SC06-1671 – Deborah Chames, et al. v. Henry Demayo

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Laws-info.com » Cases » Florida » Florida Supreme Court » 2007 » SC06-1671 – Deborah Chames, et al. v. Henry Demayo

State: Florida

Docket No: SC06-1671

Case Date: 12/20/2007

Preview:Supreme Court of Florida
____________ No. SC06-1671 ____________ DEBORAH CHAMES, et al., Petitioners, vs. HENRY DEMAYO, Respondent. ____________ No. SC06-2187 ____________ HENRY DEMAYO, Petitioner, vs. DEBORAH CHAMES, et al., Respondents. [December 20, 2007] CANTERO, J. Like many states, Florida protects homeowners' residences from forced sale except in limited circumstances. The exemption is contained in article X, section

4(a)(1) of the Florida Constitution. While the exemption can be waived in a mortgage, for over a hundred years we have held that it cannot be waived in an unsecured agreement. See Carter's Adm'rs v. Carter, 20 Fla. 558 (1884); Sherbill v. Miller Mfg. Co., 89 So. 2d 28, 31 (Fla. 1956). In these consolidated cases, an unsecured creditor (an attorney who is owed fees under a retainer agreement) asks us to recede from our precedent based on three subsequent developments: an amendment to our constitution; a purported national trend approving such waivers; and our recent holdings that other constitutional rights can be waived. In short, we do not interpret the constitutional amendment as approving waivers of the homestead exemption; we discern no trend approving such waivers (and in fact have discovered the opposite); and permitting a waiver of the homestead exemption in a mortgage but not in an unsecured agreement is consistent with our cases allowing waivers of constitutional rights, but requiring them to be knowing, intelligent, and voluntary. We therefore decline to recede from our prior decisions. I. FACTS 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, P.A. (collectively "Chames"). He signed a six-page, single-spaced retainer agreement that contained the following provision on page four:

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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 other 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 opinion certified a question of great public importance. Id. 1 Both parties sought review in this Court, and we

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The district court certified the following question: -3-

accepted jurisdiction. See art. V,

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