Demayo v. Chames
| Decision Date | 14 June 2006 |
| Docket Number | No. 3D04-117.,3D04-117. |
| Citation | 934 So.2d 548 |
| Court | Florida District Court of Appeals |
| Parties | Henry DeMAYO, Appellant, v. Deborah CHAMES and Heller & Chames, P.A., Appellees. |
Sophie DeMayo, for appellant.
Heller and Chames, P.A., and Deborah S. Chames and Jonathan A. Heller, Miami, for appellees.
Before GREEN, WELLS, and SHEPHERD, JJ.
ON MOTIONS FOR REHEARING, AND CERTIFICATION
We grant the Appellees' Motion for Rehearing/Clarification. We withdraw the opinion issued on March 15, 2006, and substitute the following opinion in its place.
Henry DeMayo appeals from a final judgment granting Deborah Chames and her law firm, Heller & Chames, P.A., attorneys' fees pursuant to a charging lien. The question presented is whether DeMayo effectively waived his constitutional right to homestead exemption under Article X, section 4 of the Florida Constitution. We hold he did not.
In December 2002, DeMayo retained Chames and her law firm, Heller and Chames, P.A., to represent him in post-dissolution proceedings to modify child support and alimony. The retainer agreement executed by DeMayo, as pertinent here, stated:
It is specifically agreed that Heller & 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.
In October 2003, the trial court granted Heller and Chames' request to withdraw as DeMayo's counsel and, expressly enforcing the homestead waiver provision of the retainer agreement, entered judgment for $33,207.76 in the law firm's favor. We reverse.
Article X, section 4 presently provides:
Homestead; exemptions. —
(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....
The exemption accorded by this provision has been part of the Florida Constitution for over a hundred years. In 1884, the Florida Supreme Court in Carter's Administrators v. Carter, 20 Fla. 558, 570 (1884), set forth the policy considerations underlying this provision:
True, a man may sell his personal property, or may pledge or mortgage it, but in that case the property sold or pledged is designated and identified and a special interest is created in favor of a creditor in the particular article pledged or mortgaged, and in no State is this power of the owner of personalty denied. The object of exemption laws is to protect people of limited means and their families in the enjoyment of so much property as may be necessary to prevent absolute pauperism and want, and against the consequence of ill advised promises which their lack of judgment and discretion may have led them to make, or which they may have been induced to enter into by the persuasions of others.
In this country especially where there happen to be many illiterate and unsophisticated people it would be mischievous to encourage such agreement in which by the mere scratch of a pen the whole policy of the exemption laws would become nugatory. Such people, without reference to "race, color or previous condition," are and ought everywhere to be the wards of the State and to be protected accordingly.
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. Such contracts are regulated by law and are specifically enforced in courts of equity. And by such transactions men may, through misfortune, become impoverished and their families brought to want. This is an incident of all human transactions, even where the utmost caution and circumspection are exercised, but this is not an argument in favor of encouraging indiscreet contracts made with a view to an evasion of the settled policy of the State. 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, but many thoughtless and improvident people might be induced to obtain credit by merely "waiving the benefit of exemption," and thus placing the last blanket and bed and their own and the children's clothing at the mercy of a hard creditor, if an agreement like this should be sustained.
In 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.
In 1956, the Florida Supreme Court addressed whether the protections of Article X, section 4 could be waived in a written instrument, a promissory note, which did not involve the exceptions delineated in the constitution. The Court held that the protections could not be waived because:
[T]his Court long ago determined that such a waiver was not an alienation of the homestead and not enforceable, and secondly, that such a waiver was contrary to the policy of the exemption laws of this State. Carter's Adm'r v. Carter, 20 Fla. 558. "The public policy of a state or nation must be determined by its Constitution, laws, and judicial decisions * * *." Atlantic Coast Line R. Co. v. Beazley, 54 Fla. 311, 45 So. 761, 786. No 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 v. Miller Mfg. Co., 89 So.2d 28, 31 (Fla.1956). Carter and Sherbill confirm that Article X, section 4 "protects the homestead against every type of claim and judgment except those specifically mentioned in the constitutional provision itself" and that other than for the purposes stated in this provision, cannot be waived. See Havoco of America, Ltd. v. Hill, 790 So.2d 1018, 1021 (Fla.2001) (quoting Olesky v. Nicholas, 82 So.2d 510, 513 (Fla.1955)); Butterworth v. Caggiano, 605 So.2d 56, 60 (Fla.1992); In re Estate of Nicole Santos, 648 So.2d 277, 282 (Fla. 4th DCA 1995) (); see also In re Clements, 194 B.R. 923, 925 (M.D.Fla.1996) (). Because the attempted waiver in this case is unrelated to those purposes stated in Article X, section 4, it is invalid.
Accordingly, we reverse the order under review insofar as it grants a charging lien on the real property of Henry DeMayo in this case. We affirm the order on appeal in all other respects.
Because the case before us is factually indistinguishable from the Florida Supreme Court's opinion in Sherbill v. Miller Mfg. Co., 89 So.2d 28 (Fla.1956), we are compelled to join the affirmance of the decision below. However, we feel that we would be remiss if we did not note that Sherbill, and the much earlier decision on which it is grounded, Carter's Adm'rs v. Carter, 20 Fla. 558 (1884), are inconsistent with the modern view that a person's right to exempt his homestead property from the claims of a creditor is a personal right that may be waived by that person if he or she so desires. For this reason, and because the people of this state in 1984 made a fundamental change in the text of their homestead provision that is, at a minimum, inharmonious with the policy pronouncement on which Carter's Adm'rs and hence Sherbill are moored, and also because there is strong evidence that our High Court is tending toward the modern view in its consideration of other provisions of the Florida Constitution involving personal economic decision-making, see In Re: Amendment to the Rules Regulating the Florida Bar v. Rule 4-1.5(f)(4)(b) of the Rules of Professional Conduct, Case No. SC05-1150 (), we certify the question of whether the policy pronouncement found in Carter's Adm'rs should be overruled.
Although the Florida Constitution has long exempted homestead property from a "forced sale," it is important at the outset to recognize that Mr. DeMayo is not facing a "forced sale" of his property. Rather, he resists honoring an agreement he made with his counsel whereby he "knowingly, voluntarily and intelligently" waived his constitutional right. Thus, he has no textual support for the position he argues before this court. See Butterworth v. Caggiano, 605 So.2d at 58, 59 (Fla.1992) (...
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