, the Welton decision was the sole judicial decision that served to enforce and preserve the voters action. The Third District has declared Welton dead. It did so on the limited facts of this case which are uniquely favorable to homeowners, since the improvement was made before the passage of both the Amendment and the statute and since there was no allegation that the homeowners had done anything but disclose their improvement to the County. It is difficult to imagine any homeowners more entitled to the protections afforded the Amendment and Welton, then these Petitioners. This Court unquestionably has the right to accept jurisdiction. Clearly, the Third District placed itself in conflict with 2
this Court s prior decision and had to construe the Florida Constitution in order to do it. It has also placed itself in conflict with other district courts of appeal regarding the meaning of escaping taxation and has passed on the validity of a statute: FASA 193.55. III. ARGUMENT A. JURISDICTION IS BASED ON THE CONFLICT WITH THIS COURT S PRIOR DECISION The decision of the Third District Court of Appeal declared this Court s prior precedent in Smith v. Welton, 729 S.2d 371 (Fla. 1999) dead and thus expressly and directly conflicted itself with a prior decision of this Court. The rule is well established that in the absence of constitutional, or statutory authority reflecting a change in the common law, a district court of appeal is not empowered to overrule controlling precedent of the Florida Supreme Court ), Shands Teaching Hospital and Clinics, Inc. v. Smith, 480 So.2d 1366 (Fla. 1 st DCA 1985). The Welton decision held that Article VII Section 4 of the Florida Constitution prohibits tax assessors from interpreting FSA 193.155 as bestowing upon them the authority to reach back and correct an erroneous calculation of the base year... and then apply that to corrected value to subsequent years. The Court ruled that tax assessors are not allowed to retroactively change base year assessments both because of the plain meaning of 3
the statute and the constitutional limits under which the statute was promulgated. It is impossible to logically reconcile Welton and the lower court decision. In Welton, this Court recognized that the people of Florida intentionally amended the Florida Constitution in 1992 to shelter their homes from ever-rising taxation by limiting ad valorem taxes. The Court stated that: The amendment which became effective January 5, 1993 called for the levying of a base year just value assessment for each homestead as of January 1, 1994 and the restriction of subsequent increases in assessment to the owner of either a) three percent of the prior year s assessment, or b) a percent change in the Consumer Price Index. In other words, the property appraisers of Florida were instructed constitutionally by the citizens of Florida to appraise every existing home and to ascribe a just value to those homes. The amendment required that the property assessors abide by those assessments until there were either subsequent changes in ownership or subsequent improvements in each home. In Welton, the tax assessors were dissatisfied with the just value that they had ascribed to the subject properties and tried to rewrite the rules by changing the just values they had assigned to the subject properties by claiming they had initially made errors in assigning values. This Court rejected that attempt and found that both the Florida Constitution and the statute promulgated under it, prohibited the attempt to rewrite just value.
The tax assessor in this case is attempting to do exactly that this Court prohibited in Welton. The tax assessor here complains that in 1994, an erroneous just value was assigned Homeowners property because an existing improvement was not taken into account and therefore the property could be reassessed five years later in 1999. In allowing this practice, the Third District violated the injunction of this Court that denied the property appraisers the authority to correct an erroneous calculation of the base year just value assessment. Id at pg. 373. It should be immediately pointed out theat the Welton decision was grounded in this Court s interpretation of the Florida Constitution and not simply in the statute. The Third District decided in a one and half page opinion to unilaterally erase this Court s controlling precedent from the books in Florida. It did this by avoiding any meaningful discussion of either the controlling precedent or the constitutional provision under which it was decided. In fact, the Third District in declaring Welton dead went beyond even the position of the Tax Assessor who conceded that Welton was alive and enforceable but merely distinguishable from the facts of this case. This is a matter of great and sweeping public importance because the increasing value of Florida homes is making them an attractive target for revenue driven public officials who grasp for means to reassess homestead properties. The Save our Homes Amendment and Welton were the sole protections that homeowners enjoyed. The Third District vanquished Welton and severely 4 5
undermined the constitutional protection. It is incumbent upon this Court to reaffirm its commitment to the protection of Florida s homeowners and the deference that Florida courts must give to Constitutional Amendments that express the collective wish of the citizenry. B. JURISDICTION IS BASED ON THE FLORIDA CONSTITUTION The Third District decision expressly acknowledged that the Circuit Court held that the Florida Constitution prohibited the property appraiser from reassessing the property s just value. The Third District expressly disagreed and ruled that construction and application of the Florida Constitution did not prohibit the retroactive reassessment. The Amendment to the Florida Constitution required that all residential property, including the Petitioners be assigned a just value as of January 1, 1994. The decision under appeal violates the Constitution by allowing the recalculation of that value nearly ten years later. The passage by Florida s citizens of the Amendment was the equivalent of the Big Bang as to the determination of just value. It was a vote of historic dimension that was intended to create a new universe in the law and practice of determining just value of homestead property in Florida, with each property being assigned a just value as of January 1, 1994. Homeowners property was assigned a just value on that date which included the existing addition that has since been reassessed. Subsection (c)(5) of the Amendment limited reassessment for 6
only those changes and additions that were made after January 1, 1994 since it states: Changes, additional, reductions or improvements to homestead property shall be assessed as provided for the general law; provided, however, after the adjustment for any change, addition, reduction or improvement, the property shall be assessed as provided herein. (italics added) The italicized word in the first clause shall be assessed clearly indicates that the amendment was intended to apply to future improvements and additions, not already existing improvements to the property which has been assessed normally as part of the property. The italicized words in the second section confirms that the intent was to assess future, non-existing improvements because of the reference to assessment after the adjustment. The lower court decision violates the intent and text of the Amendment. C. THE LOWER COURT DECLARED THE STATUTE VALID In Smith v. Welton, 729 So.2d 371 (Fla. 1999), this Court found that FSA 193.155 was valid and not constitutionally infirm specifically because it did not authorize tax assessors to change the base year assessment defined by the Florida Constitution. Article VII Section 4. However, the Third District took a diametrically opposite position when it declared F.S.A. 193.155 had validly authorized tax assessors to change the base year assessment defined by the Florida Constitution. Article VII Section 4 as a result of recent amendment. To the extent that the Third District ruled that 193.155 as amended, is valid in 7
allowing tax assessors to change the base year assessment, its rule passed on the validity of the statute in a manner inconsistent with the Court s prior precedent and the express language of the Florida Constitution. The Third District erred by concluding that the statutory amendment to FSA 193.155 somehow repealed the Florida Constitution and overruled this Court s prior decision. Irrespective of the statutory change, the Constitution and this Court s prior ruling are vital in protecting homeowner rights. If the Tax Assessor s interpretation of FSA 193.155, as adopted by the lower court, is correct then the statute is invalid. As this Court stated in Welton: Express or implied provisions of the Constitution cannot be altered, contracted or enlarged by legislative enactments. The statute in question violates that rule and would defeat the purpose of the amendment by allowing constant reassessments of homesteads based on new information. Smith v. Welton, 710 S.2d 135, 138 (1 st DCA 1998) quoting Osterndorf v. Turner, 426 So.2d 539, 544 (Fla. 1982). Id at pg. 138. The Legislature cannot validly require that improvements and additions built before the passage of the Constitutional Amendment and the enactment of FSA 193.155 be later reassessed and taxed back three years. Tax statutes operate only prospectively and are unconstitutional if applied retroactively unless they expressly provide for retrospective application. F.S.A. 193.055 does not authorize that the statute be applied to improvements made prior to 8
their passage. There is a world of constitutional difference between assessing improvements made subsequent to the passage of the Constitutional Amendment, the enactment of the statute and/or the amendment of the statute and then taxing backwards three years and assessing improvements made prior to all that constitutional and statutory activity. The Save our Homes Amendment to the Constitution was designed to protect homeowners in general and in particular the homeowners that owned their homes on January 1, 1994. The amendment states that: All persons entitled to a homestead exemption under Section 6 of this Article shall have their homestead assessed at just value of January 1 of the year following the effective date of this amendment. The assessment shall change only as provided herein. Petitioners had their home assessed on January 1, 1994 and just value was determined for it. On that date the addition existed and just value for the home included the addition. D. THIS DECISION EXPRESSLY CONFLICTS WITH DECISIONS OF THE SECOND AND FOURTH DISTRICT COURTS OF APPEAL The lower court decision is premised in large part on the erroneous conclusion that this property escaped taxation. Its decision stated that the addition escaped taxation for almost nine years and although the improvements escaped taxation for nine years. However, the term escaped 9
taxation is a legal term of art defined differently by two other Courts of Appeal. The Fourth District Court of Appeal has stated as follows: To escape taxation means to get free of tax, to avoid taxation, to be missed from being taxed, or to be forgotten for tax purposes. Markham v. Friedland, 245 So.2d 645 (4 th DCA 1971). The Second District Court of Appeal is in accord in Countryside Country Club, Inc., v. Smith, 573 So.2d. 14 (2 nd DCA 1991). The underlying decision puts the Third District at odds with the Second and Fourth Districts. IV. CONCLUSION This Court must take jurisdiction of this appeal because there are no less then four separate bases for jurisdiction, each of which stand alone and all of which are intertwined. Respectfully submitted, KLUGER PERETZ, KAPLAN & BERLIN Miami Center/17th Floor 201 S. Biscayne Boulevard Miami, FL 33131 Tel: (305) 379-9000 Fax: (305) 379-3428 By: ALAN KLUGER, ESQ. F.B.N. No. 200379 10
CLIFFORD KORNFIELD, P.A. 11400 S.W. 68 th Court Miami, FL 33156 Tel: (305) 666-7202 Fax: (305) 666-7721 By: CLIFFORD KORNFIELD, ESQ. F.B.N. No. 449512 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this brief was mailed to Scott Fabricus, Esq., Steven Clark Center Dade County Attorney, 111 NW First Street, Miami, FL 33128 herein this day of April 2003. CERTIFICATE OF COMPLIANCE Undersigned counsel certifies that the type size and style used in this the Appellees Brief is 14 point Times New Roman and complies with Rule 9.100 of the Florida Rules of Appellate Procedure. Alan Kluger 11