Motion for Leave to Amend Pleadings in RAUL MEJIA ET AL VS PEDRO LOPEZ (PROPERTY APPRAISER) ET AL| Trellis.Law

On April 17, 2018 a Answer 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.

Preview
Filing # 142947530 E-Filed 01/31/2022 11:43:03 AM

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; MARCUS
SAIZ DE LA MORA, as Tax Collector of
Miami-Dade County,

Defendants.
______________________________________/

DEFENDANT EXECUTIVE DIRECTOR’S
ANSWER TO FOURTH AMENDED COMPLAINT

Defendant Jim Zingale, as Executive Director of the Florida Department of Revenue (“the

Department”) 1, by and through undersigned counsel, responds to the allegations contained in the

Fourth Amended Complaint served by Raul Mejia and Virginia Lopez (“Plaintiffs”), deemed filed

on January 12, 2022, and states as follows.

Nature of the Case

1. Admitted.

Parties

2. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 2.

3. Admitted.

1
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
4. Admitted.

5. Admitted that the Defendant Executive Director is a proper party defendant under

section 194.181(5), Florida Statutes.

Interested Person

6. Section 284.30, Florida Statutes, speaks for itself. The Department is without

knowledge sufficient to admit or deny all other allegations contained in Paragraph 6.

Jurisdiction

7. The Department admits that if all jurisdictional prerequisites have been met,

jurisdiction is proper in the circuit court, but is without knowledge sufficient to admit or deny

whether all such requirements have been met. Chapter 194, Florida Statutes, Article V, sections

5 and 20 of the Constitution of the State of Florida, and section 86.011, Florida Statutes, speak for

themselves.

Venue

8. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 8.

General Allegations

9. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 9.

10. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 10.

11. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 11.

2
12. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 12.

13. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 13.

14. The Department admits that Exhibit “A” is attached to the Fourth Amended

Complaint and speaks for itself. The Department is without knowledge sufficient to admit or deny

the remaining allegations contained in Paragraph 14.

15. The Department admits that Exhibit “C” is attached to the Fourth Amended

Complaint and speaks for itself. The Department is without knowledge sufficient to admit or deny

the remaining allegations contained in Paragraph 15.

16. The Department admits that Exhibits “B” and “D” are attached to the Fourth

Amended Complaint and speak for themselves. The Department is without knowledge sufficient

to admit or deny the remaining allegations contained in Paragraph 16.

17. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 17, inclusive of subparagraphs a-b.

18. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 18.

19. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 19.

20. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 20.

3
21. The Department admits the first sentence of Paragraph 21. The Department admits

the second and third sentences of Paragraph 21 but denies that such actions entitle the Plaintiffs to

any relief from the Department. Exhibit “J” speaks for itself.

22. Denied.

23. The Department admits that Exhibit “E” is attached to the Fourth Amended

Complaint and speaks for itself. The Department is without knowledge sufficient to admit or deny

the remaining allegations contained in Paragraph 23.

24. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 24.

25. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 25.

26. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 26.

27. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 27.

28. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 28.

29. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 29.

30. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 30.

4
31. Denied as stated. The Department has not “taken affirmative action against

Plaintiffs by placing a lien against their property.” The Department is without knowledge

sufficient to admit or deny the remaining allegations contained in Paragraph 31.

32. Denied as stated. The Department has not placed a lien against the Plaintiffs’

property. The Department is without knowledge sufficient to admit or deny the remaining

allegations contained in Paragraph 32.

33. Denied as stated. The Department has not “demanded that Plaintiffs pay the Liens.”

The Department is without knowledge sufficient to admit or deny the remaining allegations

contained in Paragraph 33.

34. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 34.

35. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 35.

36. Section 86.011, Florida Statutes, speaks for itself.

37. Section 86.051, Florida Statutes, speaks for itself.

38. Section 86.111, Florida Statutes, speaks for itself.

39. Section 86.101, Florida Statutes, speaks for itself.

40. As to the Department, denied. The Department is without knowledge sufficient to

admit or deny the remaining allegations contained in Paragraph 40.

41. The Department admits that Exhibits “E,” “F,” and “G” are attached to the Fourth

Amended Complaint and speak for themselves. The Department is without knowledge sufficient

to admit or deny the remaining allegations contained in Paragraph 41, inclusive of subparagraphs

a-c.

5
42. The Department admits that Exhibit “K” is attached to the Fourth Amended

Complaint and speaks for itself. The Department is without knowledge sufficient to admit or deny

the remaining allegations contained in Paragraph 42.

43. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 43.

44. Section 284.30, Florida Statutes, speaks for itself. The Department is without

knowledge sufficient to admit or deny all other allegations contained in Paragraph 44.

45. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 45.

COUNT I – Removal of Tax Lien
(As to Tax Years 2014 through 2016)

46. The Department realleges and restates its answers to Paragraphs 1 through 45 as if

fully set forth herein.

47. The Department admits that Exhibits “A” through “D,” “H,” and “I” are attached

to the Fourth Amended Complaint and speak for themselves. The Department is without

knowledge sufficient to admit or deny the remaining allegations contained in Paragraph 47.

48. Exhibits “A” and “B” speak for themselves. The Department is without knowledge

sufficient to admit or deny the remaining allegations contained in Paragraph 48.

49. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 49.

50. Section 196.161, Florida Statutes, speaks for itself.

51. Sections 196.061 and 196.193(3) and (4), Florida Statutes, and Florida Attorney

General Opinion 2008-13 speak for themselves. The Department is without knowledge sufficient

to admit or deny the remaining allegations contained in Paragraph 51.

6
52. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 52.

53. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 53.

54. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 54.

COUNT II - Removal of Tax Lien Interest and Penalties
(As to Tax Years 2014-2016)

55. The Department realleges and restates its answers to Paragraphs 1 through 43 as if

fully set forth herein.

56. The Department admits that Exhibits “A” through “D,” “H,” and “I” are attached

to the Fourth Amended Complaint and speak for themselves. The Department is without

knowledge sufficient to admit or deny the remaining allegations contained in Paragraph 56

57. Section 196.161, Florida Statutes, speaks for itself. The Department is without

knowledge sufficient to admit or deny the remaining allegations contained in Paragraph 57.

58. Sections 196.061 and 196.193(3) and (4), Florida Statutes, and Florida Attorney

General Opinion 2008-13 speak for themselves. The Department is without knowledge sufficient

to admit or deny the remaining allegations contained in Paragraph 58.

59. Section 196.011(9)(a), Florida Statutes, speaks for itself. The Department is

without knowledge sufficient to admit or deny the remaining allegations contained in Paragraph

59.

60. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 60.

7
61. The Department admits that Exhibits A and B are attached to the Fourth Amended

Complaint and speak for themselves. The Department is without knowledge sufficient to admit or

deny the remaining allegations contained in Paragraph 61.

62. Section 196.193(5)(b), Florida Statutes, speaks for itself. The Department denies

the remaining allegations contained in Paragraph 62.

63. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 63.

64. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 64.

65. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 65.

66. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 66.

67. Section 196.161, Florida Statutes, speaks for itself. The Department is without

knowledge sufficient to admit or deny the remaining allegations contained in Paragraph 67.

68. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 68.

69. Denied. The decision of Mitchell v. Higgs, 61 So. 3d 1152 (Fla. 3rd DCA 2011)

speaks for itself.

70. Section 196.161(3), Florida Statutes, speaks for itself. The Department is without

knowledge sufficient to admit or deny the remaining allegations contained in Paragraph 70.

71. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 71.

8
72. Section 196.161(1)(b), Florida Statutes, speaks for itself.

73. Sections 196.161(1)(b) and 196.161(3), Florida Statutes, speak for themselves.

The Department is without knowledge sufficient to admit or deny the remaining allegations

contained in Paragraph 73.

74. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 74.

75. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 75.

76. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 76.

77. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 77.

78. Section 196.161(1)(b), Florida Statutes, speaks for itself. The Department is

without knowledge sufficient to admit or deny the remaining allegations contained in Paragraph

78.

COUNT III - Removal of 2016 Recapture Tax, Interest and Penalties and
Overassessment for Subsequent Tax Years

79. The Department realleges and restates its answers to Paragraphs 1 through 43 as if

fully set forth herein.

80. Section 196.161, Florida Statutes, speaks for itself. The Department is without

knowledge sufficient to admit or deny the remaining allegations contained in Paragraph 80.

81. Section 193.1554(3), Florida Statutes, speaks for itself.

82. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 82.

9
83. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 83.

84. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 84.

COUNT IV – Portability of Homestead from 2012 to 2014 Tax Years

85. The Department realleges and restates its answers to Paragraphs 1 through 43 as if

fully set forth herein.

86. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 86.

87. Exhibit “E” speaks for itself. The Department is without knowledge sufficient to

admit or deny the remaining allegations contained in Paragraph 87.

88. Admitted.

89. Admitted.

90. Article VII, section 4(d)(8)(a), Florida Constitution, speaks for itself.

91. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 91.

92. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 92.

93. Any allegation in the Fourth Amended Complaint not specifically addressed by a

numbered paragraph in this Answer is hereby denied.

(Remainder of this page is intentionally left blank).

10
DEFENSES

First Defense: Failure to state a cause of action
for an attorney’s fee award against the Department.

The Fourth Amended Complaint does not recite any facts which could conceivably form

the basis of an attorney fee award against the Department. Rather, the Fourth Amended Complaint

reflects that the Miami-Dade Property Appraiser is the real party in interest.

Second Defense: Sovereign Immunity bars any
attorney fee award against the Department.

Sovereign immunity bars an attorney fee award against the Department where, as here, the

Miami-Dade Property Appraiser, not the Department, has removed the homestead and senior

citizen exemptions and imposed retroactive tax liens on the property at issue.

Third Defense: Plaintiffs fail to state a cause of action
against the Department for which this Court can grant relief.

In their Fourth Amended Complaint, Plaintiffs have requested injunctive relief in the form

of “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.” An order

providing such relief would violate the doctrine of separation of powers. Such an order would

encroach upon exclusive powers that the Legislature has delegated to the Department, which is an

executive branch agency. See, e.g., Key Haven Associated Enterprises, Inc. v. Bd. of Trustees of

the Internal Improvement Trust Fund, 427 So. 2d 153, 157 (Fla. 1982) (“Judicial intervention in

the decision-making function of the executive branch must be restrained in order to support the

integrity of the administrative process and to allow the executive branch to carry out its

responsibilities as a co-equal branch of government.”).

11
As a matter of law, the Department has no duty to the Plaintiffs, regarding its property

appraiser oversight functions, greater than the duty which the Department owes to the public at

large. See, e.g., Trianon Park Condo. Ass’n, Inc. v. City of Hialeah, 468 So. 2d 912, 917 (Fla.

1985) (holding that how a governmental entity, through its officials and employees, exercises its

discretionary power to enforce compliance with the laws duly enacted by governmental body is

matter of governance, for which there never has been a common-law duty of care).

Fourth Defense: Plaintiffs lack standing to request relief on behalf of other taxpayers.

In their Fourth Amended Complaint, Plaintiffs have requested injunctive relief in the form

of “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.” In essence,

the Plaintiffs are requesting relief on behalf of other taxpayers. Pursuant to section 194.181,

Florida Statutes, Plaintiffs lack standing to request relief on behalf of other taxpayers. In order

for a Plaintiff to bring suit they must be an owner or taxpayer of record for the subject property.

Plaintiffs have failed to attach documentation that Plaintiffs have written permission from the

actual property owners of the properties for which they seek relief as required by Florida Rule of

Civil Procedure 1.130, and section 194.181, Florida Statutes.

Fifth Defense: Non-Applicability of section 196.193(5), Florida Statutes, to a Notice of Lien.

By its express terms, section 196.193(5), Florida Statutes, applies to a property appraiser’s

annual review of applications for initial exemption or renewal of an existing exemption, as part of

the regular tax roll preparation process. A tax lien of the type at issue in this case is not the same

as a “tax assessment.” See Genesis Ministries, Inc. v. Brown, 186 So. 3d 1074, 1077 (Fla. 1st DCA

12
2016) (Holding 60-day statute of non-claim, applicable to tax assessments, does not apply to

actions to contest tax liens filed by property appraiser, and distinguishing the lien procedure from

denial of an application for or renewal of an existing exemption). Accordingly, the provisions of

section 196.193(5), Florida Statutes, do not apply to a notice of tax lien.

RESPECTFULLY SUBMITTED this 31st day of January, 2022.
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 Andre′ 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,

13
wilma.morillo@miamidade.gov (Counsel for the Property Appraiser and Tax Collector), on this

31st day of January, 2022.

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

Case Info

Case No.

(Subscribe to View)

Document Filed Date

January 31, 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

For full print and download access, please subscribe at https://www.trellis.law/.

Answer: RAUL MEJIA ET AL VS PEDRO LOPEZ (PROPERTY APPRAISER) ET AL

Preview

Case Info

Parties