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Filing # 84290888 E-Filed 02/01/2019 01:49:42 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. 2018-012371-CA
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, JIM ZINGALE’S OBJECTION TO
PLAINTIFFS’ MOTION FOR LEAVE TO AMEND COMPLAINT
Defendant Jim Zingale, as Executive Director of the Florida Department of Revenue
(‘the Department”)!, by and through undersigned counsel, responds to the Plaintiffs’ Motion for
Leave to Amend Complaint served by Raul Mejia and Virginia Lopez (“Plaintiffs”), on or about
January 14, 2019, and states as follows.
1 This case involves the Plaintiffs’ challenge to the Property Appraiser’s filing of
tax liens for the tax years 2014-2016 due to the Property Appraiser’s removal of homestead
exemption on the property at issue and a challenge to the Property Appraiser’s assessment on the
property for the tax year 2017.
2 The Plaintiffs filed an original complaint on April 17, 2018. After serving the
parties the original complaint, the Plaintiffs filed an amended complaint on May 17, 2018. The
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), Jim Zingale is automatically
substituted as a party to this action.Department answered the amended complaint on May 31, 2018, In the Department’s Answer, it
admitted that it was named as a proper party defendant under section 194.181(5), Florida
Statutes, but raised as a defense that no case or controversy had been alleged against the
Department. The Plaintiffs filed their Amended Motion for Leave to Amend Complaint on
January 25, 2019 seeking to file a second amended complaint.
3 In an apparent attempt to overcome the Department’s defense, the Plaintiffs’
proposed Second Amended Complaint added Paragraphs 19-20. Paragraph 19 simply copies
from the Department’s Statement of Agency Organization and Operation information regarding
the Department’s role in property tax oversight. Paragraph 20 of the proposed Second Amended
Complaint states as follows:
20. As the oversight Agency, DOR failed to properly oversee
Appraiser’s Retroactive Tax Liens which denies Plaintiffs of their
constitutional homestead and senior exemptions without evidence
to establish an abandonment had occurred or despite evidence that
an abandonment had not occurred. This lack of oversight caused
injury to Plaintiffs in the loss of their constitutional homestead and
senior exemptions.
4 Paragraphs 19 and 20 of the Plaintiffs’ proposed Second Amended Complaint fail
to state a cause of action against the Department. Therefore, amendment would be futile. Kay’s
Custom Drapes, Inc. v. Garrote, 920 So. 2d 1168, 1171 (Fla. 3d DCA 2006) (a trial court’s
refusal to allow amendment to a complaint is not an abuse of discretion if amendment is futile.).
Sovereign immunity bars such amendment. See Trianon Park Condo. Ass'n, Inc. v. City of
Hialeah, 468 So. 2d 912, 914-15 (1985) (“there has never been a common law duty to individual
citizens for the enforcement of police power functions.”).
5. The Department is being sued over the planning level exercise (or lack of
exercise) of its purely governmental functions. The Department’s determinations as to theprecise degree of authority and control which it has been given over constitutionally elected
Property Appraisers, and its respect for the separation of powers between the Department and the
constitutionally elected Property Appraiser, Pedro Garcia, in this case are planning level,
discretionary policy decisions for which the Department owes no specific duty to any individual
and for which its sovereign immunity is preserved.
6 Accordingly, Plaintiffs’ amendment in paragraph 20 of the proposed Second
Amended Complaint to assert injury caused by the Department would be futile. See
Undereducated Foster Children of Fla. v. Fla. Senate, 700 So. 2d 66, 67 (Fla. 1st DCA 1997)
(Dismissal of complaint with prejudice affirmed on basis that the plaintiffs could not plead any
facts to invoke the court’s jurisdiction regarding its claims of statutory and constitutional
violations relating to Florida’s foster care system).
7 Moreover, Plaintiffs’ request for a jury trial is not well-founded. There is no
constitutional right to a jury trial in a tax assessment case. See Section 3 Prop. Corp. v. Robbins,
632 So. 2d 596, 596-97 (Fla. 1993).
8 Recognizing, however, that Rule 1.190 (a) of the Florida Rules of Civil Procedure
expressly permits liberal amendment of pleadings, the Department does not waive any matter
raised in the proposed Second Amended Complaint and reserves the right to address any such
matters in defenses or by way of a motion to dismiss
RESPECTFULLY SUBMITTED this Ist day of February, 2019
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 BureauPL-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); 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 Property Appraiser and Tax Collector), on this 1st
day of February, 2019
S/Timothy E. Dennis
TIMOTHY E. DENNIS
Chief Assistant Attorney General
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Filing # 84290888 E-Filed 02/01/2019 01:49:42 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. 2018-012371-CA 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, JIM ZINGALE’S OBJECTION TO PLAINTIFFS’ MOTION FOR LEAVE TO AMEND COMPLAINT Defendant Jim Zingale, as Executive Director of the Florida Department of Revenue (‘the Department”)!, by and through undersigned counsel, responds to the Plaintiffs’ Motion for Leave to Amend Complaint served by Raul Mejia and Virginia Lopez (“Plaintiffs”), on or about January 14, 2019, and states as follows. 1 This case involves the Plaintiffs’ challenge to the Property Appraiser’s filing of tax liens for the tax years 2014-2016 due to the Property Appraiser’s removal of homestead exemption on the property at issue and a challenge to the Property Appraiser’s assessment on the property for the tax year 2017. 2 The Plaintiffs filed an original complaint on April 17, 2018. After serving the parties the original complaint, the Plaintiffs filed an amended complaint on May 17, 2018. The 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), Jim Zingale is automatically substituted as a party to this action.Department answered the amended complaint on May 31, 2018, In the Department’s Answer, it admitted that it was named as a proper party defendant under section 194.181(5), Florida Statutes, but raised as a defense that no case or controversy had been alleged against the Department. The Plaintiffs filed their Amended Motion for Leave to Amend Complaint on January 25, 2019 seeking to file a second amended complaint. 3 In an apparent attempt to overcome the Department’s defense, the Plaintiffs’ proposed Second Amended Complaint added Paragraphs 19-20. Paragraph 19 simply copies from the Department’s Statement of Agency Organization and Operation information regarding the Department’s role in property tax oversight. Paragraph 20 of the proposed Second Amended Complaint states as follows: 20. As the oversight Agency, DOR failed to properly oversee Appraiser’s Retroactive Tax Liens which denies Plaintiffs of their constitutional homestead and senior exemptions without evidence to establish an abandonment had occurred or despite evidence that an abandonment had not occurred. This lack of oversight caused injury to Plaintiffs in the loss of their constitutional homestead and senior exemptions. 4 Paragraphs 19 and 20 of the Plaintiffs’ proposed Second Amended Complaint fail to state a cause of action against the Department. Therefore, amendment would be futile. Kay’s Custom Drapes, Inc. v. Garrote, 920 So. 2d 1168, 1171 (Fla. 3d DCA 2006) (a trial court’s refusal to allow amendment to a complaint is not an abuse of discretion if amendment is futile.). Sovereign immunity bars such amendment. See Trianon Park Condo. Ass'n, Inc. v. City of Hialeah, 468 So. 2d 912, 914-15 (1985) (“there has never been a common law duty to individual citizens for the enforcement of police power functions.”). 5. The Department is being sued over the planning level exercise (or lack of exercise) of its purely governmental functions. The Department’s determinations as to theprecise degree of authority and control which it has been given over constitutionally elected Property Appraisers, and its respect for the separation of powers between the Department and the constitutionally elected Property Appraiser, Pedro Garcia, in this case are planning level, discretionary policy decisions for which the Department owes no specific duty to any individual and for which its sovereign immunity is preserved. 6 Accordingly, Plaintiffs’ amendment in paragraph 20 of the proposed Second Amended Complaint to assert injury caused by the Department would be futile. See Undereducated Foster Children of Fla. v. Fla. Senate, 700 So. 2d 66, 67 (Fla. 1st DCA 1997) (Dismissal of complaint with prejudice affirmed on basis that the plaintiffs could not plead any facts to invoke the court’s jurisdiction regarding its claims of statutory and constitutional violations relating to Florida’s foster care system). 7 Moreover, Plaintiffs’ request for a jury trial is not well-founded. There is no constitutional right to a jury trial in a tax assessment case. See Section 3 Prop. Corp. v. Robbins, 632 So. 2d 596, 596-97 (Fla. 1993). 8 Recognizing, however, that Rule 1.190 (a) of the Florida Rules of Civil Procedure expressly permits liberal amendment of pleadings, the Department does not waive any matter raised in the proposed Second Amended Complaint and reserves the right to address any such matters in defenses or by way of a motion to dismiss RESPECTFULLY SUBMITTED this Ist day of February, 2019 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 BureauPL-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); 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 Property Appraiser and Tax Collector), on this 1st day of February, 2019 S/Timothy E. Dennis TIMOTHY E. DENNIS Chief Assistant Attorney General