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Filing # 143764310 E-Filed 02/11/2022 12:40:32 PM
IN THE CIRCUIT COURT OF THE ELEVENTH
JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA
RAUL MEJIA, and VIRGINIA LOPEZ
Plaintiffs,
CASE NO.: 2018-12371-CA
vs. DIVISION:
PEDRO GARCIA, as Property Appraiser of
Miami Dade County Florida; LEON M.
BIEGALSKI, as Executive Director of
Florida Department of Revenue; MARCUS
SAIZ DE LA MORA, as Tax Collector of
Miami Dade County, Florida
Defendants.
______________________________________________/
PLAINTIFF’S MOTION TO STRIKE COUNTY DEFENDANTS’ AFFIRMATIVE
DEFENSES AND RESPONSE TO COUNTY DEFENDANTS’ MOTION TO STRIKE
PRAYER FOR ATTORNEY’S FEES AND MOTION TO STRIKE ANSWER
Plaintiffs, Raul Mejia and Virginia Lopez, (hereinafter, “Plaintiffs”), by and through
their undersigned counsel, pursuant to Fla. R. Civ. P. 1.140(b), and (f) moves to strike County
Defendants’, Affirmative Defenses, and states as follows:
1. County Defendants filed their Affirmative Defenses to Plaintiff’s Fourth Amended
Complaint and therein attempts to allege two defenses. DE 100 at 6-7. In substance, County
Defendants argue that Plaintiffs are not entitled to homestead exemption and portability
credit, because Plaintiffs failed to submit an application for tax years 2014-2016.
2. As a matter of law, these defenses are either insufficient or are simply not affirmative
defenses. They are denials. This is an attempt to shift blame to Plaintiffs for the Property
Appraiser’s failure to refuse to accept Plaintiffs application on August 29, 2013 when Plaintiff
visited the Property Appraiser and reported that he had rented the property but had returned
and is now living in the property. Denials are not affirmative defenses.
Page 1 of 7
A. Defendants’ First and Second affirmative defenses are improperly pled –
they are mere denials
County Defendants’ first and second affirmative defenses are mere denials. The
County Defendants are attempting to shift blame from themselves to the Plaintiffs, as an
Affirmative defense. They are attempting to blame the Plaintiffs for not submitting an
application which the County Defendants simply failed accept from the Plaintiffs which the
Plaintiffs went in person to the Property Appraiser’s office on August 29, 2013 to ensure. As
a matter of law, this attempt to shift blame is not an affirmative defense.
Affirmative defenses, just like causes of action, are required to be properly pled and
state all requisite elements of the defense. An affirmative defense is one that admits the
cause of action asserted by the preceding pleading, but avoids liability, wholly or partly, by
allegations of excuse, justification, or other matter negating liability. See St. Paul Mercury
Ins. Co. v. Coucher, 837 So. 2d 483, 487 (Fla. 5th DCA 2002). An affirmative defense is in the
form of a confession and avoidance such that the allegations are admitted and additional
facts are alleged which would avoid the legal effect of the confession. See Roux v. Indian
Lumber Co., 119 Fla. 280, 161 So. 270, 285-86, n.2 (1935) (“A plea in confession and avoidance
is an affirmative plea, and the facts set forth therein are not only required to be specially
averred but so proved by the pleader. Such a plea admits the truth of the allegations of the
opposite pleading. The pleader of a plea in confession and avoidance in every case must
assume the burden of affirmatively establishing the facts alleged in avoidance.”); Moore
Meats, Inc. v. Strawn, 313 So. 2d 660, 661-62, n.3 (Fla. 1975) (“Two classes of defensive pleas
in bar exist. The first is a plea by way of traverse. This means a denial of an ultimate fact
pleaded in the preceding pleading. The second class of defensive plea is one by way of
confession and avoidance. All affirmative defenses are pleas by way of confession and
avoidance. They admit the allegations of the plea to which they are directed and allege
Page 2 of 7
additional facts that avoid the legal effect of the confession.”) An affirmative defense which
is insufficiently pled is subject to being stricken. Fla. R. Civ. P. 1.110(d); Fla. R. Civ. P.
l.140(b); Zito v. Washington Federal Savings & Loan Assoc. of Miami Beach, 318 So. 2d 175,
176 (Fla. 3d DCA 1975). Each of Defendants’ affirmative defenses seeks to avoid liability (by
denial of the facts and shifting blame for their failure to Plaintiffs) without a confession, as
such they are insufficiently pled.
Simply denying the allegations of the Complaint is insufficient. See Gatt v. Keyes
Corp., 446 So. 2d 211, 212 (Fla. 3d DCA 1984)(“The matters raised by Gatt’s affirmative
defense simply denied the facts contained in the broker’s complaint and did not raise any new
matters to defeat the complaint.”); BPS Guard Servs. Inc. v. Gulf Power Co., 488 So. 2d 638,
641 (Fla. 1st DCA 1986)(affirmed striking of affirmative defenses, stating “the ‘affirmative
defenses’ raised by appellant are not in the form of a confession and avoidance ... but are
mere denials”). Denials may be stricken by motion pursuant to Fla. R. Civ. P. 1. 140(b).
Additionally, Rule 1.150(a) provides,
If a party deems any pleading or part thereof filed by another party to be a
sham, that party may move to strike the pleading or part thereof before the
cause is set for trial and the court shall hear the motion, taking evidence of the
respective parties, and if the motion is sustained, the pleading to which the
motion is directed shall be stricken.
The court in Rhea v. Hackney, 117 Fla. 62, 157 So. 190, (Fla. 1934) defined pleading
to be when a pleading’s falsity clearly and indisputably appears and it is evidently a mere
pretense set up in bad faith and without color of fact. See also Meadows v. Edwards, 82 So.2d
733 (Fla. 1955). (Only if the pleading can be reformed to state a defense based on the
remaining allegations after the court has stricken the palpably or inherently false allegations
should the pleader be granted leave to amend.) In Guaranty Life Ins. Co. v. Hall Bros. Press,
Inc., 138 Fla. 176, 182-183, (Fla. 1939) the Florida Supreme court established guidelines to
determine when a plea is a sham plea, stating,
Page 3 of 7
Where a defendant interposes a plea that is good on its face but is false in fact,
and it is indisputably so shown to the satisfaction of the Court, and it further
inferentially appears that the plea was interposed principally for delay or other
unworthy motive, with no reasonable expectation that it could ever be
sustained at a trial of the issues raised by such plea, if a trial should be had on
it, the Court may entertain and grant a motion by plaintiff to strike out such
plea as sham, and may as an incident thereto award final judgment for plaintiff
on his cause of action, being guided by like considerations in dealing with sham
pleas to those prevailing when pleas are stricken as frivolous.
This power to strike a sham pleading is inherent in the trial court. See Rhea, 157 So. at, 193,
... a sham pleading may, in a proper case, be struck out on motion. The power
is not derived from statute but is inherent in the court. Its exercise is not
objectionable as infringing the right of trial by jury, for the right of a defendant
to a jury trial depends upon there being a real issue to be tried. The court has
power to determine as a matter of judicial cognizance whether there is such an
issue, and whether an ostensible issue is in reality fictitious and sham, though
the court does not have power to try the issue if there is one in truth as well as
in form.
See also Meadows, 82 So. 2d at, 734-735, stating:
In order to justify the striking of a pleading for being sham or false it must be
so undoubtedly false as not to be subject to a genuine issue of fact. The motion
should be tested by the same standards as a motion for a summary judgment.
Id. The issues presented in the County Defendants affirmative defenses should not be tried
because they are false and in reality, are fictitious and a sham.
B. County Defendants’ “Motion to Strike Prayer for Attorney’s fees” under
42 U.S.C. § 1988 should be stricken as impertinent because such claim is
in Plaintiffs’ Complaint
County Defendants’ contends that Plaintiffs suit includes a claim under 42 U.S.C. §
1983 and moved to strike that relief and purported attorney’s fees sought under 42 U.S.C. §
1988. DE 100 at 7. This contention has no basis in reality. Plaintiffs’ Complaint has no such
allegation, claim, prayer for relief under 42 U.S.C. § 1983, nor a demand for attorney’s fees
under 42 U.S.C. § 1988. As such, County Defendants’ Motion to Strike Prayer for Attorneys’
Fees should be stricken pursuant to Fla. R. Civ. P. 1.140(f) as immaterial and/or impertinent.
Rule 1.140(f), Fla. R. Civ. P., provide, “A party may move to strike or the court may strike
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redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.”
Since there is no such claim or prayer for relief in Plaintiffs’ complaint, the motion should be
stricken as impertinent.
C. Motion to Strike Answer to allegation at paragraph 2
County Defendants have answered that allegation at paragraph 2 of the complaint
stating that they are “without knowledge.” DE 100 at 1. This answer is palpably false and
should be stricken. The property appraiser’s Notices of Intent to Lien 1, Notice of Tax Liens 2,
and revised letters of Notice of Intent to Lien 3, to Plaintiffs recognizes Plaintiffs as the
Taxpayers or “Property Owner.” For example, in pertinent part the Complaint exhibit A
(Notice of Intent to Lien and Notice of Tax Lien” from the Property Appraiser shows,
See Exhibit A to Complaint.
1 DE 90 at 27-29 Complaint Exhibit A – Notice of Intent to Lien; and DE 90 at 31-30
Complaint Exhibit B – Notice of Intent to Lien;
2 Complaint Exhibit A – Notice of Tal Lien; Complaint Exhibit B – Notice of Tax Lien
3 Complaint Exhibits C and D – Revised Letters of Property Appraiser on Notice of Intent to
Lien.
Page 5 of 7
See Exhibit A to the Complaint. The answer to the complaint allegation at paragraph 2
is therefore a sham because the Property Appraiser and DOR’s own documents shows
Plaintiffs are owners or taxpayers of the subject property.
SUMMARY
For the foregoing reasons, Plaintiffs respectfully requests that this Honorable Court
strike the County Defendants’ first and second affirmative defenses for failure to properly
plead a defense; Strike County Defendants’ Motion to Strike Prayer for Attorney’s fees as
impertinent; Strike Defendants’ answer at paragraph 2 as a sham, and any other relief that
this Court deems just and proper.
André Gibson, Chartered
/s/ André A. Gibson
André A. Gibson
Attorney for Plaintiffs,
Florida Bar Number: 0635529
45 NE 67th Street,
North Miami Beach, FL 33162
Telephone: (305) 652-4900
Fax: (305) 808-3495
E-Mail: AAGibson@Gibsontaxlaw.com
Secondary E-Mail: Efile@Gibsontaxlaw.com
Page 6 of 7
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been furnished via electronic
mail to Timothy Dennis at Timothy.Dennis@myfloridalegal.com,
Jon.Annette@myfloridalegal.com, Rebecca.Padgett@myfloridalegal.com; and Michael
Mastrucci, Assistant County Attorney, mastrucc@miamidade.gov; emily@miamidade.gov,
this 11th day of February, 2022.
/s/ André A. Gibson
André A. Gibson
Attorney for Plaintiffs,
Page 7 of 7
Preview
Filing # 143764310 E-Filed 02/11/2022 12:40:32 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA RAUL MEJIA, and VIRGINIA LOPEZ Plaintiffs, CASE NO.: 2018-12371-CA vs. DIVISION: PEDRO GARCIA, as Property Appraiser of Miami Dade County Florida; LEON M. BIEGALSKI, as Executive Director of Florida Department of Revenue; MARCUS SAIZ DE LA MORA, as Tax Collector of Miami Dade County, Florida Defendants. ______________________________________________/ PLAINTIFF’S MOTION TO STRIKE COUNTY DEFENDANTS’ AFFIRMATIVE DEFENSES AND RESPONSE TO COUNTY DEFENDANTS’ MOTION TO STRIKE PRAYER FOR ATTORNEY’S FEES AND MOTION TO STRIKE ANSWER Plaintiffs, Raul Mejia and Virginia Lopez, (hereinafter, “Plaintiffs”), by and through their undersigned counsel, pursuant to Fla. R. Civ. P. 1.140(b), and (f) moves to strike County Defendants’, Affirmative Defenses, and states as follows: 1. County Defendants filed their Affirmative Defenses to Plaintiff’s Fourth Amended Complaint and therein attempts to allege two defenses. DE 100 at 6-7. In substance, County Defendants argue that Plaintiffs are not entitled to homestead exemption and portability credit, because Plaintiffs failed to submit an application for tax years 2014-2016. 2. As a matter of law, these defenses are either insufficient or are simply not affirmative defenses. They are denials. This is an attempt to shift blame to Plaintiffs for the Property Appraiser’s failure to refuse to accept Plaintiffs application on August 29, 2013 when Plaintiff visited the Property Appraiser and reported that he had rented the property but had returned and is now living in the property. Denials are not affirmative defenses. Page 1 of 7 A. Defendants’ First and Second affirmative defenses are improperly pled – they are mere denials County Defendants’ first and second affirmative defenses are mere denials. The County Defendants are attempting to shift blame from themselves to the Plaintiffs, as an Affirmative defense. They are attempting to blame the Plaintiffs for not submitting an application which the County Defendants simply failed accept from the Plaintiffs which the Plaintiffs went in person to the Property Appraiser’s office on August 29, 2013 to ensure. As a matter of law, this attempt to shift blame is not an affirmative defense. Affirmative defenses, just like causes of action, are required to be properly pled and state all requisite elements of the defense. An affirmative defense is one that admits the cause of action asserted by the preceding pleading, but avoids liability, wholly or partly, by allegations of excuse, justification, or other matter negating liability. See St. Paul Mercury Ins. Co. v. Coucher, 837 So. 2d 483, 487 (Fla. 5th DCA 2002). An affirmative defense is in the form of a confession and avoidance such that the allegations are admitted and additional facts are alleged which would avoid the legal effect of the confession. See Roux v. Indian Lumber Co., 119 Fla. 280, 161 So. 270, 285-86, n.2 (1935) (“A plea in confession and avoidance is an affirmative plea, and the facts set forth therein are not only required to be specially averred but so proved by the pleader. Such a plea admits the truth of the allegations of the opposite pleading. The pleader of a plea in confession and avoidance in every case must assume the burden of affirmatively establishing the facts alleged in avoidance.”); Moore Meats, Inc. v. Strawn, 313 So. 2d 660, 661-62, n.3 (Fla. 1975) (“Two classes of defensive pleas in bar exist. The first is a plea by way of traverse. This means a denial of an ultimate fact pleaded in the preceding pleading. The second class of defensive plea is one by way of confession and avoidance. All affirmative defenses are pleas by way of confession and avoidance. They admit the allegations of the plea to which they are directed and allege Page 2 of 7 additional facts that avoid the legal effect of the confession.”) An affirmative defense which is insufficiently pled is subject to being stricken. Fla. R. Civ. P. 1.110(d); Fla. R. Civ. P. l.140(b); Zito v. Washington Federal Savings & Loan Assoc. of Miami Beach, 318 So. 2d 175, 176 (Fla. 3d DCA 1975). Each of Defendants’ affirmative defenses seeks to avoid liability (by denial of the facts and shifting blame for their failure to Plaintiffs) without a confession, as such they are insufficiently pled. Simply denying the allegations of the Complaint is insufficient. See Gatt v. Keyes Corp., 446 So. 2d 211, 212 (Fla. 3d DCA 1984)(“The matters raised by Gatt’s affirmative defense simply denied the facts contained in the broker’s complaint and did not raise any new matters to defeat the complaint.”); BPS Guard Servs. Inc. v. Gulf Power Co., 488 So. 2d 638, 641 (Fla. 1st DCA 1986)(affirmed striking of affirmative defenses, stating “the ‘affirmative defenses’ raised by appellant are not in the form of a confession and avoidance ... but are mere denials”). Denials may be stricken by motion pursuant to Fla. R. Civ. P. 1. 140(b). Additionally, Rule 1.150(a) provides, If a party deems any pleading or part thereof filed by another party to be a sham, that party may move to strike the pleading or part thereof before the cause is set for trial and the court shall hear the motion, taking evidence of the respective parties, and if the motion is sustained, the pleading to which the motion is directed shall be stricken. The court in Rhea v. Hackney, 117 Fla. 62, 157 So. 190, (Fla. 1934) defined pleading to be when a pleading’s falsity clearly and indisputably appears and it is evidently a mere pretense set up in bad faith and without color of fact. See also Meadows v. Edwards, 82 So.2d 733 (Fla. 1955). (Only if the pleading can be reformed to state a defense based on the remaining allegations after the court has stricken the palpably or inherently false allegations should the pleader be granted leave to amend.) In Guaranty Life Ins. Co. v. Hall Bros. Press, Inc., 138 Fla. 176, 182-183, (Fla. 1939) the Florida Supreme court established guidelines to determine when a plea is a sham plea, stating, Page 3 of 7 Where a defendant interposes a plea that is good on its face but is false in fact, and it is indisputably so shown to the satisfaction of the Court, and it further inferentially appears that the plea was interposed principally for delay or other unworthy motive, with no reasonable expectation that it could ever be sustained at a trial of the issues raised by such plea, if a trial should be had on it, the Court may entertain and grant a motion by plaintiff to strike out such plea as sham, and may as an incident thereto award final judgment for plaintiff on his cause of action, being guided by like considerations in dealing with sham pleas to those prevailing when pleas are stricken as frivolous. This power to strike a sham pleading is inherent in the trial court. See Rhea, 157 So. at, 193, ... a sham pleading may, in a proper case, be struck out on motion. The power is not derived from statute but is inherent in the court. Its exercise is not objectionable as infringing the right of trial by jury, for the right of a defendant to a jury trial depends upon there being a real issue to be tried. The court has power to determine as a matter of judicial cognizance whether there is such an issue, and whether an ostensible issue is in reality fictitious and sham, though the court does not have power to try the issue if there is one in truth as well as in form. See also Meadows, 82 So. 2d at, 734-735, stating: In order to justify the striking of a pleading for being sham or false it must be so undoubtedly false as not to be subject to a genuine issue of fact. The motion should be tested by the same standards as a motion for a summary judgment. Id. The issues presented in the County Defendants affirmative defenses should not be tried because they are false and in reality, are fictitious and a sham. B. County Defendants’ “Motion to Strike Prayer for Attorney’s fees” under 42 U.S.C. § 1988 should be stricken as impertinent because such claim is in Plaintiffs’ Complaint County Defendants’ contends that Plaintiffs suit includes a claim under 42 U.S.C. § 1983 and moved to strike that relief and purported attorney’s fees sought under 42 U.S.C. § 1988. DE 100 at 7. This contention has no basis in reality. Plaintiffs’ Complaint has no such allegation, claim, prayer for relief under 42 U.S.C. § 1983, nor a demand for attorney’s fees under 42 U.S.C. § 1988. As such, County Defendants’ Motion to Strike Prayer for Attorneys’ Fees should be stricken pursuant to Fla. R. Civ. P. 1.140(f) as immaterial and/or impertinent. Rule 1.140(f), Fla. R. Civ. P., provide, “A party may move to strike or the court may strike Page 4 of 7 redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.” Since there is no such claim or prayer for relief in Plaintiffs’ complaint, the motion should be stricken as impertinent. C. Motion to Strike Answer to allegation at paragraph 2 County Defendants have answered that allegation at paragraph 2 of the complaint stating that they are “without knowledge.” DE 100 at 1. This answer is palpably false and should be stricken. The property appraiser’s Notices of Intent to Lien 1, Notice of Tax Liens 2, and revised letters of Notice of Intent to Lien 3, to Plaintiffs recognizes Plaintiffs as the Taxpayers or “Property Owner.” For example, in pertinent part the Complaint exhibit A (Notice of Intent to Lien and Notice of Tax Lien” from the Property Appraiser shows, See Exhibit A to Complaint. 1 DE 90 at 27-29 Complaint Exhibit A – Notice of Intent to Lien; and DE 90 at 31-30 Complaint Exhibit B – Notice of Intent to Lien; 2 Complaint Exhibit A – Notice of Tal Lien; Complaint Exhibit B – Notice of Tax Lien 3 Complaint Exhibits C and D – Revised Letters of Property Appraiser on Notice of Intent to Lien. Page 5 of 7 See Exhibit A to the Complaint. The answer to the complaint allegation at paragraph 2 is therefore a sham because the Property Appraiser and DOR’s own documents shows Plaintiffs are owners or taxpayers of the subject property. SUMMARY For the foregoing reasons, Plaintiffs respectfully requests that this Honorable Court strike the County Defendants’ first and second affirmative defenses for failure to properly plead a defense; Strike County Defendants’ Motion to Strike Prayer for Attorney’s fees as impertinent; Strike Defendants’ answer at paragraph 2 as a sham, and any other relief that this Court deems just and proper. André Gibson, Chartered /s/ André A. Gibson André A. Gibson Attorney for Plaintiffs, Florida Bar Number: 0635529 45 NE 67th Street, North Miami Beach, FL 33162 Telephone: (305) 652-4900 Fax: (305) 808-3495 E-Mail: AAGibson@Gibsontaxlaw.com Secondary E-Mail: Efile@Gibsontaxlaw.com Page 6 of 7 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished via electronic mail to Timothy Dennis at Timothy.Dennis@myfloridalegal.com, Jon.Annette@myfloridalegal.com, Rebecca.Padgett@myfloridalegal.com; and Michael Mastrucci, Assistant County Attorney, mastrucc@miamidade.gov; emily@miamidade.gov, this 11th day of February, 2022. /s/ André A. Gibson André A. Gibson Attorney for Plaintiffs, Page 7 of 7