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Filing # 139223629 E-Filed 11/29/2021 09:59:53 AM
IN THE CIRCUIT COURT OF THE ELEVENTH
JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CIVIL ACTION
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.
________________________________________/
AMENDED JOINT CASE MANAGEMENT REPORT
Description of case and issues including facts and theory of liability and/or defenses:
Plaintiffs (“Taxpayers”) seek removal of tax liens and refund of taxes paid for tax years 2014
through 2016 related to tax liens/recapture tax for alleged "rental of homestead". Plaintiffs’
position is that they are entitled to homestead exemption for tax year 2014-2016, despite loss
of homestead for tax year 2013, because on August 29, 2013, Plaintiff visited the Property
Appraiser’s office and informed the Property Appraiser that they were out of the country and
during their absence, they had rented the Subject Property starting April 2012, but were
back, residing in the subject property, and wanted to make sure that their homestead status
was in good standing. The Property Appraiser took no action with respect to revoking the
homestead for 2013 for which an application to restore the homestead for 2014 would be
triggered, but instead discussed and accepted an application for Senior Exemption.
In December 2016, the Property Appraiser determined, based on an anonymous complaint,
that the Plaintiffs were not entitled to Homestead Exemption on the Subject Property due to
rental of homestead starting in 2011, and retroactively revoked all exemptions and issued a
tax lien against the Subject Property. Upon challenge to the tax liens, the Property Appraiser
later rescinded the Tax Liens for tax years 2011-2012, but maintained the tax liens for tax
years 2013-2016. The Taxpayers filed suit contending that while they had rented the Subject
Property for tax year 2013, they were entitled to their Exemptions (Homestead and Senior)
for tax years 2014-2016 because the Property Appraiser failed to take the necessary action
when the Plaintiffs visited the Property Appraiser on August 29, 2013. Had the Property
Appraiser take the necessary action in August 2013, the Taxpayers would have timely
reapplied for the Homestead and Senior Exemption for tax year 2014. Additionally, the
Taxpayers’ position is that the Tax Liens are required to state with specificity the basis for
revocation of the homestead exemption so as to put the Taxpayers on notice of the reason for
the Tax Liens. As such, the tax liens for tax year 2014-2016 violate Florida Law because they
state a basis for revocation of the homestead exemption in tax years 2014-2016 to be Rental
Page 1 of 6
of Homestead, where no such activity existed. See Fla. Stat. § 193.155(10) (“If the property
appraiser improperly grants the property assessment limitation as a result of a clerical
mistake or an omission, the person or entity improperly receiving the property assessment
limitation may not be assessed a penalty or interest.”); Fla. Stat. § 196.193(5)(b) (“The
notification must state in clear and unambiguous language the specific requirements of the
state statutes which the property appraiser relied upon to deny the applicant the exemption
with respect to the subject property. The notification must be drafted in such a way that a
reasonable person can understand specific attributes of the applicant or the applicant’s use
of the subject property which formed the basis for the denial. The notice must also include
the specific facts the property appraiser used to determine that the applicant failed to meet
the statutory requirements. If a property appraiser fails to provide a notice that complies
with this subsection, any denial of an exemption or an attempted denial of an exemption is
invalid.”); Genesis Ministries, Inc. v. Brown, 186 So. 3d 1074, 1080-81 (Fla. 1st DCA 2016)
(Rejecting Property Appraiser’s argument that Fla. Stat. § 196.193(5) do not apply to notices
in tax lien cases stating, “it does not give effect to the entire statute. [] Notwithstanding the
title of section 196.193 ("Exemption applications; review by property appraiser."), the scope
of the statute is not limited to initial applications for an exemption or exemptions that require
an annual application. The notice provisions in section 196.193 broadly apply when "the
property appraiser determines that any property claimed as wholly or partially exempt under
this section is not entitled to any exemption." § 196.193(5)(a), Fla. Stat.”)
The Property Appraiser generally denies the Taxpayers’ allegations, but admits that the
Property Appraiser’s basis for removal of homestead exemption for tax years 2013-16 was
Taxpayers’ rental of the subject property from April 2012 to April 2013 and subsequent
failure to reapply for homestead exemption after the rental.
The Property Appraiser maintains that Taxpayers are not legally entitled to a homestead
exemption on the subject property for tax years 2013-16 because Taxpayers rented the subject
property from April 2012 to April 2013 and subsequently failed to reapply for homestead
exemption for either tax year 2014, 2015 or 2016. See Zingale v. Powell, 885 So. 2d 277, 285
(Fla. 2004) (holding that a successful application for homestead tax exemption is necessary
to obtain the exemption); Horne v. Markham, 288 So. 2d 196 (Fla. 1973) (holding that a
taxpayer’s right to claim the homestead exemption is not self-executing, since the exemption
is conditioned upon establishment of the right in the manner prescribed by law); §
196.011(1)(a), Florida Statutes (2008) (“Failure to make application . . .shall constitute a
waiver of the exemption privilege for that year.”).
The Department generally is without knowledge as to the underlying factual bases for
Plaintiffs’ and Property Appraiser’s assertions regarding the homestead exemption. The
Department has asserted defenses against Plaintiffs’ claim that the Department failed to
properly supervise the Property Appraiser and Plaintiffs’ request for injunctive relief against
the Department. The Department also denies that Plaintiffs are entitled to an award of
attorney’s fees against it.
Pleading status: At issue: _ __yes __X_no (Refer to Rule 1.440(a), Fla. R. Civ. P.)
Plaintiffs intend to file a motion to strike certain defenses of the DOR, as such, the case is
not at issue until the disposition of said motion.
Open motions: (list motions and date of filing)
Page 2 of 6
2020-10-14 – Plaintiffs’ Motion For Protective Order
2021-10-29 – Property Appraiser’s Motion to Strike Demand for Jury Trial and Motion to
Strike Prayer for Attorney Fees in Third Amended Complaint
2020-9-14 Department of Revenue’s Motion to Strike Demand For Jury Trial (incorporated
into Department’s Answer to Third Amended Complaint)
Anticipated need for amendment of complaint, answer, or affirmative defenses: ___yes
_X__no
Deadline for completion of the above: N/A
Status of outstanding discovery: List date/s of exchange of discovery including
interrogatories, requests to produce, document subpoenas, and requests to admit: (date
propounded and date of responses)
No anticipated outstanding discovery, except for at least one non-party deposition - Nurys
Bello and any other discovery which becomes relevant as a result of Property Appraiser’s
Answer to the Third Amended Complaint.
As to each discovery: Objections filed ___yes _X__no:
meet and confer held (date): ___________________
Privilege raised ___yes ___no, privilege log filed (date): _____________________
Outstanding Discovery Issues: __X_yes ___no, list motions and date of filing:
2020-10-14 - Motion For Protective Order
Additional interrogatories, request to produce or requests to admit planned: __X_yes ___no.
If yes, what form and by deadline: ______________________
Request to Produce on the Department of Revenue
Deposition of Representative of the Department of Revenue
Request to Produce on the Property Appraiser
Interrogatories upon the Property Appraiser
Request for Admissions on the Property Appraiser
Written discovery to be completed by February 1, 2022
Fact discovery: Schedule of fact witness depositions by name and date taken or planned:
Depositions Taken:
2019-04-30 – Angel Rey (PAO), Julio Guas (PAO), Ernesto Alonso (PAO)
2019-08-19 – Eduardo Rodriguez (PAO)
2019-08-20 – Michael Postell (non-party)
2020-10-22 – Plaintiff Virginia Lopez
2020-10-22 – Plaintiff Raul Mejia (continued and completed 2021-04-08)
Page 3 of 6
Depositions Planned:
Nurys Bello – former employee of the Property Appraiser
Representative of the Department of Revenue
Any other person whose testimony becomes relevant in Property Appraiser and Tax
Collector’s answer and affirmative to the Third Amended Complaint
Fact discovery to be completed by April 1, 2022
Expert Discovery: Schedule of expert witness by name and date taken or planned:
Deadline for expert disclosure: (list dates)
NONE at the present time
Deadline for any planned examinations or inspections/or date occurred: (list by expert and
date)
None at this time
Deadline of exchange of expert reports/or discovery: (list dates)
None at this time
Dispositive motions anticipated and a deadline and briefing schedule for such
motions (list)
Plaintiffs anticipate filing a Motion for Summary Judgment upon the completion of the
Deposition of Nurys Bello
Property Appraiser anticipates filing a Cross-Motion for Summary Judgment at the same
time
The Department anticipates filing motions for summary judgment as to the defenses it has
raised in the Answer to Third Amended Complaint.
Dispositive motions to be filed by May 1, 2022
Mediation efforts and a deadline for mediation and the name of mediator selected
(list)
No settlement discussions have occurred and no Mediation has been set in this case. The
Plaintiffs and Property Appraiser are amenable to mediation at the present time because
discovery issues have been addressed to make mediation efforts meaningful.
Mediation to be completed by April 1, 2022
Trial readiness:
Date which the parties will be ready for trial and must specify whether the trial requested
was originally jury or bench.
Page 4 of 6
_X__jury ___bench
Trial ready date: September 1, 2022
Property Appraiser disputes that Taxpayers are entitled to a jury trial and have moved to
strike Taxpayers’ demand for jury trial.
NO schedule proposed may exceed Florida Rule of Judicial Administration Time Standards,
which provides 12 months for nonjury trials and 18 months for jury trials unless this action
qualifies as a complex case under Rule 1.201, Fla.R.Civ.P.
André Gibson, Chartered
/s/ André A. Gibson
André A. Gibson
Florida Bar Number: 0635529
Attorney for Plaintiffs,
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
GERALDINE BONZON-KEENAN
Miami-Dade County Attorney
Attorneys for County Defendants
Stephen P. Clark Center
111 N.W. 1st Street, Suite 2810
Miami, Florida 33128
Telephone (305) 375-5151
Facsimile (305) 375-5634
By: /s/Michael J. Mastrucci
Michael J. Mastrucci
Florida Bar No. 86130
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
Page 5 of 6
Primary Email:
Timothy.Dennis@myfloridalegal.com
Secondary Emails:
Jon.Annette@myfloridalegal.com
Rebecca.Padgett@myfloridalegal.com
Counsel for Defendant
Jim Zingale, Executive Director
Department of Revenue
Page 6 of 6
Preview
Filing # 139223629 E-Filed 11/29/2021 09:59:53 AM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CIVIL ACTION 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. ________________________________________/ AMENDED JOINT CASE MANAGEMENT REPORT Description of case and issues including facts and theory of liability and/or defenses: Plaintiffs (“Taxpayers”) seek removal of tax liens and refund of taxes paid for tax years 2014 through 2016 related to tax liens/recapture tax for alleged "rental of homestead". Plaintiffs’ position is that they are entitled to homestead exemption for tax year 2014-2016, despite loss of homestead for tax year 2013, because on August 29, 2013, Plaintiff visited the Property Appraiser’s office and informed the Property Appraiser that they were out of the country and during their absence, they had rented the Subject Property starting April 2012, but were back, residing in the subject property, and wanted to make sure that their homestead status was in good standing. The Property Appraiser took no action with respect to revoking the homestead for 2013 for which an application to restore the homestead for 2014 would be triggered, but instead discussed and accepted an application for Senior Exemption. In December 2016, the Property Appraiser determined, based on an anonymous complaint, that the Plaintiffs were not entitled to Homestead Exemption on the Subject Property due to rental of homestead starting in 2011, and retroactively revoked all exemptions and issued a tax lien against the Subject Property. Upon challenge to the tax liens, the Property Appraiser later rescinded the Tax Liens for tax years 2011-2012, but maintained the tax liens for tax years 2013-2016. The Taxpayers filed suit contending that while they had rented the Subject Property for tax year 2013, they were entitled to their Exemptions (Homestead and Senior) for tax years 2014-2016 because the Property Appraiser failed to take the necessary action when the Plaintiffs visited the Property Appraiser on August 29, 2013. Had the Property Appraiser take the necessary action in August 2013, the Taxpayers would have timely reapplied for the Homestead and Senior Exemption for tax year 2014. Additionally, the Taxpayers’ position is that the Tax Liens are required to state with specificity the basis for revocation of the homestead exemption so as to put the Taxpayers on notice of the reason for the Tax Liens. As such, the tax liens for tax year 2014-2016 violate Florida Law because they state a basis for revocation of the homestead exemption in tax years 2014-2016 to be Rental Page 1 of 6 of Homestead, where no such activity existed. See Fla. Stat. § 193.155(10) (“If the property appraiser improperly grants the property assessment limitation as a result of a clerical mistake or an omission, the person or entity improperly receiving the property assessment limitation may not be assessed a penalty or interest.”); Fla. Stat. § 196.193(5)(b) (“The notification must state in clear and unambiguous language the specific requirements of the state statutes which the property appraiser relied upon to deny the applicant the exemption with respect to the subject property. The notification must be drafted in such a way that a reasonable person can understand specific attributes of the applicant or the applicant’s use of the subject property which formed the basis for the denial. The notice must also include the specific facts the property appraiser used to determine that the applicant failed to meet the statutory requirements. If a property appraiser fails to provide a notice that complies with this subsection, any denial of an exemption or an attempted denial of an exemption is invalid.”); Genesis Ministries, Inc. v. Brown, 186 So. 3d 1074, 1080-81 (Fla. 1st DCA 2016) (Rejecting Property Appraiser’s argument that Fla. Stat. § 196.193(5) do not apply to notices in tax lien cases stating, “it does not give effect to the entire statute. [] Notwithstanding the title of section 196.193 ("Exemption applications; review by property appraiser."), the scope of the statute is not limited to initial applications for an exemption or exemptions that require an annual application. The notice provisions in section 196.193 broadly apply when "the property appraiser determines that any property claimed as wholly or partially exempt under this section is not entitled to any exemption." § 196.193(5)(a), Fla. Stat.”) The Property Appraiser generally denies the Taxpayers’ allegations, but admits that the Property Appraiser’s basis for removal of homestead exemption for tax years 2013-16 was Taxpayers’ rental of the subject property from April 2012 to April 2013 and subsequent failure to reapply for homestead exemption after the rental. The Property Appraiser maintains that Taxpayers are not legally entitled to a homestead exemption on the subject property for tax years 2013-16 because Taxpayers rented the subject property from April 2012 to April 2013 and subsequently failed to reapply for homestead exemption for either tax year 2014, 2015 or 2016. See Zingale v. Powell, 885 So. 2d 277, 285 (Fla. 2004) (holding that a successful application for homestead tax exemption is necessary to obtain the exemption); Horne v. Markham, 288 So. 2d 196 (Fla. 1973) (holding that a taxpayer’s right to claim the homestead exemption is not self-executing, since the exemption is conditioned upon establishment of the right in the manner prescribed by law); § 196.011(1)(a), Florida Statutes (2008) (“Failure to make application . . .shall constitute a waiver of the exemption privilege for that year.”). The Department generally is without knowledge as to the underlying factual bases for Plaintiffs’ and Property Appraiser’s assertions regarding the homestead exemption. The Department has asserted defenses against Plaintiffs’ claim that the Department failed to properly supervise the Property Appraiser and Plaintiffs’ request for injunctive relief against the Department. The Department also denies that Plaintiffs are entitled to an award of attorney’s fees against it. Pleading status: At issue: _ __yes __X_no (Refer to Rule 1.440(a), Fla. R. Civ. P.) Plaintiffs intend to file a motion to strike certain defenses of the DOR, as such, the case is not at issue until the disposition of said motion. Open motions: (list motions and date of filing) Page 2 of 6 2020-10-14 – Plaintiffs’ Motion For Protective Order 2021-10-29 – Property Appraiser’s Motion to Strike Demand for Jury Trial and Motion to Strike Prayer for Attorney Fees in Third Amended Complaint 2020-9-14 Department of Revenue’s Motion to Strike Demand For Jury Trial (incorporated into Department’s Answer to Third Amended Complaint) Anticipated need for amendment of complaint, answer, or affirmative defenses: ___yes _X__no Deadline for completion of the above: N/A Status of outstanding discovery: List date/s of exchange of discovery including interrogatories, requests to produce, document subpoenas, and requests to admit: (date propounded and date of responses) No anticipated outstanding discovery, except for at least one non-party deposition - Nurys Bello and any other discovery which becomes relevant as a result of Property Appraiser’s Answer to the Third Amended Complaint. As to each discovery: Objections filed ___yes _X__no: meet and confer held (date): ___________________ Privilege raised ___yes ___no, privilege log filed (date): _____________________ Outstanding Discovery Issues: __X_yes ___no, list motions and date of filing: 2020-10-14 - Motion For Protective Order Additional interrogatories, request to produce or requests to admit planned: __X_yes ___no. If yes, what form and by deadline: ______________________ Request to Produce on the Department of Revenue Deposition of Representative of the Department of Revenue Request to Produce on the Property Appraiser Interrogatories upon the Property Appraiser Request for Admissions on the Property Appraiser Written discovery to be completed by February 1, 2022 Fact discovery: Schedule of fact witness depositions by name and date taken or planned: Depositions Taken: 2019-04-30 – Angel Rey (PAO), Julio Guas (PAO), Ernesto Alonso (PAO) 2019-08-19 – Eduardo Rodriguez (PAO) 2019-08-20 – Michael Postell (non-party) 2020-10-22 – Plaintiff Virginia Lopez 2020-10-22 – Plaintiff Raul Mejia (continued and completed 2021-04-08) Page 3 of 6 Depositions Planned: Nurys Bello – former employee of the Property Appraiser Representative of the Department of Revenue Any other person whose testimony becomes relevant in Property Appraiser and Tax Collector’s answer and affirmative to the Third Amended Complaint Fact discovery to be completed by April 1, 2022 Expert Discovery: Schedule of expert witness by name and date taken or planned: Deadline for expert disclosure: (list dates) NONE at the present time Deadline for any planned examinations or inspections/or date occurred: (list by expert and date) None at this time Deadline of exchange of expert reports/or discovery: (list dates) None at this time Dispositive motions anticipated and a deadline and briefing schedule for such motions (list) Plaintiffs anticipate filing a Motion for Summary Judgment upon the completion of the Deposition of Nurys Bello Property Appraiser anticipates filing a Cross-Motion for Summary Judgment at the same time The Department anticipates filing motions for summary judgment as to the defenses it has raised in the Answer to Third Amended Complaint. Dispositive motions to be filed by May 1, 2022 Mediation efforts and a deadline for mediation and the name of mediator selected (list) No settlement discussions have occurred and no Mediation has been set in this case. The Plaintiffs and Property Appraiser are amenable to mediation at the present time because discovery issues have been addressed to make mediation efforts meaningful. Mediation to be completed by April 1, 2022 Trial readiness: Date which the parties will be ready for trial and must specify whether the trial requested was originally jury or bench. Page 4 of 6 _X__jury ___bench Trial ready date: September 1, 2022 Property Appraiser disputes that Taxpayers are entitled to a jury trial and have moved to strike Taxpayers’ demand for jury trial. NO schedule proposed may exceed Florida Rule of Judicial Administration Time Standards, which provides 12 months for nonjury trials and 18 months for jury trials unless this action qualifies as a complex case under Rule 1.201, Fla.R.Civ.P. André Gibson, Chartered /s/ André A. Gibson André A. Gibson Florida Bar Number: 0635529 Attorney for Plaintiffs, 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 GERALDINE BONZON-KEENAN Miami-Dade County Attorney Attorneys for County Defendants Stephen P. Clark Center 111 N.W. 1st Street, Suite 2810 Miami, Florida 33128 Telephone (305) 375-5151 Facsimile (305) 375-5634 By: /s/Michael J. Mastrucci Michael J. Mastrucci Florida Bar No. 86130 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 Page 5 of 6 Primary Email: Timothy.Dennis@myfloridalegal.com Secondary Emails: Jon.Annette@myfloridalegal.com Rebecca.Padgett@myfloridalegal.com Counsel for Defendant Jim Zingale, Executive Director Department of Revenue Page 6 of 6