Opinion
Case No. 3D04-117.
Opinion filed November 30, 2005.
An Appeal from the Circuit Court for Miami-Dade County, Robert N. Scola, Jr., Judge, Lower Tribunal No. 01-7497.
Sophie DeMayo, for appellant.
Heller and Chames, P.A., and Deborah S. Chames and Jonathan A. Heller, for appellees.
Before GREEN, WELLS and SHEPHERD, JJ.
Henry DeMayo appeals from a final judgment granting Deborah Chames and her law firm, Heller Chames, P.A., attorney fees pursuant to a charging lien. The question presented is whether a client can waive his constitutional right under Article X, section 4 of the Florida Constitution to an exemption of his homestead property from a charging lien. We hold that he can.
In December 2002, Henry DeMayo retained Deborah Chames and her law firm, Heller and Chames, P.A., to represent him in a post-dissolution proceeding to modify his child support and alimony obligations. The retainer agreement included the following clause:
It is specifically agreed that Heller 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.
(Emphasis added.)
In October 2003, the trial court granted Heller and Chames' request to withdraw from representing Mr. DeMayo and shortly thereafter entered a final judgment in the sum of $33,207.76 in favor of the law firm. The court expressly enforced the waiver provision of the retainer agreement. We review this decision of the trial court de novo. Zingale v. Powell, 885 So. 2d 277, 280 (Fla. 2004).
The Florida Constitution exempts homestead property owned by a "natural person" from a forced sale or attachment of a judgment lien, except for judgments for taxes and assessments or obligations incurred directly from the property, such as a mortgage or judgment, to recover the costs of repair of the property. The most current version of this law, approved by the electorate in the general election of 1984, provides:
Homestead; exemptions —
(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 assessments 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, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner's consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or his family[.]
Art. X, § 4(a), Fla. Const. (2004).
The Florida Constitution provision excepting homesteads from the claims of most creditors has existed in the Constitution in remarkably the same form as the current version for more than 100 years. See Art. IX, § 1, Fla. Const. (1868). It is also well established in this state that our "homestead statutes are broadly and liberally construed in favor of exemption."Butterworth v. Caggiano, 605 So. 2d 56, 59 (Fla. 1992).
[T]he purpose of the 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 who have given credit under such law.
Public Health Trust v. Lopez, 531 So. 2d 946, 948 (Fla. 1988).See also McKean v. Warburton, 30 Fla. L. Weekly S613, S613 (Fla. Sept. 8, 2005) ("issues of homestead protections have been interpreted broadly by the courts").
Applying this principle of liberal construction, our Florida Supreme Court has construed the prohibition in Article X, section 4 against the divestment of homestead property via a "forced sale" to include both civil and criminal forfeitures. Caggiano, 605 So. 2d at 60 (involuntary divestiture of property in civil Racketeer Influenced and Corrupt Organization proceeding prohibited because it was not within one of the three exceptions to a forced sale contained in Article X, section 4(a)). More recently, the court concluded that Florida's homestead law shields a homestead acquired by a debtor using nonexempt assets, even if done with the intent to hinder, delay, or defraud creditors. Havoco of Am., Ltd. v. Hill, 790 So. 2d 1018, 1028 (Fla. 2001) (affording protection to a long-time Tennessee resident who converted nonexempt assets into real property in Florida — with the intent to make it his homestead — just three days before a Tennessee judgment against him became enforceable).See also Bank Leumi Trust Co. of N.Y. v. Lang, 898 F. Supp. 883 (S.D. Fla. 1995) (affording shield of homestead protection to New Jersey debtors who acquired Florida property for sole purpose of avoiding New Jersey creditors).
In each of these cases, however, the court was careful not to transgress beyond the plain meaning of Article X, section 4 in reaching its result. For example, in Caggiano, the court expressly took note of the fact that:
[A] homestead is only subject to forced sale for (1) the payment of taxes and assessments thereon; (2) obligations contracted for the purchase, improvement or repair thereof; or (3) obligations contracted for house, field or other labor performed on the realty. Under the rule `expresio unius est exclusio alterious' [sic] — the expression of one thing is the exclusion of another — forfeitures are not excluded from the homestead exemption because they are not mentioned. . . .
Caggiano, 605 So. 2d at 60. Faithful to its strict construction of the exceptions to Article X, section 4, just nine years later the court reflected in Havoco that "While we are certainly loathe to provide constitutional sanction to [the transfer of nonexempt assets into an exempt homestead with the intent to defraud creditors as] alleged by the petitioner . . . this Court is powerless to depart from the plain language of article X, section 4." Havoco, 790 So. 2d at 1021.
Applying this same construct to this case, we see no reason why an owner of homestead property should not be able to waive this constitutional right if he so desires. As the Florida Supreme Court stated in Caggiano, 605 So. 2d at 59, "the homestead exemption . . . was intended simply to guarantee that the homestead would be preserved against any involuntary divestiture by the courts. . . ." See also Havoco, 790 So. 2d at 1022 ("The homestead guarantee uses broad language protecting the homestead from involuntary divestiture. . . ."). Absent a plain and unambiguous statement in the Florida Constitution to the contrary, we decline to imply a prohibition against a voluntary divestiture of one's constitutional right to homestead protection.
We are guided to this conclusion by three considerations. First, Article X, section 4 by its terms applies only to "forced sale[s]." The instant case does not concern a forced sale, but rather an arm's-length transaction between adult contracting parties. Although we are required to liberally construe Article X, section 4 to achieve the purposes for which it was created, we are also bound by the plain language of the provision as adopted by the people of the State of Florida. In this case, the plain language is intended to prohibit "forced sale[s]," except in the case of the three circumstances explicated earlier in Caggiano. There is nothing on the face of the constitutional provision as it presently exists to lead us to believe that the people of this state intended to prohibit a homeowner from waiving this constitutional right.
Second, if we were to feel ourselves emboldened to construe Article X, section 4 so as to reach a contrary conclusion, we believe such an implied prohibition would likely conflict with several express provisions of the Florida Constitution, which have long been construed to provide all citizens of this state with both the right to contract and the right to own, use and dispose of one's real property as he or she deems fit. See Art. I, § 2, Fla. Const.; Art. I, § 9, Fla. Const.; Art. I, § 10, Fla. Const.; Art. X, § 6, Fla. Const.; Martino v. Wal-Mart Stores, Inc., 30 Fla. L. Weekly S536, S536 (Fla. July 7, 2005) (Wells, J., concurring) ("Both [the United States and Florida] constitutions expressly protect the freedom to use property. . . ."); Chiles v. United Faculty of Florida, 615 So. 2d 671, 673 (Fla. 1993) ("[The right to contract] is expressly guaranteed by article I, section 10 of the Florida Constitution."); Palm Beach Mobile Homes, Inc. v. Strong, 300 So. 2d 881, 884 (Fla. 1974) ("The right to contract and to use one's property as one wills are fundamental rights guaranteed by the constitution of the United States and the constitution of the state of Florida."). It is an unvariable canon of constitutional construction that, like statutes, conflicts in constitutional provisions should be avoided and provisions read in harmony wherever possible. Zingale v. Powell, 885 So. 2d at 283 ("[I]n construing multiple constitutional provision addressing a similar subject, the provisions `must be read in pari materia to ensure a consistent and logical meaning that gives effect to each provision.'") (internal citation omitted);State v. Florida Police Benevolent Ass'n, 613 So. 2d 415, 418 (Fla. 1992) (holding that "[t]he constitutional right to bargain must be construed in accordance with all provisions of the constitution"). See also Caribbean Conservation Corp. v. Florida Fish and Wildlife Conservation Comm'n, 838 So. 2d 492, 501 (Fla. 2003) ("[A constitutional] provision must never be construed in such manner as to make it possible for the will of the people to be frustrated or denied.").
Third, as a practical matter, Mr. DeMayo and many others in his circumstance could achieve the same result by simply exercising the right to mortgage his or her homestead for the benefit of a creditor. We believe that the right to waive is one of the "sticks in the bundle of rights" commonly referred to as property, not different in kind from the "right to exclude" or "right to convey" or "right to mortgage." See Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979) (right to exclude is one of the most exclusive sticks in the bundle); City of Orlando v. MSD-Mattie, L.L.C., 895 So. 2d 1127, 1130 (Fla. 5th DCA 2005) ("property is a bundle of rights analogous to a bundle of sticks"); Metropolitan Dade County v. Sunlink Corp., 642 So. 2d 551, 563 (Fla. 3d DCA 1992) (one of the incidents of ownership of property is the right to convey). We are unable to find anywhere in the language of Article X, section 4 an express or implied intent by the state to prohibit the deployment of this stick. These considerations reinforce our belief that absent such direction, the residents of this state should be "free to order their private world as they see fit." See Tananta v. Cruise Ships Catering and Servs. Int'l., N.V., 30 Fla. L. Weekly D18 (Fla. 3d DCA Dec. 22, 2004) (reaching the same conclusion in the context of corporate structuring).
In coming to our decision, we have not overlooked the precedent of the Florida Supreme Court in Sherbill v. Miller Mfg. Co., 89 So. 2d 28 (Fla. 1956). Construing an earlier version of Florida's homestead law, Article X, section 1 of the Florida Constitution (1885), the court declined to enforce an express waiver of homestead protection contained in a promissory note. That court relied in turn upon an even earlier decision, Carter's Adm'rs v. Carter, 20 Fla. 558 (1884), in which the Supreme Court of that era, construing Florida's original 1868 constitutional provision protecting homestead, see Art. IX, § 1, Fla. Const. (1868), held that it would contravene public policy to enforce an express waiver of that constitutional provision. Id. at *8 ("[M]any thoughtless and improvident people might be induced to obtain credit by merely `waiving the benefit of exemption,' and thus placing the last blanket and bed and their own and the children's clothing at the mercy of a hard creditor, if an agreement like this should be sustained.").
However, we find that these cases are not apposite to the construction of Article X, section 4 as it was reconstituted by the people of this state in the general election of November, 1984 for one important reason. From the date of the adoption of the original homestead law in the Constitution of 1868 through its most recent amendment in November, 1984, one had to be "the head of a family" to claim the exemption. See Art. IX, § 1, Fla. Const. (1868); Art. X, § 1, Fla. Const. (1885); Art. X, § 4, Fla. Const. (1968). At the general election of 1984, the people of this state dramatically expanded the class of persons who could take advantage of Florida's homestead law by substituting the qualifying phrase "a natural person" for "the head of a family" qualifier in the constitutional provision. For the first time, any resident of the state, whether single, divorced, or widowed, had the legal capacity to assert the exemption if otherwise qualified. With the effective date of the 1984 amendment on January 1, 1985, the character and purpose of the exemption completely changed. Although the feature in the law beneficial to those with a legal duty to support remained intact, the provision was transmographied into an entitlement available to all comers in our state should the occasion present itself, without regard to familial or any other value-laden bona fides for which the state might seek to claim a heightened duty to protect. This truth is well illustrated by the decisions of the Florida Supreme Court construing the post-1984 homestead provision previously cited.
Whether a person qualified as the "head of a family" was a question of fact to be determined either or in combination through: "(1) a legal duty to maintain arising out of a family relationship; [or] (2) a [c]ontinuing communal living by at least two individuals under such circumstances that one is regarded as the person in charge." See In re Estate of Van Meter, 214 So. 2d 639, 641 (Fla. 2d DCA 1968), approved 231 So. 2d 524 (Fla. 1970); Flannery v. Green, 482 So. 2d 400, 402 (Fla. 2d DCA 1985) citing Holden v. Estate of Gardner, 420 So. 2d 1082 (Fla. 1982).
In this respect, the availability of the exemption afforded by Article X, § 4 since January 1, 1985, is no different than many other entitlements that most homeowners can claim, which range broadly from federal mortgage interest and property tax deductibility to other state entitlements such as the $25,000 exemption of homestead property from ad valorem and most other taxes and assessments. See Art. VII, § 6, Fla. Const.
For example, in Caggiano, the exemption was held by our high court to be available to Mr. Caggiano, a single person and convicted racketeer, who had no support responsibilities worthy of state preservation. More recently, in Havoco, homestead property was acquired by an individual creditor in his name for the immoral but post-1984, perfectly constitutional and lawful purpose in Florida of dodging one's personal responsibilities. In our mind, these post-1984 authorities represent a vastly different vantage by our supreme court of the purpose of our homestead law as it now exists from that earlier yet not so distant time when "homestead [was] not something to toy with and use as a `city of refuge' from the laws exactions, [but rather] was . . . a place . . . where integrity, patriotism and respect for civil and moral values is generated." See In re Estate of Van Meter, 214 So. 2d at 642. We are honor bound to follow these more recent authorities.
We are well aware that it is not our place to overrule a decision of the Florida Supreme Court. See Hoffmann v. Jones, 280 So. 2d 431, 434 (Fla. 1973). Nor do we suggest that the wisdom and judgments of our predecessors in the judiciary should not be followed based merely upon the age of a case. See Payne v. Tennessee, 501 U.S. 808, 827 (1991) ("Adhering to precedent `is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right.'") (citing Burnet v. Conrad Oil Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting)). However, in this case we consider, based upon the 1984 amendment to Article X, section 4 and the recent pronouncements of our high court, that Sherbill is not a viable guide to interpreting Article X, section 4 as it presently is constituted.
For the foregoing reasons, we conclude that Mr. DeMayo validly waived his right to the protection of Article X, section 4 in the retainer contract he executed with his counsel. His homestead property is subject to the lien of the Heller and Chames, P.A. judgment.
Affirmed.
GREEN, J., concurs.
I respectfully dissent.
Article X, section 4(a) of the Florida Constitution provides that a natural person's homestead "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 assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty."
In Olesky v. Nicholas, 82 So. 2d 510, 513 (Fla. 1955), the Florida Supreme Court specifically rejected a claim that would place a limitation on this constitutional exemption, observing: "[w]e find no difficulty in holding that the Florida constitutional exemption of homesteads protects the homestead against every type of claim and judgment except those specifically mentioned in the constitutional provision itself. . . ." This pronouncement recently was quoted with approval by the Florida Supreme Court in Havoco of America, Ltd. v. Hill, 790 So. 2d 1018, 1021 (Fla. 2001), where the Court refused to recognize an exception to this constitutional exemption not delineated in article X, section 4.
Mindful of the Supreme Court's clear and continued "policy of favoring the liberal construction of the exemption," id. at 1021, and its stated "rule of strict construction as applied to the exceptions," id., I find the Florida Supreme Court's rejection of a claim of waiver in Sherbill v. Miller Mfg. Co., 89 So. 2d 28 (Fla. 1956), to be dispositive.
In Sherbill, the Florida Supreme Court addressed whether the protections afforded by article X, section 4 could be waived by debtors as consideration for a loan which did not involve the exceptions set forth in the constitution. The Sherbill debtors had obtained a loan by executing a note that specifically provided that "[t]he makers and endorsers of this note hereby waive the benefit of their homestead exemption as to this debt. . . ." Id. at 29. When the debtors defaulted, the creditor obtained a judgment and sought to levy on the debtors' realty, contending that the debtors had waived their homestead exemption. The Florida Supreme Court rejected this argument and refused to enforce the waiver on public policy grounds, observing "[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." Id. at 31; see Nelson v. Hainlin, 104 So. 589, 591 (Fla. 1925) (concluding that "[w]here a homestead is acquired it can be waived only by abandonment, or by alienation in the manner provided by law"); Carter's Adm'rs v. Carter, 20 Fla. 558, 570 (1884) (concluding that a waiver in a note of all exemptions from execution on the debt will not make property otherwise exempt subject to execution).
Sherbill has never been overruled and is still good law today. See In re Estate of Nicole Santos, 648 So. 2d 277, 282 (Fla. 4th DCA 1995) (observing that "[p]rotection of homestead from alienation cannot be waived by contract or otherwise"). Although the majority correctly observes that it is not our place to overrule a Supreme Court decision, it nonetheless disregards this controlling precedent proclaiming what no other Florida court has ever suggested: that with the advent of the 1984 amendment to article X, section 4, "the character and the purpose of the amendment completely changed" to generally permit contractual waivers of the homestead exemption. I cannot agree.
The 1984 amendment to the Florida Constitution did nothing more than substitute the term "natural person" for the term "the head of a family" in article X, section 4, thereby expanding the number of people entitled to claim the benefits of the exemption. As the commentary to the 1984 amendment states: "[t]he term `natural person' was substituted for `the head of a family' so that the protection against forced sale of a homestead and the personal property exemption of up to $1000 was extended to all owners of homesteads except corporate entities." 1983 H.J.R. 40 cmt. to Art. X, § 4, Fla. Const. (1985); see Public Health Trust of Dade County v. Lopez, 531 So. 2d 946, 948 (Fla. 1988) (stating that the 1984 amendment changing the term "head of a family" to "a natural person . . . expanded the class of persons who can take advantage of the homestead provision and its protections"); Cain v. Cain, 549 So. 2d 1161, 1163 (Fla. 4th DCA 1989) (observing that "[t]he 1985 amendment, therefore, expanded protection rather then [sic] limiting it as the `head of family' standard did. Homestead exemption is to be construed liberally for the benefit of those whom it was designed to protect"). Thus, the new wording, expanding this protection rather than contracting it, must be viewed as no more than an effort to remove this important and longstanding protection from whatever controversy might exist as to what constitutes a "family."
Under the circumstances, I cannot agree that the 1984 amendment substituting the term "natural person" for the term "head of a family," changed the character and the purpose of the exceptions to the homestead exemption to permit exceptions to the exemption other than those expressly provided in article X, section 4.Sherbill still controls and prohibits enforcement of the attempted waiver.
I also cannot agree with the remainder of the majority's justifications for disregarding the plain language of article X, section 4 and binding Supreme Court precedent holding that article X, section 4 protections cannot be waived.
First, I cannot agree with the majority's conclusion that "[t]here is nothing on the face of the constitutional provision as it presently exists to lead us to believe that the people of this state intended to prohibit a homeowner from waiving this constitutional [exemption]." To the contrary, article X, section 4 delineates three, and only three exclusions from the prohibition against forced sale. In common parlance, there are three ways in which the exemption is waived: first, the exemption from forced sale is waived "for the payment of taxes and assessments" on the homestead property; second, the exemption from forced sale is waived for payment of "obligations contracted for the purchase, improvement or repair," of the homestead; and third, the exemption from forced sale is waived for payment of "obligations contracted for house, field or other labor performed" on the homestead. Art. X, § 4(a), Fla. Const. (1985) (emphasis added). No other exceptions from, or waivers of, the exemption from forced sale are authorized.
Under basic rules of statutory construction, by listing these three exceptions to the forced sale prohibition, the people of the state of Florida have precluded all other exceptions or waivers:
Most significantly, article X, section 4 expressly provides for three exceptions to the homestead exemption. Forfeiture is not one of them. According to the plain and unambiguous wording of article X, section 4, a homestead is only subject to forced sale for (1) the payment of taxes and assessments thereon; (2) obligations contracted for the purchase, improvement or repair thereof; or (3) obligations contracted for house, field or other labor performed on the realty. Under the rule "expressio unius est exclusio alterious"-the expression of one thing is the exclusion of another-forfeitures are not excluded from the homestead exemption because they are not mentioned, either expressly or by reasonable implication, in the three exceptions that are expressly stated.
Butterworth v. Caggiano, 605 So. 2d 56, 60 (Fla. 1992); In re Clements, 194 B.R. 923, 925 (M.D. Fla. 1996) (confirming that under the rule expressio unius est exclusio alterious, homestead, in Florida, may not be used to satisfy debts other than those expressly permitted by article X, section 4).
For this reason, the Caggiano court, relying on its pre-1984 amendment decision in Olesky, reconfirmed that " the Florida constitutional exemption of homesteads protects the homestead against every type of claim and judgment except those specifically mentioned in the constitutional provision itself."Id. at 60, quoting Olesky, 82 So. 2d at 513 (some emphasis added); see Havoco, 790 So. 2d at 1028, 1030 (concluding post the 1984 amendment that "transfer of nonexempt assets into an exempt homestead with the intent to hinder, delay, or defraud creditors is not one of the three exceptions to the homestead exemption provided in article X, section 4" and thus "not excepted from the protection" of that provision). Consequently, I believe the constitution on its face precludes the waiver, or "voluntary divestiture" of one's constitutional right to homestead protection.
I base this belief not only on the rules of statutory construction and controlling Supreme Court precedent applying those rules and interpreting this provision, but on the public policy which underpins this provision. For over a hundred years, it has been the paramount public policy of this state to promote the welfare of the state by ensuring that homeowners avoid impoverishment by placing the homestead beyond creditors' reach:
See Donna Litman Seiden, There's No Place Like Home (Stead) In Florida — Should It Stay That Way?, 18 Nova L. Rev. 801, 823 (1994) (observing that the Florida Constitution of 1868, "provided the basic framework for the present exemption").
For over a century, Florida has by constitutional provision made the homeplace exempt from the claims of creditors. See Baker v. State, 17 Fla. 406 (1879) (construing homestead provision of the Florida Constitution of 1868). As a matter of public policy, the purpose of the 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 who have given credit under such law. See Bigelow v. Dunphe, 143 Fla. 603, 197 So. 328 (1940).
Lopez, 531 So. 2d at 948.
Thus, where homestead property is involved, the overarching public policy of this state has always been to protect its citizens from themselves, and, in that manner, to protect the state by precluding contractual waivers of the protections provided by the homestead exemption. The Supreme Court long ago expressed this same sentiment, albeit more eloquently, inCarter's Adm'rs, explaining:
The object of exemption laws is to protect people of limited means and their families in the enjoyment of so much property as may be necessary to prevent absolute pauperism and want, and against the consequence of ill advised promises which their lack of judgment and discretion may have led them to make, or which they may have been induced to enter into by the persuasions of others. . . . [I]t would be mischievous to encourage such agreement in which by the mere scratch of a pen the whole policy of the exemption laws would become nugatory.
Carter's Adm'rs, 20 Fla. at 569-70.
Plainly put, for public policy reasons, this important protection cannot be waived or contracted away "by the mere scratch of a pen" for reasons other than those expressed in the constitution. See Sherbill, 89 So. 2d at 31 (refusing to enforce a contractual waiver and observing "[n]o policy of this State is more strongly expressed in the constitution, laws and decisions of the State than the policy of our exemption laws"). Again, I cannot agree with the majority's conclusion that the homestead exemption may be waived in any "arm's-length transaction between adult contracting parties."
Second, the "right to contract" does not mandate enforcement of an attempted waiver of the protections of article X, section 4 as the majority suggests. As the Florida Supreme Court has recently observed, "[t]he general right to contract is subject to the limitation that the agreement must not violate the Federal or State Constitutions or state statutes or ordinances of a city or town or some rule of the common law." Cardegna v. Buckeye Check Cashing, Inc., 894 So. 2d 860, 864 (Fla. 2005), quotingWechsler v. Novak, 26 So. 2d 884, 887 (Fla. 1946). In Hamrick v. State, 519 So. 2d 81, 82 (Fla. 3d DCA 1988) (citation omitted), for example, this court held that a defendant on probation may not agree to waive the right to contest non-payment of restitution in a revocation proceeding because the "requirement that one may be found in violation of a probationary condition to make money payments only if he is or could reasonably be financially in a position to do so, is one of constitutional dimension which, since the defendant would otherwise be subject to jail simply for not paying an amount due regardless of the circumstances, subverts the requirements of due process and equal protection and the prohibition of imprisonment for debt." And in Carroll v. Gore, 143 So. 633, 636-37 (1932), and Pettijohn v. Dade County, 446 So. 2d 1143, 1146 (Fla. 3d DCA 1984), the Florida Supreme Court and this court, respectively, found it impermissible to execute a cognovit note agreeing to waive the right to contest entry of judgment without notice (that is, waiving due process) upon non-payment. See Tropical Jewelers, Inc. v. Nationsbank, N.A. (South), 781 So. 2d 392, 394 (Fla. 3d DCA 2000) (concluding that purported waivers of commercial reasonableness in a borrowers' personal guarantees were a nullity under the anti-waiver provision of the Uniform Commercial Code). Again, I am unpersuaded by the majority's reasoning.
Third, the fact that the owner of homestead property may mortgage homestead property and use the proceeds for the benefit of a creditor, a truly voluntary act, has not been interpreted as justifying waivers of the homestead exemption in other documents to permit a creditor to satisfy a debt by forcing the sale of a homestead. In fact, for policy reasons, the Florida Supreme Court rejected this notion over a hundred years ago in concluding that a waiver of homestead in a note was "not valid to defeat a claim of exemption":
Hicks v. Mid-Florida Prod. Credit Ass'n, 374 So. 2d 566, 567 (Fla. 1st DCA 1979) (holding "foreclosure of a non-purchase money mortgage on Florida homestead property is not a forced sale and therefore does not violate Article X, Section 4(a), Fla. Const."); see also Hart v. Sanderson's Adm'rs, 18 Fla. 103, 114-115 (1881) (holding that a mortgage foreclosure sale while "under process of law, is not a forced sale within the meaning of the Constitution") (emphasis added).
True, a man may sell his personal property, or may pledge or mortgage it, but in that case the property sold or pledged is designated and identified and a special interest is created in favor of a creditor in the particular article pledged or mortgaged, and in no State is this power of the owner . . . denied.
* * * *
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. Such contracts are regulated by law and are specifically enforced in courts of equity. And by such transactions men may, through misfortune, become impoverished and their families brought to want. This is an incident of all human transactions, even where the utmost caution and circumspection are exercised, but this is not an argument in favor of encouraging indiscreet contracts made with a view to an evasion of the settled policy of the State. 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, but many thoughtless and improvident people might be induced to obtain credit by merely "waiving the benefit of exemption," and thus placing the last blanket and bed and their own and the children's clothing at the mercy of a hard creditor, if an agreement like this should be sustained.
Carter's Adm'rs, 20 Fla. at 569-70.
The contract at issue here is not a mortgage but appears to have been an "indiscreet contract made with a view to an evasion of the settled policy of the State." Id. The distinction outlined in Carter's Adm'rs remains based on good reason, and should be enforced. Thus, again, I am unconvinced.
This brings me to what I fear most about the change the majority has wrought today. That is that the 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, as this court knows all too well, 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. Nonetheless, under the majority's application of article X, section 4, such 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.
In sum, the majority has decided to enforce the validity of a contractual provision wherein a client waived his right to assert his homestead exemption if a charging lien was obtained. Without any citation or supporting authority, the majority justifies this departure from the express provisions of the Florida Constitution as well as all prior case law, citing "a vastly different vantage by our supreme court of the purpose of our homestead law as it now exists." I cannot agree and therefore respectfully dissent.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.