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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
JANUARY TERM 2005

DARRELL MULLINS,







Appellant,
v.
Case No. 5D04-1513

CAROL LEE COLBERT,
BARTON J. BRADSHAW, ET AL.,





Appellee.
________________________________/











Opinion filed April 1, 2005









Appeal from the Circuit Court
for Citrus County,
Patricia Thomas, Judge.

Joseph M. Mason, Jr., and Carole

Joy Barice of McGee & Mason, P.A.,
Brooksville, for Appellant.

William H. Phelan, Jr., and Amanda

Bagni Reed of Bond, Arnett, Phelan,
Smith & Craggs, P.A., Ocala, for
Appellee.

PALMER, J.

In this quiet title action based upon separate claims of title by deed and title by
adverse possession, Darrell Mullins, who acquired his property interest pursuant to a
tax deed sale, argues that the summary judgment entered against him was improper.
Concluding that Mullins' tax deed was void because the tax sale was the result of an
incorrect double assessment on the land by the tax assessor, we affirm the summary
judgment entered against Mullins on his claim of title by deed. However, Mullins' claim
of title by adverse possession was improperly dismissed by summary judgment and,
accordingly, we reverse and remand as to that count.


The land that is the subject of the instant dispute was identified on an 1888 plat
as Lots 902, 903 and 904. The South Side Subdivision was platted and recorded in
1926. Due to an error in platting, Lot 6 of the South Side Subdivision overlaps with Lots
902, 903 and 904 of the 1888 plat. Appellees are record owners of Lot 6, and, in 1987,
Mullins acquired tax deeds from Citrus County to Lots 902, 903 and 904.
For several years, Citrus County "double -taxed" these three parcels by taxing
both Mullins, as the record owner of Lots 902, 903 and 904, and appellees, as the
record owner of Lot 6.
In 2000, the Citrus County Property Appraiser's office removed Lots 903 and 904
from the tax rolls retroactive to tax year 1997. In 2001, appellees filed the instant action
to quiet title in Lot 6. Following the filing of a motion for summary judgment by
appellees, the trial court entered an order granting appellees' motion for summary
judgment and quieting title in favor of appellees and against Mullins. The order declared
Mullins' tax deed void, ruling that Mullins and all those claiming through him were
restrained from bringing any claims to obtain possession of Lot 6. The trial court did not
specifically rule on Mullins' claim for adverse possession, but implicitly rejected the
claim by quieting title in favor of appellees.
The trial court properly found that Mullins has no claim to the subject property by
virtue of his tax deed because the tax deed was void as a result of the double
assessment of taxes made by the County. See Skinner v. Simms, 355 So.2d 448 (Fla.
1st DCA 1978)(holding where tax assessor incorrectly made a double assessment and
no outstanding taxes were due, the tax sale proceedings were a nullity and conferred no
2

title in the purchaser). As the New York court held in Gaydos v. Edwards, 139 N.Y.
S.2d. 154, 161 (1955):
To hold otherwise would mean that the legal title holder of real
property who regularly paid his taxes, under a valid assessment,
could be deprived of his title under another and invalid tax
assessment . . . [The statute creating tax deeds] cannot be used to
create and validate a tax title which is void from its inception by
reason of a double and erroneous assessment, no matter how long
the tax deed has been a matter of record.

However, Mullins also asserted entitlement to the property by adverse
possession in that he paid taxes on the property in question for more than seven years
and had also "occupied, possessed, and exercised dominion over the lot for more than
seven years prior to the filing of this action and the [appellees] have exercised no such
occupation, possession or dominion over the lots."

In Florida, one may acquire property by adverse possession either under color of
title or without color of title. See 95.16; 95.18, Fla. Stat. (2003). Under either
statutory method, the possession of the real property by the one asserting the right must
be continuous, adverse, and exclusive of any other right.

It is settled law that a tax deed, whether valid or invalid, is color of title under the
adverse possession statutes. Ates v. Yellow Pine Land Co., 310 So.2d 772, 774 (Fla.
1st DCA 1975). Under color of title, a property is deemed possessed under the following
circumstances:
95.16 Real property actions; adverse possession under color
of title.
* * *
(2) For the purpose of this section, property is deemed possessed
in any of the following cases:

(a) When it has been usually cultivated or improved;

3

(b) When it has been protected by a substantial enclosure. All land
protected by the enclosure must be included within the description
of the property in the written instrument, judgment, or decree. If
only a portion of the land protected by the enclosure is included
within the description of the property in the written instrument,
judgment, or decree, only that portion is deemed possessed;

(c) When, although not enclosed, it has been used for the supply of
fuel or fencing timber for husbandry or for the ordinary use of the
occupant; or

(d) When a known lot or single farm has been partly improved, the
part that has not been cleared or enclosed according to the usual
custom of the county is to be considered as occupied for the same
length of time as the part improved or cultivated.

95.16(2) Fla. Stat. (2003).

In his affidavit, which was submitted in opposition to appellees' motion for
summary judgment, Mullins attested:
11. AFFIANT, from on and after the date of his acquisition of title to LOTS
902-904, possessed, utilized, and improved the said lots, adversely to any
interest which the Plaintiffs may claim therein, by mowing, clearing,
grubbing, opening, and occupying LOTS 902-904. . . .

Such evidence was sufficient to create a genuine issue of material fact regarding
Mullins' adverse possession claim. Accordingly, entry of summary judgment quieting
title against Mullins was not warranted.

We affirm the trial court's determination that Mullins' tax deed title is void and he
can assert no claim against the property by virtue of that deed. However, we reverse the
entry of the summary judgment quieting title because of the improper entry of the
summary judgment as it relates to Mullins' adverse possession claim. As to that count,
we reverse and remand for further proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part, REMANDED.
SHARP, W. and PLEUS, JJ., concur.
4

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