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Merrick Park, LLC v. Garcia

Florida Court of Appeals, Third District

December 4, 2019

Merrick Park, LLC, and The City of Coral Gables, Appellants,
v.
Pedro J. Garcia, as Property Appraiser for Miami-Dade County, Florida, et al., Appellees.

         Not final until disposition of timely filed motion for rehearing.

          Appeals from the Circuit Court for Miami-Dade County, Spencer Eig, Judge Lower Tribunal No. 17-16625

          Rennert Vogel Mandler & Rodriguez, P.A., and Thomas S. Ward, for appellants.

          Abigail Price-Williams, Miami-Dade County Attorney, and Ileana Cruz, Assistant County Attorney, for appellees.

          Before FERNANDEZ, MILLER, and GORDO, JJ.

          FERNANDEZ, J.

         In these two consolidated cases, Merrick Park, LLC ("Merrick") appeals the trial court's "Order Striking Count I of Second Amended Counterclaim and Dismissing Count II Thereof with Prejudice" in case number 3D18-2090. Appellant the City of Coral Gables ("the City") appeals the trial court's "Order on The City of Coral Gables' Motion to Join or Intervene" in case number 3D18-1393. This Court consolidated the appeals, and after careful consideration, we affirm both orders.

         The Shops at Merrick Park is an outdoor commercial retail shopping mall located at 358 San Lorenzo Avenue, Coral Gables, Florida. The Shops at Merrick Park's Improvements, which include the buildings that make up the mall's retail space, was assigned tax folio number, 03-4120-067-0041, for ad valorem taxation. Merrick is the owner of the Improvements. It is also the tenant leasing the land from the City. As the owner of the Improvements, Merrick is responsible for paying taxes on the Improvements. § 192.001(13), Fla. Stat. (2017). Accordingly, the tax bill for the Improvements is addressed to Merrick and mailed to Merrick's P.O. Box in Chicago, Illinois.

         The real property beneath The Shops at Merrick Park's Improvements was assigned a different tax folio number, 03-4120-067-0040, for ad valorem taxation of the City's Land. The City is the owner of the Land, which it leases to Merrick pursuant to a long-term written ground lease and pursuant to which Merrick is contractually responsible to the City for paying the ad valorem taxes on the Land. However, pursuant to section 192.001(13), as the owner of the Land, the City is the entity responsible for paying the ad valorem taxes on the Land. The tax bill for the Land is addressed to the City but mailed to Merrick at its P.O. Box in Chicago.

         Pedro J. Garcia, the property appraiser for Miami-Dade County, Florida, preliminarily assessed Merrick's Improvements at $81, 000, 000.00 and the City's Land at $51, 118, 500.00, for the 2016 tax year. Merrick and the City each filed a petition with the Value Adjustment Board ("VAB"), pursuant to section 194.011, Florida Statutes (2017), challenging these assessments. After the hearing before the VAB, the VAB issued its written decision reducing the property appraiser's preliminary assessment of 1) the Improvements from $81, 000, 000.00 to $67, 126, 217.00.00, and 2) the Land from $51, 118, 500.00 to $43, 450, 725.00.

         On July 11, 2017, the property appraiser and counterclaim-defendant Marcus Saiz de la Mora, as tax collector for Miami-Dade County (collectively, "the property appraiser"), filed a complaint under sections 194.171 and 194.181, Florida Statutes (2017), to contest the VAB's reduction of the 2016 tax assessment value of Merrick's Improvements. The property appraiser did not contest the VAB's reduction of the 2016 assessment value of the City's Land. In response, on July 28, 2017, Merrick filed an answer and a two-count counterclaim. First, in Count I of the Initial Counterclaim, Merrick sought yet another reduction of the Improvement's 2016 tax assessment value ("Improvements action"). Then, in Count II of the Initial Counterclaim, the City, as a counter-plaintiff, sought another reduction of the 2016 tax assessment value of the City's Land ("Land action") that it leases to Merrick and upon which the Improvements are built, claiming the property appraiser had still overassessed the Land. The City was not a named party-defendant in the property appraiser's lawsuit against Merrick and has never been a party to that lawsuit. In addition, the City had not yet filed a motion to join or intervene.

         Because the City was not a party-defendant, the property appraiser on September 29, 2017, moved to dismiss or strike Count II of the Initial Counterclaim ("the First Strike Motion"). At a specially-set hearing before the trial court, the City argued that it decided to try to commence the Land action by filing it as a counterclaim in Merrick's case. The trial court did not agree with the City's position and found that the City was not a named party and not a proper party-defendant in the property appraiser's action against Merrick. On February 2, 2018, the trial court thus entered the First Strike Order and dismissed Count II of the Initial Counterclaim without prejudice, but without granting leave to amend. Merrick did not seek rehearing nor did it appeal the First Strike Order. After receiving the First Strike Order, the property appraiser filed his Answer to Count I of the Initial Counterclaim (Merrick's Improvements action pled in Count I of the Initial Counterclaim) on February 8, 2018.

         Thereafter, on February 20, 2018, Merrick and the City again pled the City's Land action as an amended count II in Merrick's Amended Counterclaim, which was filed without seeking leave to amend, join, or intervene. Count II of the Amended Counterclaim was pled for the first time by Merrick, but jointly with the City. The property appraiser moved to strike the entire Amended Counterclaim, as well as moved to strike the City from this case. During a hearing on the property appraiser's motion, the trial court again found that the City was not a party in the proceeding. The trial court issued its Second Strike Order on April 11, 2018, striking the entire Amended Counterclaim and stated in its order, "Coral Gables is not a party to this suit." The trial court granted Merrick leave to file an amended counterclaim within twenty days.

         On April 25, 2018, the City filed a motion under Florida Rule of Civil Procedure 1.530 to seek rehearing of the Second Strike Order. That same day, the City also filed a motion to join or intervene as a party. The property appraiser filed a motion for partial reconsideration of the Second Strike Order and a written objection to both motions filed by the City. During the rehearing, the trial court found that Count II of the Initial Counterclaim and Count II of the Amended Counterclaim were nullities filed by the City as a non-party without authorization. The trial court thus denied the City's rehearing motion and motion to join or intervene, as well as the property appraiser's partial reconsideration motion.

         On June 19, 2018, Merrick filed its Second Amended Counterclaim. In Count II of this pleading, Merrick pled the Land action for the first time on behalf of only itself. On July 5, 2018, the property appraiser filed his Motion to Strike Count I and Dismiss Count II of Second Amended Counterclaim. On July 10, 2018, the City filed its Notice to Appeal the "Order on Property Appraiser's Motion to Strike The City of Coral Gables and the Amended Counterclaim" (the Second Strike Order), the "Order on the City of Coral Gables' Motion for Rehearing," and the Order on the City of Coral Gables' Motion to Join or Intervene. This Court assigned case number 3D18-1393 to the City's appeal.

         On August 20, 2018, Merrick filed its Response to the property appraiser's motion to strike Count I and dismiss Count II of the Second Amended Counterclaim. After a hearing, the trial court entered its Third Strike Order on October 11, 2018, striking Count I of the Second Amended Counterclaim as a redundant pleading and dismissing Count II of the Second Amended Counterclaim with prejudice. The trial court ruled that Count II did not relate back to the July 28, 2017 Initial Counterclaim and was thus barred by section 194.171(2), the statute of nonclaim, for being filed outside of the sixty-day statutory period. Count I of the Initial ...


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