IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

GENESIS MINISTRIES, INC.,            NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D15-1310

GREGORY S. BROWN, AS
PROPERTY APPRAISER FOR
SANTA ROSA COUNTY,
FLORIDA, STAN COLIE
NICHOLS, AS TAX
COLLECTOR FOR SANTA
ROSA COUNTY, FLORIDA,
AND MARSHALL
STRANBURG, AS EXECUTIVE
DIRECTOR OF THE
DEPARTMENT OF REVENUE
OF THE STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed February 16, 2016.

An appeal from the Circuit Court for Santa Rosa County.
John F. Simon, Jr., Judge.

Douglas L. Smith of Burke, Blue, Hutchison, Walters & Smith, P.A., Panama City,
for Appellant.

Thomas M. Findley and Robert J. Telfer III of Messer Caparello, P.A., Tallahassee
for Appellees Gregory S. Brown and Stan Colie Nichols.

Pamela Jo Bondi, Attorney General, and Timothy E. Dennis, Chief Assistant
Attorney General, Tallahassee for Appellee Marshall Stranburg.
WETHERELL, J.

      Genesis Ministries, Inc. (Genesis) appeals the dismissal of its complaint

challenging the ad valorem taxes imposed on its property for 2005 to 2013. Genesis

argues that the trial court erred in finding that its challenge was barred by section

194.171(2), Florida Statutes. We agree. Accordingly, we reverse the dismissal order

and remand for further proceedings.

                      I. Factual and Procedural Background

      Genesis owned property in Santa Rosa County on which it alleged that it

“continuously operated a Christian school and church . . . since before 2005 through

February of 2013.” The property was granted a “religious exemption”1 from ad

valorem taxes from 2005 to 2012.

      On February 26, 2013, the property appraiser for Santa Rosa County recorded

in the county’s public records a Notice of Tax Lien for Ad Valorem Exemption

and/or Limitation Exclusion (Tax Lien) against the property. The Tax Lien – which,

according to the complaint, was recorded “with no warning or due process of any

kind” – claimed that Genesis owed ad valorem taxes for 2005 to 2012, plus penalties



1
   See Art. VII, § 3(a), Fla. Const. (“Such portions of property as are used
predominately for . . . religious . . . purposes may be exempted by general law from
taxation.”); § 196.196, Fla. Stat. (establishing the criteria to be used by the property
appraiser in determining whether property is being used predominately for religious
purposes).
                                             2
and interest, amounting to almost $298,000. The Tax Lien asserted that Genesis

“was not legally entitled to receive [the religious exemption] because [it was] Not

Qualified for Ad Valorem Exemption for Reasons Set Forth in the Exemption

Removal Notice” (emphasis added), but the Exemption Removal Notice was not

attached to the Tax Lien nor is it contained in the record on appeal.

      Genesis alleged that, in addition to recording the Tax Lien, the property

appraiser also “revoked” its religious exemption for 2013. The complaint does not

allege how or when this occurred, but it is undisputed that when the property

appraiser certified the county’s 2013 tax rolls on October 18, 2013, Genesis’

property was “listed [on the rolls] as fully taxable with none of its previous

exemption.”

      At some point (the complaint does not allege when), Genesis asked the

property appraiser for an explanation of his decision to revoke its religious

exemption and “back-assess” its property. In response, the attorney for the property

appraiser sent Genesis a letter dated November 15, 2013, explaining the factual and

legal basis for the property appraiser’s determination that Genesis has not been

entitled to the religious exemption since 2004. The letter concluded by stating that

the property appraiser’s determination “will not be changed.”

      In August 2014, after selling the property, Genesis sent the tax collector for

Santa Rosa County a check for approximately $352,000 to pay the 2013 taxes and

                                          3
the amount set forth in the Tax Lien. The letter accompanying the check stated that

the payment was being made “under protest” and that “[a] lawsuit will be

forthcoming seeking a full refund.”

      Thereafter, on September 9, 2014, Genesis filed a complaint against the

property appraiser, the tax collector, and the executive director of the Department of

Revenue (DOR) (collectively “Appellees”), seeking a refund of the taxes paid under

protest. The complaint disputed the facts asserted by the property appraiser in the

November 2013 letter, asserted that Genesis’ property was entitled to the religious

exemption from 2005 to 2013, and alleged that the property appraiser violated the

law when he assessed the property without the exemption for 2013 and when he

“back-assessed the Property for 2005 through 2012 by filing the Tax Lien.” The

complaint also alleged that the property appraiser’s actions violated the Equal

Protection, Establishment, and Free Exercise Clauses in the state and federal

constitutions, as well as the Religious Freedom Restoration Act codified in chapter

761, Florida Statutes.

      The property appraiser and DOR filed motions to dismiss the complaint.2 The

motions argued that the complaint was barred by section 194.171(2) because, with

respect to the 2005 to 2012 taxes, the complaint was filed more than 60 days after



2
   The tax collector subsequently filed a “notice of joinder” in the motion to dismiss
filed by the property appraiser.
                                           4
the Tax Lien was recorded, and with respect to the 2013 taxes, the complaint was

filed more than 60 days after the 2013 tax rolls were certified.

       The trial court granted the motions to dismiss, finding that all of Genesis’

claims were barred by section 194.171(2). With respect to the 2005 to 2012 taxes,

the court found that the recording of the Tax Lien triggered the 60-day period in

section 194.171(2) because the lien was equivalent to a denial of the exemption for

those years, and pursuant to Ward v. Brown, 

(Fla. 2004), the denial

of an exemption is subject to the requirements of section 194.171(2). With respect

to the 2013 taxes, the court found that the complaint was barred because it was filed

more than 60 days after the 2013 tax rolls were certified.

       This appeal followed.

                                       II. Analysis

       We review the dismissal order under the de novo standard of review because

the question of whether a complaint should be dismissed is a question of

law. See City of Gainesville v. Dep’t of Transp., 

, 522 (Fla. 1st DCA

2001). And, like the trial court, our review is confined to the well-pled allegations

in the complaint and its attachments. 

provides in pertinent part that “[n]o action shall be brought

to contest a tax assessment after 60 days from the date the assessment being

contested is certified for collection under s. 193.122(2) . . . .” This is a “jurisdictional

                                             5
statute of nonclaim” that bars suits filed after the period expires, and it applies

regardless of the ground on which the assessment is being challenged. See 

; Markham v. Neptune Hollywood Beach Club, 

,

816 (Fla. 1988); see also § 194.171(6), Fla. Stat. (“The requirements of subsections

(2), (3),[3] and (5)[4] are jurisdictional. No court shall have jurisdiction in such cases

until after the requirements of both subsections (2) and (3) have been met. A court

shall lose jurisdiction of a case when the taxpayer has failed to comply with the

requirements of subsection (5).”). However, we have previously held that the 60-

day period in section 194.171(2) does not begin to run if the property appraiser fails

to strictly comply with the applicable statutory notice requirements. See Chihocky

v. Crapo, 

, 232-33 (Fla. 1st DCA 1994).

      Here, although it is undisputed that Genesis’ complaint was filed more than

60 days after the Tax Lien was recorded and more than 60 days after the 2013 tax

rolls were certified, Genesis contends that the trial court erred in dismissing its

complaint pursuant to section 194.171(2) because [A] with respect to the 2005 to

2012 taxes, the 60-day period in that statute is not applicable, and [B] with respect


3
   “Before an action to contest a tax assessment may be brought, the taxpayer shall
pay to the collector not less than the amount of the tax which the taxpayer admits in
good faith to be owing.” § 194.171(3), Fla. Stat.
4
   “No action to contest a tax assessment may be maintained, and any such action
shall be dismissed, unless all taxes on the property assessed in years after the action
is brought, which the taxpayer in good faith admits to be owing, are paid before they
become delinquent.” § 194.171(5), Fla. Stat.
                                           6
to the 2013 taxes, the property appraiser failed to provide Genesis the statutorily-

required notice that its religious exemption was denied for 2013. We will address

each argument in turn.

                               A. 2005 to 2012 Taxes

      Genesis argues that the Tax Lien that “back-assessed” the 2005 to 2012 taxes

on its property is not subject to the 60-day period in section 194.171(2) because the

statute does not apply to actions challenging tax liens. We agree.

      Section 194.171(2), by its clear and unambiguous terms, applies only to

actions contesting “a tax assessment” and it requires such actions to be filed within

60 days after the assessment is “certified for collection under s. 193.122(2).” A tax

lien is not a tax assessment, and it is not certified for collection under section

193.122(2).

      Section 193.122 has nothing to do with tax liens. This statute establishes the

procedures pursuant to which the property appraiser certifies (i.e., finalizes) the

annual tax rolls, and in subsection (2), the statute requires the property appraiser to

publish “notice of the date and fact of . . . certification” on the property appraiser’s

website, in his or her office, and in the local newspaper. The certification of the tax

rolls is the culmination of a process that affords property owners considerable due

process before taxes are imposed on their property. See, e.g., § 200.069, Fla. Stat.

(detailing the notice of proposed property taxes that must be provided to property

                                           7
owners each year); §§ 194.011-.037, Fla. Stat. (providing for administrative review

of assessments prior to the certification of the tax rolls).

      The Tax Lien recorded against Genesis’ property was not part of the property

appraiser’s certification of the county’s tax rolls for 2013 (or any other year) under

section 193.122. Instead, it was based on the property appraiser’s retrospective

determination under section 196.011(9)(a)5 that Genesis was not entitled to the tax

exemption it received from 2005 to 2012.

      Section 194.171 does not refer to section 196.011(9)(a) nor does it mention

tax liens. To interpret section 194.171(2) in the manner urged by Appellees (as the


5
 This statute, commonly referred to as the “claw-back statute,” provides in pertinent
part:

      The owner of any property granted an exemption who is not required
      to file an annual application or statement shall notify the property
      appraiser promptly whenever the use of the property or the status or
      condition of the owner changes so as to change the exempt status of the
      property. If any property owner fails to so notify the property appraiser
      and the property appraiser determines that for any year within the prior
      10 years the owner was not entitled to receive such exemption, the
      owner of the property is subject to the taxes exempted as a result of
      such failure plus 15 percent interest per annum and a penalty of 50
      percent of the taxes exempted. Except for homestead exemptions
      controlled by s. 196.161, the property appraiser making such
      determination shall record in the public records of the county a notice
      of tax lien against any property owned by that person or entity in the
      county, and such property must be identified in the notice of tax lien.
      Such property is subject to the payment of all taxes and penalties. Such
      lien when filed shall attach to any property, identified in the notice of
      tax lien, owned by the person who illegally or improperly received the
      exemption.
                                         8
trial court did), we would have to re-write the statute so that it would read: “No

action shall be brought to contest a tax assessment or tax lien after 60 days from the

date the assessment being contested is certified for collection under s. 193.122(2), 60

days after the lien is recorded under s. 196.011(9)(a), or 60 days after the date a

decision is rendered concerning such assessment by the value adjustment board . . .

.” We have no authority to re-write the statute in this (or any other) manner. See Am.

Bankers Life Assurance Co. of Fla. v. Williams, 

, 778 (Fla. 1st DCA

1968) (“This court is without power to construe an unambiguous statute in a way

which would extend, modify, or limit its express terms or its reasonable and obvious

implications. To do so would be an abrogation of legislative power.”). Instead, we

must construe the statute as it is written, and as written, the statute simply does not

apply to actions challenging tax liens.

      We recognize that, in Ward, the Florida Supreme Court held that the 60-day

period in section 194.171(2) “applies broadly to taxpayers’ actions challenging the

assessment of taxes against their property regardless of the legal basis of the

challenge.” 

. However, we find no support in Ward for the

proposition that section 194.171(2) should be construed to apply to actions

challenging tax liens.

      The taxpayers in Ward argued that section 194.171(2) did not bar their suit

challenging the imposition of taxes on their property because they were challenging

                                          9
the “classification” of the property as taxable rather than the property appraiser’s

valuation of the property. 

The Court rejected this “semantic argument”

and held that taxpayers are bound by section 194.171(2) “whether they are claiming

an exemption or claiming that the assessors’ action is illegal, unlawful, or void as an

improper ‘classification’ or for some other reason.” 

The Court based its

holding on public policy considerations, explaining that section 194.171(2) is part

of the comprehensive statutory scheme for ad valorem taxation that is “intended to

facilitate tax collecting and to put individual taxation issues on the fast-track to

resolution so that counties may continue to function and count on tax revenues to do

so.” 

Accord 

(explaining that the legislative

intent and public policy underlying section 194.171(2) “is to ensure prompt payment

of taxes due and making available revenues that are not disputed”).

      Unlike Ward which arose from a challenge to a current-year tax assessment,

this case involves an effort by the property appraiser to “claw-back” taxes that he

retrospectively determined that Genesis should have paid in prior years. The

county’s budget for those prior years was set taking into account the exemption of

Genesis’ property, and any taxes collected pursuant to the Tax Lien will have no

impact on those prior years’ budgets.           Accordingly, the policy concerns

underlying Ward are not present with respect to the Tax Lien’s “back-assessment”

of Genesis’ property for 2005 to 2012.

                                          10
      Furthermore, basic notions of due process – i.e., notice and an opportunity to

be heard – weigh against interpreting section 194.171(2) to apply to actions

challenging tax liens. There is no requirement that the property appraiser give the

property owner actual notice of the tax lien, and unlike valuation, classification, and

exemption determinations which can be appealed to the value adjustment board

before the tax rolls are certified and the 60-day period in section 194.171(2) is

triggered, there is no procedure for the property owner to obtain administrative

review of the property appraiser’s determination under section 196.011(9)(a) before

the tax lien is recorded in the public records. Accordingly, if section 194.171(2) was

construed to apply to tax liens, the only opportunity a property owner would have to

challenge the property appraiser’s “back-assessment” of taxes under section

196.011(9)(a) would be by filing suit within 60 days after the tax lien is recorded in

the public records. We find it highly unlikely that the Legislature intended such a

draconian result, which would effectively require property owners to routinely (at

least every 60 days) check the public records to determine whether a tax lien has

been recorded against their property.




                                          11
      In sum, because the 60-day period in section 194.171(2) does not apply to

actions challenging a tax lien, the trial court erred in dismissing the Genesis

complaint challenging the 2005 to 2012 taxes.6

                                    B. 2013 Taxes

       Genesis contends that the trial court erred in dismissing its challenge to the

2013 taxes under section 194.171(2) because the property appraiser did not provide

the notice required by section 196.193(5)7 before “revoking” its religious exemption


6
   In reaching this decision, we did not overlook the property appraiser’s “tipsy
coachman” argument that dismissal of Genesis’ challenge to the 2005 to 2012 taxes
was also mandated by section 194.171(5). That statute divests the trial court of
jurisdiction over an action contesting a tax assessment “unless all taxes on the
property assessed in years after the action is brought . . . are paid before they become
delinquent.” § 194.171(5), Fla. Stat. (emphasis added). However, on its face,
section 194.171(5) has no application here because Genesis’ complaint was filed in
2014 and there were no taxes assessed on the property in the years “after the action
[was] brought” – i.e., after 2014 – that were unpaid or delinquent. The case relied
on by the property appraiser, Washington Square Corp. v. Wright, 

(Fla. 1st DCA 1997), is not contrary authority; that case involved assessments for
1994 and 1995 that became delinquent after the taxpayer’s suit was filed in 1993.
Accord Bystrom v. Diaz, 

(Fla. 1987) (approving decision affirming
dismissal of suit challenging 1982 assessment because, while the suit was pending,
the 1984 taxes became delinquent); Higgs v. Armada Key West Ltd. P’ship, 

303 (Fla. 3d DCA 2005) (granting petition for writ of prohibition because section
194.171(5) divested the trial court of jurisdiction over suit challenging 2001
assessment when, after the suit was filed, the taxpayer failed to pay or timely
challenge the 2002 assessment).
7
  This statute provides:

       (5)(a) If the property appraiser determines that any property claimed
      as wholly or partially exempt under this section is not entitled to any
      exemption or is entitled to an exemption to an extent other than that
      requested in the application, he or she shall notify the person or
                                         12
for 2013. Appellees respond that the Tax Lien, coupled with the November 2013

letter, provided Genesis the requisite notice that its religious exemption was denied

for 2013. On the present record, we agree with Genesis.

      Contrary to Appellees’ argument, the Tax Lien does not purport to deny

Genesis’ religious exemption for 2013. The Tax Lien, by its terms, only refers to

the 2005 to 2012 tax years and it asserts that Genesis “was not” (past tense) entitled


      organization filing the application on such property of that
      determination in writing on or before July 1 of the year for which the
      application was filed.

       (b) The notification must state in clear and unambiguous language the
      specific requirements of the state statutes which the property appraiser
      relied upon to deny the applicant the exemption with respect to the
      subject property. The notification must be drafted in such a way that a
      reasonable person can understand specific attributes of the applicant or
      the applicant’s use of the subject property which formed the basis for
      the denial. The notice must also include the specific facts the property
      appraiser used to determine that the applicant failed to meet the
      statutory requirements. If a property appraiser fails to provide a notice
      that complies with this subsection, any denial of an exemption or an
      attempted denial of an exemption is invalid.

        (c) All notifications must specify the right to appeal to the value
      adjustment board and the procedures to follow in obtaining such an
      appeal. Thereafter, the person or organization filing such application,
      or a duly designated representative, may appeal that determination by
      the property appraiser to the board at the time of its regular hearing. In
      the event of an appeal, the property appraiser or the property appraiser’s
      representative shall appear at the board hearing and present his or her
      findings of fact. If the applicant is not present or represented at the
      hearing, the board may make a determination on the basis of
      information supplied by the property appraiser or such other
      information on file with the board.
                                          13
to the religious use exemption that it received in those years. Additionally, even if

the Tax Lien could somehow be construed to deny Genesis’ religious exemption for

2013, it does not provide any explanation as to why the exemption was denied as

required by section 196.193(5)(b),8 nor does it advise Genesis of its right to appeal

the property appraiser’s determination to the value adjustment board as required by

section 196.193(5)(c). Similarly, although the November 2013 letter does provide

the factual and legal basis for the property appraiser’s determination that Genesis is

not entitled to the religious exemption, it does not advise Genesis of its right to

appeal that determination to the value adjustment board and, moreover, the letter

was issued after the July 1 deadline in section 196.193(5)(a) and after the

certification of the 2013 tax rolls.

      At oral argument, the property appraiser argued for the first time that the

notice requirements in section 196.193(5) do not apply in this case because that

statute only applies to the denial of an initial application for an exemption, not the

“revocation” of a previously-granted exemption. We reject this argument because it

does not give effect to the entire statute.




8
  We recognize that the Tax Lien states that Genesis was not entitled to the religious
exemption “For Reasons Stated in the Exemption Removal Notice,” but as noted
above, the Exemption Removal Notice was not attached to the Tax Lien nor is it
contained in the record on appeal.
                                         14
      Notwithstanding the title of section 196.193 (“Exemption applications; review

by property appraiser.”), the scope of the statute is not limited to initial applications

for an exemption or exemptions that require an annual application. The notice

provisions in section 196.193 broadly apply when “the property appraiser

determines that any property claimed as wholly or partially exempt under this section

is not entitled to any exemption.” § 196.193(5)(a), Fla. Stat.

      Moreover, section 196.193(1) specifically addresses property “exempted

from the annual application requirement,” which includes property used for religious

purposes.9 Paragraph (1)(a) provides that such property “shall be returned, but shall

be granted tax exemption by the property appraiser.” Paragraph (1)(b) authorizes

the property appraiser to deny a religious exemption if he or she determines that the

property is being held for speculative purposes or being used for other than religious

purposes, but under paragraph (1)(c), if the exemption is denied, the property owner

may appeal the decision to the value adjustment board “in the manner prescribed for

appealed tax exemptions.”


9
  See § 196.011(4), Fla. Stat. (“When any property has been determined to be fully
exempt from taxation because of its exclusive use for religious . . . purposes and the
application for its exemption has met the criteria of s. 196.195, the property appraiser
may accept, in lieu of the annual application for exemption, a statement certified
under oath that there has been no change in the ownership and use of the property.”);
see also § 196.011(9)(a), Fla. Stat. (authorizing the county commission to “waive
the requirement that an annual application or statement be made for exemption of
property within the county after an initial application is made and the exemption
granted”).
                                          15
       Section 194.011(3)(d) prescribes the procedure for appealing the denial of a

tax exemption to the value adjustment board and ties the appeal period to the notice

provided by the property appraiser: “With respect to an issue involving the denial

of an exemption, . . . the petition must be filed . . . on or before the 30th day following

the mailing of the notice by the property appraiser under . . . s. 196.193.” The only

notice-mailing requirements in section 196.193 are those contained in subsection

(5). Thus, by virtue of section 196.193(1)(c)’s implicit reference to the value

adjustment board appeal procedures in section 194.011(3)(d), we conclude that

section 196.193(1)(c) necessarily contemplates that the property appraiser is

required to provide notice in accordance with subsection (5) when denying an

existing religious exemption.

      The parties have not cited, nor has our research located any cases directly

addressing the consequences of the property appraiser’s failure to provide notice of

the denial of an exemption on the 60-day period in section 194.171(2). However,

we considered a somewhat analogous situation in Chihocky.

      In Chihocky, the property owner filed a suit challenging the denial of her

application to classify her property as agricultural. 

. The suit

was filed more than 60 days after the tax rolls were certified and, pursuant to section

194.171(2), the trial court granted summary judgment in favor of the property

appraiser. 

We reversed because there were disputed issues of fact as to

                                            16
whether the property appraiser complied with the notice requirements in section

193.122(2) for certification of the tax rolls. 

to the argument made by Appellees in this case, the property appraiser

in Chihocky argued that his compliance with the statutory notice requirements was

irrelevant because the property owner’s suit was jurisdictionally barred by section

194.171(2). 

We rejected this argument, explaining that it would render

the mandatory notice provisions in the applicable statute meaningless and it was

inconsistent with the legislative intent:

      Appellee's interpretation of the jurisdictional time limit would make
      gratuitous the notice provision of section 193.122(2) which says that
      the property appraiser shall provide notice at the time and in the manner
      specified. Despite the mandatory language, the notice requirement
      would be meaningless under appellee's interpretation because the only
      potential plaintiffs having standing to challenge the defective notice —
      those whose assessments were allegedly improper and who did not
      bring suit within 60 days — would be barred from the courts. It is
      improbable that the Legislature intended that a property appraiser could
      certify and extend the tax roll, fail to provide the required notice by
      publication and posting, wait 61 days and then be assured that no court
      could exercise jurisdiction over a taxpayer's claim of incorrect or
      invalid assessment.

      In addition, in light of the severe consequences imposed upon the
      expiration of 60 days, strict compliance with the statutory notice
      requirements would appear to be consistent with the legislative
      purpose.

(emphasis in original).

      The same is true here. The Legislature has made clear that the property

appraiser’s failure to comply with the notice requirements in section 196.193(5) has
                                            17
consequences: “If a property appraiser fails to provide a notice that complies with

this subsection, any denial of an exemption or an attempted denial of an exemption

is invalid.”   § 196.193(5)(b), Fla. Stat.       This statutory provision would be

meaningless if, as Appellees argue, Genesis was barred from challenging the denial

of its exemption for 2013 when it was not provided notice of the denial simply

because its property was listed on the 2013 tax rolls and Genesis did not file suit

within 60 days after the tax rolls were certified.

       Accordingly, as the record presently stands, the trial court erred in finding that

Genesis’ challenge to the 2013 taxes was barred by section 194.171(2). That said,

we do not foreclose the possibility that further development of the record may

establish that the property appraiser did indeed provide notice to Genesis before July

1, 2013, explaining why its religious use exemption was denied for 2013 and

advising Genesis of its right to appeal that determination to the value adjustment

board. If so, then, as Genesis conceded at oral argument, section 194.171(2) will bar

Genesis’ challenge to the 2013 taxes because Ward held that the denial of an

exemption is a “tax assessment” for purposes of that statute and it is undisputed that

the Genesis’ complaint was filed more than 60 days after the 2013 tax rolls were

certified.




                                           18
                                  III. Conclusion

      For the reasons stated above, the trial court erred in finding that Genesis’ suit

was barred by section 194.171(2). Accordingly, we reverse the dismissal order and

remand for further proceedings consistent with this opinion.

      REVERSED and REMANDED.

MAKAR and WINOKUR, JJ., CONCUR.




                                         19