Bill Furst, etc. v. Susan K. DeFrances

Supreme Court of Florida
____________
No. SC19-701
____________
BILL FURST, etc., et al.,
Petitioners,
vs.
SUSAN K. DEFRANCES, et al.,
Respondents.
September 2, 2021
MUÑIZ, J.
This case pits a property appraiser against a taxpayer. The
property appraiser undervalued and undertaxed the taxpayer’s
property, the taxpayer paid her tax bill, and then the property
appraiser assessed back taxes after discovering his (purportedly)
clerical error. The Second District Court of Appeal invalidated the
back-assessment, holding that under these circumstances the
property had not “escaped taxation,” as required by the governing
statute. DeFrances v. Furst, 267 So. 3d 525, 526 (Fla. 2d DCA
2019). We agree with the district court and approve its decision.
I.
In 2014, Susan DeFrances received an implausibly low
property tax bill for her waterfront property in Sarasota County.
The reason is that the taxes were assessed based on a property
value nearly $2 million lower than the value for the year before,
even though there had been no change to the property. DeFrances
timely paid the bill.
The next year the Sarasota County Property Appraiser
discovered that errors affecting DeFrances’s assessment had
occurred during his office’s conversion from one computer-assisted
mass appraisal system to another. Before the conversion,
DeFrances’s property had been treated as a single parcel made up
of five lots, each with its own value; after the conversion, the new
system treated the parcel as made up of a single lot. Id. at 527 n.1.
The new system also mistakenly applied DeFrances’s homestead
exemption to the entire parcel, even though the property includes
an additional single-family home that DeFrances uses as a rental
property. Id.After discovering these valuation errors, the Property
Appraiser reassessed DeFrances’s property for the 2014 tax year
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and sent her a bill for back taxes. From the Property Appraiser’s
perspective, his authority to assess the back taxes depended on the
valuation errors being “clerical errors,” as opposed to errors in
judgment. For purposes of discussion, we will accept the Property
Appraiser’s “clerical errors” characterization. But as we explain
later, we do not think the distinction is relevant to the disposition of
this case, and we do not intend to create precedent for what counts
as a “clerical error” in any case where the label matters.
What does matter here is that the Property Appraiser in his
briefing concedes that DeFrances’s “entire parcel was (technically)
assessed.” Moreover, the Property Appraiser gave an interrogatory
response acknowledging that “[t]here is no specific, defined area of
land that escaped taxation since the land was valued as a whole.”
Id. at 528. The Property Appraiser had been asked the question:
“Identify the specific portions of the Property that escaped taxation
in 2014 (or which would have escaped taxation if the Property had
been assessed at $302,400.00 in 2014).”
DeFrances initiated this lawsuit to obtain a judgment
declaring the invalidity of the back-assessment of taxes for 2014.
She lost in the trial court. But on appeal, the Second District ruled
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in DeFrances’s favor. The district court concluded that the back
taxes were invalid because DeFrances’s property had not “escaped
taxation,” a prerequisite for a Property Appraiser’s authority to
assess back taxes under section 193.092(1), Florida Statutes
(2013), the statute under which the Property Appraiser proceeded
here.
We have exercised our discretion to review the district court’s
decision, which expressly affects property appraisers, a class of
constitutional officers. See art. V, § 3(b)(3), Fla. Const.
II.
A.
“Escaped taxation”—the statutorily undefined phrase that is
central to resolving this case—has a long history in Florida law.
Before 1899, a property appraiser could assess back taxes if “any
land in his county was omitted in the assessment roll of either or all
of the three previous years.” Ch. 4322, § 24, Laws of Fla. (1895).
Then, in 1899, the phrase “escaped taxation” first appeared. Our
Legislature amended the omitted property law (which applied only
to taxes on real property) to require the property appraiser to back-
assess taxes on “any land in his county [that] has, for any reason,
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escaped taxation for all or any of the three previous years.” Ch.
4663, § 24, Laws of Fla. (1899). In the statute book, the pre- and
post-1899 laws appeared under a section heading titled
“Assessment of land previously omitted.” § 722, Rev. Gen. Stat. Fla.
(1920).
The Legislature amended this law again in 1923, retaining the
phrase “escaped taxation” but, among other things, broadening the
statute to cover property other than land. See Ch. 9180, § 1, Laws
of Fla. (1923). As to the issues in this case, there have been no
material changes to the relevant portion of our state’s back-
assessment law since 1923. That law—the only law on which the
Property Appraiser relies for authority to assess back taxes—is now
found in section 193.092(1), Florida Statutes.
Section 193.092(1), Florida Statutes (2015), appears under the
title “Assessment of property for back taxes.” In pertinent part the
statute reads:
When it shall appear that any ad valorem tax might
have been lawfully assessed or collected upon any
property in the state, but that such tax was not
lawfully assessed or levied, and has not been collected
for any year within a period of 3 years next preceding
the year in which it is ascertained that such tax has
not been assessed, or levied, or collected, then the
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officers authorized shall make the assessment of taxes
upon such property in addition to the assessment of
such property for the current year, and shall assess
the same separately for such property as may have
escaped taxation at and upon the basis of valuation
applied to such property for the year or years in which
it escaped taxation, noting distinctly the year when
such property escaped taxation and such assessment
shall have the same force and effect as it would have
had if it had been made in the year in which the
property shall have escaped taxation . . . .
§ 193.092(1), Fla. Stat. (emphasis added).
The Second District concluded, and we agree, that the
resolution of this case turns on the meaning of the phrase “escaped
taxation” as applied to the facts here. By the terms of the statutory
text, only property that has “escaped taxation” is subject to back-
assessment. If that element is not satisfied, then the conditions in
the beginning clauses of the statute—including whether the
property tax could have been lawfully assessed but was not lawfully
assessed—do not come into play.
Under basic principles of statutory interpretation, our task is
to discern the text’s meaning as it would have been understood by a
reasonable reader, fully competent in the language, at the time of
its enactment. See Page v. Deustche Bank Trust Co. Americas, 308
So. 3d 953, 958 (Fla. 2020). We have not uncovered any evidence
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suggesting that the phrase “escaped taxation” had a different
meaning in 1923 than it would to an informed reader today (or to
an informed reader in the years in between). Nor do we have reason
to believe that in 1923 the phrase was a legal term of art with a
meaning different from its ordinary meaning. Recognizing that the
contextual meaning of a word or phrase will not always be free from
doubt, we aim to arrive at the best reading of the text.
Although there are several past decisions of this Court
involving section 193.092(1) and its predecessors, none of those
cases explicitly sought to discern the ordinary meaning of the
phrase “escaped taxation” as used in the statutory text. Therefore
we seek guidance in a decision interpreting the same phrase in a
closely related statute. Now repealed, section 199.29, Florida
Statutes (1941), governed the back-taxation of intangible personal
property. The statute required back-assessment when “any
intangible personal property has for any reason escaped taxation for
any or all of the three previous years.” We addressed the meaning
of this provision in Florida National Bank of Jacksonville v. Simpson,
59 So. 2d 751 (Fla. 1952).
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Simpson involved a dispute over the taxation of a portion of
Alfred I. DuPont’s estate. Id. The taxpayer in Simpson had paid
taxes based on property valuations submitted by the taxpayer and
accepted by the property appraiser. Id. The property appraiser
later determined that the valuation did not represent the property’s
full cash value, and he sought to impose a back-assessment. Id.We framed the issue for determination as whether the untaxed
value “represents a portion or part of the intangible which will be
considered as having ‘escaped taxation’ and be subject to back
assessments within three years.” Id. at 756. Our Court answered
no to that question.
We rejected what we deemed “a strained construction” of the
text and instead adopted what we called “the customary, common
usage meaning” of the phrase “escaped taxation.” Id. We explained
that “Section 199.29 only authorizes the tax assessor to back-
assess intangible personal property which for any reason has
‘escaped taxation’—not to raise the valuation of intangible personal
property which has been erroneously valued.” Id. at 756-57. We
said that if the Legislature had “intended to grant the power to, and
to direct, the tax assessor to back-assess because of an inaccurate
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original valuation, we have no doubt it would, as it should, have
done so clearly and unequivocally in Section 199.29.” Id. at 757.
And we summed up our view of the matter by observing that
property “is either taxed or is not taxed. In the latter event only has
it ‘escaped taxation.’ ” Id. at 758. 1
The Simpson Court’s analysis is compelling, and we think that
it applies equally to the meaning of the phrase “escaped taxation” in
section 193.092(1). There is a commonsense distinction between
not being taxed at all and being undertaxed. And a typical speaker
would use the phrase “escaped taxation” to describe the former and
not the latter. Only property that is not taxed has “escaped
taxation.”2
1. In an opinion that we find persuasive, the Attorney General
also cited Simpson to support the opinion’s conclusion that section
193.092 does not authorize back-assessments to correct for the
“undervaluation of property.” The opinion answered no to the
question: “May an assessor of taxes in Florida back-assess
properties for years for which there were insufficient valuations of
the properties assessed?” See Op. Att’y Gen. Fla. 64-139 (1964).
2. By adopting this interpretation, we do not disturb the
holding of City of Coral Gables v. Fluvia Corp., 185 So. 621 (Fla.
1939), where this Court allowed a back-assessment after the initial
tax assessment had been invalidated by judicial decision.
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We see confirmation of this ordinary meaning in judicial
decisions that naturally use “escaped taxation” to mean “not taxed,”
even when the decisions do not explicitly define the phrase. For
example, in Schleman v. Connecticut General Life Insurance Co.,
9 So. 2d 197, 200 (Fla. 1942), we wrote: “[T]he appellants question
the right of the appellee to recover without showing that he owns no
other property which has escaped taxation; none that is assessed at
less than its full value; and none on which legally assessed taxes
have not been paid.” In State v. Beardsley, 82 So. 794, 820 (Fla.
1919), we wrote: “It may be said to hold this is to allow the property
to escape taxation; it being shown by the record that it was not
taxed in New York or elsewhere.” Id. at 820. In Superior Oil Co. v.
Mississippi ex rel. Knox, 280 U.S. 390, 395 (1930), Justice Holmes
wrote: “The only purpose of the vendor here was to escape taxation.
It was not taxed in Louisiana and hoped not to be in Mississippi.”
Similar examples abound, and courts’ usage of the phrase seems
almost universally one-sided—judges do not appear to use the
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phrase “escaped taxation” to refer to property that has been under-
taxed. 3
The highest courts of other jurisdictions have also concluded
that the concept of escaping taxation does not include being under-
taxed due to a mistaken valuation of property. For example, in
Pheasant Lane Realty Trust v. City of Nashua, 720 A.2d 73, 76 (N.H.
1998), the New Hampshire Supreme Court held that
“underassessed property” is not “within the scope of property which
escapes taxation.” Similarly, in a case decided much closer in time
to the enactment of section 193.092(1), the Mississippi Supreme
Court observed that the “usual, ordinary, [and] popular
signification” of property that has “escaped taxation” encompasses
only cases “where there never has been any actual assessment at
all of such property.” Adams v. Luce, 39 So. 418, 419 (Miss. 1905).
3. One possible exception can be found in this Court’s
decision in Root v. Wood, 21 So. 2d 133 (Fla. 1945). But this Court
criticized and receded from Root seven years later in Simpson,
observing that in the earlier case “we offered no reason for giving to
the words ‘escaped taxation’ a connotation different from the
customary, common usage meaning of said words.” Simpson, 59
So. 2d at 756.
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Turning back to the facts of this case, we conclude that
DeFrances’s property did not “escape taxation” for purposes of
section 193.092(1). Although the property was assessed based on
an incorrectly low valuation, the Property Appraiser does not
dispute the Second District’s conclusion that “[t]he entire parcel
and all the improvements were assessed and placed on the tax roll.”
DeFrances, 267 So. 3d at 530. And DeFrances timely paid her
taxes. Accordingly, we agree with the Second District that in these
circumstances section 193.092(1) does not give the Property
Appraiser authority to back-assess DeFrances’s property for 2014.
B.
The Property Appraiser criticizes the Second District’s
interpretation of section 193.092(1)—and by extension our
interpretation here—as artificially constraining the text. He asks us
to draw a distinction between underassessments caused by “clerical
errors” and those caused by errors in judgment. He concedes that
errors in judgment are not correctable through back assessments
under section 193.092(1). But he urges us to hold that the statute
requires property appraisers to impose back assessments when
clerical errors result in “taxable value” being lost.
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The problem with the Property Appraiser’s arguments is that
they are disconnected from anything the text says or fairly implies.
The text does not speak of “taxable value” escaping taxation. Nor
does the text mention—much less draw a distinction between—
clerical errors and errors in judgment. 4 In fact, if we were to read
the statutory phrase “escaped taxation” as encompassing the
under-taxation of property, the text would give us no basis to
categorically prohibit the use of back-assessments to correct errors
in judgment. Through its use of the phrase “escaped taxation,” the
Legislature drew the line between property that has been taxed and
property that has not been taxed, and that is the line that we must
enforce.
4. The Property Appraiser’s argument that we should decide
this case based on a distinction between clerical errors and errors
in judgment appears to borrow from case law interpreting a
different statute, section 197.122, Florida Statutes (2015). See
Smith v. Krosschell, 937 So. 2d 658, 661 (Fla. 2006) (explaining that
this statute addresses “the correction of mathematical,
administrative, or clerical error[s]” in the assessment roll but not
errors in judgment). Section 197.122 relates to corrections to the
assessment roll, not to the imposition of back taxes. And section
197.122 does not include the phrase “escaped taxation.” The
Property Appraiser does not rely on section 197.122 for the
authority to impose the back-assessment at issue in this case.
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The Property Appraiser leans heavily on this Court’s decision
in Korash v. Mills, 263 So. 2d 579 (Fla. 1972), but we think that
case supports our interpretation of the statute. In Korash, a
property appraiser made the mistake of assessing a parcel of land
without also assessing a hotel newly built on the land. Id. When
the property appraiser later issued a back-assessment taxing the
hotel building, the taxpayer objected. Id. This Court upheld the
back-assessment.
Critical to our analysis in Korash was our decision to treat the
taxation of the land and of the hotel as separate assessments. We
recognized that it would have been impermissible for the property
appraiser simply to “increase . . . the valuation of the total
property”, id. at 580, and then to assess back taxes. In our view, as
to the hotel, there had been no initial assessment—“there had been
no billing at all on the improvement.” Id. at 581. We described the
facts as involving “a complete omission reached for the first time
under s. 193.092.” Id. at 581 n.3. Consistent with the
interpretation we adopt today, our Court understood the statutory
phrase “escaped taxation” to mean “not taxed.”
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It is true that one sentence of our Korash opinion says that
“we have here an instance where the principal value of the property
has indeed ‘escaped’ taxation which is fairly within the
contemplation of” section 193.092. Id. at 581-82. But that was
simply a recognition of the fact that the (untaxed) hotel had a
substantially higher value than that of the underlying land. Before
we wrote that sentence, though, we already had established that
the hotel had “escaped taxation” because the property appraiser’s
error resulted in it not being taxed at all. By contrast, all of
DeFrances’s property (including any improvements) was taxed,
albeit based on an incorrectly low valuation. The Property
Appraiser’s reliance on Korash is misplaced.
Finally, the Property Appraiser invokes three cases from the
district courts of appeal: Robbins v. First National Bank of South
Miami, 651 So. 2d 184 (Fla. 3d DCA 1995); McNeil Barcelona
Associates, Ltd. v. Daniel, 486 So. 2d 628 (Fla. 2d DCA 1986); and
Straughn v. Thompson, 354 So. 2d 948 (Fla. 1st DCA 1978). These
cursory decisions (the two longest are three paragraphs) allowed
back-assessments of taxes after a property appraiser corrected
clerical errors. But only one of the decisions cites section
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193.092(1), and none even mentions—much less interprets—the
phrase “escaped taxation.” We do not find these decisions
persuasive or helpful for resolving the question presented here. 5
C.
Justice Lawson’s dissent offers an interpretation of the
statutory text that is more plausible than any interpretation
developed by the Property Appraiser himself. With a focus on the
beginning clauses of section 193.092(1), that dissent essentially
maintains that the text itself defines “escaped taxation” to mean a
situation “[w]hen it shall appear that any ad valorem tax might have
been lawfully assessed or collected upon any property in the state,
but that such tax was not lawfully assessed or levied.” Justice
Lawson reasons that, since our constitution and statutory law
require property to be assessed at its just value, and since that
5. Each party discusses and relies on rule 12D-8.006, which
the Department of Revenue adopted to guide property appraisers’
implementation of section 193.092. See Fla. R. Admin. Code R.
12D-8.006. The rule appears to embody the department’s attempt
to restate the holdings of Okeelanta Sugar Refinery, Inc. v. Maxwell,
183 So. 2d 567 (Fla. 4th DCA 1971) and Korash. We do not find
the rule helpful to the Property Appraiser’s case, and in any event
our state constitution precludes us from deferring to the
department’s interpretation of section 193.092. Art. V, § 21, Fla.
Const.
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concededly did not happen in DeFrances’s case, taxes were not
“lawfully assessed” and DeFrances’s property therefore “escaped
taxation.”6
We believe that the better reading of the statute treats these
clauses as setting out the conditions under which property that
“escaped taxation” must be back-assessed. It is possible for
property to escape taxation—that is, not be taxed—for reasons that
are lawful. For example, the property might have been exempt from
taxation in previous years. Or, in the case of personal property, it
might not have existed or been subject to the taxing authority’s
6. As support for its interpretation, this dissent also points to
the title to chapter 9180, noting this language in that title: “An Act
to Authorize the Assessment and Collection of Taxes upon any
Property in the State of Florida . . . as to which an Invalid
Assessment . . . shall appear to have been made.” Putting aside the
question whether the Property Appraiser’s initial 2014 assessment
of DeFrances’s property was in any sense “invalid,” we think that
this portion of the Act’s title is simply a reference to the following
sentence in the statutory text: “Provided, if real or personal
property be assessed for taxes, and because of litigation delay
ensues and the assessment be held invalid the taxing authorities,
[sic] may re-assess such property within the time herein provided
after the termination of such litigation.” Ch. 1923-9180, § 1, Laws
of Fla. (1923). This portion of the text speaks to a situation where
property escapes taxation (is not taxed) because of a judicial
decision invalidating an assessment; that is not what happened
here.
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jurisdiction. The clauses that the dissent focuses on clarify that,
for a back-assessment to be required, the property that “escaped
taxation” must also have been liable to taxation in the first place. 7
If section 193.092(1) limits back-assessments to property that
has “escaped taxation,” then we think it unlikely that the
Legislature would have sought to redefine that critical phrase
through such indirect means and by giving it such an unnatural
meaning. Justice Lawson’s dissent gives the text a meaning that
would have been a major innovation in our State’s omitted property
law and that would have displaced the well-entrenched ordinary
meaning of “escaped taxation.” Even if one assumes that this
dissent has identified a plausible (though not better) interpretation
of the statute, the Property Appraiser still loses. The “general rule”
is that “statutes providing for taxation are to be construed strictly
7. Given our conclusion that DeFrances’s property did not
“escape taxation,” we need not resolve the question whether the
Property Appraiser’s initial 2014 assessment was “lawful” for
purposes of section 193.092(1). At a minimum, this case appears
to have been litigated on the assumption that the initial 2014
assessment complied with the procedural requirements governing
assessments and that DeFrances was obligated to pay her initial
2014 tax bill.
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as against the state and in favor of the taxpayer.” Simpson, 59 So.
2d at 758.
Legislatures know how to authorize do-overs when a property
appraiser under-taxes property because of an incorrect valuation.
To give just one example, Montana law allows back-assessments of
taxes whenever it is discovered that “any taxable property of any
person has in any year escaped assessment, been erroneously
assessed, or been omitted from taxation.” Mont. Code Ann. § 15-8-
601(1)(a) (2021). Our own Legislature has the discretion to enact
such a law, but we do not believe it has done so in section
193.092(1).
D.
Justice Polston’s dissent takes issue with the premise that the
entirety of DeFrances’s property was assessed. That dissent instead
claims that “4 lots” (out of the five lots into which the county’s
preconversion mass appraisal system had divided DeFrances’s
single tax parcel) were not assessed.
This argument contradicts the Property Appraiser’s own
position in this case. As we have explained, the Property Appraiser
concedes that here “the entire parcel was (technically) assessed.”
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The Property Appraiser says that this case involves an error
“essentially identical” to that in Robbins. And he then goes on to
describe Robbins as a case where “[t]he entire parcel, as well as the
improvements, were assessed and included on the tax roll, but the
property was undervalued as a result of the [clerical] error.”
Finally, as we also have explained, the Property Appraiser
acknowledged in discovery that DeFrances’s “land was valued as a
whole” and that therefore “[t]here is no specific, defined area of land
that escaped taxation.”
We will end where we began, by focusing on the text of the
statute. Section 193.092(1) mandates back assessment of “such
property as may have escaped taxation.” Upon the initial
assessment of DeFrances’s property in 2014, the county’s mass
appraisal system treated that property as one parcel made up of
one lot. 8 As the Property Appraiser has conceded, taxes were
assessed on all of DeFrances’s property. Section 193.092(1) simply
does not apply.
8. DeFrances, 267 So. 3d at 527 n.1 (“The new system,
however, used a different methodology (per front foot versus per lot)
to arrive at the value of the parcel, which it treated as a single
parcel made up of a single lot.”).
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III.
Property has “escaped taxation” when it is not taxed, not
when it is under-taxed because of a mistaken under-valuation.
We approve the decision of the Second District Court of
Appeal.
It is so ordered.
CANADY, C.J., and LABARGA and COURIEL, JJ., concur.
POLSTON, J., dissents with an opinion, in which LAWSON, J.,
concurs.
LAWSON, J., dissents with an opinion, in which POLSTON, J.,
concurs.
GROSSHANS, J., did not participate.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
POLSTON, J., dissenting.
Because of a computer error in the property appraiser’s office,
4 lots that are part of 1 overall parcel were omitted from
assessment, and the property homestead exemption was
misapplied. The Florida Legislature, pursuant to section
193.092(1), Florida Statutes (2013), requires the property appraiser
in these circumstances to correct this mistake with back
assessments for the years missed so that the property does not
escape taxation. The majority treats this circumstance, a partial
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omission, the same as a change in judgment of the valuation or an
underassessment. I disagree. This error involves the omission of
assessment amounts relating to 4 lots, not a difference in how those
4 lots should be valued according to section 193.011, Florida
Statutes (2013). Their inclusion in an overall parcel does not
change how the statute applies. Accordingly, I agree with Petitioner
Bill Furst (Furst) (the Property Appraiser of Sarasota County), the
Property Appraiser Association, and the Florida Department of
Revenue, that the partial omission should be assessed by
backdating as required by the plain meaning of section 193.092(1)
and our binding precedent in Korash v. Mills, 263 So. 2d 579 (Fla.
1972).
My disagreement with the majority is best demonstrated
through a hypothetical: If the property appraiser, through a clerical
error, valued a 1,000-acre parcel of land as 10 acres, the majority
would agree with Respondent Susan DeFrances (DeFrances) that
this error could not be back-assessed through section 193.092(1)
because there was some assessment of the property as a whole,
albeit at the clearly wrong 10 acres. I would apply the statute and
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our precedent to conclude that 990 acres were omitted by error and
thereby escaped taxation.
I respectfully dissent.
I. BACKGROUND
Since 1993, DeFrances has held a life estate in a large parcel
of waterfront property in Sarasota County. The property consists of
1 overall parcel made up of 5 separate lots. Two of the lots contain
single-family residences: DeFrances lives in one and the other is a
rental home. From 1993-2013, the property’s value was based on
the sum of all 5 lots minus an ad valorem homestead tax exemption
on 78% of the property. In 2013, the property had an assessed
value of $2,269,560. Throughout DeFrances’ ownership of the
land, the value of the property was correctly assessed, and
DeFrances paid the associated taxes.
At some point between 2013-2014, the Property Appraiser of
Sarasota County converted the county’s mass appraisal computer
program from “AssessPro” to “Custom CAMA.” During the program
conversion, what has been characterized as a clerical or
administrative error occurred: the transfer only accepted 1 value
for DeFrances’ property rather than all of the inputted factors from
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AssessPro. In addition, DeFrances’ homestead property exemption
was erroneously applied to 100% of the property. As a result of
these errors, the Property Appraiser “inadvertently and incorrectly”
assessed the property at $302,400 for the 2014 tax year. The error
went unnoticed, and a tax bill based on that amount was sent to
DeFrances. She promptly paid the tax bill of $4,439.41.
The details of the error are explained in the affidavit of Jason
Clevenger, a Deputy Sarasota County Property Appraiser, in
support of Furst’s motion for summary judgment. In the affidavit,
Clevenger attested to the details of the clerical error, which are
uncontroverted:
6. During 2013-2014, the Property Appraiser
instituted a conversion of the Computer Aided Mass
Appraisal program (“CAMA System”) from AccessPro to
Custom CAMA. In performing the conversion, many
uploads of property parcel details were required. They
were not accomplished in one omnibus “data transfer”.
7. As part of the conversion, each classification of
property was being assigned a consistent form of baseline
data analysis or determination. As an example, all
“tidally” influenced real property was being converted to a
“front foot” basis from any other method of analysis, such
as “acreage” or “lot”. This process was intended to
provide a more uniform method of analysis and result in
producing a more uniform tax roll.
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8. In the process of the conversion, the subject
parcel, ID# 0108N15-0019, was not properly converted to
the new CAMA System. Prior to the conversation [sic] for
the 2013 tax roll, the subject parcel had been reflected
on the Property Appraiser’s records as five (5) lots
contained under one parcel ID number. Lots 44 and 45
Buccaneer Bay Plat Book 24 page 36 were considered
one lot as an improvement located on the site “straddled”
the lot line between Lots 44 and 45. Lot 46 was
classified as an improved lot and it contained a separate
residential structure. Lot 42 and part of Lot 41,
considered as one site, Lots 43 and 47, were shown as
separate lots for assessment purposes. The total “Just”
Value was $2,269,560, which was less than the 2012
Just Value of $3,675,400.00, which reduction reflected
changes in the market.
9. When the upload for the conversion of the
subject parcel occurred, the system only accepted one
value for the subject property, omitting the prior factors
used in AssessPro rather than the data that produced five
(5) assessable lots from the 2013 (and prior years)
property records. This failure to convert resulted in the
subject property being carried on the records as one (1) lot
with an assigned value based upon one (1) lot of
$65,000.00, not the five (5) lots as it had been previously
assessed. In addition, the homestead exemption was
applied to the entire property and not to 78% of the
property as had been applied in 2013 and before.
10. This error was not immediately detected and
the 2014 TRIM Notice and 2014 tax bill each were issued
upon the erroneous information. . . .
11. In July 2015, the error was detected when
reconciling the 2015 tax roll to the 2014 tax roll.
(Emphasis added.)
- 25 -
When the Property Appraiser became aware of the error, he
corrected the error in the CAMA system to reflect 1 parcel of 5 lots,
and he corrected the homestead exemption. As a result of the
update in the CAMA system, the Property Appraiser issued a Notice
of Proposed Increase in Assessed Value and Taxes to DeFrances,
which informed her that the 2014 assessment of her property was
being retroactively increased to $2,473,518. She also received a bill
from the Tax Collector for $26,254.30 in back taxes for 2014.
On December 4, 2015, DeFrances filed a 3-count declaratory
judgment action against Petitioner Bill Furst, Property Appraiser of
Sarasota County; Barbara Ford-Coates, Tax Collector of Sarasota
County; and Marshall Stranburg, Executive Director of the Florida
Department of Revenue, challenging (1) the 2014 back taxes, (2) the
2015 assessed value, and (3) the 2014 assessed value.
The circuit court granted Furst’s motion for summary
judgment as to all 3 counts. The circuit court concluded in its
Final Summary Judgment that the Property Appraiser was
obligated to correct the error under section 193.092(1) and to
assess the property correctly by adjusting the appropriate factors
that would have otherwise allowed the property to escape taxation:
- 26 -
FINAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court upon
the Defendant, Bill Furst’s Motion for Summary
Judgment as to All Counts (in which Defendant,
Department of Revenue joined), and Plaintiffs Cross-
Motion for Summary Judgment, and the Court, having
reviewed the pleadings and documents entered in
evidence, having heard argument of counsel, and being
otherwise fully informed in the premises, rules as follows:
I. Uncontroverted facts of record:
A. The Plaintiff, Susan K. DeFrances is the
owner of a life estate on certain real property
located at 7326 Captain Kidd Avenue in
Sarasota, Florida and identified as Parcel No.
0109-15-0019 (the “Property”). The Property
consists of one overall parcel made up of 5
separate lots. Two of the lots are improved
with single family residences.
B. Prior to 2014, the Property was assessed as
one parcel consisting of 5 separate lots, with
the assessment based on the value of 5 lots,
together with the improvements on two of the
lots. The Plaintiff was granted an ad valorem
real property homestead tax exemption on
78% of the Property.
C. During the years 2013-2014 the Property
Appraiser instituted a conversion in their mass
appraisal computer program from “AssessPro”
to “Custom CAMA”.
D. During the conversion from “AssessPro” to
“Custom CAMA” a clerical/administrative error
occurred in that the transfer only accepted one
value for the Property, rather than all the
- 27 -
inputted factors from “AssessPro”. In addition,
the homestead exemption was applied to the
entire property (instead of only 78% of the
property). (The subject clerical/administrative
error described herein shall be referred to as
“the Error”).
E. As a result of the Error, the Property Appraiser
inadvertently, and incorrectly, assessed the
Property of “one parcel of five lots” as “one
parcel of one lot”, with an incorrect total
assessed value of $302,400.00. A tax bill for
an amount based upon the one parcel as one
lot was generated and provided to the Plaintiff
utilizing the miscalculated assessment.
Plaintiff promptly paid the tax bill.
F. The Error is a clerical/administrative error.
The Error resulted in a portion of the Property
escaping taxation.
G. When the Property Appraiser became aware of
the Error, the Property Appraiser corrected the
Error, and updated the Custom CAMA system
to show the one parcel of five lots that make
up the assessed parcel to establish an
accurate assessment of the Property. As a
result of the correction of the error and update
of the Custom CAMA system, the Property
Appraiser issued a notice of proposed increase
in assessed value to the Plaintiff.
H. Following the increase in the assessed value of
the Property, the Plaintiff commenced the
instant case, which includes three Counts
summarized as follows:
Count I: seeking cancellation of the 2014
back assessment, premised on the
argument that, because the Property was
- 28 -
assessed in 2014, the Property did not
“escape taxation” as that phrase is used
in §193.092(1).
Count II: seeking to limit the 2015
assessed value of the Property, pursuant
to the “Save our Homes Cap” (codified in
Article VII, Section 4 of the Florida
Constitution and Section 193.155,
Florida Statutes), to no more than 1.5%
more than the erroneous 2014
assessment which resulted from the
Error.
Count III: seeking to apply the “Save our
Homes Cap” (codified in Article VII,
Section 4 of the Florida Constitution and
Section 193.155, Florida Statutes), to the
entire property.
II. Conclusions of law.
A. The Property Appraiser was authorized to
correct the Error pursuant to Fla. Stat.
§193.092(1).
B. The Property Appraiser was authorized, and
obligated, to correct the Error and assess the
Property correctly by adjusting the factors
applicable to the parcel for the 2014
assessment and the resulting assessment that
would have otherwise allowed a portion of the
Property to escape taxation.
C. The “Save Our Homes” cap (codified in Article
VII, Section 4 of the Florida Constitution and
Section 193.155, Florida Statutes) limits the
increase in the annual assessed value of
homestead residences to 3% or the change in
- 29 -
the Consumer Price Index, whichever is less
and only applies to the assessment of the
homestead.
III. Holding.
A. The Property Appraiser properly assessed the
Property at a capped value of $1,983,725 for
2014. The Property Appraiser correctly
assessed the Property at a capped value of
$2,054,128 for 2015.
B. The Court finds that the Property Appraiser
properly apportioned that portion of the
Property used for commercial purposes from
the homestead portion of the Property.
C. The uncontroverted evidence submitted by the
Property Appraiser established that the
Property Appraiser correctly followed Florida
law when calculating the increase for both the
2014 and 2015 assessments of the Property.
The Property Appraiser correctly limited the
increase on the homestead portion (78%) of
the total assessed value by the Save Our
Homes Cap, and limited the increase on the
commercial portion (22%) to 10% (as required
under §193.1554, Florida Statutes).
Therefore, it is ORDERED AND ADJUDGED:
Bill Furst’s Motion for Summary Judgment is
GRANTED as to all Counts, and the Plaintiffs Cross-
Motion for Summary Judgment is DENIED. Final
Summary Judgment is therefore entered in favor of
Defendants Bill Furst and the Department of Revenue, as
to all Counts. It is therefore ADJUDGED that Plaintiff
take nothing by this action and that Defendants
shall go hence without day.
- 30 -
I agree with the trial court’s ruling.
II. ANALYSIS
Section 193.092(1), the relevant Florida Statute at issue,
states:
(1) When it shall appear that any ad valorem tax
might have been lawfully assessed or collected upon any
property in the state, but that such tax was not lawfully
assessed or levied, and has not been collected for any
year within a period of 3 years next preceding the year in
which it is ascertained that such tax has not been
assessed, or levied, or collected, then the officers
authorized shall make the assessment of taxes upon
such property in addition to the assessment of such
property for the current year, and shall assess the same
separately for such property as may have escaped
taxation at and upon the basis of valuation applied to
such property for the year or years in which it escaped
taxation, noting distinctly the year when such property
escaped taxation and such assessment shall have the
same force and effect as it would have had if it had been
made in the year in which the property shall have
escaped taxation, and taxes shall be levied and collected
thereon in like manner and together with taxes for the
current year in which the assessment is made. But no
property shall be assessed for more than 3 years’ arrears
of taxation, and all property so escaping taxation shall be
subject to such taxation to be assessed in whomsoever’s
hands or possession the same may be found, except that
property acquired by a bona fide purchaser who was
without knowledge of the escaped taxation shall not be
subject to assessment for taxes for any time prior to the
time of such purchase, but it is the duty of the property
appraiser making such assessment to serve upon the
previous owner a notice of intent to record in the public
- 31 -
records of the county a notice of tax lien against any
property owned by that person in the county. Any
property owned by such previous owner which is situated
in this state is subject to the lien of such assessment in
the same manner as a recorded judgment. Before any
such lien may be recorded, the owner so notified must be
given 30 days to pay the taxes, penalties, and interest.
Once recorded, such lien may be recorded in any county
in this state and shall constitute a lien on any property of
such person in such county in the same manner as a
recorded judgment, and may be enforced by the tax
collector using all remedies pertaining to same; provided,
that the county property appraiser shall not assess any
lot or parcel of land certified or sold to the state for any
previous years unless such lot or parcel of lands so
certified or sold shall be included in the list furnished by
the Chief Financial Officer to the county property
appraiser as provided by law; provided, if real or personal
property be assessed for taxes, and because of litigation
delay ensues and the assessment be held invalid the
taxing authorities, may reassess such property within the
time herein provided after the termination of such
litigation; provided further, that personal property
acquired in good faith by purchase shall not be subject to
assessment for taxes for any time prior to the time of
such purchase, but the individual or corporation liable
for any such assessment shall continue personally liable
for same. As used in this subsection, the term “bona fide
purchaser” means a purchaser for value, in good faith,
before certification of such assessment of back taxes to
the tax collector for collection.
Applying the plain terms of the statute to these facts, any
property that is unlawfully assessed and escapes taxation qualifies
under the statute. As the trial court ruled, ad valorem tax might
have been lawfully assessed upon the 4 lots but it was not. I agree
- 32 -
with Justice Lawson’s separate dissenting opinion explaining this
provision of section 193.092(1). However, the majority erroneously
dismisses application of this provision by interpreting the phrase
“escaping taxation” as applying only to property that is wholly
omitted, not partially omitted. Majority op. at 9. But there is no
language in the statute that makes it applicable only to entire
omissions from assessment, and such interpretation is contrary to
this Court’s precedent.
In Korash v. Mills, 263 So. 2d 579, 580 (Fla. 1972), due to a
clerical error, the property appraiser omitted a newly constructed
hotel. The property record card for the land was accidentally
separated from the property record card for the improvements,
causing only the value of the land to be entered on the tax roll. Id.As a result, there was not a composite assessed value of both land
and improvements. Id. Upon later discovery of the error, the
property appraiser attempted to back assess the value of the
improvements, and the taxpayer contested the back assessment.
Id. This Court upheld the back assessment, concluding that “we
have here an instance where the principal value of the property has
indeed ‘escaped’ taxation which is fairly within the contemplation
- 33 -
of” section 193.092 and that “[n]either is it a total escape of taxation
but it is a partial one.” Id. at 581. This Court further explained, “If
there is no new judgment being exercised, and property not
theretofore included is just late in being enrolled and billed . . . it is
a proper assessment and is payable . . . as ‘escaped’ property.” Id.The Court distinguished a permissible basis for a back assessment
by the property appraiser (the erroneous omission of a hotel from
taxation) from an impermissible basis (a “change in judgment” such
as a change in valuation after the certification of the tax roll for the
year). Id. at 581-82. This Court also explained that its “holding is
consistent with the basic purpose of taxation: That all taxpayers
share in proportion to their assessments, the support of their
government and the protection and services afforded to their
property and to themselves, and that none bears an added or unfair
burden by reason of other taxpayers not paying their just share.”
Id. at 582.
The majority attempts to distinguish Korash as somehow
supportive of its interpretation in this case, see majority op. at 14,
and incorrectly states that all of DeFrances’ property was assessed,
see majority op. at 3, 15. I disagree. This Court in Korash
- 34 -
explained the case as involving not “a total escape of taxation but
. . . a partial one.” 263 So. 2d at 581. Similar to the hotel in
Korash that escaped taxation because it was not included, 4 of
DeFrances’ lots escaped taxation as they were similarly not
included. The majority states that this argument contradicts the
Property Appraiser’s own position in this case, citing one line of the
Property Appraiser’s Initial Brief stating, “the entire parcel was
(technically) assessed.” Majority op. at 19. However, I do not
believe this is an accurate depiction of the Property Appraiser’s
argument in this case. The entire quote from the Initial Brief is as
follows: “In the present case, while the entire parcel was
(technically) assessed, it was assessed based on clerical errors that
resulted in the parcel’s component parts (multiple lots) being
ignored or forgotten.” Initial Br. at 22-23. The Property Appraiser’s
Initial Brief further provides:
Under “AssessPro” the Property was inputted as a single
parcel with five lots, such that the value of all five lots
was attributed to the single parcel. During the
conversion from “AssessPro” to “Custom CAMA” a clerical
error occurred as to the value of the land in that the
value of the entire parcel was calculated based on only
one of five lots, rather than all of the lots. Moreover,
certain factors were not included in the land value
calculation (by way of example, the waterfront factor),
- 35 -
which resulted in the property being carried on the
records as one lot with the assigned value of only one lot,
rather than all five as had been historically assessed.
Initial Br. at 8. The Property Appraiser’s Initial Brief also argued,
“In this case the particular error resulted in a parcel of five
specifically identifiable lots being assessed based only on the value
of one lot. The value of four lots was effectively skipped or
forgotten.” Initial Br. at 17. Returning to my earlier hypothetical,
when a clerical error on a 1,000-acre property results in valuing it
at 10 acres, the 990 acres are omitted from assessment and escape
taxation. As the trial court ruled here, the 4 lots omitted through a
clerical error from the total parcel of 5 lots resulted in escaped
taxation according to a plain reading of the statute.
This Court’s decision in Korash is also the basis by which the
Florida Department of Revenue has defined “escape taxation” in
Florida Administrative Code Rule 12D-8.006 titled, “Assessment of
Property for Back Taxes.” Citing Korash and the applicable statute,
the rule states:
(1) “Escape taxation” means to get free of tax, to
avoid taxation, to be missed from being taxed, or to be
forgotten for tax purposes. Improvements, changes, or
additions which were not taxed because of a clerical or
some other error and are a part of and encompassed by a
- 36 -
real property parcel which has been duly assessed and
certified, should be included in this definition if back
taxes are due under Section 193.073, 193.092 or
193.155(8), F.S. Property under-assessed due to an error
in judgment should be excluded from this definition.
Korash v. Mills, 263 So. 2d 579 (Fla. 1972).
Fla. Admin. Code R. 12D-8.006(1).
Contrary to the majority’s opinion and the Second District’s
decision below, the 4 lots missing from the parcel at issue fit
squarely within this definition. Rule 12D-8.021 of the Florida
Administrative Code explains in detail the distinction between
errors subject to correction versus those that are changes in the
judgment of the property appraiser.9 The omission of these 4 lots is
subject to correction and back assessment as a clerical error.
9. Rule 12D-8.021(2) provides in pertinent part that:
(a) The following errors shall be subject to
correction:
1. The failure to allow an exemption for which an
application has been filed and timely granted
pursuant to the Florida Statutes.
2. Exemptions granted in error.
3. Typographical errors or printing errors in the
legal description, name and address of the owner of
record.
4. Error in extending the amount of taxes due.
5. Taxes omitted from the tax roll in error.
6. Mathematical errors.
7. Errors in classification of property.
- 37 -
8. Clerical errors.
9. Changes in value due to clerical or
administrative type errors.
....
(b) The correction of errors shall not be limited to
the preceding examples, but shall apply to any errors of
omission or commission that may be subsequently
found.
....
(d) The following is a list of circumstances which
involve changes in the judgment of the property appraiser
and which, therefore, shall not be subject to correction or
revision, except for corrections made within the one-year
period described in subparagraph (2)(a)24. of this rule
section. The term “judgment” as used in this rule
section, shall mean the opinion of value, arrived at by the
property appraiser based on the presumed consideration
of the factors in Section 193.011, F.S., or the conclusion
arrived at with regard to exemptions and determination
that property either factually qualifies or factually does
not qualify for the exemption. It includes exercise of
sound discretion, for which another agency or court may
not legally substitute its judgment, within the bounds of
that discretion, and not void, and other than a
ministerial act. The following is not an all inclusive list.
1. Change in mobile home classification not in
compliance with attorney general opinion 74-150.
2. Extra depreciation requested.
3. Incorrect determination of zoning, land use or
environmental regulations or restrictions.
4. Incorrect determination of type of construction
or materials.
5. Any error of judgment in land or improvement
valuation.
6. Any other change or error in judgment, including
ordinary negligence which would require the
exercise of appraisal judgment to determine the
- 38 -
III. CONCLUSION
Because a computer error caused 4 lots to escape taxation, I
would hold that the back assessment was required by the plain
meaning of section 193.092(1) and our binding precedent in
Korash, quash the Second District’s decision, and remand with
instructions to affirm the trial court’s final summary judgment.
LAWSON, J., concurs.
LAWSON, J., dissenting.
This case presents a straightforward statutory construction
question: When, under section 193.092(1), Florida Statutes (2020),
must “the officers authorized” to assess and collect “ad valorem tax”
on “property in the state” assess and collect tax for a prior year “in
addition to the assessment of such property for the current year”?
effect of the change on the value of the property or
improvement.
7. Granting or removing an exemption, or the
amount of an exemption.
8. Reconsideration of determining that
improvements are substantially complete.
9. Reconsideration of assessing an encumbrance or
restriction, such as an easement.
Fla. Admin. Code R. 12D-8.021(2).
- 39 -
The plain language of the statute provides the straightforward
answer.
In unambiguous language, section 193.092(1) states that the
assessing authority must assess “back” taxes 10 “[w]hen it shall
appear that any ad valorem tax might have been lawfully assessed
or collected upon any property in the state, but that such tax was
not lawfully assessed or levied, and has not been collected,” and
provides a three-year limit on back assessments. Id. (emphasis
added).
“Lawfully” means “being in harmony with the law” or as
“constituted, authorized, or established by law.” Merriam-Webster’s
Collegiate Dictionary 705 (11th ed. 2014). Florida’s Constitution
commands that “[b]y general law regulations shall be prescribed
which shall secure a just valuation of all property for ad valorem
taxation,” art. VII, § 4, Fla. Const., with some exceptions not
applicable in this case. “Just valuation” is synonymous with “fair
10. Section 193.092(1) appears under the title “Assessment of
property for back taxes.” And “back taxes” describes taxes assessed
and collected after the time set for the assessment by statute. In
Florida, ad valorem taxes are assessed annually. § 192.042, Fla.
Stat. (2020).
- 40 -
market value.” Mazourek v. Wal-Mart Stores, Inc., 831 So. 2d 85, 88
(Fla. 2002) (citing Valencia Ctr., Inc. v. Bystrom, 543 So. 2d 214,
216 (Fla. 1989)). Consistent with article VII, section 4(d)(1) of the
Florida Constitution, general law requires all sixty-seven property
appraisers to annually assess all property in their respective
counties, see §§ 192.011, .042, Fla. Stat. (2014), and details the
factors that a property appraiser “shall take into consideration” in
“arriving at just valuation” as required by the Florida Constitution,
§ 193.011, Fla. Stat. (2014). The law requires that this “just”
valuation serves as the basis for the property taxes collected on all
non-exempt properties. See art. VII, § 4, Fla. Const.
Therefore, property taxes would be levied as established by or
in harmony with Florida law only if they were based upon a just
value assessment using the factors set forth in section 193.011.
What the law explained above means for this case is that
section 193.092(1) required a back assessment in 2015 when the
Sarasota County Property Appraiser discovered the 2014 erroneous
valuation of a multi-million-dollar five-lot waterfront parcel at a
fraction of its just value in violation of section 193.011. This is
because it then “appear[ed]” that “ad valorem tax [that] might have
- 41 -
been lawfully assessed” pursuant to section 193.011 had not been
“lawfully assessed.” § 193.092(1), Fla. Stat. Because the property
was not valued in accordance with Florida law in 2014, ad valorem
tax that might have been lawfully assessed and collected was
neither assessed nor collected. It also appears that the appraiser
inadvertently extended the homestead tax exemption to nonexempt
property, providing a second reason why ad valorem tax that might
have been lawfully assessed and collected on this property was not
assessed or collected in 2014. See §§ 196.001, .015-.061, Fla. Stat.
(2020) (explaining that exemptions are not extended to nonexempt
property and detailing the processes appraisers must follow to
assure that the homestead exemption is not extended to
nonhomestead property).
In reaching its contrary conclusion, the majority essentially
rewrites section 193.092(1) as follows:
When it shall appear that any ad valorem tax real
property might have been lawfully assessed and taxed or
collected upon any property in the state, but that such
property tax was not lawfully assessed . . . then the
officers authorized shall make the assessment of taxes
upon such property in addition to the assessment of
such property for the current year, and shall assess the
same separately for such property . . . .
- 42 -
In other words, the majority reads the statute as requiring back
assessment only when the assessing authority discovers that it has
missed an entire parcel altogether, such that no tax is assessed or
collected on the property. The majority justifies this rewrite based
upon its narrow focus on, and analysis of, the phrase “escaped
taxation,” which appears after the operative language of the statute
discussed above. § 193.092(1), Fla. Stat.
However, reading the statute as a whole, it is clear that
“escaped taxation” is nothing more than a shorthand reference to
the conditions requiring a back assessment—which are plainly
described at the beginning of the statute. In pertinent part, the
statute reads:
When it shall appear that any ad valorem tax might have
been lawfully assessed or collected upon any property in
the state, but that such tax was not lawfully assessed or
levied, and has not been collected for any year within a
period of 3 years next preceding the year in which it is
ascertained that such tax has not been assessed, or
levied, or collected, then the officers authorized shall
make the assessment of taxes upon such property in
addition to the assessment of such property for the
current year, and shall assess the same separately for
such property as may have escaped taxation at and upon
the basis of valuation applied to such property for the
year or years in which it escaped taxation, noting
distinctly the year when such property escaped taxation
and such assessment shall have the same force and
- 43 -
effect as it would have had if it had been made in the
year in which the property shall have escaped
taxation . . . .
Id.
The statute’s history underscores why the phrase “escaped
taxation” must be read to refer back to tax that could have been but
was not “lawfully assessed or collected.” The majority is correct
that Florida’s 1895 tax statute only required back assessment
whenever an “assessor . . . discover[s] that any land in his county
was omitted in the assessment roll of either or all of the three
previous years.” Ch. 4322, § 24, Laws of Fla. (1895). Therefore,
under the 1895 statute, only land that was missed entirely—that
had escaped valuation altogether—was subject to back assessment.
The 1899 enactment that added the phrase “escaped taxation”
replaced the language limiting back assessments to land that had
escaped valuation altogether and instead required back assessment
upon discovery of land that had “for any reason, escaped taxation
for all or any of the three previous years.” Ch. 4663, § 1, Laws of
Fla. (1899) (emphasis added). Were we deciding this case in 1899,
the debate would properly center on whether back assessment was
required for land that had escaped some tax because the valuation
- 44 -
had not been conducted in accordance with the law (as arguably
suggested by the “for any reason” language) or whether back
assessment was still required only for land that wholly escaped
valuation (as clearly directed by the 1895 language that had been
replaced).
However, any potential ambiguity was cleared up in 1923
when the Legislature enacted chapter 9180, Laws of Florida, titled:
AN ACT to Authorize the Assessment and Collection of
Taxes upon any Property in the State of Florida upon
which Ad Valorem Taxes could have been Lawfully
Assessed for any Year or Years within three Years
Previous to the Year in which such Assessment shall be
made when the Taxes which might have been Lawfully
Assessed against such Property for any cause have not
been Paid, or to which an Invalid Assessment or Sale
shall appear to have been made.
Ch. 9180, Laws of Fla. (1923) (emphasis added).
Although the “or to which an Invalid Assessment . . . shall
appear to have been made” language is not repeated in the text, it
does demonstrate that the Legislature understood that its operative
language would require back assessment whenever land “escaped
taxation” due to an invalid assessment, even if some tax had been
- 45 -
paid. 11 Additionally, the 1923 enactment unambiguously placed a
duty on the appraiser to assess back taxes “[w]hen it shall appear
that any ad valorem tax might have been lawfully assessed or
collected upon any property in the State of Florida, but that such
tax was not lawfully assessed or levied.” Ch. 9180, § 1. This
language is materially identical to the operative language in the
current version of section 193.092(1). It was with the 1923 act that
Florida’s Legislature replaced the “for any reason, escaped taxation”
language with the operative language analyzed above and retained
the phrase “escaped taxation” in a subsequent clause as a
shorthand reference to the unambiguously stated conditions under
which an assessing authority “shall” back assess. See ch. 9180,
§ 1, Laws of Fla. (1923).
11. Attempting to shift the focus off of the invalidity of the
assessment at issue, the majority posits that this portion of the
1923 act’s title refers to statutory text that extends the deadline to
back assess following a judicial determination of invalidity. See
majority op. at 17 n.6. Putting aside that the statute’s plain
language compels us to focus on the invalidity of the assessment,
the majority cannot be correct, or else the Legislature would have
used the words “were held to have been made” rather than “shall
appear to have been made.”
- 46 -
As we explained in Ham v. Portfolio Recovery Assocs., LLC, 308
So. 3d 942, 946–47 (Fla. 2020), when interpreting statutes,
we follow the “supremacy-of-text principle”—namely, the
principle that “[t]he words of a governing text are of
paramount concern, and what they convey, in their
context, is what the text means.” Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts
56 (2012). We also adhere to Justice Joseph Story’s view
that “every word employed in [a legal text] is to be
expounded in its plain, obvious, and common sense,
unless the context furnishes some ground to control,
qualify, or enlarge it.” Advisory Op. to Governor re
Implementation of Amendment 4, the Voting Restoration
Amendment, 288 So. 3d 1070, 1078 (Fla. 2020) (quoting
Joseph Story, Commentaries on the Constitution of the
United States157-58 (1833), quoted in Scalia & Garner,
Reading Law at 69).
Adherence to these principles of textual analysis compels the
conclusion that section 193.092(1) requires back assessment under
the circumstances of this case. No party disputes that Florida law
required the property appraiser to assess this property at fair
market value. No party disputes that the appraiser failed in this
duty such that the property was not assessed at just value as
lawfully required. As a result, the property escaped taxation that
was required to be assessed and collected by Florida law. While the
majority is correct that we should “discern the text’s meaning as it
would have been understood by a reasonable reader, fully
- 47 -
competent in the language, at the time of its enactment,” majority
op. at 6, there is nothing to suggest that the operative words
“lawfully assessed” have changed in meaning over the last century;
that the phrase “escaped taxation” was in any way intended to
override the operative language of the statute; or that “escaped
taxation” would have been understood in context as having the very
constraining meaning ascribed to it by the majority.
I would quash the decision of the Second District Court of
Appeal and remand for further proceedings in which the statute is
applied as plainly written.
POLSTON, J., concurs.
Application for Review of the Decision of the District Court of Appeal
Class of Constitutional Officers
Second District - Case No. 2D17-3973
(Sarasota County)
J. Geoffrey Pflugner, Anthony J. Manganiello, Jason A. Lessinger,
and Mark C. Dungan of Icard, Merrill, Cullis, Timm, Furen &
Ginsburg, P.A., Sarasota, Florida,
for Petitioner, Bill Furst, as Property Appraiser of Sarasota
County, Florida
Ashley Moody, Attorney General, and Robert P. Elson, Senior
Assistant Attorney General, Tallahassee, Florida,
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for Petitioner, Jim Zingale, as Executive Director of the State of
Florida Department of Revenue
Sherri L. Johnson of Johnson Legal of Florida, P.L., Sarasota,
Florida,
for Respondent, Susan K. DeFrances
Loren E. Levy and Stuart W. Smith of The Levy Law Firm,
Tallahassee, Florida,
for Amicus Curiae The Property Appraisers’ Association of
Florida, Inc.
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