In re L. Luria & Sons, Inc.

• Decision Date: 04 May 1999
• Docket Number: Adversary No. 99-1006-BKC-RAM-A.,Bankruptcy No. 97-16731-BKC-RAM.
• Court: United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Southern District of Florida
• Parties: In re L. LURIA & SONS, INC., F.I.D. # 59-062050, Debtor. James S. Feltman, as Liquidating Agent for L. Luria & Sons, Inc., Plaintiffs, v. Joel W. Robbins, Miami-Dade County Property Appraiser, et al., Defendant.

282 B.R. 504

In re L. LURIA & SONS, INC., F.I.D. # 59-062050, Debtor.

James S. Feltman, as Liquidating Agent for L. Luria & Sons, Inc., Plaintiffs, v. Joel W. Robbins, Miami-Dade County Property Appraiser, et al., Defendant.

Bankruptcy No. 97-16731-BKC-RAM.

Adversary No. 99-1006-BKC-RAM-A.

United States Bankruptcy Court, S.D. Florida.

May 4, 1999.

Mark R. Osherow, Boca Raton, FL, Paul Steven Singerman, Miami, FL, Jerry M. Markowitz, Miami, FL, Michael S. Fox, Maura I. Russell, New York City, Susan F. Balaschak, Arlington, TX, for Debtor.

Ira M. Elegant, Miami, FL, for Plaintiff.

ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF CERTAIN DEFENDANTS, DENYING MOTION FOR SUMMARY JUDGMENT AS TO OTHER DEFENDANTS AND ORDER DENYING MOTIONS TO DISMISS AS MOOT

BARRY S. SCHERMER, Bankruptcy Judge.

Certain Defendants known as the "Property Appraisers" and certain Defendants known as the "Tax Collectors" had filed a Motion for Summary Judgment in this adversary proceeding alleging that the doctrine of sovereign immunity precluded the adversary proceeding from being brought against such Defendants. Additionally, all of the Defendants except Joel W. Robbins, Property Appraiser for Miami-Dade County, Florida, and Richard Gardner, Tax Collector for Miami-Dade County, Florida, filed Motions to Dismiss the Complaint based upon the lack of subject matter jurisdiction of this Court as a result of the claim of the doctrine of sovereign immunity. The Memoranda filed in support of the Motions to Dismiss and the Memoranda filed in support of the Motion for Summary Judgment were, in many instances, identical and consistent with each other. Said Motions and Memoranda alleged that the provisions of 11 U.S.C. § 106 which the Plaintiff sought to utilize to invoke the provisions of 11 U.S.C. § 505 were unconstitutional in that the provisions of 11 U.S.C. § 106 violates the rights and privileges of said Defendants pursuant to the Eleventh Amendment to the Constitution of the United States. The Court having scheduled a hearing for March 23, 1999, at which counsel for the Plaintiff and various of the Defendants having appeared and having been heard, and the Court having considered the pleadings, Memoranda and oral argument of counsel, and for the reasons more fully set forth on the record of the proceedings, and the Court having found that with respect to all Defendants except those seven listed in the following paragraph that no genuine dispute exists as to any material fact, it is

ORDERED, ADJUDGED and DECREED that summary judgment will be granted in favor of all of the Property Appraiser and Tax Collector Defendants to this adversary proceeding except Joel W. Robbins, Property Appraiser for Miami-Dade County, Florida (who did not file a Motion), Charles E. Hackney, Property Appraiser for Manatee County, Florida, H.W. Suber, Property Appraiser for Seminole County, Florida, Richard Gardner, Tax Collector for Miami-Dade County, Florida (who did not file a Motion), Ken Burton, Jr., Tax Collector for Manatee County, Florida, Ray Valdes, Tax Collector for Seminole County, Florida, and Lawrence H. Fuchs as Executive Director of the Department of Revenue, State of Florida; and it is further

ORDERED, ADJUDGED and DECREED that in connection with the granting of the summary judgment in favor of all of the Defendants except those specifically enumerated in the paragraph above, the Court makes the following findings and conclusions:

1. Each of the Defendants in whose favor summary judgment is being granted are "arms" of the State of Florida.¹

2. The allegations made with respect to such Defendants in the Complaint involve the nexus of the duties of the above-named Property Appraisers and Tax Collectors as "constitutional officers" of the State of Florida.

3. Consistent with the decisions of In re Sacred Heart Hospital of Norristown, 133 F.3d 237 (3rd Cir.1998), Matter of Fernandez, 123 F.3d 241 (5th Cir.1997), In re Creative Goldsmiths of Washington DC, Inc., 119 F.3d 1140 (4th Cir.1997), Light v. State Bar of...