Winthrop & Joseph, Inc. v. Marriott Resort Hospitality Corp., 96-0794

• Decision Date: 02 May 1997
• Docket Number: No. 96-0794,96-0794
• Parties: 22 Fla. L. Weekly D1101 WINTHROP & JOSEPH, INC., etc., Appellant, v. MARRIOTT RESORT HOSPITALITY CORPORATION, etc., et al., Appellees. Fifth District
• Court: Florida District Court of Appeals

Page 789

695 So.2d 789

22 Fla. L. Weekly D1101

WINTHROP & JOSEPH, INC., etc., Appellant, v. MARRIOTT RESORT HOSPITALITY CORPORATION, etc., et al., Appellees.

No. 96-0794.

District Court of Appeal of Florida,

Fifth District.

May 2, 1997.

Rehearing Denied June 27, 1997.

Richard F. Wall and Todd K. Norman of Hartley & Wall, Orlando, for Appellant.

Mary A. Lau of Lau, Lane, Pieper, Conley & McCreadie, P.A., Tampa, for Appellees.

Robert E.V. Kelley, Jr., Tampa, for Amicus Curiae Florida Association of Property Tax Professionals.

ANTOON, Judge.

Winthrop & Joseph, Inc. (W & J) appeals the summary final judgment entered in favor of Marriott Resort Hospitality Corporation and Marriott Ownership Resorts (Marriott). In granting final summary judgment, the trial court determined that section 112.3217, Florida Statutes (1995), barred enforcement of a contingency fee contract between W & J and Marriott because the statute prohibited "any person" from entering into a contract which provided for a fee contingent upon specific executive branch action. We reverse because section 112.3217 applies only to contracts for lobbying and, in the instant case, there was no lobbying contract between the parties.

W & J pursues ad valorem tax appeals for property owners. It entered into a contract with Marriott for such services which provided, in part, that W & J would initiate appeals of the ad valorem tax assessments of Marriott's property located in Orange County. The appeals were to be directed to the local taxing jurisdictions up to and including the county board of review. The contract further provided that W & J would receive a fee of 30% of any tax savings or refunds achieved as a result of its efforts. Prior to W & J's filing of an appeal with the Orange County Valuation Adjustment Board on behalf of Marriott, Marriott instructed W & J not to pursue the appeal and terminated the parties' contract. W & J then sued Marriott for breach of contract.

Marriott moved for summary judgment, asserting that the contract was unenforceable. Having taken judicial notice of section 112.3217, the trial court granted the motion in favor of Marriott. ¹ The trial court determined that the statute barred enforcement of the contract because the statute prohibited "any person" from entering into a contract which provided for a fee contingent upon specific executive branch action. W & J appeals this ruling.

Section 112.3217 provides in full:

112.3217 Contingency fees; prohibitions; penalties.-

(1) "Contingency fee" means a fee, bonus, commission, or nonmonetary benefit as compensation which is dependent or in any way contingent on the enactment, defeat, modification, or other outcome of any specific executive branch action.

(2) No person may, in whole or in part, pay, give, or receive, or agree to pay, give or receive, a contingency fee. However, this subsection does not apply to claims bills.

(3) Any person who violates this section commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. If such person is a lobbyist, the lobbyist shall forfeit any fee, bonus, commission, or profit received in violation of this section and is subject to the penalties set forth in s. 112.3215. When the fee, bonus, commission, or profit is nonmonetary, the fair market value of the benefit shall be used in determining the amount to be forfeited. All forfeited benefits shall be deposited into the Executive Branch Lobby Registration Trust Fund.

(4) This section does not apply to any contract providing for compensation by contingency fee which is in existence on the date this act becomes a law and which does not provide for compensation by contingency fee for lobbying after December 31, 1993.

(5) Nothing in this section may be construed to prohibit any salesperson engaging in legitimate state business on behalf of a company from receiving compensation or commission as part of a bona fide contractual arrangement with that company.

W & J contends that section 112.3217 was enacted solely to prohibit lobbyists from contracting for fees contingent upon executive branch action. ² W & J further contends that since it is not a lobbyist, ³ the trial court erred in applying the statute in the instant case. We agree.

Upon examination of the statute, ambiguity is readily apparent when subsections (3) and (4) are read together. Subsection (3) provides that any person who enters into a contract for a fee contingent upon the outcome of any executive branch action commits a first-degree misdemeanor. In contrast, subsection (4) specifically provides that contracts for contingency fees for lobbying services are not prohibited so long as the contracts (a) were in existence at the time the statute was enacted, and (b) did not provide for contingency fees for lobbying services performed after December 31, 1993. A fair interpretation of this subsection would be that a contingency fee contract based on the outcome of executive branch action which does not involve lobbyists or lobbying is prohibited after December 31, 1993, while on the other hand such a contract which involves lobbying is not prohibited by the statute. Clearly, this is an absurd result because the legislature could not have intended to provide harsher penalties for lobbyists than for others under subsection (3) while at the same time allowing lobbyists to continue performing under contingency contracts up to December 31, 1993 under subsection (4).

When a statute is unclear, the courts may look to the legislative history to resolve any ambiguity. Weber v. Dobbins, 616 So.2d 956 (Fla.1993). Furthermore, when seemingly inconsistent sections of a statute are part of the same legislative act, such sections must be construed together in order to ascertain the legislature's intent. In re Opinion to the Governor, 60 So.2d 321, 324 (Fla.1952). In other words, statutes passed during the same legislative session and relating to the same subject matter should be construed in pari materia and harmonized so as to give effect to each. Tamiami Trail Tours v. City of Tampa, 159 Fla. 287, 31 So.2d 468 (1947).

In reviewing the legislative history of section 112.3217, the Final Bill Analysis and Economic Impact Statement states that "[t]he bill prohibits lobbyist contingency fees." Staff of Fla. H.R. Comm. on Ethics and Elections, CS/SB 1668 (1993) Staff Analysis 4 (April 27, 1993) (on file with committee). In describing the anticipated impact of the bill, the analysis states:

The bill's prohibition against contingency fees as an allowable term of compensation for lobbying services could have a substantial fiscal impact upon some lobbyists. The extent of the fiscal impact depends upon the amount of any contingency fee negotiated, the 'track record' of the lobbyist in achieving a particular legislative or executive branch action vis-a-vis receipt of the contingency fee, and reliance by the lobbyist upon contingency fee employment historically.

(emphasis added). Notably absent from the history is any reference to the anticipated impact on lawyers and other nonlobbyists who are hired to represent clients in formal administrative hearings pursuant to contingency fee contracts. In our view, the legislative history of the statute indicates a clear intent on the part of the...