5D04-1513 Mullins v. Colbert

SUPREME COURT CASES

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D04-1513

Case Date: 03/28/2005

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2005 DARRELL MULLINS, Appellant, v. CAROL LEE COLBERT, BARTON J. BRADSHAW, ET AL., Appellee. ________________________________/ Opinion filed April 1, 2005 Appeal from the Circuit Court for Citrus County, Patricia Thomas, Judge. Joseph M. Mason, Jr., and Carole Joy Barice of McGee & Mason, P.A., Brooksville, for Appellant. William H. Phelan, Jr., and Amanda Bagni Reed of Bond, Arnett, Phelan, Smith & Craggs, P.A., Ocala, for Appellee. PALMER, J. In this quiet title action based upon separate claims of title by deed and title by adverse possession, Darrell Mullins, who acquired his property interest pursuant to a tax deed sale, argues that the summary judgment entered against him was improper. Concluding that Mullins' tax deed was void because the tax sale was the result of an incorrect double assessment on the land by the tax assessor, we affirm the summary judgment entered against Mullins on his claim of title by deed. However, Mullins' claim of title by adverse possession was improperly dismissed by summary judgment and, accordingly, we reverse and remand as to that count. Case No. 5D04-1513

The land that is the subject of the instant dispute was identified on an 1888 plat as Lots 902, 903 and 904. The South Side Subdivision was platted and recorded in 1926. Due to an error in platting, Lot 6 of the South Side Subdivision overlaps with Lots 902, 903 and 904 of the 1888 plat. Appellees are record owners of Lot 6, and, in 1987, Mullins acquired tax deeds from Citrus County to Lots 902, 903 and 904. For several years, Citrus County "double -taxed" these three parcels by taxing both Mullins, as the record owner of Lots 902, 903 and 904, and appellees, as the record owner of Lot 6. In 2000, the Citrus County Property Appraiser's office removed Lots 903 and 904 from the tax rolls retroactive to tax year 1997. In 2001, appellees filed the instant action to quiet title in Lot 6. Following the filing of a motion for summary judgment by appellees, the trial court entered an order granting appellees' motion for summary judgment and quieting title in favor of appellees and against Mullins . The order declared Mullins' tax deed void, ruling that Mullins and all those claiming through him were restrained from bringing any claims to obtain possession of Lot 6. The trial court did not specifically rule on Mullins' claim for adverse possession, but implicitly rejected the claim by quieting title in favor of appellees. The trial court properly found that Mullins has no claim to the subject property by virtue of his tax deed because the tax deed was void as a result of the double assessment of taxes made by the County. See Skinner v. Simms, 355 So.2d 448 (Fla. 1st DCA 1978)(holding where tax assessor incorrectly made a double assessment and no outstanding taxes were due, the tax sale proceedings were a nullity and conferred no

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title in the purchaser). As the New York court held in Gaydos v. Edwards, 139 N.Y. S.2d. 154, 161 (1955): To hold otherwise would mean that the legal title holder of real property who regularly paid his taxes, under a valid assessment, could be deprived of his title under another and invalid tax assessment . . . [The statute creating tax deeds] cannot be used to create and validate a tax title which is void from its inception by reason of a double and erroneous assessment, no matter how long the tax deed has been a matter of record. However, Mullins also asserted entitlement to the property by adverse possession in that he paid taxes on the property in question for more than seven years and had also "occupied, possessed, and exercised dominion over the lot for more than seven years prior to the filing of this action and the [appellees] have exercised no such occupation, possession or dominion over the lots." In Florida, one may acquire property by adverse possession either under color of title or without color of title. See

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