5D11-240 Orange Co. v. Sommers

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D11-240

Case Date: 04/16/2012

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2012

ORANGE COUNTY PROPERTY APPRAISER, ET AL., Appellant, v. Case No. 5D11-240

BERNARD D. SOMMERS AND ARLENE P. SOMMERS, Appellee. ________________________________/ Opinion filed April 20, 2012 Appeal from the Circuit Court for Orange County, Robert Evans, Judge. Thomas J. Wilkes, of GrayRobinson, P.A., Orlando, for Appellant, Orange County Property Appraiser. Steven R. Bechtel, of Mateer & Harbert, P.A., Orlando, for Appellant, Orange County Tax Collector. Bernard D. Sommers, Winter Park, for Appellee.

MONACO, J. This case of first impression compels us to consider what the innocent looking phrase, "placed on the tax roll," means with respect to the ten per cent cap on increases in the assessment of continuously owned non-homestead residential real property that previously enjoyed the status of homestead property. The phrase is found in section

193.1554(3), Florida Statutes (2010). The trial court concluded that the phrase meant that the homestead value of continuously owned residential property remained in place even after the property no longer bore a homestead classification, and that the assessment on the property could not be increased by more than the ten per cent limit found in section 193.1554(3). The appellants, Orange County Property Appraiser and Orange County Tax Collector, appeal the final judgment finding that the 2009 assessed value of the residential property owned by the appellees, Bernard D. Sommers and Arlene P. Sommers, was incorrect. We conclude that the trial court misinterpreted the statute and reverse. The facts are neither complicated, nor contested. Mr. and Mrs. Sommers owned a home in Maitland, Florida, from 1960 to 2010. They continuously resided in that house from the date of purchase until they moved to a different residence in November 2008. Although they were not living in the home, they still owned it until January 2010, at which time they sold it. It is uncontested that the house was not homestead from the day Mr. and Mrs. Sommers moved out in 2008, to the day it was sold in 2010. In 2008, the property enjoyed the homestead exemption because it was the Sommers' residence on January 1st of that year. The Property Appraiser assessed the home in 2008 in compliance with the "Save Our Homes" assessment cap contained in Article VII, Subsection 4(d) of the Florida Constitution, and implemented in section 193.155(1), Florida Statutes (2010). The assessment cap on the Sommers' property, assessed as homestead, was three per cent. After applying the homestead exemption with the Save Our Homes cap, the Property Appraiser assessed the taxable value of the Sommers' home for that year at $134,060.

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In 2009, because Mr. and Mrs. Sommers no longer lived in the home, the property became a "nonhomestead residential" property for ad valorem tax purposes. The Property Appraiser assessed the Sommers' home as of January 1, 2009, using the just value or fair market value standard, at $279,955. Compared to the taxable value of the homestead in 2008 of $134,060, the assessment in 2009, was an increase in the taxable value of the home of $145,895, or 108.1%. Mr. and Mrs. Sommers disputed the 2009 assessment and filed a petition with the Orange County Value Adjustment Board ("VAB"), seeking relief. They paid their taxes in full, but under protest. At the VAB hearing before a special magistrate, the Sommers argued that because the Property Appraiser had increased the assessment of their now non-homestead residential property by an amount in excess of ten per cent of the previous-year assessment, the Appraiser had violated the ten per cent cap imposed on assessment increases for that classification of property under newly adopted Subsection 4(g) of Article VII of the Florida Constitution and section 193.1554, Florida Statutes. The Property Appraiser countered that he properly assessed the Sommers' nonhomestead residential property at its just value for 2009 and that only in 2010 would the Sommers' property be subject to the ten per cent cap on assessment increases pursuant to section 193.1554. The special magistrate recommended that the Sommers' petition be denied and that the 2009 assessment be upheld. recommendation. The VAB thereafter approved the

Mr. and Mrs. Sommers commenced the underlying action in the

circuit court to appeal the decision of the VAB. Eventually, however, the trial court granted the motion of the Sommerses for summary judgment, holding that the ten per

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cent cap on an increase of an assessment of nonhomestead residential property set forth in subsection 4 of Article VII of the state constitution and section 193.1554(3), Florida Statutes, applied to the Sommers' property for 2009. followed. The section of the Florida Constitution governing the valuation of real property for ad valorem tax purposes and a number of statutes concerning the same matter must be spread upon the table in order to understand the arguments of the parties. We begin with the constitution. The Florida Constitution mandates the just valuation of all property for ad valorem tax purposes. Art. VII,

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