       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. 29th 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.

                                             2
      Pursuant 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




                                         3
pursuant 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, sixty-
one 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.

                                          4
position 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


                                         5
            of 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



                                        6
days) 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 notices3 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”
(TRuth In Millage) notice.

                                          7
              The 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.




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