TAMPA PORT AUTHORITY v. BOB HENRIQUEZ, AS PROPERTY APPRAISER

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

TAMPA PORT AUTHORITY,

Appellant,

v.

BOB HENRIQUEZ, as Hillsborough County Property Appraiser; GULF

MARINE REPAIR CORPORATION, a Florida corporation; DOUG BELDEN,

as Hillsborough County Tax Collector; and JIM ZINGALE, as Executive

Director of the State of Florida Department of Revenue,

Appellees.

No. 2D20-2605

December 29, 2023

Appeal from the Circuit Court for Hillsborough County; Martha J. Cook,

Judge.

David Smolker of SmolkerLaw, P.A., Apollo Beach, for Appellant.

William D. Shepherd of Hillsborough County Property Appraiser's Office,

Tampa, for Appellee Bob Henriquez.

Ashley Moody, Attorney General, and Timothy E. Dennis, Assistant

Attorney General, Tallahassee, for Appellee Jim Zingale.

No appearance for remaining Appellees.

BY ORDER OF THE COURT:

Appellant's motion for rehearing and certification of a question of

great public importance is denied.

On the court's own motion, the July 7, 2023, opinion in this case is

withdrawn and the attached corrected opinion is substituted therefor.

The corrected opinion removes attorney Altenbernd's designation as an

attorney in the case, and it corrects several typographical errors. No

further motions for rehearing will be entertained.

NORTHCUTT and SILBERMAN, JJ., Concur.

LaROSE, J., Concurs in part but would grant the request for certification

of a question of great public importance.

I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE

ORIGINAL COURT ORDER.

MARY ELIZABETH KUENZEL

CLERK

2

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

TAMPA PORT AUTHORITY,

Appellant,

v.

BOB HENRIQUEZ, as Hillsborough County Property Appraiser; GULF

MARINE REPAIR CORPORATION, a Florida corporation; DOUG BELDEN,

as Hillsborough County Tax Collector; and JIM ZINGALE, as Executive

Director of the State of Florida Department of Revenue,

Appellees.

No. 2D20-2605

December 29, 2023

Appeal from the Circuit Court for Hillsborough County; Martha J. Cook,

Judge.

David Smolker of SmolkerLaw, P.A., Apollo Beach, for Appellant.

William D. Shepherd of Hillsborough County Property Appraiser's Office,

Tampa, for Appellee Bob Henriquez.

Ashley Moody, Attorney General, and Timothy E. Dennis, Assistant

Attorney General, Tallahassee, for Appellee Jim Zingale.

No appearance for remaining Appellees.

NORTHCUTT, Judge.

In consolidated cases below, the circuit court rendered a final

summary judgment denying ad valorem tax exemptions for property the

Tampa Port Authority leases to Gulf Marine Repair Corporation. The

Port Authority and Gulf Marine took separate appeals from the judgment.

See Gulf Marine Repair Corp. v. Henriquez, No. 2D20-2613 (Fla. 2d DCA

July 7, 2023). They asked this court not to consolidate the appeals,

moving instead to have them merely considered together—in appellate

parlance, to have the cases "travel together." We have honored that

request, and today we issue a separate opinion in each appeal

announcing our affirmance of the final judgment.1

We preface our discussion of the Port Authority's appeal by

mentioning two matters that affect the scope of our review. First, the

judgment below was entered in a consolidated proceeding comprising the

Hillsborough County property appraiser's challenge to exemptions

granted by the county's Value Adjustment Board (VAB) for the 2014 tax

year and several separate lawsuits filed by Gulf Marine to set aside

assessments on the property in subsequent tax years. The Port

Authority was a party only in the property appraiser's VAB suit involving

the 2014 tax year. Therefore, only that tax year is at issue in the Port

1 Because the Port Authority is the only appellant in the instant

appeal, Gulf Marine is nominally an appellee, and it is designated as

such in the style of this case. See Fla. R. App. P. 9.020(g)(2) (defining

"appellee" as every party in the lower court proceeding other than an

appellant); Millar Elevator Serv. Co. v. McGowan, 804 So. 2d 1271, 1273

(Fla. 2d DCA 2002) (observing that even a party aligned with the

appellant in the lower court becomes an appellee on appeal under the

rule). Conversely, the Port Authority is a nominal appellee in Gulf

Marine's appeal, case no. 2D20-2613. Neither party in either appeal

undertook to realign itself pursuant to Florida Rule of Appellate

Procedure 9.360(a). See Millar, 804 So. 2d at 1273 (noting that an

appellee who wishes to align with the appellant in an appeal may seek

realignment under rule 9.360(a)).

2

Authority's appeal. See Santiago v. Mauna Loa Invests., LLC, 189 So. 3d

752, 757 (Fla. 2016) (holding that consolidation neither merges two suits

into one nor changes the substantive rights of the parties); Millar Elevator

Serv. Co. v. McGowan, 804 So. 2d 1271, 1273 (Fla. 2d DCA 2002) (same);

Merrick Park, LLC v. Garcia, 299 So. 3d 1096, 1101-02 (Fla. 3d DCA

2019) (disallowing appeal of an order striking a count to which appellant

was not a party).

Our second observation is that the Port Authority has not

challenged the circuit court's ruling on the merits of the exemption issue.

Rather, its grievances are confined to supposed procedural and

jurisdictional deficiencies primarily stemming from the failure of its and

Gulf Marine's attempts to have the property appraiser's VAB case

dismissed.2

I. Background

The property at the center of the dispute consists of contiguous

parcels owned by the Port Authority, a government body that operates a

deepwater port in Tampa. See ch. 95-488, §§ 4, 7, Laws of Fla. Gulf

Marine conducts its for-profit ship repair business on the premises. Its

lease with the Port Authority requires Gulf Marine to pay all ad valorem

2 The Port Authority's notice of appeal referenced only the order

declining to dismiss the property appraiser's VAB suit. The notice

posited that the order "became final" upon entry of the final judgment

and the subsequent order denying codefendant/counterplaintiff Gulf

Marine's motion for rehearing. More accurately, the order denying the

motion to dismiss was a nonappealable nonfinal order that became

reviewable in an appeal from the final judgment. See Fla. R. App. P.

9.110(h) (prescribing the scope of review in an appeal from a final

judgment as "any ruling or matter occurring before filing of the notice [of

appeal]").

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taxes on the property. The property had been taxed for many years

when, in February 2014, Gulf Marine filed applications with the property

appraiser asserting that the leased parcels were exempt from ad valorem

taxes because they were used for a governmental purpose.3 The property

appraiser inspected the properties and thereafter issued written notices

stating that the applications were denied because the properties were

"being used for proprietary purposes." Gulf Marine petitioned for relief

from the VAB pursuant to section 194.011, Florida Statutes (2014).4

3 The parties have not addressed the effect of section 196.011(1)(a),

Florida Statutes (2014), which directs that the person or organization

"who . . . has the legal title" to the property must file the exemption

application with the property appraiser. See Mastroianni v. Mem'l Med.

Ctr. of Jacksonville, Inc., 606 So. 2d 759, 761–62 (Fla. 1st DCA 1992)

(citing statute, holding that only the legal owner of the subject property,

and not the nonprofit hospital to which the property was leased, was

authorized to apply for tax exemption).

4 Once more, no issue has been made about the propriety of Gulf

Marine's petition to the VAB. Section 194.011(3), Florida Statutes

(2014), was amended in 2016 to specify that "[a] petition to the value

adjustment board must be signed by the taxpayer or be accompanied at

the time of filing by the taxpayer's written authorization or power of

attorney." Ch. 2016-128, § 8, Laws of Fla. (emphasis added). When Gulf

Marine filed its VAB petition in July 2014, the statute did not contain

that explicit requirement. Clearly, however, it contemplated that the

petitioner before that body was the taxpayer. See § 194.011(3), Florida

Statues (2014) (directing the Department of Revenue to provide a form for

petitioning the VAB which must be accepted by the property appraiser "if

the taxpayer chooses to use it"), (3)(c) ("The petition shall state the

approximate time anticipated by the taxpayer to present and argue his or

her petition before the board."); see also Conage v. United States, 346 So.

3d 594, 598 (Fla. 2022) (holding that when interpreting a statute, a court

"must 'exhaust all the textual and structural clues' that bear on the

meaning of a disputed text," quoting Alachua County v. Watson, 333 So.

3d 162, 169 (Fla. 2022)). Here and in the lower court, the Port Authority

has repeatedly emphasized that for all pertinent purposes it is the

taxpayer, defined in section 192.001(13), Florida Statutes (2014), as "the

4

The VAB's special magistrate held an evidentiary hearing on Gulf

Marine's petition in December 2014. Prior to the hearing, the VAB clerk

contacted the Port Authority to invite its participation. The Port

Authority's vice president for legal affairs briefly appeared at the hearing,

and, according to her affidavit filed below, she "gave approval, on

behalf of Port Tampa Bay, for Gulf Marine Repair Corporation to proceed

on behalf of Port Tampa Bay."

In March 2015, the magistrate recommended denying Gulf Marine's

petition. The following month, however, the VAB disagreed with the

recommendation and granted the petition. The property appraiser then

challenged the VAB decision by filing a de novo circuit court action under

section 194.036, naming Gulf Marine as a defendant but not the Port

Authority.5

The circuit court later permitted the property appraiser to amend

his complaint to add the Port Authority as a defendant. The Port

Authority moved to dismiss on the ground that it had not been joined as

a party during the applicable statutory limitation period. Gulf Marine, as

well, moved for a judgment on the pleadings, arguing that the property

appraiser had not timely joined an indispensable party and had failed to

person or other legal entity in whose name property is assessed." But

Gulf Marine's VAB petitions named itself, not the Port Authority, as the

taxpayer. Each was signed by a Gulf Marine vice president, who certified

under penalty of perjury that he was "the owner of the property described

in the petition or the authorized agent of the owner for purposes of filing

this petition."

5 The statute characterizes the process of challenging a value

adjustment board decision in circuit court as an "appeal." § 194.036(1).

But the Florida Supreme Court has clarified that it is an original action,

not an appeal. Crossings At Fleming Island Cnty. Dev. Dist. v. Echeverri,

991 So. 2d 793, 801 n.6 (Fla. 2008).

5

state a cause of action against either defendant. The circuit court denied

the motions.

As litigation over the 2014 exemptions proceeded, Gulf Marine filed

additional exemption applications for tax years 2015 through 2019. The

property appraiser denied each application. After each rejection, Gulf

Marine filed suit pursuant to section 194.171, advancing theories why

the exemption's disapproval was improper and should be overturned.

The circuit court consolidated the property appraiser's suit and those

filed by Gulf Marine, and ultimately it rendered a summary judgment in

favor of the property appraiser in all the actions.

In this appeal, the Port Authority broadly attacks the judgment on

two general grounds: (1) that the property appraiser lacked standing to

pursue his suit and (2) that the Port Authority was not timely added to

the suit, which warranted dismissal with prejudice. We reject both

arguments.

II. The Property Appraiser's Standing

The Port Authority's standing argument rests on a provision in the

VAB appeal statute that permits the property appraiser to challenge a

VAB decision in court if one or more of three conditions are met. See

§ 194.036(1)(a)–(c). The condition under which the property appraiser

proceeded is set forth in subsection (1)(a). It requires the property

appraiser to determine and assert that there is a "specific constitutional

or statutory violation" in the VAB's decision. The Port Authority

contends that the property appraiser's amended complaint failed to

satisfy this statutory condition and that therefore it was insufficient to

give him standing to pursue the VAB case.

The Port Authority did not raise this issue below, either in its

motion to dismiss or in an affirmative defense. Therefore, the issue is

6

waived and may not be considered here. See Dage v. Deutsche Bank Nat'l

Tr. Co., 95 So. 3d 1021, 1024 (Fla. 2d DCA 2012); see also Lincare

Holdings Inc. v. Ford, 307 So. 3d 905, 912 (Fla. 2d DCA 2020) ("[T]o be

preserved for appeal, '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.' " (alteration in original) (quoting Aills v. Boemi, 29 So.

3d 1105, 1109 (Fla. 2010); Est. of Herrera v. Berlo Indus., Inc., 840 So. 2d

272, 273 (Fla. 3d DCA 2003) (noting that issues may not be raised for

the first time on appeal)).

Still, we can entertain the Port Authority's argument, also made for

the first time on appeal, that the property appraiser's supposed lack of

standing due to his purported failure to adequately plead the statutory

criterion deprived the circuit court of subject matter jurisdiction. See 84

Lumber Co. v. Cooper, 656 So. 2d 1297, 1298 (Fla. 2d DCA 1994)

(holding that the failure to challenge subject matter jurisdiction in the

circuit court does not preclude the appellate court from considering the

issue). But we reject this argument on its merits.

Standing refers to a party's having "a sufficient stake in an

otherwise justiciable controversy" that would permit it to "obtain judicial

resolution of that controversy." C.H. v. Adoption of N.K., 322 So. 3d 177,

180 (Fla. 2d DCA 2021) (quoting Jamlynn Invs. Corp. v. San Marco

Residences of Marco Condo. Ass'n, 544 So. 2d 1080, 1082 (Fla. 2d DCA

1989)). Here, however, the Port Authority does not contend that the

property appraiser lacked a stake in the property tax dispute sufficient to

warrant his request for its judicial resolution. Rather, the Port

Authority's theory, again, is that an allegedly faulty pleading deprived the

property appraiser of standing. Therefore, according to the Port

Authority, the circuit court lacked subject matter jurisdiction and its

7

judgment is void for lack of jurisdiction. But this theory is flawed.

Subject matter jurisdiction "refers to a . . . court's constitutional or

statutory authority to decide a class of cases." See Kozel v. Kozel, 302

So. 3d 939, 945 (Fla. 2d DCA 2019). A party's lack of standing—

particularly one allegedly arising from a curable pleading omission—does

not affect the court's subject matter jurisdiction. Godfrey v. Reliance

Wholesale, Inc., 68 So. 3d 930, 931–32 (Fla. 3d DCA 2011).

Regardless, we easily conclude that the property appraiser's

amended complaint comported with the statute as well as with the

directive in Florida Rule of Civil Procedure 1.110(b) that a pleading "shall

contain . . . a short and plain statement of the ultimate facts showing

that the pleader is entitled to relief." The property appraiser alleged:

10. The Value Adjustment Board's decision violates Article

VII, section 3(a) of the Florida Constitution, Article VII, section

4 of the Florida Constitution and Florida Statute 196.199, as

interpreted by the Florida courts.

11. Gulf Marine is in the Dry Dock/Repair business and,

according to their website, ". . . can serve all of your vessel

needs and requirements from the smallest topside jobs to dry

dockings. Our services run the gamut from plate renewal to

ocean going [sic] barge double hull conversion design and

installation, from fender repair to Bludworth, Intercon or

JAK-coupler installation, from valve repair to complete cargo,

ballast or heating oil system design and installation, from

repainting a handrail to fabrication of propulsion shafting and

installation, from changing a light bulb to designing and

installing a new electrical system."

12. The activities described in paragraph 11 do not

constitute activities entitling Gulf Marine to an exemption

under Florida Statute 196.199.

13. Because Gulf Marine is a for-profit corporation and is

not performing an exempt activity on the subject property, the

exemption was improperly granted.

8

The Port Authority maintains only that allegation number 10 of the

amended complaint was "completely conclusory" and "not sufficient to

establish standing." It fails to explain why the allegations in toto did not

satisfy the statute. In sum, the complaint alleged that the lessee was a

for-profit corporation in the dry dock and repair business, that it offered

a variety of related services, and that neither the lessee's business nor

the offered services were exempt uses of the property. Therefore, the

complaint asserted, the lessee's use of the property did not entitle it to an

exemption under section 196.199, Florida Statutes (2014), or the

constitution, and the VAB improperly granted it. Manifestly, these

allegations met the statutory requirement.

III. The Late Joinder of the Port Authority as a Party Defendant

Neither are we swayed by the Port Authority's second broad

argument for reversal (the one it did preserve for appeal), premised on

the timing of its inclusion as a party to the VAB litigation. In brief, the

Port Authority contends that it was entitled to a dismissal with prejudice

because it was not added to the case within the statutory period for filing

suit and because the amendment naming it as a party did not relate

back to the timely original complaint.

This argument implicates four different statutes in Florida's

sinuous property taxation scheme. First, as mentioned, the property

appraiser challenged the VAB's decision by filing suit in circuit court

pursuant to section 194.036(1)(a). The period for filing such an action is

prescribed by a second statute, section 193.122(4), Florida Statutes

(2014), which requires the suit to commence prior to the extension of the

tax roll, or if the roll is extended, as happened here, within thirty days

after its recertification. No one disputes the timeliness of the property -

9

appraiser's initial complaint. However, that complaint named Gulf

Marine, but not the Port Authority, as a defendant, whereas a third

statute involved here, section 194.181(2), requires that "[i]n any case

brought by the property appraiser pursuant to s. 194.036(1)(a) or (b), the

taxpayer shall be party defendant [sic]."6 A fourth statute, section

192.001(13), Florida Statutes (2014), applicable "in the imposition of ad

valorem taxes," defines "taxpayer" as "the person or other legal entity in

whose name property is assessed."

The property appraiser filed his amended complaint naming the

Port Authority as an additional defendant outside the thirty-day period

for suing to contest the VAB decision. But Florida Rule of Civil

Procedure 1.190(c) provides that when the claim asserted in an amended

pleading arises "out of the conduct, transaction, or occurrence set

. . . forth in the original pleading," the amendment "shall relate back to

the date of the original pleading." The relation-back rule typically does

not apply to the addition of a party unless the new and former parties

have an identity of interests such that the addition will not prejudice the

opponent. Est. of Eisen v. Philip Morris USA, Inc., 126 So. 3d 323, 329

(Fla. 3d DCA 2013); R.A. Jones & Sons, Inc. v. Holman, 470 So. 2d 60, 67

6 When the suit was filed, the full text of section 194.181(2), read:

In any case brought by the taxpayer or association contesting

the assessment of any property, the county property

appraiser shall be party defendant. In any case brought by

the property appraiser pursuant to s. 194.036(1)(a) or (b), the

taxpayer shall be party defendant. In any case brought by the

property appraiser pursuant to s. 194.036(1)(c), the value

adjustment board shall be party defendant.

(Emphasis added.) In 2021, the legislature rearranged and amended

section 194.181. Subparagraph (2)(b) now provides that, other than in

certain cases involving condominiums, "in any case brought by the

property appraiser under s. 194.036(1)(a) or (b), the taxpayer is a party

defendant." Ch. 2021-209, § 2, Laws of Fla.

10

(Fla. 3d DCA 1985). Both rule 1.190(c) and the exception permitting the

relation back of amendments adding parties are liberally construed and

applied. See Jefferson Realty of Fort Lauderdale, Inc. v. U. S. Rubber Co.,

222 So. 2d 738, 741 (Fla. 1969) (trial court properly allowed addition of

party at conclusion of trial); Palm Beach County. v. Savage Constr. Corp.,

627 So. 2d 1332, 1333 (Fla. 4th DCA 1993) ("It is well settled that [rule

1.190(c)] is to be construed liberally."); see also Ding v. Jones, 667 So. 2d

894, 897 (Fla. 2d DCA 1996) ("The acknowledged purpose of modern

procedural rules is to allow joinder of all parties having an interest in a

controversy.").

The Port Authority poses three arguments why the amendment

adding it as a defendant in this case could not relate back to the timely

initial complaint. None of them have merit.

First, the Port Authority emphasizes the requirement in section

193.122(4) that a property appraiser's suit challenging a VAB decision

shall be filed within a thirty-day period; thus, the Port Authority

observes, the limitation is mandatory. It relies on two ad valorem tax

cases in which the relation-back principle was held to be inapplicable.

See Wilkinson v. Reese, 540 So. 2d 141 (Fla. 2d DCA 1989); Merrick Park,

LLC, 299 So. 3d 1096.

But Wilkinson and Merrick Park concerned a different statute

altogether, section 194.171(2), which imposes a sixty-day deadline for

suing to contest a tax assessment. Wilkinson, 540 So. 2d at 142–43;

Merrick Park, 299 So. 3d at 1103. Notably, that statute is referred to in a

different provision of section 194.036(2) that applies when a "taxpayer

. . . bring[s] an action to contest a tax assessment pursuant to

s. 194.171." § 194.036(2) (emphasis added). But here the property

appraiser brought the action, not the taxpayer, and the property

11

appraiser did not sue under section 194.171 to contest a tax

assessment. Rather, he sued under section 934.036(1) to challenge the

tax exemption awarded by the VAB.

Moreover, Wilkinson and Merrick Park recognized that section

194.171 is a statute of nonclaim, i.e., one that reflects a "clearly

evidenced" legislative intent to deprive a court of the power to adjudicate

an untimely claim. See Adhin v. First Horizon Home Loans, 44 So. 3d

1245, 1253 (Fla. 5th DCA 2010) ("A statute is a 'nonclaim statute' if there

is a clearly evidenced legislative intent in the statute to not merely

withhold the remedy, but to take away the right of recovery when a

claimant fails to present his or her claim as provided in the statute.").

Thus, section 194.171(2) declares that "[n]o action shall be brought" to

contest a tax assessment after the sixty-day period. Further, that

deadline is expressly jurisdictional; subsection (6) of the statute states

that "[n]o court shall have jurisdiction in such cases" if the sixty-day

filing requirement in subsection (2) is not met. § 194.171(6). Section

194.171, then, is a statute of nonclaim. See Wilkinson, 540 So. 2d at

143; Merrick Park, 299 So. 3d at 1103.

Notably, Wilkinson recognized that before the sixty-day deadline in

section 194.171 was made jurisdictional by the addition of subsection (6)

in 1983, ch. 83-204, § 7, Laws of Fla., the relation-back doctrine did

apply to pleading amendments in suits under that statute. 540 So. 2d at

143 (first citing Cowart v. Perkins, 445 So. 2d 654 (Fla. 2d DCA 1984);

and then citing Hilltop Ranch, Inc. v. Brown, 308 So. 2d 124 (Fla. 1st

DCA 1975)). The Florida Supreme Court later confirmed that it was the

addition of subsection (6) that caused section 194.171 to become a

jurisdictional statute of nonclaim rather than a statute of limitations.

12

Markham v. Neptune Hollywood Beach Club, 527 So. 2d 814, 816 (Fla.

1988).

In contrast, section 193.122(4), which governed the property

appraiser's suit below, contains no language establishing it as a statute

of nonclaim or imposing a jurisdictional bar to application of the relation-

back rule. Courts decline to read a provision into a statute when it has

been omitted from that provision but included in an analogous one.

Mesen v. State, 271 So. 3d 164, 169 (Fla. 2d DCA 2019) (citing cases).

To be sure, as the Port Authority points out, section 193.122(4)

employs the mandatory term shall when setting forth its limitation

period. But in this respect the statute is no different from Florida's civil

statutes of limitation generally. Section 95.11, which prescribes

limitations for civil lawsuits, states that "[a]ctions other than for recovery

of real property shall be commenced as follows." (Emphasis added.) And

section 95.011 provides that a civil action "shall be barred" unless filed

within the applicable limitation set forth in the chapter. (Emphasis

added.) Yet those statutes of limitation do not preclude application of the

relation-back principle. See, e.g., Kozich v. Shahady, 702 So. 2d 1289,

1290–92 (Fla. 4th DCA 1997) (amendment of complaint to add

indispensable party after statute of limitation for legal malpractice had

expired related back to original complaint). Neither does the limitation

statute governing the property appraiser's VAB suit.

The Port Authority also maintains that the property appraiser's

amended complaint could not relate back to the original complaint

because the Port Authority was "the only proper and indispensable party"

to the VAB suit and, therefore, the original complaint that omitted it was

a "legal nullity." But its sole authority for that proposition, Merrick Park,

bears no resemblance to this case. In Merrick Park, a VAB decision

13

reduced the valuations both of land owned by the City of Coral Gables

and of separately assessed property improvements owned by the city's

commercial tenant. 299 So. 3d at 1098–99. The property appraiser filed

suit only against the tenant to contest the VAB's valuation of the

improvements. Id. at 1099.

The "legal nullity" in Merrick Park was the city's attempt to file in

the improvements valuation suit a counterclaim seeking a further

reduction in the valuation of the underlying land. Id. at 1099, 1102–03.

Because the city was not a party to the suit, its ersatz counterclaim was

stricken as a nullity. Id. at 1102–03. When the tenant later filed an

amended counterclaim count seeking to reduce the valuation of the city's

land, the circuit court dismissed it with prejudice. Id. The Third District

affirmed the dismissal, holding that (1) the amended counterclaim

challenging the land valuation, which was separate and distinct from the

improvements valuation, was filed after the land valuation claim was

barred by expiration of the jurisdictional sixty-day nonclaim period set

forth in section 194.171, and (2) the amended counterclaim regarding

the land valuation could not relate back to the original counterclaim

because the original was filed by a nonparty and therefore it was a

nullity. Id.

In the case before us, the property appraiser's original complaint

simply was not a nullity. Contrary to the Port Authority's assertion that

it was the only proper defendant in the action under section

194.181(2)(b), that statute does not restrict who may be joined as a

defendant. It states merely that the taxpayer shall be "party defendant,"

not the sole defendant. Id. Certainly, Gulf Marine's interest in the

exemption dispute—which, after all, began when Gulf Marine filed the

initial application, and which went forward when Gulf Marine petitioned

14

the VAB—was such that the property appraiser properly named it as a

defendant in the VAB appeal. See Fla. R. Civ. P. 1.210(a) ("Any person

may be made a defendant who has or claims an interest adverse to the

plaintiff."). Further, unlike the situation in Merrick Park, here the

pleading amendment to add the Port Authority was not barred by a

jurisdictional statute of nonclaim. Rather, the amendment related back

to the original complaint for purposes of section 193.122(4), a limitation

statute. Finally, also unlike Merrick Park, here the property appraiser's

amended complaint did not attempt to insert into the litigation a new

and distinct cause of action involving separate property assessments.

See 299 So. 3d at 1101 ("The City's Land action is a separate and

distinct action from Merrick's Improvements action."). Both versions of

the property appraiser's complaint in this case challenged the VAB's

single decision to grant tax exemptions to the contiguous parcels owned

by the Port Authority and leased to Gulf Marine.

In short, the Port Authority's proposition that the property

appraiser's amended complaint could not relate back because the

original complaint was a nullity for failing to name an indispensable

party is plainly incorrect. See Kozich, 702 So. 2d at 1291 (amendment of

complaint to add indispensable party after running of statute of

limitations related back to original complaint); Est. of Eisen, 126 So. 3d

at 336 (holding that the original nominal plaintiff's lack of capacity to sue

did not render suit a nullity, and it did not bar application of relation-

back doctrine to permit substitution of new nominal plaintiff outside

imitations period).

Finally, we reject the Port Authority's assertion that it did not share

with Gulf Marine an identity of interests in the exemption issue that

permitted application of the relation-back principle. The Port Authority

15

posits that, as the landowner, its interest in the 2014 exemption

exceeded that of Gulf Marine, the tenant. But the relation-back principle

does not require the original and added parties to have equal interests.

The test is whether they have a sufficient identity of interests in the

matter so as not to prejudice the opponent. See Est. of Eisen, 126 So. 3d

at 329; R.A. Jones & Sons, 470 So. 2d at 67. As stated in R.A. Jones &

Sons, "[n]ot only must the adversary have had notice about the

operational facts, but it must have had fair notice that a legal claim

existed in and was in effect being asserted by, the party belatedly

brought in." 470 So. 2d at 67 (emphasis omitted) (quoting Williams v.

United States, 405 F.2d 234, 238 (5th Cir. 1968)). Indeed, the

"touchstone" of the identity of interests requirement is whether the party

or parties knew or should have known of the existence and involvement

of the new party. Lopez-Loarca v. Cosme, 76 So. 3d 5, 10 (Fla. 4th DCA

2011).

That touchstone was strikingly prominent in this case: Gulf Marine

and the Port Authority are in privity under a contract that obligates the

former to pay all ad valorem taxes on property it leases from the latter.

Obviously, each party to that lease knew of the existence and

involvement of the other, and with respect to the 2014 tax exemption at

issue here, their interests precisely overlapped. See Smith v. Bruster, 151

So. 3d 511, 515 (Fla. 1st DCA 2014) (holding that the existence of

overlapping interests of original and proposed new parties is a factor

weighing in favor of allowing an amendment to relate back).

Further, the Port Authority's willingness to have its own interests

pursued by Gulf Marine throughout the litigation, both below and here,

exemplifies the two entities' identity of interests and the absence of

prejudice to the Port Authority from its addition to the lawsuit. Gulf

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Marine, not the Port Authority, applied to have the property exempted

from taxation even though only the Port Authority, as legal title holder,

was authorized by law to do so. See § 196.011(1)(a). When the

applications were denied, Gulf Marine filed the VAB petition as the

"authorized agent of the owner." Gulf Marine, not the Port Authority,

advocated for the tax exemptions in the VAB special magistrate hearing

and before the board itself—after the Port Authority's vice president gave

express approval for Gulf Marine to proceed on behalf of the Port

Authority.

Moreover, on at least one occasion after the Port Authority was

added as a party in the VAB appeal suit, it advised the circuit court that

it was merely "a nominal party." The Port Authority did not join Gulf

Marine's lawsuits to set aside the post-2014 assessments. And in this

court, the Port Authority has limited its briefing to procedural issues,

leaving it to Gulf Marine alone to argue the merits of the exemption claim

in a separate appeal.

At every turn in the 2014 tax exemption dispute, Gulf Marine's

standing, if any, has been as the Port Authority's representative, while

the Port Authority has forgone advocating for itself to secure a tax

exemption on its property. Having consistently and expressly deferred to

Gulf Marine's pursuit of the exemption for the benefit of both, the Port

Authority's disavowal of their common interest in the matter because its

interest supposedly "exceeds" that of Gulf Marine rings hollow.

The upshot is that, from the beginning, all parties in the

proceedings below were fully aware that the Port Authority was

interested in the exemption issue, that this interest was being advanced

on its behalf by Gulf Marine, and that Gulf Marine was acting with the

Port Authority's imprimatur. The relation back of the Port Authority's

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inclusion as a self-described nominal defendant in the VAB suit

prejudiced no one, and the circuit court correctly permitted it.

IV. Conclusion

The Port Authority has not challenged the final judgment on its

merits. We have considered its other complaints, and we disagree with

them. Therefore, we affirm the judgment.

Affirmed.

SILBERMAN and LaROSE, JJ., Concur.

Opinion subject to revision prior to official publication.

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