       Third District Court of Appeal
                               State of Florida

                           Opinion filed April 25, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-2037
                          Lower Tribunal No. 15-6907
                             ________________


                 Williams Island Ventures, LLC, et al.,
                                   Appellants,

                                        vs.

                Marcus Saiz de la Mora, in his capacity
                as Miami-Dade County Tax Collector,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Jorge E. Cueto,
Judge.

     Rennert Vogel Mandler & Rodriguez, P.A., Thomas S. Ward and Jill Nexon
Berman, for appellants.

      Abigail Price-Williams, Miami-Dade County Attorney, and Jorge Martinez-
Esteve and Daija Page Lifshitz, Assistant County Attorneys, for appellee.


Before SUAREZ, FERNANDEZ, and SCALES, JJ.

     FERNANDEZ, J.
      Plaintiffs Williams Island Ventures, LLC; Merrick Park LLC; Northwestern

Capital Corporation; Sunshine Gasoline Distributors, Inc.; Sunshine Dade

Investments, LLC; Coral Gables Luxury Holdings, LLC; Baptist Health South

Florida, Inc.; Terra Grove Communities, LLC; Terra Doral Commons

Commercial, LLC; and Terra Doral Commons Residential, LLC (collectively, “the

taxpayers”) appeal the trial court’s Final Order Granting Marcus Saiz de la Mora’s

Motion to Dismiss Second Amended Complaint with Prejudice. We reverse and

remand because we agree with the taxpayers that they pled legally sufficient claims

which should not have been dismissed with prejudice on a motion to dismiss.

      Before July 1, 2011, a Miami-Dade County taxpayer was not required to pay

any taxes in order to challenge an ad valorem tax assessment. The Florida

Legislature then enacted section 194.014, Florida Statutes (2011), effective July

2011, which required taxpayers filing petitions to challenge a tax assessment to

pre-pay at least 75% of the ad valorem taxes they were challenging. Section

194.014(1)(a), Fla. Stat. (2011), reads in part: “A petitioner before the value

adjustment board who challenges the assessed value of property must pay all of the

non-ad valorem assessments and make a partial payment of at least 75 percent of

the ad valorem taxes… .”




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The section further provided that a taxpayer is entitled to receive interest on the

pre-paid ad valorem taxes that were due, if a taxpayer succeeded in obtaining a

reduction of an assessment. Section 194.014(2), Fla. Stat. (2011), stated:

      If the value adjustment board determines that the petitioner owes ad
      valorem taxes in excess of the amount paid, the unpaid amount
      accrues interest at the rate of 12 percent per year… until…paid. If the
      value adjustment board determines that a refund is due, the overpaid
      amount accrues at the rate of 12 percent per year…until a refund is
      due. [1]

      When section 194.014 became effective, Fernando Casamayor was the

Miami-Dade tax collector. After taxpayers filed petitions, Casamayor remitted

taxpayers 12% interest on refunds resulting from assessment reductions. The

refunds were triggered by a ruling of the Value Adjustment Board (“VAB”) special

magistrate after a hearing, as well as a reduction in assessments that resulted from


1Section 194.014 was amended in 2016, effective July 1, 2016, and subsection (2)
of the statute currently reads:

(2) If the value adjustment board or the property appraiser determines that the
petitioner owes ad valorem taxes in excess of the amount paid, the unpaid amount
accrues interest at an annual percentage rate equal to the bank prime loan rate on
July 1, or the first business day thereafter if July 1 is a Saturday, Sunday, or legal
holiday, of the year, beginning on the date the taxes became delinquent pursuant to
s. 197.333 until the unpaid amount is paid. If the value adjustment board or the
property appraiser determines that a refund is due, the overpaid amount accrues
interest at an annual percentage rate equal to the bank prime loan rate on July 1, or
the first business day thereafter if July 1 is a Saturday, Sunday, or legal holiday, of
the tax year, beginning on the date the taxes became delinquent pursuant to s.
197.333 until a refund is paid. …

§ 194.014, Fla. Stat. (2016) (emphasis added).

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the execution of a Petition Withdrawal Agreement without a hearing. Thus, the

phrase in the statute, “determines that a refund is due” by the VAB, applied

whether or not there was a formal hearing.

      On May 1, 2014, Marcus L. Saiz de la Mora succeeded Casamayor as the

Miami-Dade tax collector. In 2014, Saiz de la Mora unilaterally decided that he

would pay taxpayers interest on refunds only if an assessment was reduced after:

1) a formal VAB hearing, and 2) the issuance of a formal, written VAB ruling

reducing the assessment. Consequently, in 2014, Saiz de la Mora stopped paying

interest on refunds owed to taxpayers who executed Petition Withdrawal

Agreements, reasoning that the VAB in these cases had not “determined” that a

refund was due. Saiz de la Mora stopped paying interest on refunds related to

petitions for the 2011, 2012, and 2013 tax years, even when the taxpayers’

assessments were reduced during the time that the previous tax collector,

Casamayor, was in office.

     Starting in January 2015, Saiz de la Mora further unilaterally decided that

interest payments paid to taxpayers who executed Petition Withdrawal Forms

when Casamayor was the tax collector were paid erroneously. Saiz de la Mora sent

written demand letters demanding these taxpayers refund the interest payments to

Saiz de la Mora (the “clawback taxpayers”) and threatening “additional collection

enforcement” actions if the clawback taxpayers failed to refund the interest



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payments. Saiz de la Mora also listed the interest payments he sought to claw back

on the tax collector’s website as taxes owed by the taxpayer. These interest

payments show up in title searches and are clouds on the title of taxpayers’ real

property.

     Thereafter, on March 24, 2015, ten clawback taxpayers and one interest-

owed taxpayer filed a class action suit in the trial court against Saiz de la Mora on

behalf of all similarly situated taxpayers. The interest-owed taxpayers sued for: (i)

declaratory judgment (Count I); (ii) breach of contract (Count IV); and (iii)

promissory estoppel (Count VI). The clawback taxpayers sued for: (i) declaratory

judgment (Count II); (ii) injunction (Count III); (iii) breach of contract (Count IV);

(iv) slander of title (Count V); and (v) promissory estoppel (Count VI). The class

of affected taxpayers, approximately 30,000, was defined as “(i) all taxpayers who

should have received interest from the Tax Collector for overpayment of their

2011, 2012, and 2013 assessments and (ii) all taxpayers who received interest for

these tax years and should not be required to repay such interest to the [Current]

Tax Collector.” That same day, the taxpayers filed a request for production on Saiz

de la Mora and subpoenaed the records of the Miami-Dade Property Appraiser

records custodian.

     In response, Saiz de la Mora filed a “Motion for Entry of a Protective Order

Regarding Subpoena of Non-Party Property Appraiser, Motion for Order Related



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to Costs, or Motion for Status Conference,” seeking to stay the property appraiser’s

deposition so that the trial court could first determine some underlying issues.

However, with this motion, Saiz de la Mora did not move to stay any discovery the

taxpayers propounded on him. After the hearing on this motion, the trial court

granted the current tax collector’s motion for protective order and entered a stay

“barring discovery related to the putative class until the underlying legal issues

raised in the plaintiffs’ amended complaint are resolved.” The taxpayers moved for

reconsideration of the stay order. Saiz de la Mora moved for clarification of the

stay order and filed a motion to dismiss the amended complaint. The trial court

also stayed all discovery until the court ruled on the tax collector’s motion to

dismiss the amended complaint.

     After the taxpayers filed a memorandum in opposition to Saiz de la Mora’s

motion to dismiss, the trial court granted the tax collector’s motion to dismiss

without prejudice. The taxpayers then filed their Second Amended Complaint. Saiz

de la Mora moved to dismiss this complaint, which the trial court granted, this time

with prejudice.

     The taxpayers now appeal the trial court’s final dismissal order and seek

reinstatement of Counts I, II, III, V and VI. They contend on appeal that they pled

legally sufficient claims and that their claims should not have been dismissed with

prejudice on a motion to dismiss.



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      We review orders granting a motion to dismiss under a de novo standard of

review. Grove Isle Ass’n, Inc. v. Grove Isle Assocs., LLLP, 137 So. 3d 1081, 1089

(Fla. 3d DCA 2014). “A motion to dismiss is designed to test the legal sufficiency

of the complaint, not to determine factual issues….” The Fla. Bar v. Greene, 926

So. 2d 1195, 1199 (Fla. 2006). When ruling on a motion to dismiss, a trial court

must accept all factual allegations as true. Minor v. Brunetti, 43 So. 3d 178, 179

(Fla. 3d DCA 2010). The trial court must construe all reasonable inferences in

favor of the pleader. Id. Statutory construction is also reviewed de novo. Zingale v.

Powell, 885 So. 2d 277, 280 (Fla. 2004).

      The taxpayers argue that section 194.014 entitled the interest-owed

taxpayers to interest on all their appeals of overpayment of ad valorem taxes, and

that section 194.014 does not state that a condition precedent to the interest-owed

taxpayers’ entitlement is the VAB’s issuance of a written “decision” granting a

taxpayer’s petition. The taxpayers also contend that Saiz de la Mora was not

authorized to claw back any interest payments that he (or Casamayor) had already

made to the taxpayers as a result of a reduction in the taxpayers’ assessments after

they filed petitions challenging their tax assessments.

      We find that the taxpayers base their claims on a valid interpretation of

section 194.014. Section 194.014(1)(a), states that taxpayers must file petitions and

pay 75% of their ad valorem taxes to be eligible to receive 12% interest on all



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overpaid amounts. Before it was amended in 2016, section 194.014(2) further

stated, “[i]f the value adjustment board determines that a refund is due.…”

However, section 194.014 does not define what action constitutes a VAB

“determination” for purposes of triggering an entitlement to interest. Section

193.122(1), Florida Statutes (2014), makes only the VAB responsible for making

the final certification of the tax roll. As the taxpayers correctly contend, when

reading these two statutes together, it is evident that it is the VAB’s action of

certifying the final tax roll that determines the assessments of each property. This

then determines the amount of taxes that the tax collector is entitled to collect and

the taxpayers’ entitlement to interest under section 194.014.

      In addition, the final tax roll requires taxpayers to take certain steps to

collect their reimbursement and includes assessments that are reduced by the

taxpayers’ written agreements with the VAB and the property appraiser. The

reduction occurs after taxpayers file petitions challenging their assessments but

before the VAB hearings are held. The Broward County tax collector and, until

recently, the Miami-Dade tax collector have used and adopted this interpretation.

We agree with the taxpayers that the trial court erred in dismissing their lawsuit

against the tax collector with prejudice on a motion to dismiss because their claims

are based on a valid interpretation of section 194.014.




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      Whether the tax collector has a right or duty to claw back overpayments

depends on an interpretation of statutory provisions and reasonable inferences

drawn from those provisions. See Escambia Cty v. Bell, 717 So. 2d 85, 87 (Fla. 1st

DCA 1998) (“[T]he Tax Collector only has such authority as is clearly conferred

by statute or is necessarily implied from express statutory powers or duties.”). We

see no reason to decide that issue in this appeal. Whether the tax collector was

permitted to record a lien on the taxpayers’ property was subject to determination

by the trial court, as were the clawback taxpayers’ claims in Counts II, III, V, and

VI, and the relevant counts should not have been dismissed.2

2  The current tax collector contends that the 2016 amendment to section
194.014(2) supports the trial court’s determination that the prior version of the
statute does not entitle taxpayers to interest if they obtained a reduction of their
assessments by executing a Petition Withdrawal Form. The amended statute,
effective July 1, 2016, now states, in pertinent part: “If the value adjustment board
or the property appraiser determines that a refund is due, the overpaid amount
accrues interest at an annual percentage rate equal to the bank prime loan rate on
July 1, . . . until a refund is paid.”

§ 194.014(2), Fla. Stat. (2016).

Taxpayers contend in their Reply Brief filed on August 17, 2016 that they did not
discuss the amendment in their Initial Brief filed on December 17, 2015 because
the amendment was enacted on March 25, 2016 and became effective July 1, 2016.
We agree with the taxpayers that this amendment supports their position, rather
than the current tax collector’s. The word “determines” was not changed in the
2016 version of the statute thus, it has the same meaning as in the previous version.
Furthermore, as the taxpayers indicate in their Reply Brief, the current tax collector
concedes in his Answer Brief that, under the 2016 version, “interest is now payable
upon settlements with the Property Appraiser.” We agree with the taxpayers that if
these settlements or Petition Withdrawal Agreements are a determination that a
refund is due under the amended statute, then it stands that they are also a

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      Finding that the taxpayers’ claims are based on a valid interpretation of

section 194.014, we now turn to whether the taxpayers pled factual allegations to

satisfy each of the elements of their claims. In Count I of the Second Amended

Complaint, the interest-owed taxpayers sought a declaratory judgment from the

trial court that under section 194.014(2), “any taxpayer who receives a refund due

to a reduction in his, her or its assessment as a result of filing a Petition is entitled

to statutory interest thereon, regardless of whether a formal VAB hearing

occurred.” In Count II, the clawback taxpayers sought a declaration that the current

tax collector “is not entitled to ‘claw back’ previously paid interest on such

reductions.” The taxpayers pled thirty-two paragraphs of factual allegations in

support of these claims.

      “The test of the sufficiency of a complaint in a declaratory judgment

proceeding is not whether the complaint shows that the plaintiff will succeed in

getting a declaration of rights in accordance with his theory and contention, but

whether he is entitled to a declaration of rights at all.” Dent v. Belin, 483 So. 2d

61, 62 (Fla. 1st DCA 1986). As such, the trial court was required to decide whether

Counts I and II of the Second Amended Complaint contained the required factual

allegations that would support the taxpayers’ entitlement to a declaration,

regardless of what the trial court’s ultimate decision would be on the issue. Thus,

determination under the previous version of the statute.


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the taxpayers’ factual allegations were sufficient to satisfy the motion to dismiss

standard. See id. (finding a party is entitled to a declaration when that party pleads

the necessary factual allegations for each element of a declaratory judgment

claim).

      However, the trial court dismissed the declaratory judgment claims with

prejudice and also declared what the rights of the taxpayers were under section

194.014. The trial court erred in doing so, as it was premature to decide whether

the taxpayers would succeed on their claims. Accordingly, we reverse on Counts I

and II because the taxpayers stated a cognizable declaratory judgment claim and

because the trial court was not authorized to rule on the merits of the taxpayers’

claims at the beginning of the case in response to Saiz de la Mora’s motion to

dismiss. Dent, 483 So. 2d at 62.

     We turn next to the three other claims raised by the taxpayers in their Second

Amended Complaint. In Count III, the clawback taxpayers sought an injunction

requiring the current tax collector to “immediately suspend efforts to claw back

interest already paid to the clawback taxpayers in connection with refunds where

no VAB hearing was held” and “immediately delete from [the current tax

collector’s] website references to unpaid taxes where the amounts listed are for

interest he seeks to claw back.” In Count V, the clawback taxpayers sought

damage for slander of title to their property from the current tax collector’s



                                         11
publication on its website that the clawback taxpayers owe “taxes” on their

respective properties. However, as the taxpayers correctly contend, these “taxes”

are not really taxes but are the interest payments that the previous tax collector

paid to the clawback taxpayers. Lastly, in Count VI, the taxpayers sued for

promissory estoppel, alleging they executed Petition Withdrawal Forms and thus

gave up their rights to have their tax appeals decided at formal VAB hearings and

detrimentally relied on the prior tax collector’s policy of paying interest when a

taxpayer executed a Petition Withdrawal Form.

      The record reflects that the current tax collector’s Second Motion to Dismiss

did not argue that taxpayers failed to plead facts that, if proven, would establish the

elements of these claims. Because the required elements of Counts III, V, and VI

were all pled, the trial court erred in granting the motion to dismiss with respect to

these counts.

      Furthermore, in its Second Motion to Dismiss, the current tax collector

argued with respect to the estoppel claim that the acts of the previous tax collector

in making interest payments that the taxpayers relied on were ultra vires acts that

did not bind the current tax collector. This argument is an affirmative defense.

Haven Fed. Sav. & Loan Ass’n v. Kirian, 579 So. 2d 730, 733 (Fla. 1991). A trial

court may not consider affirmative defenses when deciding a motion to dismiss.

Lonestar Alt. Sol., Inc. v. Leview-Boymelgreen Soleil Developers, LLC, 10 So. 3d



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1169, 1172 (Fla. 3d DCA 2009). Consequently, the trial court erred in considering

it when ruling on the current tax collector’s Second Motion to Dismiss.

      Lastly, the trial court also committed reversible error by granting the current

tax collector’s Second Motion to Dismiss while the taxpayers’ discovery on the

current tax collector and property appraiser was pending. Frankel v. City of Miami

Beach, 340 So. 2d 463, 465, 470 (Fla. 1976). A lawsuit becomes a class action

when the trial court enters a class certification order. Harrell v. Hess Oil & Chem.

Corp., 287 So. 2d 291 (Fla. 1973). However, the plaintiff must first allege the

elements outlined in Harrell. A trial court will not enter a certification order until

the plaintiff satisfies certain pleading requirements imposed by the Florida

Supreme Court. Frankel, 340 So. 2d at 465. Florida Rule of Civil Procedure

1.220(d)(1) authorizes plaintiffs to conduct discovery prior to certification.

      Here, the trial court dismissed with prejudice the taxpayers’ Second

Amended Complaint while the taxpayers’ motion for certification was pending.

The trial court erred in imposing a stay of all pre-certification discovery because

the information needed to satisfy the class action pleading requirement could only

be obtained through discovery. For example, the taxpayers claim they were unable

to obtain: fully executed Withdrawal Agreements for tax years of 2011-2013; the

property appraiser’s correspondence with the tax collector’s office regarding

reductions that resulted from executed Withdrawal Forms for the 2011-2013 tax



                                          13
years; each certification and recertification of the tax roll for the 2011-2013 tax

years; any backup documents the property appraiser used to correct the tax roll for

the 2011-2013 tax years; the current tax collector’s internal documents that

outlines its policy regarding paying interest on reduced assessments; documents

related to all refunds issued regarding Withdrawal Forms for the 2011-2013 tax

years; and the current tax collector’s correspondence with the property appraiser

related to reductions that resulted from executed Withdrawal Forms for the 2011-

2013 tax years. Discovery would have allowed the taxpayers to obtain this

information and, thus, satisfy the class action pleading requirements.

      Accordingly, the trial court erred in dismissing the taxpayers’ claim with

prejudice, under the standard applied to a motion to dismiss. We thus reverse the

Final Dismissal Order, the Stay Order and the Reconsideration Order, and reinstate

Counts I, II, III, V, and VI of the taxpayers’ Second Amended Complaint.

     Reversed and remanded for further proceedings consistent with this opinion.




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