PENZELL V. M&M
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, 2005 BEVERLY PENZELL, et al., Appellants, vs. ** ** ** M & M CONSTRUCTION GROUP CORP., et al., Appellees. CASE NO. 3D04-2487 & 3D04-2726 ** ** ** LOWER TRIBUNAL NO. 04-1701 Opinion filed September 7, 2005. An Appeal from the Circuit Court for Miami-Dade County, Michael A. Genden, Judge. Rones & Navarro and Victor K. Rones, for appellant. Aliki Moncrief, appellee, State of Protection. Senior Assistant General Counsel for Florida, Department of Environmental Before WELLS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge. ROTHENBERG, Judge. Beverly Penzell and Bank of America appeal from an order directing the Clerk of the Circuit Court in and for Miami-Dade County to distribute excess proceeds of a tax sale to the State of Florida, Department of Environmental Protection (DEP), and from an order denying Penzell s motion to distribute the excess proceeds of the tax sale to her. We affirm. On February 12, 2003, the DEP obtained a final judgment against Dana Investments, Inc. (Dana), the owner of the property at issue. The final judgment found Dana and its co-defendants liable for illegal discharges of a hazardous substance. It granted injunctive relief requested by the DEP, ordering Dana and the other defendants to immediately undertake site assessment activities to determine the extent of contamination; to conduct cleanup activities; and to provide documentation to the DEP that they thirty days. had initiated the site assessment within The judgment also authorized the DEP, in the event of default by the defendants, to access the property and perform assessment and remedial activities, and it provided that the defendants incurred enforce be liable in doing so. the final judgment sanctions. costs would The any court by expenses retained contempt or that the jurisdiction other DEP to appropriate The court also retained jurisdiction to assess any incurred property, for and by to the DEP determine in assessing the and appropriate penalties for the illegal discharges. remediating amount civil A later final judgment assessed $52,310.00 in civil penalties against Dana. 2 of the On April 16, 2003, a certified copy of the February 12, 2003 judgment was recorded in the official records of Miami-Dade County. Due to a failure to pay the property taxes on the property, a tax sale auction was held on December 3, 2003, at which, M & M Construction After the Group Corporation property taxes (M&M) were purchased paid, the excess property. proceeds of $122,601.82 remained. On January 20, 2004, Bank of America, who owned the a mortgage on property, assigned its rights and interest in the mortgage to Beverly Penzell. M&M Penzell filed an intervened, action to seeking quiet title distribution on of its the tax deed. surplus tax proceeds to her as assignee of the Bank of America mortgage. The trial court issued an order to show cause why the funds should not be distributed to Penzell. The DEP responded, asserting that it was entitled to all excess proceeds of the tax sale due to its judgments and recorded lien. denied Penzell s motion, and entered an The lower court order directing the clerk to distribute the excess proceeds of the tax sale to the DEP. This appeal follows. As the lower court s orders rest on questions of law, our review is de novo. Racetrac Petroleum, Inc. v. Delco Oil, Inc., 721 So. 2d 376 (Fla. 5th DCA 1998). Penzell and Bank of America claim that the mortgage held by Penzell takes priority over the judgment obtained by the DEP. We disagree. Section 197.582(2), 3 Florida Statutes (2004) establishes the manner in which excess proceeds from a tax sale must be distributed, and prioritizes the payment of any lien of record held by a governmental unit against the property. 197.582(2), Fla. Stat. prioritizing liens held (2004). by Section governmental 197.582(2), units, requires ยง in that governmental liens be satisfied before satisfying other claims. The final judgment obtained by the DEP on February 12, 2003 (recorded on April 16, 2003, thereby creating a lien on the property) is a governmental lien under section 197.582(2), Florida Statutes, and therefore takes priority over Penzell s mortgage. Penzell had actual notice of this judgment and/or was put on notice by the recording of the DEP s judgment. Penzell and Bank of America also argue, based upon this court s decision in Perez v. Pearl, 411 So. 2d 972 (Fla. 3d DCA 1982), that the DEP did not have property sold at the tax sale. a valid lien against the Again, we must disagree as we conclude that Perez is inapplicable to the instant case. In Perez we found that a judgment establishing liability but not determining or fixing a monetary amount of damages was merely an expectancy and therefore did not constitute a cognizable lien. Id. The judgment in the instant case is quite different, as the trial court issued an injunction which was clear and definite. When an injunction is sufficiently clear and definite to apprise the parties of the court s mandate, the parties must comply or 4 face the penalty of contempt. Clemente, 467 So. 2d 348, See Seaboard Sys. R.R., Inc. v. 358 (Fla. 3d DCA 1985). The injunction in the instant case ordered the parties to comply with clear and definite tasks, and thus created a duty to obey, not a mere expectancy. We therefore conclude that the injunction issued by the trial court, which was duly and timely recorded, created a valid lien on Florida the property, Statutes which (2004) pursuant establishes to section the DEP s 197.582(2), priority distribution of the excess proceeds from the tax sale. Affirmed. 5 in
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