IN THE UNITED STATES COURT OF APPEALS,

ELEVENTH CIRCUIT

CASE NO. 09-13144 H

IN RE: SARAH E. BAKER,

debtor.

SARAH E. BAKER,
appellant.
v.

ROBERT E. TARDIFF, JR., as

bankruptcy trustee,
appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT,

MIDDLE DISTRICT, CASE NO. 2:09 CV 238

INITIAL BRIEF OF THE REAL PROPERTY PROBATE & TRUST LAW

SECTION OF THE FLORIDA BAR, AS AMICUS CURIAE
(In support of appellants and reversal of the decision below)

GOLDMAN FELCOSKI & STONE, P.A.

Robert W. Goldman, FBN 339180
745 12th Avenue South, Suite 101
Naples, FL 34102 CLARK PARINGTON HART
239-436-1988 Kenneth B. Bell, FBN 347035
125 West Romana Street
BRIGHAM AND MOORE, LLP Suite 800
John W. Little III, FBN 384798 Pensacola, FL 32502
One Clearlake Centre, Suite 1601 850-434-9200
250 South Australian Avenue
West Palm Beach, FL 33401
561-832-7862

Found at:
The Florida Legal Blog
www.floridalegalblog.org
CASE NO. 09-13144 H
Baker v. Tardiff, Jr.

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE

DISCLOSURE STATEMENT

The Real Property Probate & Trust Section of The Florida Bar has no parent

corporation and no stockholders. The following are “interested persons” known to

the Section. They are listed alphabetically.

1. Baker, Sarah E., debtor, appellant

2. Brigham Moore LLP, counsel for amicus curiae The Real Property Probate
& Trust Law Section of The Florida Bar

3. Clark Parington Hart, counsel for amicus curiae The Real Property Probate
& Trust Law Section of The Florida Bar

4. Goldman Felcoski & Stone, P.A., counsel for amicus curiae The Real
Property Probate & Trust Law Section of The Florida Bar

5. Hill, Ward & Henderson, P.A., counsel for amicus curiae, Nixon Peabody
LLP

6. Lazzarra, Richard A., United States District Court, Middle District, Judge

7. Nixon Peabody LLP, amicus curiae

8. Paskay, Alexander L., United States Bankruptcy Court, Middle District,

Judge

9. Phoenix, Charles P., counsel for appellant

10. Tardiff, Jr., Robert E., trustee in bankruptcy, appellee, counsel for appellee

11. The Florida Bar, governing body over Section involvement as amicus curiae

12. The Real Property Probate & Trust Law Section of The Florida Bar, amicus
curiae

Found at:
2 The Florida Legal Blog
www.floridalegalblog.org
CASE NO. 09-13144 H
Baker v. Tardiff, Jr.

TABLE OF CONTENTS

TABLE OF AUTHORITIES .....................................................................................4 

STATEMENT OF IDENTITY OF AMICUS CURIAE ...........................................5 

STATEMENT OF THE ISSUE.................................................................................7 

SUMMARY OF ARGUMENT .................................................................................7 

ARGUMENT .............................................................................................................8 

CONCLUSION........................................................................................................12 

CERTIFICATE OF COMPLIANCE WITH RULE 32(a) ......................................13 

CERTIFICATE OF SERVICE ................................................................................14 

Found at:
3 The Florida Legal Blog
www.floridalegalblog.org
CASE NO. 09-13144 H
Baker v. Tardiff, Jr.

TABLE OF AUTHORITIES

Cases 

Aetna Cas. & Sur. Co. v. Huntington Nat'l Bank, 609 So.2d 1315, 1317 (Fla.1992)
..............................................................................................................................10

Artistic Entertainment, Inc., v. City of Warner Robins, 331 F.3d 1196 (11th Cir.
2003) ....................................................................................................................10

Connecticut National Bank v. Germain, 503 U.S. 249, 254, 112 S.Ct. 1146, 117
L.Ed.2d 391 (1992) ..............................................................................................10

Hayes v. State, 750 So.2d 1, 4 (Fla.1999)................................................................10

Hechtman v. Nations Title Insurance of New York, 840 So. 2d 993, 996 (Fla. 2003)
..............................................................................................................................11

In re Yates, 541 U.S. 1, 124 S.Ct. 1330, 158 L.Ed.2d 40 (2004) ..................... 10, 11

Jones v. ETS of New Orleans, Inc., 793 So. 2d 912, 914-15 (Fla. 2001) ................11
Statutes 

11 U.S.C. § 522(b)(1).................................................................................................8

11 U.S.C. § 541..........................................................................................................8

11 U.S.C. §522(b) ......................................................................................................8

§222.20, Fla. Stat. ......................................................................................................8

§222.21(2)(b), Fla. Stat. ...........................................................................................11

§222.21, Fla. Stat. .......................................................................................... passim*

Found at:
4 The Florida Legal Blog
www.floridalegalblog.org
CASE NO. 09-13144 H
Baker v. Tardiff, Jr.

STATEMENT OF IDENTITY OF AMICUS CURIAE

Your amicus curiae is The Real Property Probate & Trust Law Section of

The Florida Bar (“Section”). We are a group of Florida lawyers that principally

practice in the areas of real estate and trust and estates law, including exempt

property, and who are dedicated to serving all Florida lawyers and the public in

these fields of practice. We produce educational materials and seminars, assist the

public pro bono, draft legislation related to exempt property and other aspects of

trust and estate law, draft rules of procedure and occasionally befriend courts to

assist on issues related to our field of practice. 1 Our Section has over 9,500

members.

Our entire membership is impacted by this case, as we regularly advise

clients regarding the use of pension plans and we teach other lawyers regarding the

use of pension plans in estate planning and the nature of pension plans as exempt

property. The failure of the district court to give effect to all of the terms in section

222.21, Florida Statutes, will effectively alter the exempt nature of too many
1
See Raborn v. Menotte, 974 So. 2d 328 (Fla. 2008); Chames v. DeMayo, 972
So.2d 850 (Fla. 2007); McKean v. Warburton, 919 So. 2d 341 (Fla. 2005).

Found at:
5 The Florida Legal Blog
www.floridalegalblog.org
CASE NO. 09-13144 H
Baker v. Tardiff, Jr.

pension plans to count. The intent of the legislation to make certain plans exempt

will be emasculated. Hence, our interest in this case, and our alliance with the

appellant’s position that the decision of the district court should be reversed.

Pursuant to Section bylaws, the Executive Council of the Section voted

unanimously to appear in this case if permitted by the Court. The Executive

Committee of the Board of Governors of the Florida Bar has approved the

Section’s involvement in this case as being within the purview of the Section. 2

Robert W. Goldman, Esquire, John W. Little III, Esquire and Kenneth Bell,

Esquire are co-chairs of the amicus committee of the Section, which is charged

with preparing amicus briefs for the Section.

2
This brief was reviewed by the Executive Committee of the Board of Governors
of the Florida Bar which consented to its filing on October 16, 2009 consistent
with applicable standing board policies. It is tendered solely by the Real Property,
Probate & Trust Law Section, supported by the separate resources of this voluntary
organization- not in the name of The Florida Bar, and without implicating the
mandatory membership fees paid by any Florida Bar licensee.

Found at:
6 The Florida Legal Blog
www.floridalegalblog.org
CASE NO. 09-13144 H
Baker v. Tardiff, Jr.

STATEMENT OF THE ISSUE

Whether a pension plan created for the exclusive use of a self-employed

individual, sole shareholder and sole participant that is “tax qualified,” but not

“ERISA qualified,” is exempt from creditors in a bankruptcy proceeding?

SUMMARY OF ARGUMENT

Section 222.21, Florida Statutes, as amended in 2005, controls the resolution

of the issue stated above. The amended statute makes clear that a pension plan

created for the exclusive use of a self-employed individual, sole shareholder and

sole participant that is “tax qualified,” but not “ERISA qualified,” is exempt from

being included in the bankruptcy estate. The seemingly undisputed fact below is

that the pension plan at issue was “tax qualified.” If true, the pension plan is

exempt from and may not be used to pay creditors of the debtor in the bankruptcy

proceeding. The decision below should be reversed.

Found at:
7 The Florida Legal Blog
www.floridalegalblog.org
CASE NO. 09-13144 H
Baker v. Tardiff, Jr.

ARGUMENT

Upon the filing of a petition in bankruptcy, a bankruptcy estate comprised of

the debtor's legal and equitable interests in property is established and used to pay

the debtor’s creditors. 11 U.S.C. § 541. Pursuant to 11 U.S.C. §522(b), debtors are

allowed federal exemptions which shield certain property from these creditor

claims. Federal law, however, allows states to opt out of the federal exemptions at

their election and establish their own exemptions. 11 U.S.C. § 522(b)(1). Florida

elected to opt out and provide exemptions according to Florida law. §222.20, Fla.

Stat. The Florida exemption involved in this case is located in section 222.21,

Florida Statutes.

Section 222.21, Florida Statutes (2005), in pertinent part, provides:

(2)(a) Except as provided in paragraph (d), any money or other assets

payable to an owner, a participant, or a beneficiary from, or any interest of
any owner, participant, or beneficiary in, a fund or account is exempt from
all claims of creditors of the owner, beneficiary, or participant if the fund or
account is:

1. Maintained in accordance with a master plan, volume submitter plan,

prototype plan, or any other plan or governing instrument that has been pre-
approved by the Internal Revenue Service as exempt from taxation under s.
401(a), s. 403(a), s. 403(b), s. 408, s. 408A, s. 409, s. 414, s. 457(b), or s.
501(a) of the Internal Revenue Code of 1986, as amended, unless it has been
subsequently determined that the plan or governing instrument is not exempt
from taxation in a proceeding that has become final and nonappealable;

Found at:
8 The Florida Legal Blog
www.floridalegalblog.org
CASE NO. 09-13144 H
Baker v. Tardiff, Jr.

…
(e) This subsection applies to any proceeding that is filed on or after the
effective date of this act [June 1, 2005].

(Emphasis supplied.)

When section 222.21, Florida Statutes, was amended in 2005, the

Legislature deleted any reference to "ERISA qualified" from the language of the

statute, and expressly provided in subparagraph (2)(b):

(b) It is not necessary that a fund or account that is described in paragraph

(a) be maintained in accordance with a plan or governing instrument that is
covered by any part of the Employee Retirement Income Security Act
("ERISA") for money or assets payable from or any interest in that fund or
account to be exempt from claims of creditors under that paragraph.

(Emphasis supplied.)

A Keogh plan such as that described in the bankruptcy judge’s opinion

below and owned by the debtor in this case, is a means for a self-employed

individual to fund a pension plan as defined in Section 401(a) of the Internal

Revenue Code. In this case, the Keogh plan at issue appears to have been a

prototype plan approved by the IRS and it appears the debtor supplied the court

with four different letters from the Department of the Treasury verifying its tax-

deferred status. If the Keogh plan in this case was in fact “tax qualified,” then, in

Found at:
9 The Florida Legal Blog
www.floridalegalblog.org
CASE NO. 09-13144 H
Baker v. Tardiff, Jr.

accordance with the plain language of the statute, the Keogh plan is exempt from

the debtor’s creditors. 3

The bankruptcy court held, and we agree, that section 222.21 controls the

outcome of the case. The court, however, erroneously decided the exemption from

the bankruptcy estate, or lack of it, turned on whether the plan was “ERISA

qualified.” The court relied on In re Yates, 541 U.S. 1, 124 S.Ct. 1330, 158

L.Ed.2d 40 (2004) and its definition of a "participant" in an ERISA pension plan,

which did not include the plan of a self-employed individual, who was the sole

shareholder and sole participant. Curiously, the bankruptcy court below made no

mention of the express elimination of any ERISA qualification requirement in

3
The bankruptcy court’s opinion below refers to legislative history consistent with
its interpretation of section 222.21, but offers no citation. We drafted the 2005
amendments to section 222.21 for the Legislature and we are not familiar with any
legislative history that is consistent with or would otherwise support the
bankruptcy court’s decision. Further, because section 222.21, as amended in 2005,
is so clear on the issue before the court, resorting to actual legislative history would
be inappropriate. Indeed, when construing a state’s statute, the court employs that
state’s case law interpreting the statute and the laws of statutory construction of
that state. See Artistic Entertainment, Inc., v. City of Warner Robins, 331 F.3d
1196 (11th Cir. 2003). Legislative history of a statute is irrelevant where, as here,
the wording of the statute is clear, See Aetna Cas. & Sur. Co. v. Huntington Nat'l
Bank, 609 So. 2d 1315, 1317 (Fla.1992), and courts “are not at liberty to add words
to statutes that were not placed there by the Legislature.” Hayes v. State, 750 So.
2d 1, 4 (Fla.1999). The United States Supreme Court has also made clear that in
interpreting a statute, there is no occasion to resort to legislative history where the
text of the statute is clear. Connecticut National Bank v. Germain, 503 U.S. 249,
254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992).
Found at:
10 The Florida Legal Blog
www.floridalegalblog.org
CASE NO. 09-13144 H
Baker v. Tardiff, Jr.

subsection 222.21(2)(b) even though the court was required to interpret the statute

in a manner that gave meaning to all phrases used in the law, without construing

words within a section in isolation from one another. See Hechtman v. Nations

Title Insurance of New York, 840 So. 2d 993, 996 (Fla. 2003); Jones v. ETS of New

Orleans, Inc., 793 So. 2d 912, 914-15 (Fla. 2001). 4

4
Interestingly, the Bankruptcy Abuse Prevention and Consumer Protection Act of
2005 (the federal law) has the same change as Florida, requiring only that the
pension plan be "tax qualified.” 11 U.S.C. §522. So, Yates would no longer be
controlling even if the case below turned on whether the Keogh plan was exempt
under federal law.
Found at:
11 The Florida Legal Blog
www.floridalegalblog.org
CASE NO. 09-13144 H
Baker v. Tardiff, Jr.

CONCLUSION

For these reasons, the decision below is erroneous and should be reversed.

Respectfully submitted,

GOLDMAN FELCOSKI & STONE, P.A.

Robert W. Goldman
Florida Bar No. 339180
745 12th Avenue South, Suite 101
Naples, FL 34102
(239) 436-1988
(239) 436-1989 Fax
rgoldman@gfsestatelaw.com

CLARK PARINGTON HART

Kenneth B. Bell
Florida Bar No. 347035
125 West Romana Street, Suite 800
Pensacola, FL 32502
(850) 434-9200
(850) 432-7340 Fax
kenbell@cphlaw.com

and

BRIGHAM MOORE, LLP

250 S. Australian Avenue, Suite 1601
West Palm Beach, FL 33401
(561) 832-7862
(561)832-7860 Fax
jlittle@brighammoore.com

_/s______________________________
John W. Little III, FBN 384798

Found at:
12 The Florida Legal Blog
www.floridalegalblog.org
CASE NO. 09-13144 H
Baker v. Tardiff, Jr.

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 1,868 words.

This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P 32(a)(6) because this

brief has been prepared in a proportionally spaced typeface using Microsoft Word

2007 in Times New Roman, 14-point.

_/s____________________________
John W. Little III, FBN 384798
Dated: October 27, 2009

Found at:
13 The Florida Legal Blog
www.floridalegalblog.org
CASE NO. 09-13144 H
Baker v. Tardiff, Jr.

CERTIFICATE OF SERVICE

I CERTIFY that a true copy of this document was served by U.S. Mail on

Charles PT Phoenix, Esquire, Phoenix Law, P.A., counsel for appellant, 12800

University Drive, Suite 260, Ft. Myers, FL 33907; Robert E. Tardif, Jr., counsel for

appellee, 2430 Shadowlawn Drive, Suite 18, Naples FL 34112; Dennis P.

Waggoner, Esquire, Hill, Ward & Henderson, P.A., counsel for amicus Nixon

Peabody LLP, Suite 3700 – Bank of America Plaza, 101 East Kennedy Boulevard

Tampa FL 33601, this 26th day of October, 2009.

_/s___________________________
John W. Little III, FBN 384798

Found at:
14 The Florida Legal Blog
www.floridalegalblog.org