5D01-1705 Southern Walls v. Stilwell Corp.

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D01-1705

Case Date: 03/04/2002

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2002

SOUTHERN WALLS, INC., etc., Appellant, v. Case No. 5D01-1705 STILWELL CORPORATION and ANDREW O. STILWELL, Appellees. / Opinion filed March 8, 2002 Appeal from the Circuit Court for Seminole County, Debra S. Nelson, Judge. Thomas H. Rydberg of The Rydberg Law Firm, P.A., Tampa, for Appellant. Michael J. Appleton of Marlowe, Appleton & Weatherford, P.A., Winter Park, for Appellees. SAWAYA, J.

Southern Walls, Inc. (Southern), the plaintiff below, appeals from the partial summary judgment in favor of Andrew Stilwell (Stilwell). The judgment holds that Stilwell's cooperative apartment (co-op) is exempt from forced sale to satisfy a judgment obtained by Southern because the co-op qualifies for the homestead exemption provided in article X, section 4(a)(1) of the Florida Constitution. The issue we must resolve is whether a co-op constitutes a homestead under Florida

law so as to render it exempt from forced sale under article X, section 4(a)(1). Our research indicates that neither the Florida Supreme Court nor the District Courts of Appeal have resolved this specific issue. In order for this court to do so, we will discuss 1) the factual background of the instant case; 2) the homestead exemption, including the general provisions thereof, the ownership interest (the nature of the title and estate) necessary for an individual to claim the exemption, and the nature of the residence; 3) the ownership interest an individual acquires in a co-op; and 4) how the legal principles we distill from our discussion apply to the facts of the instant case.

I. Factual Background It is not necessary to fully discuss the procedural course this case has taken to bring this issue before us. Suffice it to say that Southern initiated a breach of contract action against Stilwell and his former company, Stilwell Corporation, and ultimately obtained a judgment in its favor. With the judgment unsatisfied, Southern attempted to collect the money owed it by Stilwell. As part of that endeavor, Southern filed a motion requesting proceedings supplementary wherein it sought to have the unsatisfied execution against Stilwell's co-op enforced. The trial court allowed the proceedings supplementary. Thereafter, Stilwell filed his motion for partial summary judgment, contending that the co-op constituted his homestead and that it was exempt from forced sale. After conducting a hearing on the motions, the trial court ruled in Stilwell's favor. Southern argues that a co-op is not homestead property that qualifies for protection under article X, section 4(a)(1) because of the rather unique way in which title to the property

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is held and the ownership interest an individual has in a co-op. In order to determine whether Southern is correct, we will next discuss the general provisions of the homestead exemption.

II. The Homestead Exemption A. In General We begin our analysis by noting that the concept of homestead will be given different meanings depending on the context in which it is used. Homestead has significance in the law relating to devise and descent, taxation, and exemption from forced sale. See Snyder v. Davis, 699 So. 2d 999, 1001 (Fla. 1997) ("Our constitution protects Florida homesteads in three distinct ways."). For example, in Bowers v. Mozingo, 399 So. 2d 492, 493 (Fla. 3d DCA 1981), the court stated: This case is governed by Article X, Section 1, Constitution of the State of Florida (1885), which exempts a homestead from forced sale and provides that no judgment or execution shall be a lien thereon. Clearly, this is a different thing than homestead exemption, as defined for tax purposes. Doing v. Riley, 176 F.2d 449 (5th Cir. 1949). Therefore, the appellee's reliance on Article X, Section 7, Constitution of the State of Florida (1885) is misplaced. In In Re Estate of Wartels, 357 So. 2d 708 (Fla. 1973), the court held that a co-op is not homestead for purposes of the laws relating to devise and descent. However, in Ammerman v. Markham, 222 So. 2d 423 (Fla. 1969), the court held that a co-op may qualify as homestead for purposes of taxation. This dichotomy reveals that there is no definition of homestead that may be used with precision in all cases and that Wartels and Ammerman are not necessarily controlling regarding the issue of whether a co-op qualifies as homestead for purposes of 3

exemption from forced sale under article X, section 4(a)(1). See, e.g., In re Dean, 177 B.R. 727 (Bankr. S.D. Fla. 1995) (holding that Wartels is limited to cases involving devise and descent and that it is clearly distinguishable from cases involving homestead exemption from forced sale). In the instant case, we are concerned with the concept of homestead under the provisions of article X, section 4(a)(1), which exempts homestead property from forced sale with limited exceptions not applicable here. See Smith v. Smith, 761 So. 2d 370 (Fla. 5th DCA 2000); see also Havoco of Am., Ltd. v. Hill, 790 So. 2d 1018 (Fla. 2001); Butterworth v. Caggiano, 605 So. 2d 56 (Fla. 1992); Dyer v. Beverly & Tittle, P.A., 777 So. 2d 1055 (Fla. 4th DCA 2001). Thus, our focus will be limited to the homestead exemption within this context.

"[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." Snyder, 699 So. 2d at 1002 (citation omitted). "Homestead" is broadly defined by the Florida Constitution as [P]roperty owned by a natural person . . . to the extent of one hundred sixty acres of contiguous land and improvements thereon . . .; 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 the owner's family.

Art. X,

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