Magnolia Florida Tax Certificates, LLC, a Florida limited liability company, et al., Appellants/Cross-Appellees,
Florida Department of Revenue, et al., Appellees/Cross-Appellants.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Leon County. Terry P.
Douglas Manson and William S. Bilenky of Manson Bolves
Donaldson Varn, P.A., Tampa, for Appellants/Cross-Appellees.
A. Tucker, IV, of Foley & Lardner LLP, Jacksonville;
Robert H. Hosay, James A. McKee, and Benjamin J. Grossman of
Foley & Lardner LLP, Tallahassee, for Appellee Anne M.
Gannon, Palm Beach County Tax Collector.
Vanessa Thomas of Forman, Hanratty, Thomas & Montgomery,
Ocala, for Appellee George Albright, Marion County Tax
J. Meyers, Broward County Attorney; Mark A. Journey, Scott
Andron, and Joseph K. Jarone, Assistant County Attorneys,
Fort Lauderdale, for Appellee Broward County.
Douglas C. Spears and Benjamin C. Iseman of Swann Hadley
Stump Dietrich & Spears, P.A., Winter Park, for Appellee
Scott Randolph as Orange County Tax Collector.
Abigail Price-Williams, Miami-Dade County Attorney, and
Ileana Cruz, Assistant County Attorney, Miami, for
Appellee/Cross-Appellant Marcus Saiz De La Mora, Miami-Dade
County Tax Collector.
Timothy R. Qualls of Young Qualls, P.A., Tallahassee, for
remaining Appellee Tax Collectors.
appeal and cross-appeal from a summary final judgment, three
issues have been raised for our consideration: (1) whether
the trial court erred in entering summary judgment against
Appellants on count II of their complaint challenging the
deposit requirement imposed upon bidders for tax certificates
in Broward, Miami-Dade, and Orange Counties; (2) whether the
trial court erred in entering summary judgment against
Appellants on count III of their complaint challenging the
affidavit requirement imposed upon bidders for tax
certificates in Broward County; and (3) whether the trial
court erred in denying a motion to abate the proceedings
until Appellants/Cross-Appellees complied with the
registration requirements of the Fictitious Name Act. We
affirm as to the third issue without further discussion. We
also affirm as to the first and second issues for the reasons
challenging the imposition of a separate deposit upon each of
their general partnerships bidding for tax certificates,
Appellants' initial brief advances the following
arguments: (1) the deposit is unreasonable because it exceeds
the amount necessary to recoup readvertising costs; (2) the
deposit is inefficient because it requires the tax
collector's office to reissue refunds of large sums; (3)
the deposit is contrary to legislative intent because it
discourages open competition and participation in auctions;
and (4) the trial court misinterpreted section 197.432(7),
Florida Statutes, by failing to consider that a third-party
surety is permitted to post a deposit on behalf of bidders
that is calculated based upon a percentage of the bidding
group's expected purchases. Appellants failed to preserve
any of these arguments, which were not raised below. See
Aills v. Boemi, 29 So.3d 1105, 1109 (Fla. 2010) (holding
that the specific legal ground upon which a claim is based
must be raised at trial and a claim different than that will
not be heard on appeal); Sunset Harbour Condo. Ass'n
v. Robbins, 914 So.2d 925, 928 (Fla. 2005) (holding that
an issue must be presented to the lower court and the
specific legal argument or ground to be argued on appeal must
be part of that presentation if it is to be considered
preserved); Adkison v. Morey, 43 Fla.L.Weekly D550
(Fla. 1st DCA Mar. 8, 2018) (holding that the argument made
on appeal was waived because it was never presented to the
trial court). Because we cannot address these arguments for
the first time on appeal, we affirm the summary judgment
against Appellants on count II of their complaint.
challenging the pre-bidding documentation required by Broward
County insofar as it requires all business entities-as
opposed to natural persons-to provide an affidavit concerning
certain information about the entity, including its name, the
type of entity, its state of origin, and information
concerning its employer identification number (EIN),
Appellants assert that such a requirement is not authorized
by section 197.432, Florida Statutes. However, Broward County
is a charter county that has the power to "enact county
ordinances not inconsistent with general law." Art.
VIII, § 1(g), Fla. Const. A local government enactment
is inconsistent with state law if it directly conflicts with
a state statute or if the legislature has preempted a
particular subject area. Sarasota Alliance for Fair
Elections, Inc. v. Browning, 28 So.3d 880, 886 (Fla.
2010). Although section 197.432 provides general procedures
for tax certificate sales, it does not specify how tax
collectors are to ascertain the identities of bidders or set
out what information may be requested of bidders.
Accordingly, it cannot be said that the affidavit requirement
imposed in Broward County is inconsistent with any provision
of section 197.432. Moreover, there is nothing in the
language of section 197.432 that expressly or impliedly
preempts Broward County from imposing an affidavit
requirement to ascertain or verify the identity of bidders at
tax certificate sales. Accordingly, the trial court correctly
concluded as a matter of law that Broward County had
discretion to impose an affidavit requirement on bidders in
order to carry out its statutory duty to conduct tax
extent Appellants claim that the affidavit requirement is
contrary to legislative intent and discriminates against
non-natural persons, these claims are without merit. There is
nothing in section 197.432 expressing an intent to allow
business entities to use hundreds of thousands of
"shell" bidders to gain an unfair advantage at tax
certificate sales. Moreover, Appellants have failed to
demonstrate that the disparate treatment between natural and
non-natural persons is improper. A constitutional challenge
that does not involve a fundamental right or suspect
classification is evaluated under the rational basis test,
which merely requires the existence of a conceivably rational
basis for the enacting governmental body to believe that the
challenged legislation would further a legitimate
governmental purpose. WCI Communities, Inc. v. City of
Coral Springs, 885 So.2d 912, 914 (Fla. 4th DCA 2004).
Here, Broward County's affidavit requirement helps ensure
that all bidders are bona fide business organizations created
under the laws of some state and not sham entities using
names made up for the sole purpose of manipulating the
lottery selection process to resolve tie bids. Requiring each
bidder to identify itself and attest that it did not obtain
its EIN for the ...