Title: Defendants' Motions To Strike
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 Material Information
Title: Defendants' Motions To Strike
Alternate Title: Defendants' Motions To Strike, To Dismiss For Lack Of Jurisdiction Over The Parties And To Strike The Petition.
Physical Description: 6p.
Language: English
Publication Date: July 31, 1984
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
General Note: Box 4, Folder 1 ( SF BASIN BOARD CONCEPT ), Item 4
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: UF00051920
Volume ID: VID00001
Source Institution: University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text






IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT
IN AND FOR HERNANDO COUNTY, FLORIDA


The County Commission of Hardee County,
The County Commission of DeSoto County, )
The County Commission of Hernando County, )
The Northwest Hillsborough Basin Board, )
Florida Citrus Mutual, William R. McMullen, ) Case No. 84-573-CA-01
Gail Parsons, Stanton L. Reese, Patricia R. ) Division: A
Pieper, John E. Sargeant, Charles O. )
Kuharske, Allen K. Stone, Jean Perchalski, )
Charles E. Booth, Charles H. Martin, James )
Lloyd Ryals, Berryman T. Longino and )
Derrill McAteer, )

Plaintiffs )

v. )

Gary W. Kuhl, as Executive Director of the )
Southwest Florida Water Management District, )
and the Governing Board of the Southwest )
Florida Water Management District, )

Defendants. )



DEFENDANTS' MOTIONS TO STRIKE, TO DISMISS FOR LACK
OF JURISDICTION OVER THE PARTIES AND TO STRIKE THE PETITION


The Defendants responding to the Petition say:

I

The Defendants move under Fla. R. Civ. P. 1.140(f) to strike the following matters

; from the Petition:
1. The reference in paragraph 1 to public entity should be stricken as

impertinent and improper. The Northwest Hillsborough Basin is not a "public entity" as

that term is commonly construed. Such basin exists solely as a subdistrict of the

Southwest Florida Water Managemeht District, having been designated a subdistrict or

basin by the Governing Board of the District by resolution in accordance with Section

373.0693, Florida Statutes, and prior authority granted under Chapter 61-691, Laws of

Florida.

2. The County Commissions of Hardee, DeSoto and Hernando Counties are

composed of individuals who are not named and who are not parties in their individual

capacities, and the County Commission as a body cannot act or represent these counties

except in the name of the county. Therefor, the language in paragraph 2 stating that the

County Commissions are "representing the interests of their particular counties, and of

the taxpayer-citizens located therein" should be stricken as impertinent and improper.

3. Florida Citrus Mutual is an Agricultural Cooperative Marketing Association

and has only such powers as are expressly set forth in Section 618.07, Florida Statutes,

and may exercise no power which is inconsistent with the express provisions of Chapter

Pfce 1 of 6











618, Florida Statutes. The statements in paragraph 3 contained in the entire second and

third sentence should be stricken as immaterial and the allegations in Section V. on page

6 that Florida Citrus Mutual represents their members both as taxpayer-citizens and as

individual members be stricken as impertinent and as beyond the scope of their authority.

4. All references in paragraph 5 to membership on basin boards of the persons

named therein should be stricken as immaterial, improper and impertinent in that they

are without authority to represent such basin boards in th( individual capacities,

whether as members or as officers of such boards, and they do not otherwise allege in

paragraph 5 that they are acting in their individual capacities in this action.


The defendant moves under Fla. R. Civ. P. 1.140(b) to dismiss for lack of

jurisdiction over the person the following parties:

5. The Northwest Hillsborough Basin should be dismissed as a party. In order to

maintain an action the plaintiff must have an actual legal existence and must possess

legal capacity to sue. Fla. Jur. 2d Parties 88. The Northwest Hillsborough Basin Board

has only such duties and powers as are conferred upon basin boards by Sections 373.0695

and 373.0697, Florida Statutes. A basin has no power to sue. As additional grounds,

every pleading of a party represented by an attorney must be signed by at least one

attorney of record, and if not represented by an attorney the party must sign the

. pleading. Fla. R. Judicial Administration 2.060(d) and (e). The pleading is neither

Verified by nor)signed by an attorney of record r signed by any member of the

Northwest Hillsborough Basin Board.

6. The County Commissioners of Hardee, DeSoto and Hernando Counties have no

legal authority to sue except in the name of the county in which they are

commissioners. Section 125.15, Florida Statutes. See: Ericksen v. Board of County

Commissioners of Sarasota County 212 So2d 340 (Fla. 2nd DCA 1968). They should

therefore be dismissed as parties.

7. All named parties in paragraph 5 who are not also named as taxpayer-citizens

in paragraph 4 should be dismissed because of legal incapacity to represent the named

basins in their individual capacities, and not identifying themselves otherwise as

plaintiffs intending to so- as individuals.
8. All named parties represented by Mygnon C. Evans, as Vice President and

SStaff Legal Counsel of Florida Citrus Mutual, should be dismissed as parties unless it can

be demonstrated that such corporate officer was authorized by her employer by

/ corporate resolution to represent in such capacity the interests of non-members of the

SAgricultural Cooperative Marketing Association.


PHe 2 of 6











9. Florida Citrus Mutual has only such powers as set forth in Section 618.07,

Florida Satutes, and may exercise no power in a manner which is inconsistent with the

express provisions of Chapter 618, Florida Statutes. Exercise of its powers to maintain a

tax suit is inconsistent with the purposes for which powers were granted to Florida Citrus

Mutual.



The Defendant moves to strike the Petition as sham under Fla. R. Civ. P. 1.150,

and for grounds therefore says:

10. The Petition names the Northwest Hillsborough Basin Board as a Plaintiff

when the pleaders knew or should have known that such subdivision of the District has no

legal capacity to sue.

11. The Petition names the Northwest Hillsborough Basin Board as a Plaintiff ,

without the pleading being verified by such Plaintiff or signed by an attorney

representing such Plaintiff.

12. The Petition names the County Commissioners of Hardee, DeSoto and

Hernando Counties as Plaintiffs when the pleaders knew or should have known that such

County Commissioners have no legal authority to sue except in the name of the County.

13. Florida Citrus Mutual is an Agricultural Cooperative Marketing Association

having only such powers as are consistent with the express provisions of Chaper 618,

Florida Statutes. The presumed power to represent its members in what is essentially a

"" "taxpayers'" suit does not appear consistent with the express provisions of Chapter 618,

Florida Statutes, particularly in the manner pleaded. Without the express power to

represent "13,268 citrus growers", Mutual represents itself only as "a property owner and

taxpayer in Polk County".

14. The Petition inserts the names of the Hillsborough River Basin Board, the

Peace River Basin Board, and the Withlacoochee River Basin Board, without a suggestion

of relevancy.

15. The Petition in paragraph 5 names persons as members and officers of basin

boards without suggesting the relevancy, when the pleaders knew or should have known

that they have no capacity as individuals to make such basin boards parties to this

action. Further, the named persons are not otherwise identified as to their interest in

this pending matter, except those also named in paragraph 4.

16. Florida Citrus Mutual and the ten individuals named "taxpayer-citizens" are

the only real parties to this suit. However, the parties do not allege a special injury /

one which would be different in degree and kind from that suffered by the community at /

large, and therefore have no standing to bring this action. See: Askew Hold The


Page 3 of 6











Buhead Save Our Bays, Inc. 269 So2d 696 (Fla. 2nd DCA, 1972). In fact the

community at large will, rather -than suffering injury, benefit from reduced taxation by

the action complained of.
IV

The petition should be dismissed for lack of standing by plaintiffs to bring the

instant action.

17. An injunction is a drastic remedy which should be granted cautiously and

sparingly and the essential requisites for an injunction are lack of a full, complete

remedy at law and prevention of irreparable injury.

A taxpaerf the state or county has standing to bring an action for

injunctive relief against the proper public officials to restrain the unlawful exercise of

the state or county's taxing or spending authority only upon a showing of a special injury

to such taxpayer which is distinct from that sustained by every other taxpayer in the

taxing unit. r
"The single exception to the special injury standing requirement is that a

taxpayer may institute a suit without a showing of special injury if he attacks the

exercise of the state or county's taxing or spending authority on the ground that it

exceeds specific limitations imposed on the state or county's taxing or spending power by

the United States or Florida Constitution." Fredericks v. Blake, 382 So2d 368 (Fla. 3rd

DCA, 1980).
It is clear that the rule applies to injunctive relief to restrain the unlawful exercise

of authority. Despite allegations of unlawful exercise of authority, without alleging and

showing special injury differing in kind from injury which may occur to the general

public, the Petitioner has no standing to bring an action.
"If it were otherwise there would be no end to potential litigation against a

given defendant, whether he be a public official or otherwise, brought by

individuals or residents, all possessed of the same general interest, since none

of them would be bound by res judicata as a result of prior suits; and as

against public authorities, they may be intolerably hampered in the

performance of their duties and have little time for anything but the

interminable litigation." Askew v. Hold The Bulkhead Save Our Bays, Inc.,

269 So2d 696 (Fla. 2nd DCA, 1972).
V

The Petition should be dismissed for lack of standing to bring the instant action.

18. The Petition for an injunction is a drastic remedy which should only be

granted where it is shown a lack of a full, complete remedy at law and to prevent an

irreparable injury.












Plaintiffs allege that not all sixteen counties are represented on the District

Governing Board and those unrepresented taxpayers will suffer irreparable injury. This

issue was handled by the court in Glisson v St. Johns River Water Management District,

Circuit Court Clay County, Case No. 77-806, June 25, 1981, per curiam affirmed 415

So2d 1364 (Fla. 1st DCA, 1982) wherein the court ruled in part that "Legislative findings

of district-wide and basin-wide benefits are contained in subsection 373.0697 (3) and

373.503(4). To overcome these findings, the plaintiffs must allege and prove a great

disparity in, or total lack of benefits from the ad valorem tax expenditures, coupled with

an abuse of power or purely arbitrary and oppressive action by the Legislature or the

District." Martin v Dade Muck Land Co., 116 So. 449 (Fla. 1928); Richardson v Harden,

96 So. 290 (Fla. 1923); Bair v Central and Southern Florida Flood Control District, 144

So2d 818 (Fla. 1962). Plaintiffs' burden on this issue is strict.

Wherefore, Defendants respectfully request this Court to grant Defendants

Motions, dismiss the Petitioners Petition, and grant such other and further relief as the

Court may deem meet and equitable.
Respectflly submitted,




STEPHEN A. WALKER, GENERAL COUNSEL
SOUTHWEST FLORIDA WATER
"MANAGEMENT DISTRICT
"2379 Broad Street
"f Brooksville, Florida 33512-9712
(904) 796-7211


















--












CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been

furnished by Hand Delivery this 31st day of July, 1984, to Mygnon C. Evans,

Staff Legal Counsel, Florida Citrus Mutual, Post Office Box 89, Lakeland, Florida 33802,

Judy Kavanaugh, Attorney for Hardee County Commission and Berryman T. Longino,

United First Federal Building, 1390 Main Street, Suite 524, Sarasota, Florida 33577,

Robert Bruce Snow, Attorney for Hernando County Commission and Derrill McAteer and

Charles E. Booth, 112 North Orange Avenue, Brooksville, Florida 33512, and Gary

Vorbeck, Attorney for DeSoto County Commission and for James Lloyd Ryals, Sun Bank

Building, Suite 201, 10 South DeSoto Avenue, Arcadia, Florida 33512.



STEPHE I. WALKER, General Counsel
Southwest Florida Water Management District
2379 Broad Street
Brooksville, Florida 33512-9712
(904) 796-7211





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