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ELEVENTH CIRCUIT
SARAH E. BAKER,
appellant.
v.
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CASE NO. 09-13144 H
Baker v. Tardiff, Jr.
The Real Property Probate & Trust Section of The Florida Bar has no parent
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
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
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CASE NO. 09-13144 H
Baker v. Tardiff, Jr.
TABLE OF CONTENTS
ARGUMENT .............................................................................................................8
CONCLUSION........................................................................................................12
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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
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
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CASE NO. 09-13144 H
Baker v. Tardiff, Jr.
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.
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).
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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.
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
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.
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CASE NO. 09-13144 H
Baker v. Tardiff, Jr.
individual, sole shareholder and sole participant that is “tax qualified,” but not
SUMMARY OF ARGUMENT
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
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CASE NO. 09-13144 H
Baker v. Tardiff, Jr.
ARGUMENT
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.
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CASE NO. 09-13144 H
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…
(e) This subsection applies to any proceeding that is filed on or after the
effective date of this act [June 1, 2005].
(Emphasis supplied.)
Legislature deleted any reference to "ERISA qualified" from the language of the
(Emphasis supplied.)
below and owned by the debtor in this case, is a means for a self-employed
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
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CASE NO. 09-13144 H
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accordance with the plain language of the statute, the Keogh plan is exempt from
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
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
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).
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CASE NO. 09-13144 H
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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
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.
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CASE NO. 09-13144 H
Baker v. Tardiff, Jr.
CONCLUSION
For these reasons, the decision below is erroneous and should be reversed.
Respectfully submitted,
and
_/s______________________________
John W. Little III, FBN 384798
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CASE NO. 09-13144 H
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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
_/s____________________________
John W. Little III, FBN 384798
Dated: October 27, 2009
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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
Waggoner, Esquire, Hill, Ward & Henderson, P.A., counsel for amicus Nixon
Peabody LLP, Suite 3700 – Bank of America Plaza, 101 East Kennedy Boulevard
_/s___________________________
John W. Little III, FBN 384798
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