Chames v. DeMayoChames v. DeMayo
Like many states, Florida protects homeowners’ residences from forced sale except in limited circumstances. The exemption is contained in
Henry DeMayo, who is divorced, sought to modify his child support obligations and abate his alimony payments. For that purpose, he retained Deborah Chames and her law firm, Heller & Chames, PA. (collectively “Chames“). He signed a sixpage, single-spaced retainer agreement that contained the following provision on page four:
It is specifically agreed that Heller and 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.
DeMayo v. Chames, 934 So.2d 548, 549 (Fla. 3d DCA 2006) (emphasis added). Chames ultimately withdrew from representation, and obtained a charging lien and final judgment against DeMayo for $33,206.76. The trial court applied the lien to DeMayo‘s home.
DeMayo appealed to the Third District Court of Appeal. He argued, among othеr things, that his waiver of the homestead exemption in the retainer agreement was invalid, and therefore the trial court could not impose the lien on his home. In a plurality opinion, the district court reversed on that issue, finding the waiver invalid, but it affirmed “in all other respects.” See DeMayo, 934 So.2d at 551. Two judges (a majority of the panel) concurred in the result, recognizing our precedent but noting that they would hold otherwise if “writing on a blank slate.” Id. at 555 (Shepherd, J., concurring). The concurring
II. ANALYSIS
The homestead exemption has been enshrined in our state constitution for over a hundred years. The exemption itself reads as follows:
(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 аssessments 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:
(1) a homestead . . .
The homestead provision has been characterized as “our legal chameleon.” Our constitution protects Florida homesteads in three distinct ways. First, a clause . . . provides homesteads with an exemption from taxes. Second, the homestead provision protects the homestead from forced sale by creditors. Third, the homestead, provision delineates the restrictions a homestead owner faces when attempting to alienate or devise the homestead property.
Id. at 1001-02 (footnotes omitted). We also have explained the reason behind the exemption: “The public policy furthered by a homestead exemption is to `promote the stability and welfare of the state by securing to the householder a home, so that the homeowner and his or her heirs may live beyond the reach of financial misfortune and the demands of creditors
Of course, by its own terms the exemption does not apply to mortgaged property. See
We first addressed this issue—or one like it—in Carter. Specifically, the question was “whether an agreement . . . to waive all benefit and right of [exemption] is valid in view of the policy of the exemption laws.” Carter, 20 Fla. at 563. There, the decedent Carter had signed a promissory note waiving the benefit of all exemption laws. Id. at 560. Invoking a similar provision that exempts $1,000 in personal property, see
[i]n 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 defеat a claim of exemption.
Id. at 570. We specifically rejected the argument that the waiver should be permitted because the same result could be achieved through a mortgage:
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. . . . 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. . . .
Over 70 years later, we addressed the issue again in Sherbill, 89 So.2d 28. There, the debtors executed a note waiving “the benefit of their homestead exemption as to this debt.” Id. at 29. We noted that “[n]o 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, 89 So.2d at 31. Relying on Carter, we reiterated that the “waiver was contrary to the policy of the exemption laws of this State.” Sherbill, 89 So.2d at 31.
Since our decisions in Carter and Sherbill, we have recognized some types of waivers. For example, article X, section 4(c) prohibits a devise of the homestead “if the owner is survived by spouse or minor child.” In City National Bank of Florida v. Tescher, 578 So.2d 701, 703 (Fla.1991), we found valid a spouse‘s waiver of that restriction. See also
Having discussed our precedent, we next consider whether we should recede from it. We do so recognizing that the doctrine of stare decisis “counsels us to follow our precedents unless there has been `a significant change in circumstances after the adoption of the legal rule, or . . . an error in legal analysis.‘” Rotemi Realty Inc. v. Act Realty Co., Inc., 911 So.2d 1181, 1188 (Fla.2005) (quoting Dorsey v. State, 868 So.2d 1192, 1199 (Fla.2003)).
Chames essentially proposes three grounds for receding from Carter and Sherbill: (A) the 1984 amendment to article X, section 4, which substituted “a natural pеrson” for “the head of family,” changed the purpose of the homestead exemption from, one protecting the family home into a personal right that may be waived; (B) most states now permit waivers; and (C) permitting waiver is consistent with other cases holding that various constitutional rights may be waived. We address each argument in turn.
A. The Amendment to Article X, Section 4
Chames primarily argues that a 1985 amendment to article X, section 4, which replaced the phrase “the head of a family” with “a natural person,” changed the purpose of the’ homestead exemption from one protecting the family into a personal right that may be waived. We can find no such intеnt.
Before the amendment, the homestead exemption was limited to persons who qualified as “the head of a family.” See
We find no indication, however, that in expanding the homestead protection, Florida voters also intended to alter its fundamental purpose. The ballot summary on which the people voted stated:
EXEMPTION OF HOMESTEAD AND PERSONAL PROPERTY FROM FORCED SALE—Provides that the exemption of a homestead and of personal property to the value of $1,000 from forced sale and certain liens shall extend to any natural person, not just the head of a family.
Fla. HJR 40 (1983) at 2 (proposed amendment to
Finally, the conclusion that this amendment changed the purpose of the homestead protection to one solely for the benefit of the homeowner is inconsistent with cases recognizing, even after the amendment, that the exemption‘s purpose is to protect the family, see Havoco, 790 So.2d at 1020, and it would ignore the State‘s interest in protecting the home, see Lopez, 531 So.2d at 948. Cf. Slatcoff v. Dezen, 76 So.2d 792, 794 (Fla.1954) (“Appellant concentrates throughout upon the interest of debtor and creditor exclusively. What she overlooks is the interest of the State in its exemption laws, to the end that owners of exempt property and their families shall not be reduced to absolute destitution, thus becoming a charge upon the public.“).
For these reasons, we find the amendment to the homestead exemption a slim reed on which to recede from 123 years of precedent.
B. Waiver in Other Jurisdictions
As another basis for receding from Carter and Sherbill, Chames argues that there has been a “shift in the position of Florida‘s sister states on this issue.” If this were true, it would at least furnish a valid reason for reconsidering our precedent. We have been willing to recede from precedent when it conflicted with the law in a majority of states. See, e.g., Fridovich v. Fridovich, 598 So.2d 65, 69 (Fla.1992) (“We thus hold, as a majority of the other states have held in this context, that defamatory statements voluntarily made by private individuals to the police or the state‘s attorney prior to the institution of criminal charges are presumptively qualifiedly privileged. We therefore recede from Ange [v. State, 98 Fla. 538, 123 So. 916 (1929)] and Robertson [v. Industrial Insurance Co., 75 So.2d 198 (Fla.1954) ] to the extent they are inconsistent with our ruling today.“); State v. Soto, 423 So.2d 362, 363 (Fla.1982) (answering in the negative a certified question as to “the continued desirability of according to the Uniform Interstate Extradition Act . . . a more restrictive construction, as reflected by the decision of Ennist v. Baden, [158 Fla. 141, 28 So.2d 160 (1946)], than is accorded the Act by other courts of last resort,” and receding from. Ennist). As we explain; however, because of the differing constitutional and statutory provisions involved, any such trend on this issue is difficult to discern, and to the extent it can be discerned, the trend appears to go in the opposite direction.
Given the variety of state homestead provisions, comparisons to other jurisdictions are difficult and generally of limited value. See Snyder, 699 So.2d at 1002 (“[O]ur case law surrounding the homestead provision has its own contours and legal principles. As a result, it is not susceptible to comparisons with similar provisions in other jurisdictions.“); see also Ryan P. Rivera, State Homestead Exemptions and Their Effect on Federal
We need not exhaustively analyze the plethora of disparate state constitutional and statutory homestead exemptions. Suffice it to say that the majority of jurisdictions that have addressed the issue (whether by constitution, statute, or judicial opinion) do not permit a general waiver of homestead or personal property exemptions in an executory contract.3 Some states permit waiver in limited circumstances.4 Relatively few clearly permit a general waiver of the homestead or personal
We recognize that several of the out-of-state cases cited in the Third District‘s concurring opinion contain broad statements that homestead exemptions are personal rights that may be waived. See DeMayo, 934 So.2d at 552-53 (Shepherd, J., concurring). However, many of these cases do not involve waiver in the manner attempted here. Instead, they address waiver in a mortgage or deed of trust;6 waiver of the surviving spouse‘s homestead rights;7 or waiver in some other context.8 As we have noted, Florida, too, allows a
We also disagree that four of the six jurisdictions that prohibited this type of waiver when we decided Carter now permit it. In Carter, we surveyed the law in eight states, noting that two (Alabama and Pennsylvania) permitted waiver, but six (Illinois, Iowa, Kentucky, Louisiana, New York, and North Carolina) did not. See Carter, 20 Fla. at 563-69. Of the six jurisdictions that prohibited a waiver back then, only Louisiana permits it now. See
For these reasons, we are not persuaded that the law in other jurisdictions has so substantially changed as to warrant receding from our longstanding precedent. Instead, Florida remains in line with the majority of jurisdictions in prohibiting a waiver of homestead and personal property exemptions in the manner attempted here.
C. Waiver of Other Constitutional Rights
Finally, Chames argues that waiver of the homestead exemption should be permitted because we have permitted waiver of other constitutional rights. This would be the most compelling reason for receding from Carter and Sherbill, for if indeed we have held that other constitutional rights can be waived, it would seem anomalous to prohibit waiver of the homestead exemption. We do not agree, however, that such an inconsistency exists.
It is true that we recently noted that “most personal constitutional rights may be waived.” In re Rule 4-1.509(4)(B), 939 So.2d at 1038; see also In re Shambow‘s Estate, 153 Fla. 762, 15 So.2d 837, 837 (1943) (“It is fundamental that constitutional rights which are personal may be waived.“). However, an individual cannot waive a right designed to protect both the individual and the public. See, e.g., Coastal Caisson Drill Co. v. Am. Cas. Co. of Reading, Pa., 523 So.2d 791, 793 (Fla. 2d DCA 1988), approved, 542 So.2d 957 (Fla.1989); Asbury Arms Dev. Corp. v. Fla. Dep‘t of Bus. Regulations, 456 So.2d 1291, 1293 (Fla. 2d DCA 1984). We have repeatedly recognizеd that the homestead exemption protects not only the debtor, but also the debtor‘s family and the State. See Havoco, 790 So.2d at 1020; Snyder, 699 So.2d at 1002; Caggiano, 605 So.2d at 60; Lopez, 531 So.2d at 948; Slatcolt; 76 So.2d at 794; Hill, 84 So. at 192. Therefore, the right to the homestead exemption is not purely personal as some others are.
We recognize that since Carter, a trend has developed toward permitting the waiver of constitutional rights, especially rights given to criminal defendants. See, e.g., Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (permitting waiver of the right to assistance of counsel under the Sixth and Fourteenth Amendments); Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (permitting waiver of the right to counsel and right to remain silent under the Fifth Amendment); Larzelere v. State, 676 So.2d 394, 403 (Fla.1996) (recognizing that a defendant may waive the right to conflict-free counsel); Tescher, 578 So.2d at 703 (finding valid an antenuptial waiver of surviving spouse‘s homestead rights); Melvin v. State, 645 So.2d 448, 449 (Fla.1994) (finding that a defendant who knowingly enters into a plea agreement waives the constitutional protection against double jeopardy in exchange for reduced charges); cf. re Rule 4-1.5(f)(4)(B), 939 So.2d at 1038 (citing examples of constitutional rights that may be waived, but declining to determine whether the rights granted to medical malpractice claimants under
Carter and Sherbill do not contradict the trend toward allowing waivers of constitutional rights. To the contrary, they are consistent with the cases within this same trend holding that such waivers must be knowing, intelligent, and voluntary. To be clear: Carter and Sherbill do not prohibit a waiver of the homestead exemption; they simply require that such waivers be accomplished as the Florida Constitution prescribes: by “mortgage, sale, or gift,” see
III. CONCLUSION
We agree with Judge Wells‘s stаtement in her dissent to the original opinion issued below that if we were to recede from Carter and Sherbill,
[T]he waiver of the homestead exemption will become an everyday part of contract language for everything from the hiring of counsel to purchasing cellular telephone services. The average citizen, who is of course charged with reading the contracts he or she signs . . . often fails to read or understand boilerplate language detailed in consumer purchase contracts, language which the contracts themselves often permit to be modified upon no more than notification in a monthly statement or bill. . . . [S]uch consumers may lose their homes because of a “voluntary divestiture” of their homestead rights for nothing more than failure to pay a telephone bill. This inevitably will result in whittling away this century old constitutional exemption until it becomes little more than a distant memory.
DeMayo v. Chames, 30 Fla. L. Weekly D2692, D2695-96 (Fla. 3d DCA Nov.30, 2005) (Wells, J., dissenting).11
Although 123 years have passed since we decided Carter, and 51 years have passed since Sherbill, the relevant circumstances have not significantly changed. See, e.g., Rotemi Realty, Inc., 911 So.2d at 1188 (recognizing that prior precedent should be followed absent a significant change in circumstances or analytical error). Nor have Carter and Sherbill proven unworkable. See, e.g., State v. Green, 944 So.2d 208, 217 (Fla.2006) (“Stare decisis yields `when an established rule of law has proven unacceptable or unworkable in practice.‘” (quoting Allstate Indent. Co. v. Ruiz, 899 So.2d 1121, 1131 (Fla.2005))). Our ultimate concern in Carter was that a waiver of the exemption from forced sale in an unsecured аgreement would “by the mere scratch of a pen” render the exemption “nugatory.” 20 Fla. at 570. The passage of time has not changed that concern. We therefore apply the doctrine of stare decisis and reaffirm our holdings in Carter and Sherbill. The decision below is approved.
It is so ordered.
LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, and BELL, JJ., concur.
Notes
Whether, in light of subsequent precedent in Florida and other jurisdictions, and the textual changes made by the people of the State of Florida in Article X, Section 4 of the Florida Constitution in the general election of November 1984, the holding in Carter‘s Adm‘rs v. Carter, 20 Ha. 558 (Fla. 1884), followed in Sherbill v. Miller Manufacturing Co., 89 So.2d 28, 31 (Fla.1956), that a waiver of the benefit and protection of the exemption found in Article X, Section 4(A) of the Florida Constitution is unenforceable against thе claim of a general creditor, should be overruled?
DeMayo, 934 So.2d at 555 (Shepherd, J., concurring).