Greco v. Tampa Wholesale Co.

• Decision Date: 18 March 1988
• Docket Number: No. 87-2273,87-2273
• Parties: 13 Fla. L. Weekly 739 John GRECO, Linda Jo Greco, Mary Josephine Castro, Jo Ann Greco, Cynthia Marie Greco, and Exchange Bank of Tampa, as Trustee, in the name of Tampa Wholesale Company, Appellants, v. TAMPA WHOLESALE COMPANY and Clerk of the Circuit Court of Hillsborough County, Appellees.
• Court: Florida District Court of Appeals

Page 506

522 So.2d 506

13 Fla. L. Weekly 739

John GRECO, Linda Jo Greco, Mary Josephine Castro, Jo Ann Greco, Cynthia Marie Greco, and Exchange Bank of Tampa, as Trustee, in the name of Tampa Wholesale Company, Appellants, v. TAMPA WHOLESALE COMPANY and Clerk of the Circuit Court of Hillsborough County, Appellees.

No. 87-2273.

District Court of Appeal of Florida,

Second District.

March 18, 1988.

Steven D. Merryday and David P. Rhodes of Glenn, Rasmussen, Fogarty, Merryday & Russo, Tampa, for appellants.

John W. McWhirter and John W. Bakas, Jr., of Lawson, McWhirter, Grandoff & Reeves, Tampa, for appellee Clerk of Circuit Court.

No appearance for Tampa Wholesale Co.

SCHEB, Acting Chief Judge.

The trial court denied the Greco family's motion seeking return of certain funds retained by the clerk of the court pursuant to sections 28.24(13) and 28.33, Florida Statutes (1985). The Greco family appeals. We affirm.

In 1979 the Greco family obtained a judgment for $10,290,546 in a dissenting shareholders action against the Tampa Wholesale Company. When the parties could not reach an agreement on disposition of the funds, Tampa Wholesale deposited this amount and some interest accumulations thereon into the registry of the court.

Section 28.24 states in pertinent part:

The clerk of the circuit court shall make the following charges for services rendered by his office in recording documents and instruments and in performing the duties enumerated....

Charges

....

(13) For receiving money into the registry of the court:

(a)1. First $500, percent .............. 2

2. Each subsequent $100, percent .... 1

Pursuant to this statutory directive, the clerk retained $102,910 from the funds placed in the registry.

Section 28.33 states in pertinent part:

The clerk may invest monies deposited in the registry of the court and shall retain as income of the office of the clerk and as a reasonable investment management fee 10 percent of the interest accruing on those funds with the balance of such interest being allocated in accordance with the interest of the depositors.

In accordance with this statute, the clerk caused the funds to be invested and retained a management fee of approximately $30,000 from the interest earned for the six-month period between December 31, 1986, and July 8, 1987.

Thereafter, pursuant to the trial court's order confirming a stipulation between the parties, the funds were transferred from the registry of the court and invested in a certificate of deposit issued by a bank. The clerk received no registry fee and no portion of the interest on the transaction.

In its motion requesting the return of the funds retained by the clerk, the Greco family asserted:

The statutes which authorize the Clerk to assess these amounts are unconstitutional, since they constitute a taking of Plaintiffs' property without just compensation in violation of the Fifth and Fourteenth Amendments to the United States Constitution. There is no reasonable basis or explanation for the amount of the assessment. See Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155 [101 S.Ct. 446, 66 L.Ed.2d 358] (1980).

The court heard testimony from a representative of the clerk's office who detailed the procedures involved in handling the funds deposited in the registry of the court. After argument of counsel, the trial court denied the Greco family's motion, and this appeal ensued.

The Greco family members contend that sections 28.24(13) and 28.33 are unconstitutional. They argue here, as they did in the trial court, that the statutes violate the fifth and fourteenth amendments to the United States Constitution because they compel an unwarranted and unreasonable taking of private property without just compensation. We disagree.

A constitutional analysis always begins with the premise that all statutes are presumptively valid. The party challenging the constitutionality of a statute bears the burden of showing that the statute is unconstitutional beyond any reasonable doubt. State v. Kinner, 398 So.2d 1360 (Fla.1981). People's Bank v. State, Dept. of Banking & Finance, 395 So.2d 521 (Fla.1981). We do not find that the Greco family demonstrated the invalidity of either section 28.24(13) or section 28.33.

The Greco family members concede that normally the assessments required by sections 28.24(13) and 28.33 are unobjectionable. They argue, however, that these requirements become constitutionally impermissible where, as here, large amounts of money are involved. The evidence reveals that irrespective of the amount of funds deposited, the basic mechanics of the clerk's handling of the registry transactions are similar. The responsibility, of course, increases based on the amount involved.

In addressing the Greco family's assault on the constitutionality of section 28.24(13) we must consider whether the clerk was, in effect, accumulating revenues from the statutorily empowered fee far in excess of the cost of registry-related judicial proceedings. Murillo v. Bambrick, 681 F.2d 898, 911 (3rd Cir.), cert. denied, 459 U.S. 1017, 103 S.Ct. 378, 74 L.Ed.2d 511 (1982).

We think that the test we must apply here is whether there is a reasonable relationship between the legislature's objective to offset costs of operating the court system by prescribing fees and the amount of fees imposed for the clerk's services. Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 101 S.Ct. 446, 66 L.Ed.2d 358 (1980); Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572, reh'g denied, 411 U.S. 922, 93 S.Ct. 1551, 36 L.Ed.2d 315 (1973); Manes v. Goldin, 400 F.Supp. 23 (E.D.N.Y.1975), aff'd, 423 U.S. 1068, 96 S.Ct. 851, 47 L.Ed.2d 80 (1976). Here, the evidence reveals that the service charges assessed under section 28.24(13) do not even cover the costs of operating the trust accounting department, just one of the departments in the clerk's office which share responsibility for processing and...