Opinion
No. 68-27.
July 9, 1968. On Rehearing October 8, 1968.
Appeal from the Circuit Court for Dade County, George E. Schulz, J.
Thomas C. Britton, County Atty. and John G. Fletcher, Asst. County Atty., for appellants.
Nicholson, Howard, Brawner Lovett, Miami, for appellee.
Before CHARLES CARROLL, C.J., and HENDRY and SWANN, JJ.
Appellee filed suit against Dade County, the board of county commissioners, the county manager, tax assessor, tax collector, the City of Miami and the state comptroller, seeking to invalidate the 1967 tax assessment on the plaintiff's tangible personal property, claiming overvaluation. The assessment was $1,130,040. Plaintiff alleged the value for assessment was $453,551.
The complaint was in two counts. Count I sought relief in equity under § 196.01 Fla. Stat., F.S.A. It alleged application to the board of equalization for reduction of the amount, and the denial thereof by the board, and prayed for an injunction against assessment of the property for more than $453,551.
Count II presented a petition for certiorari, filed under § 200.10 Fla. Stat., F.S.A., to review the ruling of the Dade County board of equalization, rendered on September 22, 1967, which refused the taxpayer's request to reduce the assessment. Appended thereto was a copy of the record of the proceedings thereon before the board. In the complaint it was contended that the ruling of the board was without evidentiary support, and the plaintiff (petitioner) prayed for a writ quashing the assessment and requiring the assessment to be made "upon the basis of its fair market value in accordance with the essential requirements of law."
The defendants moved to dismiss the complaint. The motion to dismiss was denied, and the defendants took this interlocutory appeal therefrom. We reverse as to Count I and affirm as to Count II.
Chapter 200 Fla. Stat., F.S.A. deals with tangible personal property taxation. Section 10 thereof provides that in a situation such as described above, the taxpayer may have the decision of the board of equalization reviewed by certiorari in the circuit court. Therefore, no error was committed in denying the motion to dismiss as to Count II of the complaint, the petition for certiorari. However, because of that expressly conferred remedy at law, with relation to claimed overvaluation in assessment of tangible personal property, the taxpayer was not entitled to seek relief therefor by suit in equity under § 196.01 Fla. Stat., F.S.A., and we hold, on authority of McAllister Realty Co. v. Campbell, 143 Fla. 447, 196 So. 857, that the defendants' motion to dismiss should have been granted as to Count I.
Affirmed in part and reversed in part and remanded for further proceedings.
ON REHEARING GRANTED
The appellee's petition for rehearing directed to this court's opinion filed July 9, 1968, challenges our holding that this taxpayer, which sought review in the circuit court by certiorari (as provided for in § 200.10 Fla. Stat., F.S.A.), of a claimed over valuation of assessment of its tangible personal property, was precluded, by its resort to that legal remedy, from also seeking such relief in an equity type proceeding under § 196.01 Fla. Stat., F.S.A. In this case inadequacy of the legal remedy (certiorari) is not contended or shown, and through invoking the legal remedy the taxpayer implies its adequacy here.
The appellee contends the remedies or methods for challenging the amount of an assessment of tangible personal property as supplied by those two statutes are cumulative, and that the taxpayer may elect to pursue either or both.
The county argues that as to tangible personal property the existence of the remedy for review by certiorari provided by § 200.10 of a denial by the assessor and board of equalization of claimed over valuation, being a legal remedy, precludes resort to equity type relief therefrom under § 196.01.
Certain language in the final paragraph of our opinion filed July 9, 1968, appears to sustain that contention of the county. However, we did not so intend and do not now so hold, and upon reading these two statutes we are inclined to the view that the legal remedy granted by § 200.10 to seek review by certiorari in such circumstances is not exclusive, and does not prohibit such a tangible personal property taxpayer claiming over valuation from seeking relief by an equity type proceeding under § 196.01, if the taxpayer should elect to use the latter remedy rather than the former; but we hold, as held in our opinion of July 9, 1968, that where, as in this case, the taxpayer invokes the legal remedy of certiorari granted by § 200.10 Fla. Stat., F.S.A. for relief against claimed over valuation of tangible personal property assessed for ad valorem taxation, he thereby is precluded from seeking such relief simultaneously or thereafter in an equity type proceeding under § 196.01 Fla. Stat., F.S.A.
Our opinion of July 9, 1968, accordingly is clarified and modified by this opinion on rehearing as and in the respects set out herein.
However, upon viewing the decision in this case as one which passes upon a question of great public interest, we have certified it as such to the Supreme Court of Florida as provided for in Article V, Section 4(2) of the Florida Constitution, F.S.A., as a means of conferring jurisdiction upon the Supreme Court to review the decision on certiorari.
It is so ordered.