This is an appeal from an order dismissing with prejudice appellant's third amended complaint. We reverse and remand for further proceedings.
Appellant, a plaintiff below, complained that Volusia County improperly issued a tax deed for subsurface property rights by failing to comply with applicable statutory notice requirements and by issuing a single tax deed to convey subsurface rights to multiple parcels. The subsurface rights affected a number of lots in a subdivision. The tax certificate was issued to Volusia County and the tax deed to R.L. Hart, but both described subsurface rights that affected many lots in a subdivision, the fee simple titles to which lots were owned by a number of persons individually.
The third amended complaint alleged that the tax deed was void because:
The third amended complaint was countered with a motion to dismiss in which the following grounds were set forth:
The trial court's reasons for dismissing the plaintiffs' complaint were:
The applicable statutes pertinent to this appeal that prescribe the procedures for the sale of tax certificates and the subsequent issue of tax deeds for subsurface rights are found in the following sections of Florida Statutes (1985):
NOTICE OF TAX SALE CERTIFICATE UNDER SECTION 197.343(2)
The problem with the trial court's order is that, while it is correct in stating that, under section 193.481, Florida Statutes, subsurface rights may be taxed separately and separate certificates issued thereon, it fails to recognize that the plaintiff did not complain about that portion of the procedure. The plaintiff complained primarily about the lack of notice under section 197.343(2), Florida Statutes. That subsection requires notice by registered mail to be given to the owner of the fee that taxes are delinquent on the subsurface rights that are being taxed separately from the fee simple interest. We conclude that the subsection contemplates a situation such as exists in this case where the subsurface rights and the fee are owned by different parties. The subsection also shows a preference for reunification of the fee and the subsurface rights in giving the fee owner preferential treatment in purchasing the tax certificate. The failure to provide the statutory notice denied plaintiff the opportunity to purchase the certificates and to merge the titles to the two classes of property rights if a tax deed could later be obtained.
A tax deed is void where requirements of notice to the titleholder are not strictly followed. Weiss v. Prudential Enterprises, Inc., 387 So.2d 457 (Fla. 1st DCA 1980). The validity of a tax deed depends on the validity of the underlying tax assessments and compliance with all constitutional and statutory conditions prerequisite to their issuance. D.R.L., Inc. v. Murphy, 508 So.2d 413, 415 (Fla. 5th DCA), rev. denied, 518 So.2d 1277 (Fla. 1987). Although the cases cited above refer to titleholders and the owners in the instant case do not hold title to the subsurface rights, we believe that the plaintiff stated, and has, a cause of action for cancellation of the tax deed by alleging, inter alia, that the county failed to give the notice required under section 197.343(2). No other requirements for notice to owners of fees to which the subsurface rights are taxed separately have been found or have been pointed out to us, and if, as alleged, the county failed to give notice of the tax delinquency, the fee owners were effectively denied the right to an opportunity to purchase the tax certificate and possibly to reunite the fee with the subsurface rights. Therefore, the court erred in dismissing the complaint based on the fact that section 193.481 permits subsurface rights to be "taxed separately and separate tax certificates issued thereon" when the subsurface rights are separated from the fee title.
In support of the order of dismissal, the county argues that the court dismissed the action because Cape Atlantic lacked standing — a ground upon which prior versions of the complaint were dismissed. However, the trial court's order dismissing the second amended complaint included leave to amend with the requirement that the amended complaint contain the allegation that Cape Atlantic was authorized by its member property owners to file the action. It appears that the plaintiff's compliance with that order in the third amended complaint disposed of the question whether Cape Atlantic had standing to sue as a representative of the individual lot owners. The county does not cross-appeal the propriety of that order; therefore, the issue is not before us for consideration.
In its motion to dismiss, the county also contended that co-plaintiff Powell failed to allege an interest in any property described in the tax deed. Presumably, the county meant that Powell insufficiently pleaded ownership of one of the lots to which the subsurface rights in issue were attached. Since it appears that the trial court did not dismiss the complaint on that ground, and since neither party raises the issue on appeal, we decline to address it further. The issue may be considered on remand.
The court found by reference to the mortgage book that, contrary to the plaintiff's allegation, notice of the application for the tax deed was published four times. A motion to dismiss a pleading seeking affirmative relief tests the legal sufficiency of the pleading. Augustine v. Southern Bell Tel. & Tel. Co., 91 So.2d 320 (Fla. 1956). It admits all well-pleaded allegations of the pleading to which it is directed and asserts that the pleading does not state a cause of action on the grounds specified. Connolly v. Sebeco, Inc., 89 So.2d 482 (Fla. 1956). Extrinsic facts are not considered in a motion to dismiss, and it was error for the trial court to dismiss the third amended complaint by somehow determining that notice was published four times as shown in the public records.
SEPARATE TAX DEEDS
Cape Atlantic alleged in its complaint that section 197.502(1), Florida Statutes (1985), requires separate tax deeds for each parcel of property listed in the tax certificate. Only one "parcel" was described in the tax certificate — the subsurface rights to a portion of the subdivision. We find no requirement, and none has been pointed out, that separate tax deeds be issued because the surface rights had been subdivided.
The trial court erred in dismissing the complaint on the grounds stated in the order of dismissal, and although the third amended complaint was not a model of pleading, we do not believe its deficiencies warranted a dismissal with prejudice. The order of dismissal is therefore reversed.
REVERSED and REMANDED.
HARRIS and GRIFFIN, JJ., concur.