Motion to Strike in RAUL MEJIA ET AL VS PEDRO LOPEZ (PROPERTY APPRAISER) ET AL| Trellis.Law

On April 17, 2018 a Motion-Secondary was filed involving a dispute between Lopez, Virginia, Mejia, Raul, and Biegalski, De La Mora, Lopez, for Declaratory Judgment in the District Court of Miami-Dade County.

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Filing # 146442651 E-Filed 03/25/2022 01:53:44 PM

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA

RAUL MEJIA, and VIRGINIA LOPEZ,

Plaintiffs,

v. Case No. 2018-CA-012371

PEDRO GARCIA, as Property Appraiser
of Miami-Dade County; LEON M.
BIEGALSKI, as Executive Director of
the Florida Department of Revenue; and
MARCUS SAIZ DE LA MORA, as Tax
Collector of Miami-Dade County,

Defendants.
______________________________________/

DEFENDANT EXECUTIVE DIRECTOR’S
RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO STRIKE

Defendant Jim Zingale, as Executive Director of the Florida Department of

Revenue (hereinafter “the Department”) 1, by and through undersigned counsel,

responds in opposition to the “Plaintiffs’ Motion to Strike Florida Department of

Revenue’s Affirmative Defenses, Answer (Paragraph 2) And For a More Definite

Statement” (“Motion to Strike”) and, in support thereof, states as follows.

Background

1. On January 12, 2022, the Court entered an agreed order granting

the Plaintiffs’ motion for leave to file a Fourth Amended Complaint. The

Department answered the Fourth Amended Complaint on January 31, 2022.

1
Dr. Jim Zingale was named Executive Director of the Florida Department of
Revenue on January 29, 2019. Pursuant to Florida Rule of Civil Procedure
1.260(d)(1), Dr. Zingale is automatically substituted as a party to this action.

1
2. In its Answer, the Department asserted several defenses and/or

affirmative defenses. On February 11, 2022, the Plaintiffs filed their Motion to

Strike.

3. The Motion to Strike attempts to argue the merits and/or misstates

what the Department’s actual defenses are. The Motion should be denied.

Argument

4. It is axiomatic that the purpose of a motion to strike when filed in

response to a defense raised is merely to test the legal sufficiency of a defense.

See, e.g., Gonzalez v. NAFH Nat. Bank, 93 So. 3d 1054, 1057 (Fla. 3d DCA 2012)

(citing Burns v. Equilease Corp., 357 So.2d 786, 787 (Fla. 3d DCA 1978)). On a

motion to strike a claim, the trial court must resolve all doubts in favor of the

pleading and keep in mind that striking a pleading is an extreme measure that

is disfavored. See Parrish & Yarnell, P.A. v. Spruce Ventures, LLC, 180 So. 3d

1198, 1200 (Fla. 2d DCA 2015).

5. The Department’s defenses may be pled even if they are not

“affirmative defenses” that completely bar a claim. See Fla. R. Civ. P. 1.110(c)

(“In the answer a pleader shall state in short and plain terms the pleaders

defenses”); Fla. R. Civ. P. 1.140(b) (“Every defense in law or fact to a claim for

relief in a pleading must be asserted in the responsive pleading.”). A “defense”

is any allegation raised by the defendant that, if true, would defeat or avoid the

plaintiff's cause of action. Martin County v. Edenfield, 609 So. 2d 27, 29 (Fla.

1992) (citing Lovett v. Lovett, 112 So. 768 (Fla. 1927)). Each defense alleged by

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Department in its Answer defeat or avoid some relief the Plaintiffs seek in the

Fourth Amended Complaint; thus they are sufficient.

A. The Department’s First and Second Defenses are
sufficient as a matter of law.

6. Paragraph 6 of Plaintiffs’ Fourth Amended Complaint states:

Defendant, JIM PATRONIS, as Chief Financial Officer,
of the Florida Department of Financial Services, in his
official capacity and is an interested party to the action
for the purpose of seeking attorney’s fees against the
Florida Department of Revenue pursuant to Fla. Stat. §
284.30 which provides, “A party to a suit in any court,
to be entitled to have his or her attorney fees paid by the
state or any of its agencies, must serve a copy of the
pleading claiming the fees on the Department of
Financial Services; and thereafter the department shall
be entitled to participate with the agency in the defense
of the suit and any appeal thereof with respect to such
fees.”

(emphasis added). These same allegations are repeated almost verbatim as a

condition precedent in Paragraph 44 of the Fourth Amended Complaint.

Compliance with section 284.30 is a clear prerequisite to seeking fees against a

state agency.

7. The Department’s first defense essentially alleges that the facts set

forth in the Fourth Amended Complaint do not establish any basis for an award

of attorney’s fees against the Department. The Department’s second defense

alleges that even if Plaintiffs were to state a cause of action, sovereign immunity

would bar a generalized claim for attorney’s fees against the Department. Given

the allegations in Paragraph 6 and the expansive relief sought by the Plaintiffs,

these defenses were entirely reasonable to assert and have merit.

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8. The Plaintiffs now disavow that they are seeking an award of

attorney’s fees against the Department in this action. Rather, the Plaintiffs

contend that they are only seeking a declaration that they are a “prevailing party”

to try and seek recovery of attorney’s fees against the Department in a

subsequent proceeding under section 57.111, Florida Statutes.

9. It is difficult to see how Plaintiffs would ever be able to get an award

of fees under section 57.111, Florida Statutes, which is only available to

“prevailing small business parties” in specified types of cases which are not

applicable here. Accordingly, the Department’s first and second defenses

continue to have merit, and Plaintiffs’ arguments regarding the merits of same

should not be considered by this Court. Nonetheless, as the Plaintiffs

affirmatively disavow seeking attorney’s fees against the Department in this case,

the Department will agree to withdraw those defenses, reserving the right to

reassert them if the Plaintiffs later assert such a claim.

B. Plaintiffs are attempting to argue the merits of the
Department’s third defense, not simply its legal
sufficiency. This is improper on a motion to strike and
therefore, the motion should be denied.

10. The Plaintiffs’ Fourth Amended Complaint seeks expansive

injunctive relief against the Department, i.e.,

requiring the DOR to properly oversee Appraiser by
recommending to the Auditor General of the State of
Florida an audit of the retroactive exemption tax liens
imposed by the Miami-Dade County Appraiser for Tax
years 2011 through 2016, inclusive, and to monitor the
imposition of such liens in the future in order to limit
such liens to those supported by law and fact.

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The Department in its third defense contends that such an order would violate

the separation of powers doctrine.

11. This is a proper defense and would have been grounds for the

Department to file a motion to dismiss and/or strike the Plaintiffs’ request for

relief. See, e.g., Detourney v. City of Coral Gables, 127 So. 3d. 829 (Fla. 3d DCA

2013) (Court affirming dismissal of one count and directing dismissal of second

count based on separation of powers). Even a cursory reading of the Plaintiffs’

motion to strike on this point shows Plaintiffs are attempting to argue the merits,

e.g., that the Department does allegedly have some duty to them, which is not

properly considered in a motion to strike. Accordingly, the Plaintiffs’ motion to

strike the Department’s third defense must be denied.

C. Plaintiffs’ motion to strike the Department’s Fourth
Defense as a “sham” is not verified and therefore must be
denied. Moreover, the Plaintiffs are misreading the
Department’s fourth defense, which only contends that
the Plaintiffs lack standing to seek relief on behalf of
other taxpayers, not for themselves.

12. Plaintiffs moves to strike the Department’s Fourth Defense as a

“sham,”—see Motion to Strike at 14—but the Motion is not verified by the

Plaintiffs. Motions to strike a portion of a pleading as a sham must be verified,

and failure to do so is fatal to such a motion. See Fla. R. Civ. Proc. 1.150(b);

Hurst v. Blackman, 744 So. 2d 1222, 1224 (Fla. 4th DCA 1999).

13. Moreover, the Plaintiffs broad request for injunctive relief in this

matter of “requiring the DOR to properly oversee Appraiser” and to “monitor the

imposition of such liens in the future” without limitation, inherently seeks relief

5
on behalf of not only the Plaintiffs, but other taxpayers in Miami-Dade County.

The Department’s fourth defense states in part that under “section 194.181,

Florida Statutes, Plaintiffs lack standing to seek relief on behalf of other

taxpayers.” (emphasis added). The Department is not contending that the

Plaintiffs lack standing to bring this lawsuit to challenge the homestead lien on

their own property. Rather, the Department is stating that Plaintiffs may not

seek the injunctive relief they ask for because it is overbroad. The Plaintiffs

argument as to this point—see Motion to Strike at 12-14—can only be a

deliberate misreading of the Department’s fourth defense and should be denied.

D. Plaintiffs are attempting to argue the merits of the
Department’s fifth defense, not simply its legal
sufficiency. And, in any event, the Motion to Strike
misstates the Department’s argument.

14. Plaintiffs expressly contend they are arguing the merits of the

Department’s fifth defense, asserting the Department’s argument is “legally

meritless and a direct misstatement of the Genesis Court’s ruling.” See Motion

to Strike at 14 (emphasis added). It is improper to consider the merits of a

defense by way of a motion to strike.

15. Moreover, if the Court does consider it appropriate to consider the

merits of the Department’s defense, the Department denies that it is misstating

the Genesis Ministries holdings. The Genesis Ministries case involved the

Property Appraiser’s denial of a religious exemption in two parts: (1) the

imposition of a lien for past tax years 2005-2012; and (2) the denial of the

exemption for the then-current 2013 tax year. The case went to the First District

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Court of Appeal twice, first in 2016—see Genesis Ministries, Inc. v. Brown, 186

So. 3d 1074 (Fla. 1st DCA 2016) (“Genesis I”)—and again in 2018—Genesis

Ministries v. Brown, 250 So. 3d 865 (Fla. 1st DCA 2018) (“Genesis II”).

16. The language that the Plaintiffs quote from the Genesis I opinion was

directed towards the Property Appraiser’s purported denial of the religious

exemption renewal for 2013, not the clawback lien for tax years 2005-2012. See

Genesis I, 186 So. 3d at 1079-80. This issue was addressed again on the second

appeal. See Genesis II, 250 So. 3d at 869. Only liens are involved in the present

case, and the Department’s position is legally sufficient to refute Count IV of the

Plaintiffs’ Fourth Amended Complaint.

E. The Plaintiffs’ contention that the Department’s response
to Paragraph 2 of the Fourth Amended Complaint is sham
is without merit.

17. First, Plaintiffs’ motion to strike the Department’s Answer to

Paragraph 2 of the Fourth Amended Complaint suffers from the same deficiency

as their motion to strike the Department’s entire Fourth Defense as a “sham”—

the Motion is not verified by the Plaintiffs. Motions to strike a portion of a

pleading as a sham must be verified, and failure to do so is fatal to such a motion.

See Fla. R. Civ. Proc. 1.150(b); Hurst v. Blackman, 744 So. 2d 1222, 1224 (Fla.

4th DCA 1999).

18. Further, a pleading is only considered a sham, for purposes of a

motion to strike sham pleading, when it is inherently false and clearly known to

be false at the time the pleading was made. See Cromer v. Mullaly, 861 So. 2d

523, 525 (Fla. 3d DCA). Further, a hearing on a motion to strike a pleading as

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a sham is not for the purpose of trying the issues, but to determine whether

there are any genuine issues to be tried. Id. Notably, the Department’s response

to Paragraph 2 is the same in the Fourth Amended Complaint as it has been in

its answers to all four previous complaints, to which Plaintiffs did not object.

19. Moreover, it is the Plaintiffs’ burden to clearly show any entitlement

to an ad valorem tax exemption. Volusia Cnty. v. Daytona Beach Racing &

Recreational Facilities Dist., 341 So. 2d 498 (Fla. 1976). Which, as Plaintiffs

concede in this case, includes ownership of the residence. See Fourth Amended

Complaint at ¶ 51, stating “In order for there to be entitlement to a homestead

tax exemption, an individual must show ownership of the home . . .” (quoting

Op.Att’y Gen. Fla. 2008-13 (2008).

F. The Plaintiffs’ motion for a more definite statement will
be resolved by the Department’s withdrawal of its First
and Second Defenses.

20. As stated above in Section “A,” supra, at 4, the Plaintiffs have now

affirmatively clarified that they are not seeking attorney’s fees against the

Department in this action. See Motion to Strike at 16 (“As such, since Plaintiffs

have not filed a ‘claim for attorney’s fees’ against DOR in this action . . .”).

Accordingly, the Department is willing to withdraw its first and second defenses,

reserving the right to reassert them if Plaintiffs change course and do seek

attorney’s fees against the Department in this action. Thus, Plaintiffs’ motion

for a more definite statement is a nullity.

RESPECTFULLY SUBMITTED this 25th day of March, 2022.

8
ASHLEY MOODY
ATTORNEY GENERAL

S/Timothy E. Dennis
TIMOTHY E. DENNIS
Chief Assistant Attorney General
Florida Bar No. 575410
Office of the Attorney General
Revenue Litigation Bureau
PL-01, The Capitol
Tallahassee, FL 32399-1050
(850) 414-3300
Primary Email:
Timothy.Dennis@myfloridalegal.com
Secondary Emails:
Jon.Annette@myfloridalegal.com
Rebecca.Padgett@myfloridalegal.com

Counsel for Defendant
Jim Zingale, Executive Director
Florida Department of Revenue

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been

furnished by e-mail to André A. Gibson, Esquire, 45 NE 67th Street, North

Miami Beach FL 33162, AAGibson@Gibsontaxlaw.com, Efile@Gibsontaxlaw.com

(Counsel for the Plaintiffs); and Michael J. Mastrucci, Esquire, Assistant

County Attorney, Stephen P. Clark Center, Suite 2810, 111 Northwest First

Street, Miami, Florida 33128, mastrucc@miamidade.gov,

wilma.morillo@miamidade.gov (Counsel for the Property Appraiser and Tax

Collector), on this 25th day of March, 2022.

S/Timothy E. Dennis
TIMOTHY E. DENNIS
Chief Assistant Attorney General

Case Info

Case No.

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Document Filed Date

March 25, 2022

Case Filing Date

April 17, 2018

County

Parties

BIEGALSKI (EXECUTIVE DIRECTOR), LEON M Defendant
DE LA MORA (TAX COLLECTOR), MARCUS SAIZ Defendant
Dennis, Timothy E. Attorney for the Defendant
Gibson, Andre A Attorney for the Plaintiff
LOPEZ (PROPERTY APPRAISER), PEDRO Defendant
Lopez, Virginia Plaintiff
Mastrucci, Michael J (Asst. County Atty) Attorney for the Defendant
MEJIA, RAUL Plaintiff
Party Name Party Description
Jane Mastrucci Attorneys for Plaintiffs
Andrea Gibson Attorney

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Motion-Secondary: RAUL MEJIA ET AL VS PEDRO LOPEZ (PROPERTY APPRAISER) ET AL

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