SUPREME COURT OF FLORIDA STATE OF FLORIDA Case No. SC08-2389 ERVIN A. HIGGS, as Property Appraiser of Monroe County, Florida 3D08-564 L.C. Case No. 2007-CA-000470-K v. Petitioner, WILLIAM LEO WARRICK, as Trustee, Respondent. RESPONDENT'S JURISDICTIONAL BRIEF John H. Pelzer, Esq. RUDEN, McCLOSKY, SMITH, Jeffrey A. Baskies, Esq. SCHUSTER & RUSSELL, P.A. KATZ-BASKIES, LLC 200 East Broward Boulevard, 15 th floor 2255 Glades Road, Suite 240W P.O. Box 1900 Boca Raton, FL 33431 Fort Lauderdale, Florida 33302 (561) 910-5700 (954) 764-6660, 527-2469
TABLE OF CONTENTS Page TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii STATEMENT OF CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 1 ARGUMENT... 2 I. THE THIRD DISTRICT'S DECISION DOES NOT CONFLICT WITH THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL IN Prewitt Management Corporation v. Nikolits, 795 So. 2d 1001 (Fla. 4th DCA 2001).... 2 II. THIS COURT SHOULD EXERCISE ITS DISCRETION TO DECLINE REVIEW NOTWITHSTANDING THE CERTIFICATION OF CONFLICT.... 5 III. THIS COURT SHOULD NOT ACCEPT JURISDICTION MERELY BECAUSE A PROPERTY APPRAISER IS A PARTY.... 7 CONCLUSION... 9 CERTIFICATE OF SERVICE... 10 SIZE AND STYLE OF TYPE... 10 ii
TABLE OF AUTHORITIES Page Beard v. Hambrick, 696 So. 2d 708 (Fla. 1981)... 8 Behr v. Bell, 665 So. 2d 1055 (1996)... 7 Delta Property Management, Inc. v. Profile Investments, Inc., 875 So. 2d 443 (Fla. 2004)... 8 In re: Appellate Court Responses to Anders Brief, 581 So. 2d 149 (Fla. 1991)... 7 In re: Order of the First District Court of Appeal regarding Brief filed in Murray v. State, 559 So. 2d 1125 (Fla. 1990)... 7 Locke v. Hawkes, 595 So. 2d 32 (Fla. 1992)... 8 Office of the State Attorney, Fourth Judicial Circuit of Florida v. Parrotino, 628 So. 2d 1097 (Fla. 1993)... 8 Prewitt Management Corporation v. Nikolits, 795 So. 2d 1001 (Fla. 4th DCA 2001)...passim Spradley v. State, 293 So. 2d 697 (Fla. 1974)... 7 State v. iii
Fitzpatrick, 464 So. 2d 1185 (Fla. 1985)... 8 Taylor v. Tampa Electric Co., 356 So. 2d 260 (Fla. 1978)... 8 Other Authorities Art. V 3(b)(3), Fla. Const.... 7 Art. VII, 6, Fla. Const.... 2 196.031, Fla. Stat. (1997)... 3 196.041, Fla. Stat. (1997)... 3 196.041(1), Fla. Stat.... 4 Rule 9.030(a)(2)(A)(ii), Fla. R. App. P.... 7 Rule 9.120(d), Fla. R. App. P.... 5 Op. Att'y. Gen. Fla. 80-32 (1980)... 3 Anstead, Kogan, Hall & Waters, The Operation and Jurisdiction of the Supreme Court of Florida, 29:3, Nova Law Rev. 431... 5 iv
STATEMENT OF CASE AND FACTS Respondent accepts the Statement of the Case and Facts provided by the Petitioner, except for the characterizations and legal conclusions contained in the last paragraph on page 1 of Petitioner's Jurisdictional Brief. SUMMARY OF ARGUMENT Under Prewitt, a corporation may not claim a homestead. Under the District Court opinion in this case, a long term lessee may claim a homestead. There is no conflict between this case and Prewitt. The Petitioner's argument depends on reading a portion of Prewitt out of context. Prewitt was concerned solely with the question of whether the corporation was on the "list" of entities entitled to claim homestead exemption. The portion of Prewitt quoted by the Petitioner merely notes that corporations are on the "list" only in connection with condominiums or cooperative apartments. As Prewitt itself noted, this does not in any way diminish the right of other entities on the "list," such as long term lessees, to claim a homestead. The Petitioner has not provided this Court with any compelling reason why this Court should exercise its discretion, if it has any, to review this case. Because the results of this case and Prewitt are clear and not in conflict, there is no reason for any property appraiser to be confused in the performance of his or her duties. 1
ARGUMENT I. THE THIRD DISTRICT'S DECISION DOES NOT CONFLICT WITH THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL IN Prewitt Management Corporation v. Nikolits, 795 So. 2d 1001 (Fla. 4th DCA 2001). The District Court opinion in this case and the Prewitt opinion deal with completely different questions. Prewitt addressed the inability of corporations to claim homestead. This case addresses the ability of long term lessees to claim homestead. In both opinions, the district court merely applied the plain language of the statute. In Prewitt, the Fourth District carefully stated the issue that was before it: The issue on appeal is whether a corporate entity of a type not enumerated under sections 196.031 or 196.041, Florida Statutes (1997) which holds title to residential real property, qualifies for the homestead tax exemption under Article VII, section 6 of the Florida Constitution. Prewitt, 795 So. 2d at 1002. Thereafter, the discussion in Prewitt was directed to whether a corporation was on the list of enumerated entities entitled to claim homestead. Indeed, the court in Prewitt made repeated reference to the "list" of 196.041, and questioned whether the corporate entity in Prewitt was on that "list." Prewitt, 795 So. 2d at 1002, 1004, 1005. Thus, when the Fourth District later said "that the legislature intended to extend the homestead exemption only to owners of condominium and 2
cooperative apartments and no others," Prewitt, 795 So. 2d at 1005, the court was addressing only whether homestead exemption could extend to corporate owners of residential property other than condominium and cooperative apartments. Any other reading of Prewitt takes this language out of context, and even renders this language inconsistent with other provisions in Prewitt. The Petitioner misreads Prewitt to find conflict and mistakenly attributes a quote from an Attorney General Opinion to the Fourth District. See, Petitioner's Jurisdictional Brief, p.5. This quote from page 1004 in Prewitt is actually an internal quotation from Op. Att'y. Gen. Fla. 80-32 (1980). Of course, that quote is correct as far as it goes. However, the Petitioner omitted the critical next sentence from Op. Att'y. Gen. Fla. 80-32 (1980) as quoted by the Fourth District in Prewitt. That sentence states, The other enumerated class or classes of persons in ss. 196.031 and 196.041 are, of course, if otherwise eligible, qualified for and entitled to the prescribed homestead exemption. Prewitt, 795 So. 2d at 1004, quoting Op. Att'y. Gen. Fla. 80-32 (1980). This is where the Third District's opinion in this case comes in. The Third District in this case merely read the list of "other enumerated class or classes of persons," id. under 196.041, Fla. Stat., that are entitled to claim homestead. Not surprisingly, the Third District found that the list includes, "lessees owning the 3
leasehold interest in a bona fide lease having an original term of 98 years or more." 196.041(1). This describes Warrick. Therefore, unlike the corporation in Prewitt, Warrick is on the 'list' and was properly allowed to claim homestead, consistent with the rationale and result in Prewitt. Petitioner further misreads Prewitt, misattributing to it a ruling "that the lease language in Section 196.041 allows a homestead exemption only for owners of condominiums and cooperative apartments." Petitioner's Jurisdictional Brief, p.5. Prewitt contains no such holding, nor even any such discussion. Nothing in Prewitt discusses or interprets the "lease language" of 196.041(1). This is not surprising, because neither the corporation in Prewitt, nor the owner of the corporation, were long term lessees. 4
II. THIS COURT SHOULD EXERCISE ITS DISCRETION TO DECLINE REVIEW NOTWITHSTANDING THE CERTIFICATION OF CONFLICT. For the reasons expressed above, the decision of the Third District does not conflict with Prewitt, and the Third District was incorrect to so certify. Presumably, this is an example of one of the reasons why Florida Rule of Appellate Procedure 9.120(d) was amended to require jurisdictional briefs in cases of certified conflict. In addition to addressing whether the court should choose to exercise its discretion to review a case, the jurisdictional briefs can address that the District Court has misperceived a conflict that does not actually exist. The amendment to Florida Rule of Appellate Procedure 9.120(d) was presaged in Anstead, Kogan, Hall & Waters, The Operation and Jurisdiction of the Supreme Court of Florida, 29:3, Nova Law Rev. 431, 530 fn.597. As discussed there and demonstrated by the cases cited therein, a mere certification of conflict by a District Court of Appeal can no longer be deemed sufficient to have this Court exercise its jurisdiction. Thus, as in a mere express and direct conflict case, a petitioner must demonstrate that there is a reason for this Court to exercise its jurisdiction. Resolving a conflict that is, at best, the result of a cramped reading of an earlier decision does not warrant this Court's consideration. 5
The first two sections of the Petitioner's Jurisdictional Brief, discussing the perceived conflict with Prewitt, are devoid of any explanation of why this case is important or requires resolution by this Court. In the third section of the Jurisdictional Brief, the Petitioner does make a glancing reference to confusion among property appraisers as to what entities are entitled to claim homestead in light of this case. There is no room for confusion. Under this case, a long term lessee may claim homestead. Under Prewitt, a subchapter S corporation may not. 6
III. THIS COURT SHOULD NOT ACCEPT JURISDICTION MERELY BECAUSE A PROPERTY APPRAISER IS A PARTY. The Petitioner attempts to invoke this Court's discretion pursuant to Art. V 3(b)(3), Fla. Const. and Fla. R. App. P. 9.030(a)(2)(A)(ii), granting discretion to review decisions that expressly affect a class of constitutional or state officers. As applied by the Petitioner, this Court would accept jurisdiction of virtually every case in which a state or constitutional officer was a party. In fact, this Court has been far more circumspect in its exercise of this discretion. In construing the same provision, this Court held in Spradley v. State, 293 So. 2d 697, 701 (Fla. 1974), that review should be limited to decisions that "Directly and, in some way Exclusively affect the duties, powers, validity, formation, termination or regulation of a particular class of constitutional or state officers." A property appraiser's mere disagreement with a district court of appeal's interpretation of a taxing statute does not rise to this level. Cases in which this Court has exercised this category of discretion reveal this restraint. For example, in Behr v. Bell, 665 So. 2d 1055 (1996), this Court considered the question of whether a public defender had a duty to serve as standby counsel for an indigent, self-representing defendant. See also, In re: Appellate Court Responses to Anders Brief, 581 So. 2d 149 (Fla. 1991); In re: Order of the First District Court of Appeal regarding Brief filed in Murray v. 7
State, 559 So. 2d 1125 (Fla. 1990); and State v. Fitzpatrick, 464 So. 2d 1185 (Fla. 1985) (describing the constitutional duties and status of public defenders). Similarly, in Delta Property Management, Inc. v. Profile Investments, Inc., 875 So. 2d 443 (Fla. 2004), this Court laid out the constitutional due process requirements that must be met by clerks of court in conjunction with the issuance of tax sale notices. See also, Taylor v. Tampa Electric Co., 356 So. 2d 260 (Fla. 1978) (whether clerk's procedures regarding funds in eminent domain cases was constitutional). Other cases exercising this jurisdiction also demonstrate the gravity required. Locke v. Hawkes, 595 So. 2d 32 (Fla. 1992) (whether the legislature and its members are subject to the public records law); Office of the State Attorney, Fourth Judicial Circuit of Florida v. Parrotino, 628 So. 2d 1097 (Fla. 1993); and Beard v. Hambrick, 696 So. 2d 708 (Fla. 1981) (whether a particular class of officials is entitled to sovereign immunity). These cases stand in stark contrast to the decision of the Third District below. Rather than describing the nature, duties and privileges of a class of constitutional officers, the district court below merely interpreted the plain language of a statute to determine the entitlement to an exemption. This does not rise to a level sufficient to invoke this Court's jurisdiction. 8
CONCLUSION For the foregoing reasons, it is respectfully submitted that this Court should exercise its discretion to decline jurisdiction. Respectfully submitted, RUDEN, McCLOSKY, SMITH, SCHUSTER & RUSSELL, P.A. 200 East Broward Boulevard, 15 th floor (33301) Post Office Box 1900 Fort Lauderdale, Florida 33302 (954)764-6660, 527-2469; Fax: (954)333-4069 By: John H. Pelzer john.pelzer@ruden.com Florida Bar Number 376647 Jeffrey A. Baskies, Esq. KATZ-BASKIES, LLC 2255 Glades Road, Suite 240W Boca Raton, FL 33431 (561) 910-5700 jeff.baskies@katzbaskies.com Counsel for William Leo Warrick, as Trustee 9
CERTIFICATE OF SERVICE I certify that a copy hereof has been furnished to counsel of record as noted below, by U. S. Mail, on February 13, 2009. this brief. CERTIFICATE OF COMPLIANCE Undersigned counsel certifies that TIMES NEW ROMAN, 14 pt., is used in RUDEN, McCLOSKY, SMITH, SCHUSTER & RUSSELL, P.A. 200 East Broward Boulevard, 15 th floor (33301) Post Office Box 1900 Fort Lauderdale, Florida 33302 (954)764-6660, 527-2469; Fax: (954)333-4069 By: John H. Pelzer Florida Bar Number 376647 Counsel of Record R. Laine Wilson Harris, Esq. John C. Dent, Jr., Esq. Dent & Johnson, Chartered 3415 Magic Oak Lane Sarasota, Florida 34230 Counsel for the Petitioner Property Appraiser, John H. Pelzer, Esq. Ruden, McClosky P.O. Box 1900 Fort Lauderdale, FL 33302 Counsel for Warrick, Respondent Jeffrey A. Baskies, Esq. Katz-Baskies LLC 2255 Glades Road, Suite 240W Boca Raton, FL 33431 561/ 910-5700 jeff.baskies@katzbaskies.com Thomas D. Hall, Clerk Supreme Court of Florida 500 South Duval Street Tallahassee, Florida 32399-1927 850/ 488-0125 10