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Filing # 143061521 E-Filed 02/01/2022 01:54:30 PM
IN THE CIRCUIT COURT OF THE NINTH
JUDICIAL CIRCUIT, IN AND FOR
OSCEOLA COUNTY, FLORIDA ~
CASE NO. 2017-CA-2703
: ARACELIS DEJESUS,
. Plaintiff,
vs.
RUSSELL GIBSON, SHERIFF OF
OSCEOLA COUNTY IN HIS OFFICIAL
CAPACITY,
Defendant. ,
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO
DEFENDANTS’ AFFIRMATIVE DEFENSES
COMES NOW the Plaintiff, ARACELIS DEJESUS, by and through her undersigned
attorneys, and hereby files her Motion for Partial Summary Judgment as to Defendants’, RUSSELL
GIBSON, SHERIFF OF OSCEOLA COUNTY IN HIS OFFICIAL CAPACITY, (hereinafter
~ OSCEOLA COUNTY SHERIFF) Affirmative Defenses . In support of her motion, the Plaintiff
asserts as follows:
BACKGROUND AND CASE HISTORY
This is a personal injury action arising out of the alleged negligence on the part of
| the Defendant, O9CEOLA COUNTY SHERIFF, when the Defendant’s deputies attempted to serve
a search warrant on the Plaintiff, ARACELIS DEJESUS, mistakenly believing that someone, other
than the Plaintiff, resided at th home. Before realizing the obvious mistake, the Defendant’s deputies
dragged the Plaintiff her out of her home, placing her in hand cuffs, and sitting her on her driveway.
The actions ofthe Defendant, OSCEOLA COUNTY SHERIFF, resulted in both physical and mental
injuries to the Plaintiff, ARACELIS DEJESUS.
It is the Plaintiff's position, based on discovery to date, that the Defendant,
OSCEOLA COUNTY SHERIFF, violated a number oftheir own policies and procedures in carrying
out the warrant that ultimately resulted in the Plaintiff's physical and emotional injuries.
LAW AND ARGUMENT
. A. Summary Judgment Standard
Pursuant to Rule 1.510(c), summary judgment in favor of the moving party is required ifthe
pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, ifany,
show that there is no genuine dispute as to any material fact and that the moving party is entitled to ajudgment
as a matter oflaw. Summaryjudgment is proper if(1) no genuine issue ofmaterial fact exists, viewing every
possible inference in favor ofthe party against whom summaryjudgment has been entered, Huntington Nat'l
Bank v. Merrill Lynch Credit Corp., 779 So.2d 396, 398 (Fla. 2d DCA 2000), and (2) the moving party
is entitled to ajudgment as a matter of law, Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d
126, 130 (Fla.2000). See also Armiger v. Associated Outdoor Clubs, Inc., 48 So. 3d 864 (Fla. 2d DCA 2010).
On May 1, 2021 the Florida Supreme Court amended Rule 1.510(c) to align with the federal
“summary judgment standard. Stating The summary judgment standard provided for in this rule shall be
construed and applied in accordance with the federal summary judgment standard articulated in Celotex
Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); and
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574 (1986). No longer is it sufficient that there
be a scintilla of evidence or that there be the slightest doubt to overcome a summary judgment. Rather,
under the aforementioned cases, the non-moving party must prove that there are facts/evidence sufficient
that a disagreement exists and a reasonable jury could return a verdict for the non moving party. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). Or, as it relates to the issue at hand, there are facts/evidence
sufficient that a disagreement exists and a reasonable jury could agree with Defendant’s, OSCEOLA
COUNTY SHERIFF, Affirmative Defenses. Under the amended Rule 1.510(c) the non-moving party
carries the burden.
Where a defendant fails to come forward with proof in opposition to the Motion for Summary Judgment,
the trial court may enter Summary Judgment. Latour Auto Sales, Inc. v. Stromberg-Carlson Leasing Corp.,
335 So.2d 600 (Fla. 3d D.C.A. 1976).
The Defendants have alleged various Affirmative Defenses (See Defendant’s Answers to
Complaint, attached as Exhibit “A.””) An affirmative defense that simply denies facts, but does not raise
matters to defeat a Complaint, should be stricken. See Gatt v. Keyes Corp., 446 So.2d 211 (3rd DCA 1984).
See also Zito v. Washington, 318 So.2d 175 (3rd DCA 1975).
Certainty is required when pleading defenses, and pleading conclusions oflaw unsupported
by allegations ofultimate facts is legally insufficient. See Bliss v. Carmona, 418 So.2d 1019 (Fla. 3rd DCA
1982). See also, Kady v. Chevy Chase Savings and Loan, Inc., 428 So.2d 136, 138 (Fla. 4th D.C.A. 1988).
In addition, a defendant pleading an affirmative defense has the burden ofproving it by clear and satisfactory
evidence. Ades v. Bank of Montreal, 542 So.2d 1013 (Fla. 3rd DCA 1989). *
AFFIRMATIVE DEFENSES AT ISSUE
1) The Defendant’s have raised as an affirmative defense of sovereign immunity, which
" is inapplicable in this case as the actions of the Defendant were operational in nature. (See Page 4- “First
Affirmative Defense” and “Second Affirmative Defense” of Exhibit “A”’.)
Here, the case law is well settled. Sovereign immunity is applicable to planning decisions,
but not those operational actions of governmental entities. Brown v. Miami-Dade County, 837 So.2d 414
(Fla. 3rd DCA 2001), Kaisner v. Kolb, 543 So.2d 732 (Fla. 1989). The actions ofthe Defendant in this case
were clearly operational in nature and not those to be barred by sovereign immunity.
2) The Defendant’s third affirmative defense states “to the extent that the burden is on the
Defendant to prove it, Defendant Sheriff asserts. that the search warrant in this case was supported by
probable cause.” First, this is not a valid affirmative defense and as plead, mistates the law. In addition, this
issue was extensively argued at the December 15, 2021 hearing on Defendant’s Motion for Summary
Judgment, and the Plaintiffaddressed this issue in the initial Response to Defendant’s Motion for Summary
Judgment and Plaintiff s Supplemental Response to Summary Judgment (DN 67 and 113). State v. McGill
says to establish probable cause you must have a commission element- person committed a crime must be
alleged and there must be evidence relevant to the criminality at the place to be searched. 125 So.3d 343
(Fla. 5" DCA 2013). Miami- Dade County v. Asad goes on to state determination of whether there is
. probable cause is to be evaluated from the view point ofa reasonably prudent cautious police officer. 78
So.3d 660 (Fla. Pa DCA 1970).
This affirmative defense is misplaced, does not apply to the facts ofthis case, and is legally insufficient. See
De Cruz-Haymer v. Festival Food Market, Inc., 117 So.3d 885 (Fla. 4" DCA 2013). The evidence has
shown that even Lt. Fisher agreed the actions ofthe Defendant, OSCEOLA COUNTY SHERIFF, through
Detective Vazquez were in violation of multiple ofthe Defendant’s own policies and procedures and was
“sloppy police work.”
3) The Defendant also asserts in their fifth affirmative defense the use of force was
justifiable. The Plaintiff in this case has not filed an excessive use of force action, but rather a negligence
action with regard to the investigation completed by the Defendants and the manner in which the warrant
was served. Therefore, this affirmative defense is misplaced, does not apply to the facts ofthis case, and is
" legally insufficient. See De Cruz-Havmer v. Festival FoodMarket, Inc., 117 So.3d 885 (Fla. 4" DCA 2013).
4) The Defendant asserts a sixth affirmative defense that the cause ofthe Plaintiff's injuries
were caused by the Plaintiff herself. The Defendant in this case has been unable to obtain any facts or
evidence to support this comparative negligence assertion. Consequently, this affirmative defense is
misplaced, does not apply to the facts of this case, and is legally insufficient. See De Cruz-Haymer v.
Festival FoodMarket, Inc., 117 So.3d 885 (Fla. 4" DCA 2013). This affirmative defense is nonspecific and
summary judgment should be granted. Bliss v. Carmona, 418 So.2d 1019 (Fla. 3rd DCA 1982)
5) The Defendant’s seventh affirmative defense states the defendnat “asserts entitlement to
the provisions of Section 768.81, Florida Statutes, requiring the Court to enterjudgment against each party
liable on the bases ofsuch party’s percentage offault and not the basis ofjoint and several liability. Similar
to the sixth affirmative defense, the Defendant has not established any facts or evidence to support this
affirmative defense. This affirmative defense is misplaced, does not apply to the facts of this case, and is
legally insufficient. See De Cruz-Haymer v. Festival FoodMarket, Inc., 117 So.3d 885 (Fla. 4" DCA 2013).
Further, this affirmative defense is nonspecific and summaryjudgment should be granted. Bliss v. Carmona,
: 418 So.2d 1019 (Fla. 3rd DCA 1982)
6) The Defendant’s ninth affirmative defense asserts that ant unidentified party was
negligent or at fault and the negligence or fault of each ofthem should be considered an apportioned by the
jury and the Court in any trial and verdict in this action. This is also known as a Fabre defense. Again,
certainty is required when pleading defenses. Here, the Defendant is not specific . These “‘yet unidentified”
parties have not been identified and discovery has not brought to light any other possible defendants.
Therefore, summary judgment should be granted.
WHEREFORE, the Plaintiff, ARACELIS DEJESUS, respectfully requests that this
Honorable Court grant her motion for Summary Judgment as it pertains to the referenced affirmative
defenses or in the alternative, where applicable, require the Defendants to assert the affirmative defense with
specificity to allow the Plaintiff's an opportunity to respond for the reasons stated or other good grounds
~ shown.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I electronically filed the foregoing with the Clerk of the
Court using the eFiling Portal which will send a notice of electronic filing and a copy hereof to
Thomas W. Poulton, Esquire, Erin M. Tueche, Esquire, DeBevoise & Poulton, P.A., Lakeview
Office Park, Suite 1010. 1035 S. Semoran Blvd., Winter Park, FL 32792 via email at
poulton@debevoisepoulton.com and tueche@debevoisepoulton.com, this day of
teb , 2022.
Wieland & DeLattre, P.A.
226 Hillcrest Street
Orlando, FL 32801
(407) 841-7699
Agtorrey foryPlgintiff£ —
W illia Wieland, II
Fl Bar #: 4792
Billy@wdjustice.com
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| Filing # 143061521 E-Filed 02/01/2022 01:54:30 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR OSCEOLA COUNTY, FLORIDA ~ CASE NO. 2017-CA-2703 : ARACELIS DEJESUS, . Plaintiff, vs. RUSSELL GIBSON, SHERIFF OF OSCEOLA COUNTY IN HIS OFFICIAL CAPACITY, Defendant. , PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO DEFENDANTS’ AFFIRMATIVE DEFENSES COMES NOW the Plaintiff, ARACELIS DEJESUS, by and through her undersigned attorneys, and hereby files her Motion for Partial Summary Judgment as to Defendants’, RUSSELL GIBSON, SHERIFF OF OSCEOLA COUNTY IN HIS OFFICIAL CAPACITY, (hereinafter ~ OSCEOLA COUNTY SHERIFF) Affirmative Defenses . In support of her motion, the Plaintiff asserts as follows: BACKGROUND AND CASE HISTORY This is a personal injury action arising out of the alleged negligence on the part of | the Defendant, O9CEOLA COUNTY SHERIFF, when the Defendant’s deputies attempted to serve a search warrant on the Plaintiff, ARACELIS DEJESUS, mistakenly believing that someone, other than the Plaintiff, resided at th home. Before realizing the obvious mistake, the Defendant’s deputies dragged the Plaintiff her out of her home, placing her in hand cuffs, and sitting her on her driveway. The actions ofthe Defendant, OSCEOLA COUNTY SHERIFF, resulted in both physical and mental injuries to the Plaintiff, ARACELIS DEJESUS. It is the Plaintiff's position, based on discovery to date, that the Defendant, OSCEOLA COUNTY SHERIFF, violated a number oftheir own policies and procedures in carrying out the warrant that ultimately resulted in the Plaintiff's physical and emotional injuries. LAW AND ARGUMENT . A. Summary Judgment Standard Pursuant to Rule 1.510(c), summary judgment in favor of the moving party is required ifthe pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, ifany, show that there is no genuine dispute as to any material fact and that the moving party is entitled to ajudgment as a matter oflaw. Summaryjudgment is proper if(1) no genuine issue ofmaterial fact exists, viewing every possible inference in favor ofthe party against whom summaryjudgment has been entered, Huntington Nat'l Bank v. Merrill Lynch Credit Corp., 779 So.2d 396, 398 (Fla. 2d DCA 2000), and (2) the moving party is entitled to ajudgment as a matter of law, Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). See also Armiger v. Associated Outdoor Clubs, Inc., 48 So. 3d 864 (Fla. 2d DCA 2010). On May 1, 2021 the Florida Supreme Court amended Rule 1.510(c) to align with the federal “summary judgment standard. Stating The summary judgment standard provided for in this rule shall be construed and applied in accordance with the federal summary judgment standard articulated in Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); and Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574 (1986). No longer is it sufficient that there be a scintilla of evidence or that there be the slightest doubt to overcome a summary judgment. Rather, under the aforementioned cases, the non-moving party must prove that there are facts/evidence sufficient that a disagreement exists and a reasonable jury could return a verdict for the non moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). Or, as it relates to the issue at hand, there are facts/evidence sufficient that a disagreement exists and a reasonable jury could agree with Defendant’s, OSCEOLA COUNTY SHERIFF, Affirmative Defenses. Under the amended Rule 1.510(c) the non-moving party carries the burden. Where a defendant fails to come forward with proof in opposition to the Motion for Summary Judgment, the trial court may enter Summary Judgment. Latour Auto Sales, Inc. v. Stromberg-Carlson Leasing Corp., 335 So.2d 600 (Fla. 3d D.C.A. 1976). The Defendants have alleged various Affirmative Defenses (See Defendant’s Answers to Complaint, attached as Exhibit “A.””) An affirmative defense that simply denies facts, but does not raise matters to defeat a Complaint, should be stricken. See Gatt v. Keyes Corp., 446 So.2d 211 (3rd DCA 1984). See also Zito v. Washington, 318 So.2d 175 (3rd DCA 1975). Certainty is required when pleading defenses, and pleading conclusions oflaw unsupported by allegations ofultimate facts is legally insufficient. See Bliss v. Carmona, 418 So.2d 1019 (Fla. 3rd DCA 1982). See also, Kady v. Chevy Chase Savings and Loan, Inc., 428 So.2d 136, 138 (Fla. 4th D.C.A. 1988). In addition, a defendant pleading an affirmative defense has the burden ofproving it by clear and satisfactory evidence. Ades v. Bank of Montreal, 542 So.2d 1013 (Fla. 3rd DCA 1989). * AFFIRMATIVE DEFENSES AT ISSUE 1) The Defendant’s have raised as an affirmative defense of sovereign immunity, which " is inapplicable in this case as the actions of the Defendant were operational in nature. (See Page 4- “First Affirmative Defense” and “Second Affirmative Defense” of Exhibit “A”’.) Here, the case law is well settled. Sovereign immunity is applicable to planning decisions, but not those operational actions of governmental entities. Brown v. Miami-Dade County, 837 So.2d 414 (Fla. 3rd DCA 2001), Kaisner v. Kolb, 543 So.2d 732 (Fla. 1989). The actions ofthe Defendant in this case were clearly operational in nature and not those to be barred by sovereign immunity. 2) The Defendant’s third affirmative defense states “to the extent that the burden is on the Defendant to prove it, Defendant Sheriff asserts. that the search warrant in this case was supported by probable cause.” First, this is not a valid affirmative defense and as plead, mistates the law. In addition, this issue was extensively argued at the December 15, 2021 hearing on Defendant’s Motion for Summary Judgment, and the Plaintiffaddressed this issue in the initial Response to Defendant’s Motion for Summary Judgment and Plaintiff s Supplemental Response to Summary Judgment (DN 67 and 113). State v. McGill says to establish probable cause you must have a commission element- person committed a crime must be alleged and there must be evidence relevant to the criminality at the place to be searched. 125 So.3d 343 (Fla. 5" DCA 2013). Miami- Dade County v. Asad goes on to state determination of whether there is . probable cause is to be evaluated from the view point ofa reasonably prudent cautious police officer. 78 So.3d 660 (Fla. Pa DCA 1970). This affirmative defense is misplaced, does not apply to the facts ofthis case, and is legally insufficient. See De Cruz-Haymer v. Festival Food Market, Inc., 117 So.3d 885 (Fla. 4" DCA 2013). The evidence has shown that even Lt. Fisher agreed the actions ofthe Defendant, OSCEOLA COUNTY SHERIFF, through Detective Vazquez were in violation of multiple ofthe Defendant’s own policies and procedures and was “sloppy police work.” 3) The Defendant also asserts in their fifth affirmative defense the use of force was justifiable. The Plaintiff in this case has not filed an excessive use of force action, but rather a negligence action with regard to the investigation completed by the Defendants and the manner in which the warrant was served. Therefore, this affirmative defense is misplaced, does not apply to the facts ofthis case, and is " legally insufficient. See De Cruz-Havmer v. Festival FoodMarket, Inc., 117 So.3d 885 (Fla. 4" DCA 2013). 4) The Defendant asserts a sixth affirmative defense that the cause ofthe Plaintiff's injuries were caused by the Plaintiff herself. The Defendant in this case has been unable to obtain any facts or evidence to support this comparative negligence assertion. Consequently, this affirmative defense is misplaced, does not apply to the facts of this case, and is legally insufficient. See De Cruz-Haymer v. Festival FoodMarket, Inc., 117 So.3d 885 (Fla. 4" DCA 2013). This affirmative defense is nonspecific and summary judgment should be granted. Bliss v. Carmona, 418 So.2d 1019 (Fla. 3rd DCA 1982) 5) The Defendant’s seventh affirmative defense states the defendnat “asserts entitlement to the provisions of Section 768.81, Florida Statutes, requiring the Court to enterjudgment against each party liable on the bases ofsuch party’s percentage offault and not the basis ofjoint and several liability. Similar to the sixth affirmative defense, the Defendant has not established any facts or evidence to support this affirmative defense. This affirmative defense is misplaced, does not apply to the facts of this case, and is legally insufficient. See De Cruz-Haymer v. Festival FoodMarket, Inc., 117 So.3d 885 (Fla. 4" DCA 2013). Further, this affirmative defense is nonspecific and summaryjudgment should be granted. Bliss v. Carmona, : 418 So.2d 1019 (Fla. 3rd DCA 1982) 6) The Defendant’s ninth affirmative defense asserts that ant unidentified party was negligent or at fault and the negligence or fault of each ofthem should be considered an apportioned by the jury and the Court in any trial and verdict in this action. This is also known as a Fabre defense. Again, certainty is required when pleading defenses. Here, the Defendant is not specific . These “‘yet unidentified” parties have not been identified and discovery has not brought to light any other possible defendants. Therefore, summary judgment should be granted. WHEREFORE, the Plaintiff, ARACELIS DEJESUS, respectfully requests that this Honorable Court grant her motion for Summary Judgment as it pertains to the referenced affirmative defenses or in the alternative, where applicable, require the Defendants to assert the affirmative defense with specificity to allow the Plaintiff's an opportunity to respond for the reasons stated or other good grounds ~ shown. CERTIFICATE OF SERVICE I HEREBY CERTIFY that I electronically filed the foregoing with the Clerk of the Court using the eFiling Portal which will send a notice of electronic filing and a copy hereof to Thomas W. Poulton, Esquire, Erin M. Tueche, Esquire, DeBevoise & Poulton, P.A., Lakeview Office Park, Suite 1010. 1035 S. Semoran Blvd., Winter Park, FL 32792 via email at poulton@debevoisepoulton.com and tueche@debevoisepoulton.com, this day of teb , 2022. Wieland & DeLattre, P.A. 226 Hillcrest Street Orlando, FL 32801 (407) 841-7699 Agtorrey foryPlgintiff£ — W illia Wieland, II Fl Bar #: 4792 Billy@wdjustice.com