          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-3365
                  _____________________________

DAN SOWELL, as Property
Appraiser of Bay County,
Florida,

    Petitioner,

    v.

FAITH CHRISTIAN FAMILY
CHURCH OF PANAMA CITY
BEACH, INC.,

    Respondent.
                  _____________________________


Petition for Writ of Prohibition—Original Jurisdiction.


                           July 25, 2018


PER CURIAM.

     This is a petition for writ of prohibition seeking review of the
circuit court’s denial of Petitioner’s motion to dismiss an
amended complaint challenging the denial of an ad valorem tax
exemption for three pieces of property owned by the Respondent,
a church, for the 2015 and 2016 tax years. For the reasons
explained below, we grant the petition and order that the
challenge to the 2015 and 2016 tax years be dismissed.
     The Respondent, Faith Christian Family Church of Panama
City Beach, Inc. (“Faith Christian”), filed suit on November 30,
2015, challenging the property appraiser’s denial of an ad
valorem tax exemption for the 2015 tax year and raising a civil
rights claim pursuant to 42 U.S.C. § 1983 (“Section 1983”). The
Section 1983 claim was later dismissed. Faith Christian filed an
amended complaint on April 17, 2017, * challenging ad valorem
denials for 2015, 2016, and 2017, and adding a claim for slander
and a restated Section 1983 claim. The property appraiser filed a
motion to dismiss, and the circuit court granted the motion as to
counts two and three of the amended complaint (the slander and
Section 1983 claims), but denied the motion as to count one (the
claim for declarative and injunctive relief as to the denial of the
ad valorem exemption for 2015 and 2016).

     The property appraiser argues the trial court lacks subject
matter jurisdiction to consider the challenge to the 2015 and 2016
years pursuant to section 194.171, Florida Statutes, because
Faith Christian failed to pay the taxes due and owing for the
2016 tax year prior to delinquency. Section 194.171 provides in
relevant part:

         (5) No action to contest a tax assessment may be
    maintained, and any such action shall be dismissed,
    unless all taxes on the property assessed in years after
    the action is brought, which the taxpayer in good faith
    admits to be owing, are paid before they become
    delinquent.



    *   Faith Christian’s amended complaint was filed in the
circuit court on January 13, 2017. At a hearing on April 17, 2017,
Faith Christian made an ore tenus motion for leave to file an
amended complaint. The court granted the motion at that
hearing. An amended complaint is “deemed filed as of the date
the motion for leave to amend was filed.” Russ v. Williams, 159
So. 3d 408, 409 n.1 (Fla. 1st DCA 2015) (citing Rayner v. Aircraft
Spruce–Advantage, Inc., 38 So. 3d 817, 819 (Fla. 5th DCA 2010)).
Thus, we deem the amended complaint to have been filed on
April 17, 2017.

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         (6) The requirements of subsections (2), (3), and (5)
    are jurisdictional. No court shall have jurisdiction in
    such cases until after the requirements of both
    subsections (2) and (3) have been met. A court shall lose
    jurisdiction of a case when the taxpayer has failed to
    comply with the requirements of subsection (5).

§§ 194.171(5), (6), Fla. Stat. (2016). Prohibition is an appropriate
vehicle for review of the denial of a motion to dismiss which
raises a claim that a trial court lost subject matter jurisdiction
over a tax challenge pursuant to subsections 194.171(5) and (6).
See Nikolits v. Hanna, 92 So. 3d 299 (Fla. 4th DCA 2012); Higgs
v. Armada Key West Ltd. Partnership, 903 So. 2d 303 (Fla. 3d
DCA 2005); Markham v. Hinckley, 544 So. 2d 1139 (Fla. 4th DCA
1989).

     As of May 11, 2017, Faith Christian had not paid the taxes
due and owing on the subject property, and the taxes on those
parcels became delinquent by operation of law on April 1, 2017,
pursuant to section 197.333, Florida Statutes (2016). Taxes
become “delinquent on April 1 following the year in which they
are assessed or immediately after 60 days have expired from the
mailing of the original tax notice, whichever is later.” § 197.333,
Fla. Stat. (2016); see also Fla. Admin. Code R. 12D-13.004(1)
(2016).

     When Faith Christian’s 2016 taxes became delinquent by
operation of law, the trial court lost subject matter jurisdiction
over Faith Christian’s challenge to not only the 2016 tax year,
but also the 2015 tax year. “[I]f a challenge to the assessment is
attempted, that challenge will not relieve the challenger of the
obligation to pay successive years’ taxes.” Bystrom v. Diaz, 514
So. 2d 1072, 1074 (Fla. 1987) (quoting Marshall v. Perkins, 494
So. 2d 506, 507 (Fla. 2d DCA 1986)); see also Washington Square
Corp. v. Wright, 687 So. 2d 1374 (Fla. 1st DCA 1997); Wilkinson
v. Clarke, 91 So. 3d 897 (Fla. 2d DCA 2012); Nikolits, 92 So. 3d at
299; Higgs, 903 So. 2d at 305. As the Florida Supreme Court has
observed:

        Although subsections 194.171(5) and (6) appear to
    be somewhat harsh, their meaning is clear. Subsection
    194.171(5) plainly states that a taxpayer may not
                                 3
    maintain a suit contesting a tax assessment, an action
    “shall be dismissed, unless all taxes on a property
    assessed in years after the action is brought, which the
    taxpayer in good faith admits to be owing, are paid
    before they become delinquent.”             Subsection (6)
    expressly declares that these requirements are
    jurisdictional and that “[a] court shall lose jurisdiction of
    the case when the taxpayer has failed to comply with
    the requirements of subsection (5).” The statute does
    not allow a court to retain jurisdiction once taxes
    become delinquent.

Bystrom, 514 So. 2d at 1074-75.

     Section 194.171(2), Florida Statutes, requires a taxpayer to
contest a tax assessment within “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.” Faith Christian did not file a petition for the 2016
tax year with the Value Adjustment Board, and the 2016 tax year
roll was certified on October 5, 2016. Accordingly, the statutory
deadline for a challenge to the 2016 tax year assessment was
December 4, 2016. Faith Christian did not file its amended
complaint until April 17, 2017, 194 days after the 2016 tax roll
was certified for collection.

     Faith Christian argues that its April 2017 amended
complaint was timely because it related back to the 2015 original
complaint. We do not find this argument to be persuasive;
“[e]ven if treated as relating back, the amended pleading did not
and could not assert the crucial fact that the [2016] taxes were
paid before they became delinquent as required by section
194.171(5).” Bystrom, 514 So. 2d at 1074 (emphasis in original).
Although it is possible for an amended complaint to relate back to
the original complaint for purposes of the sixty-day jurisdictional
time frame set forth in section 194.171(2), this is generally
limited to situations in which the taxpayer makes a payment
before the taxes become delinquent and files an amended

                                  4
complaint so reflecting. See, e.g., Cowart v. Perkins, 445 So. 2d
654 (Fla. 2d DCA 1984).

     Here, Faith Christian did not pay the 2016 taxes before they
became delinquent, and it did not timely challenge the 2016 tax
assessment. The lack of payment or a timely challenge prior to
delinquency resulted in the lower tribunal’s loss of subject matter
jurisdiction. “[I]t is well established that a challenge concerning
entitlement to a tax exemption is a challenge to an assessment of
taxes, for purposes of section 194.171.” Nikolits, 92 So. 3d at 301.
“A timely challenge is therefore necessary to satisfy the
jurisdictional requirement of that section.” Nikolits v. Ballinger,
736 So. 2d 1253, 1255 (Fla. 4th DCA 1999).

     The petition for writ of prohibition is granted. In accordance
with section 194.171, Florida Statutes, the lower tribunal is
directed to dismiss the Respondent’s challenge to the 2015 and
2016 tax years.

    PETITION GRANTED.

LEWIS, BILBREY, and M.K. THOMAS, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Loren E. Levy of The Levy Law Firm, Tallahassee, for Petitioner.

William E. Corley, III, Panama City Beach, for Respondent.




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