Chames v. Demayo

Decision Date20 December 2007
Docket NumberNo. SC06-1671.,No. SC06-2187.,SC06-1671.,SC06-2187.
Citation972 So.2d 850
PartiesDeborah CHAMES, et al., Petitioners, v. Henry DeMAYO, Respondent. Henry DeMayo, Petitioner, v. Deborah Chames, et al., Respondents.
CourtFlorida Supreme Court

Section of The Florida Bar; Louis F. Hubener, Acting Solicitor General, Lynn C. Hearn, Deputy Solicitor General and Jenna L. Reynolds, Assistant Attorney General, Tallahassee, FL, on behalf of Bill McCollum, Attorney General; and Paul Steven Singerman, Ilyse M. Home, and Paul A. Avron of Berger Singerman, PA., Miami, FL, as Amici Curiae.


Like many states, Florida protects homeowners' residences from forced sale except in limited circumstances. The exemption is contained in article X, section 4(a)(1) of the Florida Constitution. While the exemption can be waived in a mortgage, for over a hundred years we have held that it cannot be waived in an unsecured agreement. See Carter's Adm'rs v. Carter, 20 Fla. 558 (1884);. Sherbill v. Miller Mfg. Co., 89 So.2d 28, 31 (Fla.1956). In these consolidated cases, an unsecured creditor (an attorney who is owed fees under a retainer agreement) asks us to recede from our precedent based on three subsequent developments: an amendment to our constitution; a purported national trend approving such waivers; and our recent holdings that other constitutional rights can be waived. In short, we do not interpret the constitutional amendment as approving waivers of the homestead exemption; we discern no trend approving such waivers (and in fact have discovered the opposite); and permitting a waiver of the homestead exemption in a mortgage but not in an unsecured agreement is consistent with our cases allowing waivers of constitutional rights, but requiring them to be knowing, intelligent, and voluntary. We therefore decline to recede from our prior decisions.


Henry DeMayo, who is divorced, sought to modify his child support obligations and abate his alimony payments. For that purpose, he retained Deborah Chames and her law firm, Heller & Chames, PA. (collectively "Chames"). He signed a sixpage, single-spaced retainer agreement that contained the following provision on page four:

It is specifically agreed that Heller and Chames, P.A. shall have and is hereby granted all general, possessory and retaining liens and all equitable, special and attorney's charging liens upon the client's interests in any and all real and personal property within the jurisdiction of the court for any balance due, owing and unpaid as well as a lien in any recovery whether by settlement or trial; and such lien or liens shall be superior to any other lien subsequent to the date hereof and that the client hereby knowingly, Voluntarily and intelligently waives his rights to assert his homestead exemption in the event a charging lien is obtained to secure the balance of attorney's fees and costs.

DeMayo v. Chames, 934 So.2d 548, 549 (Fla. 3d DCA 2006) (emphasis added). Chames ultimately withdrew from representation, and obtained a charging lien and final judgment against DeMayo for $33,206.76. The trial court applied the lien to DeMayo's home.

DeMayo appealed to the Third District Court of Appeal. He argued, among other things, that his waiver of the homestead exemption in the retainer agreement was invalid, and therefore the trial court could not impose the lien on his home. In a plurality opinion, the district court reversed on that issue, finding the waiver invalid, but it affirmed "in all other respects." See DeMayo, 934 So.2d at 551. Two judges (a majority of the panel) concurred in the result, recognizing our precedent but noting that they would hold otherwise if "writing on a blank slate." Id. at 555 (Shepherd, J., concurring). The concurring opinion certified a question of great public importance. Id.1 Both parties sought review in this Court, and we accepted jurisdiction. See art. V, § 3(b)(4), Fla. Const.; Chames v. DeMayo, 937 So.2d 122 (Fla.2006) (accepting jurisdiction); DeMayo v. Chames, 948 So.2d 758 (Fla.2007) (accepting jurisdiction). We rephrase the question as follows: Should this Court recede from longstanding precedent holding that the Florida Constitution's exemption from forced sale of a homestead cannot be waived? For reasons we explain below, we answer the question "no" and approve the result below. We continue to hold that a waiver of the homestead exemption in an unsecured agreement is unenforceable.2


The homestead exemption has been enshrined in our state constitution for over a hundred years. The exemption itself reads as follows:

(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:

(1) a homestead . . .

Art. X, § 4(a), Fla. Const. As we recognized in Snyder v. Davis, 699 So.2d 999 (Fla.1997):

The homestead provision has been characterized as "our legal chameleon." Our constitution protects Florida homesteads in three distinct ways. First, a clause . . . provides homesteads with an exemption from taxes. Second, the homestead provision protects the homestead from forced sale by creditors. Third, the homestead, provision delineates the restrictions a homestead owner faces when attempting to alienate or devise the homestead property.

Id. at 1001-02 (footnotes omitted). We also have explained the reason behind the exemption: "The public policy furthered by a homestead exemption is to `promote the stability and welfare of the state by securing to the householder a home, so that the homeowner and his or her heirs may live beyond the reach of financial misfortune and the demands of creditors who have given credit under such law.'" McKean v. Warburton, 919 So.2d 341, 344 (Fla.2005) (quoting Pub. Health & Trust v. Lopez, 531 So.2d 946, 948 (Fla.1988)).

Of course, by its own terms the exemption does not apply to mortgaged property. See art. X, § 4(c), Fla. Const. ("The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage ...."); see also Howard v. Calhoun, 155 Fla. 689, 21 So.2d 361, 362 (1945) ("We have long recognized that property exempt under Article X of the Constitution, whether real property or personal property, can be sold or mortgaged by the owner ... just as any other property."). The question here is whether a homeowner can waive the exemption without formally mortgaging the property—that is, in promissory notes, retainer agreements, or other purportedly unsecured instruments.

We first addressed this issue—or one like it—in Carter. Specifically, the question was "whether an agreement ... to waive all benefit and right of [exemption] is valid in view of the policy of the exemption laws." Carter, 20 Fla. at 563. There, the decedent Carter had signed a promissory note waiving the benefit of all exemption laws. Id. at 560. Invoking a similar provision that exempts $1,000 in personal property, see art. X, §, 4(a)(2), Fla. Const., Carter's heirs sued to require the estate's administrators to set aside $1,000 of personal property as exempt. Id. at 559. We surveyed the law in other jurisdictions and held that

[i]n view of the recognized policy of the States in enacting exemption laws and of the practically universal concurrence of the authorities on the identical question, our conclusion is that the "waiver" of the benefit and protection of the exemption laws contained in this note is not valid to defeat a claim of exemption.

Id. at 570. We specifically rejected the argument that the waiver should be permitted because the same result could be achieved through a mortgage:

When a man executes a mortgage or bill of sale upon certain specified property, the very nature of the transaction implies the exercise of discretion and the contemplation of inevitable consequences. Such contracts are, therefore, upheld as well in respect to real as to personal property. We have in several cases held that a sale under a mortgage is not a forced sale because it was a sale under consent given under seal and irrevocably conveying an interest in the thing described.... Few men would mortgage their household goods and their children's clothes to a hard creditor with the inevitable result brought vividly to their understanding. . . .

Id. at 570.

Over 70 years later, we addressed the issue again in Sherbill, 89 So.2d 28. There, the debtors executed a note waiving "the benefit of their homestead exemption as to this debt." Id. at 29. We noted that "[n]o policy of this State is more strongly expressed in the constitution, laws and decisions of this State than the policy of our exemption laws." Sherbill, 89 So.2d at 31. Relying on Carter, we reiterated that the "waiver was contrary to the policy of the exemption laws of this State." Sherbill, 89 So.2d at 31.

Since our decisions in Carter and Sherbill, we have recognized some types of waivers. For example, article X, section 4(c) prohibits a devise of the homestead "if the owner is survived by spouse or minor child." In City National Bank of Florida v. Tescher, 578 So.2d 701, 703 (Fla.1991), we found valid a spouse's waiver of that restriction. See also § 732.702(1), Fla. Stat. (2006) ("The rights of a surviving spouse to ... homestead ... may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving ...

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