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Filing # 139392660 E-Filed 11/30/2021 04:38:10 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
GENERAL CIVIL DIVISION
LUZ FINOCCHIARO and
SABASTIAN FINOCCHIARO,
CASE NO: 21-001046-CA
Plaintiffs,
Vv.
FAMILY SECURITY INSURANCE
COMPANY, INC.,
Defendant.
/
NOTICE OF FILING FLORIDA SUPREME COURT CASES IN OPPOSITION TO
DEFENDANT’S MOTION TO DISMISS
COME NOW, the Plaintiffs, LUZ FINOCCHIARO and SABASTIAN
FINOCCHIARO, by and through their undersigned attorney, and hereby give notice of his filing
of the following Florida Supreme Court Cases, for all uses allowed by the Florida Rules of Civil
Procedure, and specifically in support of Plaintiffs’ Response to Defendant’s Motion to Dismiss
and in opposition to Defendant’s Motion to Dismiss.
1 State, Dept. of Revenue v. Zuckerman-Vernon Corp., 354 So. 2d 353, 358 (Fla.
1977) (noting that the Legislature's inclusion of an effective date for an amendment is considered
to be evidence rebutting intent for retroactive application of a law);
2. VanBibber v. Hartford Accident & Indemnity Insurance Company, 439 So. 2d
880 (Fla. 1983) (held that s. 627.7262, renumbered as 627.4136 by Laws 1992, c. 92-318, § 37,
eff. Oct. 1, 1992, which creates a condition precedent to filing suit is substantive and could not be
applied retroactively);
3. Williams v. Campagnulo, 588 So. 2d 982 (Fla. 1991) (expressly rejecting the
contention that the pre-suit notice requirement of s. 768.57 is procedural because the statute was
intended to address a legitimate legislative policy decision relating to medical malpractice and
established a process intended to promote the settlement of meritorious claims at an early stage
without the necessity of a full adversarial proceeding);
4, Menendez v. Progressive Express Insurance Co., Inc., 35 So.3d 873 (Fla. 2010)
(the Florida Supreme Court held that the pre-suit notice requirement of s. 627.736 was substantive
in nature because it (1) potentially relieved an insurer of an obligation to pay attorneys' fees; (2)
created a “safe harbor” that allowed an additional period of time for an insurer to pay a claim; and
(3) postponed the ability of an insured to bring suit for overdue benefits, and therefore application
of the statute was impermissible.)
5. American Optical Corp. v. Spiewak, 73 So.3d 120 (Fla. 2011) (holding the
statutory pre-suit notice provisions provided for in the 2001 amendment to section 627.736 could
not apply retroactively to claimants who had accrued causes of action for asbestos-related disease
pending on the effective date of the amendment);
6. Florida Insurance Guaranty Association, Inc. vy. Devon Neighborhood
Association, Inc., 67 So. 3d 187 (Fla. 2011) (holding that retroactive application of the notice
requirement in 2005 amendment to section 627.7015 is not permissible; that any analysis as to
retroactive application of a statute requires the court to engage in a two-pronged inquiry to
determine whether a statute is to be applied retroactively; that this precedent is misapplied when
the first inquiry is omitted; and that “the absence of a statement in the act that the amendments are
inapplicable to existing contracts does not constitute clear evidence of retroactive intent”).
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished the Court’s E-Filing Portal to: Ryan Lovegrove, Esquire (ryan@lovegrovelastella.com
phillip@lovegrovelastella.com eservice@lovegrovelastella.com evelyn@lovegrovelastella.com),
counsel for Defendant (Family Security Insurance Company), on this 30" day of November
2021.
By /s/ Barbara M. Hemando, Esq.
Makris & Mullinax, P.A.
Dean Makris, Esquire
FBN: 111630
Matthew K. Mullinax, Esquire
FBN: 86181
Barbara M. Hernando, Esquire
FBN: 0091469
Email:dean@makrismullinax.com
matt@makrismullinax.com
barbara@makrismullinax.com
908 W. Horatio Street
Tampa, Florida 33606
Telephone: 813.485.7700
Attomeys for Plaintiff
State, Dept. of Revenue v. Zuckerman-Vernon Corp., 354 So0.2d 353 (Fla. 1977)
Page 353 Park Joint Venture v. Dickinson, 303 So.2d 654
(Fla. ist DCA 1974), upon the issue of whether
354 So.2d 353 conveyance of the property in question was by a
STATE of Florida, DEPARTMENT OF trustee not pursuant to a sale and, therefore, was
REVENUE, Petitioner, exempt from the documentary stamp tax. 7 We
v. have jurisdiction, Article V, Section 3(b)(3),
ZUCKERMAN-VERNON CORPORATION, Florida Constitution. Pursuant to Fla.App.
Respondent.
ZUCKERMAN-VERNON CORPORATION, Page 355
Petitioner,
v. Rule 2.1a. (2)(a), these cases were consolidated
STATE of Florida, DEPARTMENT OF for consideration. 3
REVENUE, Respondent.
Nos. 50907, 50908. The relevant facts were articulated in the
Supreme Court of Florida. district court's opinion:
Nov. 23, 1977.
Rehearing Denied Jan. 31, 1978. Zuckerman-Vernon Corp. has petitioned for
review of the Department's assessment of
Page 354 documentary stamp taxes in the amount of
$55,649.70 and a penalty in the same amount for
Robert L. Shevin, Atty. Gen., Tallahassee and petitioner's failure to affix documentary stamps to
Harold F. X. Purnell, Asst. Atty. Gen., a deed from Bayshore 21, Inc., to petitioner and
Tallahassee, for petitioner State of Florida, Dept. its joint venturer, Marvin Glick. . . . Petitioner
of Revenue. insists that the conveyance from Bayshore to the
joint venturers on August 27, 1973, was but part
William L. Rogers, of Snyder, Young, Stern, of the same transaction in which Bayshore
Barrett & Tannenbaum, North Miami Beach, for acquired the property (on) August 23, 1973, as
respondent Zuckerman-Vernon Corp. trustee for the joint venturers. Documentary
stamps in the appropriate amount were affixed to
SUNDBERG, Justice. the earlier deed.
This cause consists of consolidated petitions Petitioner urges that the joint venturers provided
for writ of certiorari to review a decision of the Bayshore all the cash required for its acquisition
District Court of Appeal, First District, reported at of the property, personally guaranteed Bayshore's
339 So.2d 685. In Case No. 50,907, petitioner, mortgage notes and intended that Bayshore
Department of Revenue, alleges the district should hold only a paper title for the brief period
court's decision to be in conflict with Dominion necessary to arrange Bayshore's financing on the
Land and Title Corporation v. Department of strength of the guarantors’ credit. The joint
Revenue, 320 Sod 815 (Fla.1975), and venture agreement dated August 23, to which
Associated Dry Goods Corp. v. Department of Bayshore was not a party, recited that Bayshore
Revenue, 335 So.2d 832 (Fla. ist DCA 1976), upon "has taken title" as trustee. The hearing officer
the issues of: (1) whether imposition of the 100% noted that interest rates at the time were higher
Penalty assessment under Section 201.17(2), than those which could lawfully be contracted for
Florida Statutes (1975), 1 is mandatory; and (2) by an individual.
whether the district court's reduction of the 100%
Penalty from $55,649.70 to $5,000 was proper in The hearing officer found as facts that Bayshore
the instant case. In Case No. 50,908, petitioner, contracted to buy in its corporate name, not as
Zuckerman-Vernon Corporation, alleges that the trustee or in another representative capacity,
same district court decision conflicts with River placed $500,000.00 earnest money in escrow
a
State, Dept. of Revenue v. Zuckerman-Vernon Corp., 354 So0.2d 353 (Fla. 1977)
when executing the purchase and sale agreement, reduced the amount of the penalty, and, as later
and took title in its own name, not as trustee. The explained, we find that the tax (and therefore the
hearing officer found it was Bayshore's funds, penalty) was miscomputed due to an erroneous
borrowed or otherwise, which made the purchase calculation of the consideration.
possible and found no evidence of an express
trust relationship between Bayshore and the joint Page 356
venturers. She further found no evidence that
Glick provided Bayshore with cash to secure the The hearing officer properly concluded that
purchase and sale agreement or, if he did, that he no trust relationship existed between Bayshore
did so as petitioner's joint venturer rather than as and the joint venture. We are not persuaded by
Bayshore's principal. 339 So.2d 685, 686. the taxpayer's argument that a resulting trust
arose out of the transaction. A resulting trust
The district court found competent, arises where one party pays the consideration for
substantial evidence to support the hearing purchase of realty, but title is taken in the name of
officer's determination that Bayshore had not another. Pyle v. Pyle, 3 So.2d 312 (Fla.1951);
acquired the property as trustee for the joint Martin v. Wilson, 115 So.2d 573 (Fla. ist DCA
venture. Therefore, the exemption for a 1959). In the instant case, the evidence reflects
conveyance by a trustee not pursuant to a sale was that Bayshore purchased the property with its
held inapplicable and the documentary stamp tax corporate funds. The taxpayer's guarantee of
assessment was upheld. However, the district Bayshore's mortgages on the property cannot be
court reduced the penalty assessment of equated with payment of the purchase price
$55,649.70, noting: necessary to establish a resulting trust. Bayshore
was primarily liable on the guaranteed mortgages.
Though petitioner's proof failed, it took a Bayshore was relieved of this liability only upon
substantial position and advanced it in good faith satisfaction of the mortgages which occurred
with significant supporting evidence. The some three to four months after its conveyance of
question was fairly debatable. If the amount of the the property to the joint venture.
penalty assessed pursuant to § 201.17(2), F.S., isa
matter generally within the discretion of the The taxpayer's contention as to the existence
Department, the record contains no evidence that of an express trust must fail for the reason
the Department exercised informed discretion succinctly stated in Columbia Bank for
before acting to assess a $55,649.70 penalty. Cooperatives v. Okeelanta Sugar Cooperative, 52
So.2d 670, 672 (Fla.1951):
On this record, we find such a_ penalty
unconscionable. Therefore, in the exercise of our An express trust cannot exist unless there is an
equitable powers, we will permit assessment of a execution of an intention to create such a trust by
penalty in a lesser and reasonable amount the one having legal and equitable dominion over
necessary for protection of the State's interest. the property made subject to it. (Emphasis
Dominion Land & Title Corp. v. Department of supplied)
Revenue, 320 So.2d 815, 818 (Fla.1975). A penalty
of no more than $5,000 is appropriate. 339 So.2d The joint venture agreement which declared
685, 687. that Bayshore was holding the property in
question as trustee for the joint venture, was
For the reasons hereinafter expressed, we executed between the taxpayer and Marvin Glick,
approve that portion of the district court's the owner of the capital stock of Bayshore, on
decision upholding the finding that the August 23, 1973. Glick, however, executed the
conveyance in issue constituted a sale subject to a agreement in his individual capacity; Bayshore
documentary stamp tax assessment. However, we was not a party to the agreement. Since
do not concur in that part of the decision which Bayshore's funds were used to purchase the
State, Dept. of Revenue v. Zuckerman-Vernon Corp., 354 So0.2d 353 (Fla. 1977)
property on August 17, 1973, and Bayshore took principals in Zuckerman-Vernon Corporation.
title solely in its corporate name, it was Glick was the sole shareholder of Bayshore. The
impossible for the joint venture to create an obligation of Bayshore to Commercial Trading
express trust in its favor with Bayshore as trustee. Company, Inc. was unconditionally guaranteed at
The corpus of the trust, the property, was never its inception by the two Zuckermans, Siegel,
within the legal or equitable dominion of the Vernon, Glick, and Zuckerman-Vernon
taxpayer or Marvin Glick until after Bayshore Corporation.
divested itself of title.
Page 357
The hearing officer's determination that
Bayshore's conveyance to the joint venture was By the terms of this latter guaranty the guarantors
for financial consideration is also supported by (i) waived any right to require the mortgagee to
the record. The shifting of economic benefit and first proceed against Bayshore or pursue any
burden when the taxpayer took subject to the other remedy, (ii) agreed to direct recourse
various mortgages at the time of the conveyance, against them, and (iii) unconditionally
constituted the consideration necessary to invoke guaranteed payment and performance of the
the documentary stamp tax under Section obligation. The instrument expressly
201.02(1), Florida Statutes (1975). Florida acknowledged that the loan to Bayshore had been
Department of Revenue v. De Maria, 338 So.2d induced by the guarantees.
838 (Fla.1976); Kendall House Apartments, Inc.
v. Department of Revenue, 245 Sod 221 While it is apparent that the taxpayer had no
(Fla.1971). However, the Department obligation with respect to the Prudential and
miscalculated the amount of the consideration Security Mortgage Investors mortgages prior to
subject to the tax imposed by Section 201.02(1), the conveyance from Bayshore, it is equally
Florida Statutes (1975). Tax was assessed by the apparent that an unconditional obligation on the
Department predicated on a consideration of part of the taxpayer to pay and perform according
$18,550,000. This sum was arrived at by totaling to the terms of the note and mortgage held by
the outstanding principal balance of mortgages Commercial Trading Company, Inc. existed prior
encumbering the property at the time of the to that conveyance. Consequently, with respect to
conveyance to the joint venture. The indebtedness the Commercial Trading Company, Inc.
to which the joint venture took subject was obligation, there was no shifting of economic
represented by (i) a mortgage payable to burden at the time of the conveyance from
Prudential Insurance Company in the amount of Bayshore. Although there may have been a change
$12,250,000 which encumbered the property at in the form of the obligation there was no change
the time of conveyance from Arthree, Inc. to in its substance. The taxpayer was no more nor
Bayshore; (ii) a mortgage payable to Security less obligated to pay and perform the obligation
Mortgage Investors in the sum of $5,000,000 after the conveyance than before. This portion of
secured at the time of conveyance to Bayshore; the debt, then, is controlled by Straughn v. Story,
and (iii) a mortgage payable to Commercial 334 So.2d 337 (Fla. ist DCA 1976), cert.
Trading Company, Inc. in the sum of $1,300,000 discharged Straughn v. Story, 348 So.2d 954
likewise secured at the time of the conveyance to (Fla.), filed July 15, 1977. In that case, as here, the
Bayshore. taxpayer had unconditionally and fully
guaranteed a mortgage obligation prior to
The obligation of Bayshore to Security accepting a conveyance of property subject to the
Mortgage Investors was unconditionally lien of such mortgage. The district court correctly
guaranteed at its inception by Irwin Zuckerman, distinguished De Maria on the basis that there
Melvin Zuckerman, Arthur Siegel, Harold Vernon, was no shifting of any burden of payment. It is
and = Marvin Glick. Apparently the two clear, therefore, that it was improper for the
Zuckermans, Siegel and Vernon were the Department to treat the $1,300,000 as
a
State, Dept. of Revenue v. Zuckerman-Vernon Corp., 354 So0.2d 353 (Fla. 1977)
consideration or assess documentary stamp tax presumed to act prospectively. United States v.
with respect thereto. Estate of Donnelly, 397 U.S. 286, 90 S.Ct. 1033,
25 L.Ed.2d 312 (1970); Bruner v. United States,
The taxpayer contends that imposition of the 343 U.S. 112, 72 S.Ct. 581, 96 L.Ed. 786 (1952);
100% Penalty pursuant to Section 201.17(2), Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239
Florida Statutes (1975), for failure to affix proper (Fla.1977); Keystone Water Co. v. Bevis, 278
documentary stamps to a deed of conveyance is So.2d 606 (Fla.1973). The 1977 Legislature's
discretionary with the Department. Neither the inclusion of an effective date of July 1, 1977, in Ch.
language of Section 201.17(2) nor the decisions 77-281 effectively rebuts any argument that
interpreting that provision support the taxpayer's retroactive application of the law was intended.
proposition. In Dominion Land and _ Title Furthermore, it is implicit in subparagraph (3)
Corporation v. Department of Revenue, supra, that the Department has no authority to
this Court stated that: compromise any assessment which had become
final on the effective date of Ch. 77-281.
That section requires payment of a penalty equal
to the excise tax due upon recording of any The Department properly concedes the
document, instrument or paper, which penalty is inherent power of the courts to reduce or modify a
in addition to payment of the taxes owed but not documentary stamp tax penalty imposed
paid at the time of recording. (Emphasis pursuant to Section 201.17(2), Florida Statutes
supplied) 320 So.2d 815, 816. (1975). This Court indisputably recognized the
existence of this equitable power in Dominion
Accord, Associated Dry Goods Corporation v. Land and Title Corporation v. Department of
Department of Revenue, supra. It is evident, Revenue, supra. The Department argues,
therefore, that imposition of the 100% however, that the equities of the case at bar did
Documentary stamp penalty pursuant to Section not warrant reduction of the penalty assessed
201.17(2), Florida Statutes (1975), is mandatory. against the taxpayer. We agree with the
Department. The facts of this case fail to disclose
The taxpayer alternatively suggests that Ch. any equities materially different from those
77-281, Laws of Florida, 4 rather than Section advanced in Dominion Land and Title
201.17(2), Florida Statutes Corporation v. Department of Revenue, supra,
where the Court upheld imposition of the 100%
Page 358
Penalty. The appellant in Dominion handled the
closing of a real estate transaction and acted as
(1975), controls as the former constitutes the
the title insuring agent for its principal. At the
prevailing law at the time of appellate disposition.
time of closing, appellant had received sufficient
Ch. 77-281, Laws of Florida, amended Section
funds from its principal to cover all recording
201.17(2) to provide for a 100% Penalty "(i)f it is
costs, including the necessary documentary
determined by clear and convincing evidence that
stamps. However, when preparing a list of the
any part of a deficiency is due to fraud.” In all
approximate fees and taxes due upon recordation
other cases, a penalty equal to 25% Of the
of the documents involved in the transaction,
purchase price of the stamps not affixed shall be
appellant inadvertently omitted an amount for
assessed. The taxpayer's contention is without
purchase of the requisite tax stamps. Despite
merit. Ch. 77-281, Laws of Florida, provides that
appellant's good faith failure to record the deed
its provisions shall be effective July 1, 1977. In the
with the appropriate tax stamps affixed thereto,
instant case, the Department assessed the penalty
we found insufficient equities to warrant
against the taxpayer in 1973, prior to the effective
reduction of the $21,230 penalty assessed
date of Ch. 77-281. It is a well-established rule of
pursuant to Section 201.17(2).
construction that in the absence of clear
legislative intent to the contrary, a law is
a
State, Dept. of Revenue v. Zuckerman-Vernon Corp., 354 So0.2d 353 (Fla. 1977)
Nor is this case significantly different from Assuming the taxpayer's good faith belief that
Associated Dry Goods Corp. v. Department of the transfer from Bayshore to the joint venture
Revenue, supra, where the 100% Penalty was was exempt from the documentary stamp tax,
sustained. There, the appellant operated such belief, without more, will not warrant
department stores within the state of Florida. A reduction of the penalty. In addition, the fact that
major portion of appellant's sales were made the amount of the penalty was $55,649.70 does
pursuant to revolving charge accounts, upon not, alone, support the taxpayer's contention that
which no documentary stamp taxes were paid. the assessment was inequitable. Under Section
The Department of Revenue assessed a tax upon 201.17(2), Florida Statutes (1975), the percentage
the charge account obligations pursuant to penalty is the same in each case it increases in
Section 201.08(2), Florida Statutes (1975), 5 and a direct proportion to the amount of documentary
penalty in like amount under Section 201.17(2), stamps not affixed. Of necessity, therefore, the
Florida Statutes (1975). On review in the District amount of the penalty will vary in each case
Court of Appeal, First District, appellant noted depending upon the amount of tax stamps not
that Section 201.08(2) provides that no affixed to the deed. We reject the proposition that
documentary stamps a penalty should be reduced in one case and not
in another solely because the former involved a
Page 359 failure to affix more tax stamps than the latter.
Survival of state government requires strong
are required to be attached to obligations to pay, measures to assure collection of taxes. Given this
executed under retail charge accounts. Therefore, factor and the difficulties involved in collecting
the provisions of Section 201.17(2) (b), Florida delinquent documentary stamp taxes, the
Statutes (1975), which states that "(p)ayment of legislature reasonably chose to impose a penalty
penalty to the Department of Revenue equal to equal to the amount of the tax not timely paid.
the purchase price of the stamps not affixed " See Dominion Land and Title Corporation v.
were inapplicable, since the subject stamps were Department of Revenue, supra.
not required to be affixed. (Emphasis supplied)
Accordingly, the petition for writ of certiorari
The district court in Associated failed to is granted and that portion of the decision of the
accept appellant's interpretation of Section District Court of Appeal, First District, upholding
201.17(2)(b), Florida Statutes (1975). Although a the documentary stamp tax assessment is
literal interpretation of Sections 201.08(2) and approved, subject to reduction of that part of the
201.17(2)(b) supported appellant's position, the tax and penalty attributable to the $1,300,000
court construed the latter provision to be obligation. That portion of the decision reducing
inconsistent with appellant's contention, holding the penalty is quashed, and this cause is
that: remanded to the district court for remand to the
Department of Revenue with directions to reduce
(T)he legislature intended that those who failed to the tax and penalty assessment in accordance
timely purchase required documentary stamps, with this opinion.
whether same were to be "affixed" to a deed or
"not affixed" to a charge slip, would be subject to It is so ordered.
a penalty in the amount not timely purchased.
335 So.2d 832, 834. ADKINS, Acting C. J., and BOYD, ENGLAND
and HATCHETT, JJ., concur.
The legislative intent as discerned by the
district court, therefore, was held to prevail over ween,
appellant's literal reading of the statutes.
1 § 201.17(2), Fla.Stat. (1975), reads:
State, Dept. of Revenue v. Zuckerman-Vernon Corp., 354 So0.2d 353 (Fla. 1977)
"(2) Any document, instrument, or paper upon (2) Any document, instrument, or paper upon
which the tax under this chapter is imposed and which the tax under this chapter is imposed and
which, upon audit or at time of recordation, does which, upon audit or at time of recordation, does
not bear the proper value of stamps shall subject not bear the proper value of stamps shall subject
the person or persons liable for the tax upon the the person or persons liable for the tax upon the
document, instrument or paper to: document, instrument, or paper to:
(a) Purchase of the stamps not affixed. (a) Purchase of the stamps not affixed.
{b) Payment of penalty to the Department of {b) Payment of a penalty to the Department of
Revenue equal to the purchase price of the stamps Revenue equal to 25 percent of the purchase price
not affixed. This penalty is to be in addition to, of the stamps not affixed. If it is determined by
and not in lieu of any other penalty imposed by clear and convincing evidence that any part of a
law." deficiency is due to fraud, there shall be added to
the tax as a civil penalty, in lieu of the
2 § 201.02(1), Fla.Stat. (1975), reads: aforementioned penalty under this paragraph, an
amount equal to 100 percent of the deficiency.
"(1) On deeds, instruments, or writings whereby
These penalties are to be in addition to, and not in
any lands, tenements, or other realty, or any
lieu of, any other penalties imposed by law.
interest therein, shall be granted, assigned,
transferred, or otherwise conveyed to, or vested {c) Payment of interest to the Department of
in, the purchaser, or any other person by his Revenue, accruing from the date of recordation
direction, on each one hundred dollars of the until paid, at the rate of 1 percent per month or
consideration therefor the tax shall be thirty fraction thereof, based on the purchase price of
cents. When the full amount of the consideration the stamps not affixed.
for the execution, assignment, transfer, or
conveyance is not shown in the face of such deed, (3) The department may compromise any penalty
instrument, document, or writing, the tax shall be on any proposed assessment which has not
at the rate of 30 cents for each $100 or fractional become final on the effective date of this act if its
part thereof of the consideration therefor." investigation reveals that the penalty would be too
severe or unjust.
This section has been interpreted as inapplicable
to a trustee's conveyance of bare legal title to an "Section 2. This act shall take effect July 1, 1977."
interest in realty, without consideration, to the
equitable owner thereof. River Park Joint Venture 5 § 201.08(2), Fla.Stat. (1975), reads:
v. Dickinson, supra.
"(2) On promissory notes, nonnegotiable notes,
3 For the purpose of clarity, Zuckerman-Vernon written obligations to pay money, or other
Corporation will hereinafter be referred to as the compensation, made, executed, delivered, sold,
taxpayer, and the Department of Revenue, as the transferred, or assigned in the state, in connection
Department. with sales made under retail charge account
services, incident to sales which are not
4 Ch. 77-281, Laws of Florida, reads: conditional in character and which are not
secured by mortgage or other pledge of purchaser,
"Section 1. Subsections (2) and (3) of section the tax shall be fifteen cents on each one hundred
201.17, Florida Statutes, 1976 Supplement, are or fraction thereof of the gross amount of the
amended to read: indebtedness evidenced by said instruments,
payable quarterly on such forms and under such
"201.17 Penalties for failure to pay tax required.
rules and regulations as may be promulgated by
the department of revenue. No documentary
State, Dept. of Revenue v. Zuckerman-Vernon Corp., 354 So0.2d 353 (Fla. 1977)
stamps shall be required to be attached to
instruments under the provisions of this
subsection."
VanBibber v. Hartford Acc. & Indem. Ins. Co., 439 So.2d 880 (Fla. 1983)
Page 880 date of the statute. We hold that the statute is
constitutional, but that it has no application to a
439 So.2d 880 cause of action predicated on events which
Ara Williams VanBIBBER, Appellant, occurred prior to the effective date of the statute.
v.
HARTFORD ACCIDENT & INDEMNITY VanBibber, claiming an injury, sued Publix
INSURANCE CO., Appellee. Super Markets and its insurance carrier,
No. 63584. Hartford, for a claimed tort that occurred on June
Supreme Court of Florida. 25, 1982. Relying on section 627.7262, the trial
Oct. 13, 1983. judge dismissed Hartford from the case, holding
the statute both
Page 881
Page 882
E.C. Deeno Kitchen, Brian S. Duffy and
Robert King High, Jr. of Ervin, Varn, Jacobs, constitutional and applicable to the instant case.
Odom & Kitchen, Tallahassee, for petitioner. On appeal the district court certified the cause to
this Court as requiring immediate resolution.
William B. Wiley and Charles A. Stampelos of
McFarlain, Bobo, Sternstein, Wiley & Cassedy, Section 627.7262 reads as follows:
Tallahassee, for respondent.
Nonjoinder of insurers.--
Gabriel Mazzeo, Dept. of Ins., Tallahassee, for
Bill Gunter, Ins. Com'r and Treasurer of the State (a) It shall be a condition precedent to the
of Florida, amicus curiae. accrual or maintenance of a cause of action
against a liability insurer by a person not an
Robert D. Peltz of Rossman & Baumberger, insured under the terms of the liability insurance
Miami, for Academy of Florida Trial Lawyers, contract that such person shall first obtain a
amicus curiae. judgment against a person who is an insured
under the terms of such policy for a cause of
Carl D. Motes of Maguire, Voorhis & Wells, action which is covered by such policy.
Orlando, for Florida Defense Lawyers Ass'n,
amicus curiae. (2) No person who is not an insured under
the terms of a liability insurance policy shall have
McDONALD, Justice. any interest in such policy, either as a third-party
beneficiary or otherwise, prior to first obtaining a
VanBibber appealed the trial court's judgment against a person who is an insured
dismissal of an insurance company as a party under the terms of such policy for a cause of
defendant. The first district certified the appeal as action which is covered by such policy.
passing on a question of great public importance
or as having a great effect on the administration (3) Insurers are affirmatively granted the
of justice throughout the state. We have substantive right to insert in liability insurance
jurisdiction pursuant to article V, section 3(b)(5) policies contractual provisions that preclude
of the state constitution. persons who are not designated as insureds in
such policies from bringing suit against such
The issue in this case is the constitutionality insurers prior to first obtaining a judgment
of section 627.7262, Florida Statutes (Supp.1982). against one who is an insured under such policy
A second issue, if the statute is found for a cause of action which is covered by such
constitutional, is whether the statute is applicable policy. The contractual provisions authorized in
to causes of action accruing prior to the effective this subsection shall be fully enforceable.
a
VanBibber v. Hartford Acc. & Indem. Ins. Co., 439 So.2d 880 (Fla. 1983)
(Footnote omitted.) condition precedent to having a third-party
interest in an insurance
It is readily apparent that, by enacting this
statute, the legislature sought to modify the third- Page 883,
party beneficiary concept adopted by this Court in
Shingleton v. Bussey, 223 So.2d 713 (Fla.1969), to policy, the vesting of that interest by judgment;
provide that an injured party has no beneficial the prior statute did not. The present statute
interest in a liability policy until that person has specifically authorizes a contractual provision
first obtained a judgment against an insured. The prohibiting direct third-party suits; the prior one
statute transfers the accrual of a beneficial did not. * Because of the differences between the
interest from the date of occurrence until the time statutes, Markert does not control.
an action brought on a tort has matured to a
judgment. The statute is quite clear that no cause The regulation and supervision of insurance
of action against an insurance company shall is a field in which the legislature has historically
accrue until a judgment against an insured is been deeply involved. See chs. 624-632, Fla.Stat.
obtained. Moreover, the statute authorizes While this Court may determine public policy in
insurance companies to insert nonjoinder the absence of a legislative pronouncement, such
provisions in their insurance policies. The a policy decision must yield to a valid, contrary
significance of this last provision is found in the legislative pronouncement. In Shingleton we
language of Shingleton where this Court said: found that public policy authorized an action
against an insurance company by a third-party
This requirement of the procedural rules raises beneficiary prior to judgment. The legislature has
the presumption that unless the Legislature in the now determined otherwise. Our public policy
exercise of its police power regulation of reason for allowing the simultaneous joinder of
insurance, affirmatively gives insurers the liability carrier espoused in Shingleton, therefore,
substantive right to insert "no joinder" clauses in can no longer prevail. Finding that the statute is
liability policies there is no basis in law for substantive and that it operates in an area of
insurers to assume they have such contractual legitimate legislative concern precludes our
right as a special privilege not granted other finding it unconstitutional. If a statute can be
citizens to contract immunity with their insureds construed to be constitutional it should be. Falco
from being sued as joint defendants by strangers. v. State, 407 So.2d 203 (Fla.1981). We hold that
section 627.7262, Florida Statutes (Supp.1982), is
Id. at 718-19. constitutional.
In Markert v. Johnston, 367 So.2d 1003 Until the enactment of this statute our
(Fla.1978), we considered section 627.7262, pronouncements in Shingleton and Markert
Florida Statutes (1977), which prohibited the authorized, simultaneously, a suit in tort against a
joinder of a motor vehicle liability insurer in an tortfeasor and a claim against that tortfeasor's
action to determine the insured's liability. We insurance company. The legislature did not make
found the statute to be procedural and held it this statute retroactive so we need not concern
unconstitutional for invading this Court's ourselves with whether this was permissible. We
exclusive rulemaking authority. Thus, if the have held today that the statute is substantive. In
successor statute under consideration is likewise the absence of clear legislative intent to make
procedural, and not substantive, it would have to them retroactive, substantive statutes are
fail on the grounds enunciated in Markert. prospective only. Seddon v. Harpster, 403 So.2d
409 (Fla.1981). Because the incident in this cause
We perceive substantial differences between occurred prior to the effective date of section
the two statutes. The present statute requires, as a 627.7262, October 1, 1982, Shingleton and
Markert control this suit.
VanBibber v. Hartford Acc. & Indem. Ins. Co., 439 So.2d 880 (Fla. 1983)
The order of the trial judge is affirmed to the Page 884
extent of holding the statute constitutional, but is
reversed in holding it applicable to the present contingent on the later establishment of liability
suit. The cause is remanded for further to judgment of the insured defendant. The tort
proceedings consistent herewith. suit in Shingleton was filed sometime prior to
June, 1968, and was controlled by the
It is so ordered. Constitution of 1885. ' Under then existing law
(Artille ), as under section 627.7262 here, a
ALDERMAN, C.J., and OVERTON and plaintiff could not bring suit against a liability
EHRLICH, JJ., concur. insurer until a judgment was obtained against the
insured defendant. As here, the constitutional
SHAW, J., concurs in part and dissents in issue in Shingleton was whether the right of
part with an opinion, in which ADKINS, J., action against the insurer could be denied or
concurs. delayed until such time as judgment was obtained
against the insured defendant. Our answer was an
BOYD, J., dissents with an opinion. unequivocal no, because, inter alia, “[t]his hardly
comports with Section 4, Declaration of Rights,
SHAW, Justice, concurring in part and
State Constitution [1885], F.S.A., that the courts
dissenting in part. shall be open so that persons injured shall have
remedy by due course of law without denial or
The incident in this case occurred prior to the
delay.” 223 So.2d at 717.
effective date of section 627.7262, Florida
Statutes (Supp.i982), which delays the right of an In explaining the Shingleton decision, then
injured plaintiff to sue a liability insurer until
Preview
Filing # 139392660 E-Filed 11/30/2021 04:38:10 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA GENERAL CIVIL DIVISION LUZ FINOCCHIARO and SABASTIAN FINOCCHIARO, CASE NO: 21-001046-CA Plaintiffs, Vv. FAMILY SECURITY INSURANCE COMPANY, INC., Defendant. / NOTICE OF FILING FLORIDA SUPREME COURT CASES IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS COME NOW, the Plaintiffs, LUZ FINOCCHIARO and SABASTIAN FINOCCHIARO, by and through their undersigned attorney, and hereby give notice of his filing of the following Florida Supreme Court Cases, for all uses allowed by the Florida Rules of Civil Procedure, and specifically in support of Plaintiffs’ Response to Defendant’s Motion to Dismiss and in opposition to Defendant’s Motion to Dismiss. 1 State, Dept. of Revenue v. Zuckerman-Vernon Corp., 354 So. 2d 353, 358 (Fla. 1977) (noting that the Legislature's inclusion of an effective date for an amendment is considered to be evidence rebutting intent for retroactive application of a law); 2. VanBibber v. Hartford Accident & Indemnity Insurance Company, 439 So. 2d 880 (Fla. 1983) (held that s. 627.7262, renumbered as 627.4136 by Laws 1992, c. 92-318, § 37, eff. Oct. 1, 1992, which creates a condition precedent to filing suit is substantive and could not be applied retroactively); 3. Williams v. Campagnulo, 588 So. 2d 982 (Fla. 1991) (expressly rejecting the contention that the pre-suit notice requirement of s. 768.57 is procedural because the statute was intended to address a legitimate legislative policy decision relating to medical malpractice and established a process intended to promote the settlement of meritorious claims at an early stage without the necessity of a full adversarial proceeding); 4, Menendez v. Progressive Express Insurance Co., Inc., 35 So.3d 873 (Fla. 2010) (the Florida Supreme Court held that the pre-suit notice requirement of s. 627.736 was substantive in nature because it (1) potentially relieved an insurer of an obligation to pay attorneys' fees; (2) created a “safe harbor” that allowed an additional period of time for an insurer to pay a claim; and (3) postponed the ability of an insured to bring suit for overdue benefits, and therefore application of the statute was impermissible.) 5. American Optical Corp. v. Spiewak, 73 So.3d 120 (Fla. 2011) (holding the statutory pre-suit notice provisions provided for in the 2001 amendment to section 627.736 could not apply retroactively to claimants who had accrued causes of action for asbestos-related disease pending on the effective date of the amendment); 6. Florida Insurance Guaranty Association, Inc. vy. Devon Neighborhood Association, Inc., 67 So. 3d 187 (Fla. 2011) (holding that retroactive application of the notice requirement in 2005 amendment to section 627.7015 is not permissible; that any analysis as to retroactive application of a statute requires the court to engage in a two-pronged inquiry to determine whether a statute is to be applied retroactively; that this precedent is misapplied when the first inquiry is omitted; and that “the absence of a statement in the act that the amendments are inapplicable to existing contracts does not constitute clear evidence of retroactive intent”). CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished the Court’s E-Filing Portal to: Ryan Lovegrove, Esquire (ryan@lovegrovelastella.com phillip@lovegrovelastella.com eservice@lovegrovelastella.com evelyn@lovegrovelastella.com), counsel for Defendant (Family Security Insurance Company), on this 30" day of November 2021. By /s/ Barbara M. Hemando, Esq. Makris & Mullinax, P.A. Dean Makris, Esquire FBN: 111630 Matthew K. Mullinax, Esquire FBN: 86181 Barbara M. Hernando, Esquire FBN: 0091469 Email:dean@makrismullinax.com matt@makrismullinax.com barbara@makrismullinax.com 908 W. Horatio Street Tampa, Florida 33606 Telephone: 813.485.7700 Attomeys for Plaintiff State, Dept. of Revenue v. Zuckerman-Vernon Corp., 354 So0.2d 353 (Fla. 1977) Page 353 Park Joint Venture v. Dickinson, 303 So.2d 654 (Fla. ist DCA 1974), upon the issue of whether 354 So.2d 353 conveyance of the property in question was by a STATE of Florida, DEPARTMENT OF trustee not pursuant to a sale and, therefore, was REVENUE, Petitioner, exempt from the documentary stamp tax. 7 We v. have jurisdiction, Article V, Section 3(b)(3), ZUCKERMAN-VERNON CORPORATION, Florida Constitution. Pursuant to Fla.App. Respondent. ZUCKERMAN-VERNON CORPORATION, Page 355 Petitioner, v. Rule 2.1a. (2)(a), these cases were consolidated STATE of Florida, DEPARTMENT OF for consideration. 3 REVENUE, Respondent. Nos. 50907, 50908. The relevant facts were articulated in the Supreme Court of Florida. district court's opinion: Nov. 23, 1977. Rehearing Denied Jan. 31, 1978. Zuckerman-Vernon Corp. has petitioned for review of the Department's assessment of Page 354 documentary stamp taxes in the amount of $55,649.70 and a penalty in the same amount for Robert L. Shevin, Atty. Gen., Tallahassee and petitioner's failure to affix documentary stamps to Harold F. X. Purnell, Asst. Atty. Gen., a deed from Bayshore 21, Inc., to petitioner and Tallahassee, for petitioner State of Florida, Dept. its joint venturer, Marvin Glick. . . . Petitioner of Revenue. insists that the conveyance from Bayshore to the joint venturers on August 27, 1973, was but part William L. Rogers, of Snyder, Young, Stern, of the same transaction in which Bayshore Barrett & Tannenbaum, North Miami Beach, for acquired the property (on) August 23, 1973, as respondent Zuckerman-Vernon Corp. trustee for the joint venturers. Documentary stamps in the appropriate amount were affixed to SUNDBERG, Justice. the earlier deed. This cause consists of consolidated petitions Petitioner urges that the joint venturers provided for writ of certiorari to review a decision of the Bayshore all the cash required for its acquisition District Court of Appeal, First District, reported at of the property, personally guaranteed Bayshore's 339 So.2d 685. In Case No. 50,907, petitioner, mortgage notes and intended that Bayshore Department of Revenue, alleges the district should hold only a paper title for the brief period court's decision to be in conflict with Dominion necessary to arrange Bayshore's financing on the Land and Title Corporation v. Department of strength of the guarantors’ credit. The joint Revenue, 320 Sod 815 (Fla.1975), and venture agreement dated August 23, to which Associated Dry Goods Corp. v. Department of Bayshore was not a party, recited that Bayshore Revenue, 335 So.2d 832 (Fla. ist DCA 1976), upon "has taken title" as trustee. The hearing officer the issues of: (1) whether imposition of the 100% noted that interest rates at the time were higher Penalty assessment under Section 201.17(2), than those which could lawfully be contracted for Florida Statutes (1975), 1 is mandatory; and (2) by an individual. whether the district court's reduction of the 100% Penalty from $55,649.70 to $5,000 was proper in The hearing officer found as facts that Bayshore the instant case. In Case No. 50,908, petitioner, contracted to buy in its corporate name, not as Zuckerman-Vernon Corporation, alleges that the trustee or in another representative capacity, same district court decision conflicts with River placed $500,000.00 earnest money in escrow a State, Dept. of Revenue v. Zuckerman-Vernon Corp., 354 So0.2d 353 (Fla. 1977) when executing the purchase and sale agreement, reduced the amount of the penalty, and, as later and took title in its own name, not as trustee. The explained, we find that the tax (and therefore the hearing officer found it was Bayshore's funds, penalty) was miscomputed due to an erroneous borrowed or otherwise, which made the purchase calculation of the consideration. possible and found no evidence of an express trust relationship between Bayshore and the joint Page 356 venturers. She further found no evidence that Glick provided Bayshore with cash to secure the The hearing officer properly concluded that purchase and sale agreement or, if he did, that he no trust relationship existed between Bayshore did so as petitioner's joint venturer rather than as and the joint venture. We are not persuaded by Bayshore's principal. 339 So.2d 685, 686. the taxpayer's argument that a resulting trust arose out of the transaction. A resulting trust The district court found competent, arises where one party pays the consideration for substantial evidence to support the hearing purchase of realty, but title is taken in the name of officer's determination that Bayshore had not another. Pyle v. Pyle, 3 So.2d 312 (Fla.1951); acquired the property as trustee for the joint Martin v. Wilson, 115 So.2d 573 (Fla. ist DCA venture. Therefore, the exemption for a 1959). In the instant case, the evidence reflects conveyance by a trustee not pursuant to a sale was that Bayshore purchased the property with its held inapplicable and the documentary stamp tax corporate funds. The taxpayer's guarantee of assessment was upheld. However, the district Bayshore's mortgages on the property cannot be court reduced the penalty assessment of equated with payment of the purchase price $55,649.70, noting: necessary to establish a resulting trust. Bayshore was primarily liable on the guaranteed mortgages. Though petitioner's proof failed, it took a Bayshore was relieved of this liability only upon substantial position and advanced it in good faith satisfaction of the mortgages which occurred with significant supporting evidence. The some three to four months after its conveyance of question was fairly debatable. If the amount of the the property to the joint venture. penalty assessed pursuant to § 201.17(2), F.S., isa matter generally within the discretion of the The taxpayer's contention as to the existence Department, the record contains no evidence that of an express trust must fail for the reason the Department exercised informed discretion succinctly stated in Columbia Bank for before acting to assess a $55,649.70 penalty. Cooperatives v. Okeelanta Sugar Cooperative, 52 So.2d 670, 672 (Fla.1951): On this record, we find such a_ penalty unconscionable. Therefore, in the exercise of our An express trust cannot exist unless there is an equitable powers, we will permit assessment of a execution of an intention to create such a trust by penalty in a lesser and reasonable amount the one having legal and equitable dominion over necessary for protection of the State's interest. the property made subject to it. (Emphasis Dominion Land & Title Corp. v. Department of supplied) Revenue, 320 So.2d 815, 818 (Fla.1975). A penalty of no more than $5,000 is appropriate. 339 So.2d The joint venture agreement which declared 685, 687. that Bayshore was holding the property in question as trustee for the joint venture, was For the reasons hereinafter expressed, we executed between the taxpayer and Marvin Glick, approve that portion of the district court's the owner of the capital stock of Bayshore, on decision upholding the finding that the August 23, 1973. Glick, however, executed the conveyance in issue constituted a sale subject to a agreement in his individual capacity; Bayshore documentary stamp tax assessment. However, we was not a party to the agreement. Since do not concur in that part of the decision which Bayshore's funds were used to purchase the State, Dept. of Revenue v. Zuckerman-Vernon Corp., 354 So0.2d 353 (Fla. 1977) property on August 17, 1973, and Bayshore took principals in Zuckerman-Vernon Corporation. title solely in its corporate name, it was Glick was the sole shareholder of Bayshore. The impossible for the joint venture to create an obligation of Bayshore to Commercial Trading express trust in its favor with Bayshore as trustee. Company, Inc. was unconditionally guaranteed at The corpus of the trust, the property, was never its inception by the two Zuckermans, Siegel, within the legal or equitable dominion of the Vernon, Glick, and Zuckerman-Vernon taxpayer or Marvin Glick until after Bayshore Corporation. divested itself of title. Page 357 The hearing officer's determination that Bayshore's conveyance to the joint venture was By the terms of this latter guaranty the guarantors for financial consideration is also supported by (i) waived any right to require the mortgagee to the record. The shifting of economic benefit and first proceed against Bayshore or pursue any burden when the taxpayer took subject to the other remedy, (ii) agreed to direct recourse various mortgages at the time of the conveyance, against them, and (iii) unconditionally constituted the consideration necessary to invoke guaranteed payment and performance of the the documentary stamp tax under Section obligation. The instrument expressly 201.02(1), Florida Statutes (1975). Florida acknowledged that the loan to Bayshore had been Department of Revenue v. De Maria, 338 So.2d induced by the guarantees. 838 (Fla.1976); Kendall House Apartments, Inc. v. Department of Revenue, 245 Sod 221 While it is apparent that the taxpayer had no (Fla.1971). However, the Department obligation with respect to the Prudential and miscalculated the amount of the consideration Security Mortgage Investors mortgages prior to subject to the tax imposed by Section 201.02(1), the conveyance from Bayshore, it is equally Florida Statutes (1975). Tax was assessed by the apparent that an unconditional obligation on the Department predicated on a consideration of part of the taxpayer to pay and perform according $18,550,000. This sum was arrived at by totaling to the terms of the note and mortgage held by the outstanding principal balance of mortgages Commercial Trading Company, Inc. existed prior encumbering the property at the time of the to that conveyance. Consequently, with respect to conveyance to the joint venture. The indebtedness the Commercial Trading Company, Inc. to which the joint venture took subject was obligation, there was no shifting of economic represented by (i) a mortgage payable to burden at the time of the conveyance from Prudential Insurance Company in the amount of Bayshore. Although there may have been a change $12,250,000 which encumbered the property at in the form of the obligation there was no change the time of conveyance from Arthree, Inc. to in its substance. The taxpayer was no more nor Bayshore; (ii) a mortgage payable to Security less obligated to pay and perform the obligation Mortgage Investors in the sum of $5,000,000 after the conveyance than before. This portion of secured at the time of conveyance to Bayshore; the debt, then, is controlled by Straughn v. Story, and (iii) a mortgage payable to Commercial 334 So.2d 337 (Fla. ist DCA 1976), cert. Trading Company, Inc. in the sum of $1,300,000 discharged Straughn v. Story, 348 So.2d 954 likewise secured at the time of the conveyance to (Fla.), filed July 15, 1977. In that case, as here, the Bayshore. taxpayer had unconditionally and fully guaranteed a mortgage obligation prior to The obligation of Bayshore to Security accepting a conveyance of property subject to the Mortgage Investors was unconditionally lien of such mortgage. The district court correctly guaranteed at its inception by Irwin Zuckerman, distinguished De Maria on the basis that there Melvin Zuckerman, Arthur Siegel, Harold Vernon, was no shifting of any burden of payment. It is and = Marvin Glick. Apparently the two clear, therefore, that it was improper for the Zuckermans, Siegel and Vernon were the Department to treat the $1,300,000 as a State, Dept. of Revenue v. Zuckerman-Vernon Corp., 354 So0.2d 353 (Fla. 1977) consideration or assess documentary stamp tax presumed to act prospectively. United States v. with respect thereto. Estate of Donnelly, 397 U.S. 286, 90 S.Ct. 1033, 25 L.Ed.2d 312 (1970); Bruner v. United States, The taxpayer contends that imposition of the 343 U.S. 112, 72 S.Ct. 581, 96 L.Ed. 786 (1952); 100% Penalty pursuant to Section 201.17(2), Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239 Florida Statutes (1975), for failure to affix proper (Fla.1977); Keystone Water Co. v. Bevis, 278 documentary stamps to a deed of conveyance is So.2d 606 (Fla.1973). The 1977 Legislature's discretionary with the Department. Neither the inclusion of an effective date of July 1, 1977, in Ch. language of Section 201.17(2) nor the decisions 77-281 effectively rebuts any argument that interpreting that provision support the taxpayer's retroactive application of the law was intended. proposition. In Dominion Land and _ Title Furthermore, it is implicit in subparagraph (3) Corporation v. Department of Revenue, supra, that the Department has no authority to this Court stated that: compromise any assessment which had become final on the effective date of Ch. 77-281. That section requires payment of a penalty equal to the excise tax due upon recording of any The Department properly concedes the document, instrument or paper, which penalty is inherent power of the courts to reduce or modify a in addition to payment of the taxes owed but not documentary stamp tax penalty imposed paid at the time of recording. (Emphasis pursuant to Section 201.17(2), Florida Statutes supplied) 320 So.2d 815, 816. (1975). This Court indisputably recognized the existence of this equitable power in Dominion Accord, Associated Dry Goods Corporation v. Land and Title Corporation v. Department of Department of Revenue, supra. It is evident, Revenue, supra. The Department argues, therefore, that imposition of the 100% however, that the equities of the case at bar did Documentary stamp penalty pursuant to Section not warrant reduction of the penalty assessed 201.17(2), Florida Statutes (1975), is mandatory. against the taxpayer. We agree with the Department. The facts of this case fail to disclose The taxpayer alternatively suggests that Ch. any equities materially different from those 77-281, Laws of Florida, 4 rather than Section advanced in Dominion Land and Title 201.17(2), Florida Statutes Corporation v. Department of Revenue, supra, where the Court upheld imposition of the 100% Page 358 Penalty. The appellant in Dominion handled the closing of a real estate transaction and acted as (1975), controls as the former constitutes the the title insuring agent for its principal. At the prevailing law at the time of appellate disposition. time of closing, appellant had received sufficient Ch. 77-281, Laws of Florida, amended Section funds from its principal to cover all recording 201.17(2) to provide for a 100% Penalty "(i)f it is costs, including the necessary documentary determined by clear and convincing evidence that stamps. However, when preparing a list of the any part of a deficiency is due to fraud.” In all approximate fees and taxes due upon recordation other cases, a penalty equal to 25% Of the of the documents involved in the transaction, purchase price of the stamps not affixed shall be appellant inadvertently omitted an amount for assessed. The taxpayer's contention is without purchase of the requisite tax stamps. Despite merit. Ch. 77-281, Laws of Florida, provides that appellant's good faith failure to record the deed its provisions shall be effective July 1, 1977. In the with the appropriate tax stamps affixed thereto, instant case, the Department assessed the penalty we found insufficient equities to warrant against the taxpayer in 1973, prior to the effective reduction of the $21,230 penalty assessed date of Ch. 77-281. It is a well-established rule of pursuant to Section 201.17(2). construction that in the absence of clear legislative intent to the contrary, a law is a State, Dept. of Revenue v. Zuckerman-Vernon Corp., 354 So0.2d 353 (Fla. 1977) Nor is this case significantly different from Assuming the taxpayer's good faith belief that Associated Dry Goods Corp. v. Department of the transfer from Bayshore to the joint venture Revenue, supra, where the 100% Penalty was was exempt from the documentary stamp tax, sustained. There, the appellant operated such belief, without more, will not warrant department stores within the state of Florida. A reduction of the penalty. In addition, the fact that major portion of appellant's sales were made the amount of the penalty was $55,649.70 does pursuant to revolving charge accounts, upon not, alone, support the taxpayer's contention that which no documentary stamp taxes were paid. the assessment was inequitable. Under Section The Department of Revenue assessed a tax upon 201.17(2), Florida Statutes (1975), the percentage the charge account obligations pursuant to penalty is the same in each case it increases in Section 201.08(2), Florida Statutes (1975), 5 and a direct proportion to the amount of documentary penalty in like amount under Section 201.17(2), stamps not affixed. Of necessity, therefore, the Florida Statutes (1975). On review in the District amount of the penalty will vary in each case Court of Appeal, First District, appellant noted depending upon the amount of tax stamps not that Section 201.08(2) provides that no affixed to the deed. We reject the proposition that documentary stamps a penalty should be reduced in one case and not in another solely because the former involved a Page 359 failure to affix more tax stamps than the latter. Survival of state government requires strong are required to be attached to obligations to pay, measures to assure collection of taxes. Given this executed under retail charge accounts. Therefore, factor and the difficulties involved in collecting the provisions of Section 201.17(2) (b), Florida delinquent documentary stamp taxes, the Statutes (1975), which states that "(p)ayment of legislature reasonably chose to impose a penalty penalty to the Department of Revenue equal to equal to the amount of the tax not timely paid. the purchase price of the stamps not affixed " See Dominion Land and Title Corporation v. were inapplicable, since the subject stamps were Department of Revenue, supra. not required to be affixed. (Emphasis supplied) Accordingly, the petition for writ of certiorari The district court in Associated failed to is granted and that portion of the decision of the accept appellant's interpretation of Section District Court of Appeal, First District, upholding 201.17(2)(b), Florida Statutes (1975). Although a the documentary stamp tax assessment is literal interpretation of Sections 201.08(2) and approved, subject to reduction of that part of the 201.17(2)(b) supported appellant's position, the tax and penalty attributable to the $1,300,000 court construed the latter provision to be obligation. That portion of the decision reducing inconsistent with appellant's contention, holding the penalty is quashed, and this cause is that: remanded to the district court for remand to the Department of Revenue with directions to reduce (T)he legislature intended that those who failed to the tax and penalty assessment in accordance timely purchase required documentary stamps, with this opinion. whether same were to be "affixed" to a deed or "not affixed" to a charge slip, would be subject to It is so ordered. a penalty in the amount not timely purchased. 335 So.2d 832, 834. ADKINS, Acting C. J., and BOYD, ENGLAND and HATCHETT, JJ., concur. The legislative intent as discerned by the district court, therefore, was held to prevail over ween, appellant's literal reading of the statutes. 1 § 201.17(2), Fla.Stat. (1975), reads: State, Dept. of Revenue v. Zuckerman-Vernon Corp., 354 So0.2d 353 (Fla. 1977) "(2) Any document, instrument, or paper upon (2) Any document, instrument, or paper upon which the tax under this chapter is imposed and which the tax under this chapter is imposed and which, upon audit or at time of recordation, does which, upon audit or at time of recordation, does not bear the proper value of stamps shall subject not bear the proper value of stamps shall subject the person or persons liable for the tax upon the the person or persons liable for the tax upon the document, instrument or paper to: document, instrument, or paper to: (a) Purchase of the stamps not affixed. (a) Purchase of the stamps not affixed. {b) Payment of penalty to the Department of {b) Payment of a penalty to the Department of Revenue equal to the purchase price of the stamps Revenue equal to 25 percent of the purchase price not affixed. This penalty is to be in addition to, of the stamps not affixed. If it is determined by and not in lieu of any other penalty imposed by clear and convincing evidence that any part of a law." deficiency is due to fraud, there shall be added to the tax as a civil penalty, in lieu of the 2 § 201.02(1), Fla.Stat. (1975), reads: aforementioned penalty under this paragraph, an amount equal to 100 percent of the deficiency. "(1) On deeds, instruments, or writings whereby These penalties are to be in addition to, and not in any lands, tenements, or other realty, or any lieu of, any other penalties imposed by law. interest therein, shall be granted, assigned, transferred, or otherwise conveyed to, or vested {c) Payment of interest to the Department of in, the purchaser, or any other person by his Revenue, accruing from the date of recordation direction, on each one hundred dollars of the until paid, at the rate of 1 percent per month or consideration therefor the tax shall be thirty fraction thereof, based on the purchase price of cents. When the full amount of the consideration the stamps not affixed. for the execution, assignment, transfer, or conveyance is not shown in the face of such deed, (3) The department may compromise any penalty instrument, document, or writing, the tax shall be on any proposed assessment which has not at the rate of 30 cents for each $100 or fractional become final on the effective date of this act if its part thereof of the consideration therefor." investigation reveals that the penalty would be too severe or unjust. This section has been interpreted as inapplicable to a trustee's conveyance of bare legal title to an "Section 2. This act shall take effect July 1, 1977." interest in realty, without consideration, to the equitable owner thereof. River Park Joint Venture 5 § 201.08(2), Fla.Stat. (1975), reads: v. Dickinson, supra. "(2) On promissory notes, nonnegotiable notes, 3 For the purpose of clarity, Zuckerman-Vernon written obligations to pay money, or other Corporation will hereinafter be referred to as the compensation, made, executed, delivered, sold, taxpayer, and the Department of Revenue, as the transferred, or assigned in the state, in connection Department. with sales made under retail charge account services, incident to sales which are not 4 Ch. 77-281, Laws of Florida, reads: conditional in character and which are not secured by mortgage or other pledge of purchaser, "Section 1. Subsections (2) and (3) of section the tax shall be fifteen cents on each one hundred 201.17, Florida Statutes, 1976 Supplement, are or fraction thereof of the gross amount of the amended to read: indebtedness evidenced by said instruments, payable quarterly on such forms and under such "201.17 Penalties for failure to pay tax required. rules and regulations as may be promulgated by the department of revenue. No documentary State, Dept. of Revenue v. Zuckerman-Vernon Corp., 354 So0.2d 353 (Fla. 1977) stamps shall be required to be attached to instruments under the provisions of this subsection." VanBibber v. Hartford Acc. & Indem. Ins. Co., 439 So.2d 880 (Fla. 1983) Page 880 date of the statute. We hold that the statute is constitutional, but that it has no application to a 439 So.2d 880 cause of action predicated on events which Ara Williams VanBIBBER, Appellant, occurred prior to the effective date of the statute. v. HARTFORD ACCIDENT & INDEMNITY VanBibber, claiming an injury, sued Publix INSURANCE CO., Appellee. Super Markets and its insurance carrier, No. 63584. Hartford, for a claimed tort that occurred on June Supreme Court of Florida. 25, 1982. Relying on section 627.7262, the trial Oct. 13, 1983. judge dismissed Hartford from the case, holding the statute both Page 881 Page 882 E.C. Deeno Kitchen, Brian S. Duffy and Robert King High, Jr. of Ervin, Varn, Jacobs, constitutional and applicable to the instant case. Odom & Kitchen, Tallahassee, for petitioner. On appeal the district court certified the cause to this Court as requiring immediate resolution. William B. Wiley and Charles A. Stampelos of McFarlain, Bobo, Sternstein, Wiley & Cassedy, Section 627.7262 reads as follows: Tallahassee, for respondent. Nonjoinder of insurers.-- Gabriel Mazzeo, Dept. of Ins., Tallahassee, for Bill Gunter, Ins. Com'r and Treasurer of the State (a) It shall be a condition precedent to the of Florida, amicus curiae. accrual or maintenance of a cause of action against a liability insurer by a person not an Robert D. Peltz of Rossman & Baumberger, insured under the terms of the liability insurance Miami, for Academy of Florida Trial Lawyers, contract that such person shall first obtain a amicus curiae. judgment against a person who is an insured under the terms of such policy for a cause of Carl D. Motes of Maguire, Voorhis & Wells, action which is covered by such policy. Orlando, for Florida Defense Lawyers Ass'n, amicus curiae. (2) No person who is not an insured under the terms of a liability insurance policy shall have McDONALD, Justice. any interest in such policy, either as a third-party beneficiary or otherwise, prior to first obtaining a VanBibber appealed the trial court's judgment against a person who is an insured dismissal of an insurance company as a party under the terms of such policy for a cause of defendant. The first district certified the appeal as action which is covered by such policy. passing on a question of great public importance or as having a great effect on the administration (3) Insurers are affirmatively granted the of justice throughout the state. We have substantive right to insert in liability insurance jurisdiction pursuant to article V, section 3(b)(5) policies contractual provisions that preclude of the state constitution. persons who are not designated as insureds in such policies from bringing suit against such The issue in this case is the constitutionality insurers prior to first obtaining a judgment of section 627.7262, Florida Statutes (Supp.1982). against one who is an insured under such policy A second issue, if the statute is found for a cause of action which is covered by such constitutional, is whether the statute is applicable policy. The contractual provisions authorized in to causes of action accruing prior to the effective this subsection shall be fully enforceable. a VanBibber v. Hartford Acc. & Indem. Ins. Co., 439 So.2d 880 (Fla. 1983) (Footnote omitted.) condition precedent to having a third-party interest in an insurance It is readily apparent that, by enacting this statute, the legislature sought to modify the third- Page 883, party beneficiary concept adopted by this Court in Shingleton v. Bussey, 223 So.2d 713 (Fla.1969), to policy, the vesting of that interest by judgment; provide that an injured party has no beneficial the prior statute did not. The present statute interest in a liability policy until that person has specifically authorizes a contractual provision first obtained a judgment against an insured. The prohibiting direct third-party suits; the prior one statute transfers the accrual of a beneficial did not. * Because of the differences between the interest from the date of occurrence until the time statutes, Markert does not control. an action brought on a tort has matured to a judgment. The statute is quite clear that no cause The regulation and supervision of insurance of action against an insurance company shall is a field in which the legislature has historically accrue until a judgment against an insured is been deeply involved. See chs. 624-632, Fla.Stat. obtained. Moreover, the statute authorizes While this Court may determine public policy in insurance companies to insert nonjoinder the absence of a legislative pronouncement, such provisions in their insurance policies. The a policy decision must yield to a valid, contrary significance of this last provision is found in the legislative pronouncement. In Shingleton we language of Shingleton where this Court said: found that public policy authorized an action against an insurance company by a third-party This requirement of the procedural rules raises beneficiary prior to judgment. The legislature has the presumption that unless the Legislature in the now determined otherwise. Our public policy exercise of its police power regulation of reason for allowing the simultaneous joinder of insurance, affirmatively gives insurers the liability carrier espoused in Shingleton, therefore, substantive right to insert "no joinder" clauses in can no longer prevail. Finding that the statute is liability policies there is no basis in law for substantive and that it operates in an area of insurers to assume they have such contractual legitimate legislative concern precludes our right as a special privilege not granted other finding it unconstitutional. If a statute can be citizens to contract immunity with their insureds construed to be constitutional it should be. Falco from being sued as joint defendants by strangers. v. State, 407 So.2d 203 (Fla.1981). We hold that section 627.7262, Florida Statutes (Supp.1982), is Id. at 718-19. constitutional. In Markert v. Johnston, 367 So.2d 1003 Until the enactment of this statute our (Fla.1978), we considered section 627.7262, pronouncements in Shingleton and Markert Florida Statutes (1977), which prohibited the authorized, simultaneously, a suit in tort against a joinder of a motor vehicle liability insurer in an tortfeasor and a claim against that tortfeasor's action to determine the insured's liability. We insurance company. The legislature did not make found the statute to be procedural and held it this statute retroactive so we need not concern unconstitutional for invading this Court's ourselves with whether this was permissible. We exclusive rulemaking authority. Thus, if the have held today that the statute is substantive. In successor statute under consideration is likewise the absence of clear legislative intent to make procedural, and not substantive, it would have to them retroactive, substantive statutes are fail on the grounds enunciated in Markert. prospective only. Seddon v. Harpster, 403 So.2d 409 (Fla.1981). Because the incident in this cause We perceive substantial differences between occurred prior to the effective date of section the two statutes. The present statute requires, as a 627.7262, October 1, 1982, Shingleton and Markert control this suit. VanBibber v. Hartford Acc. & Indem. Ins. Co., 439 So.2d 880 (Fla. 1983) The order of the trial judge is affirmed to the Page 884 extent of holding the statute constitutional, but is reversed in holding it applicable to the present contingent on the later establishment of liability suit. The cause is remanded for further to judgment of the insured defendant. The tort proceedings consistent herewith. suit in Shingleton was filed sometime prior to June, 1968, and was controlled by the It is so ordered. Constitution of 1885. ' Under then existing law (Artille ), as under section 627.7262 here, a ALDERMAN, C.J., and OVERTON and plaintiff could not bring suit against a liability EHRLICH, JJ., concur. insurer until a judgment was obtained against the insured defendant. As here, the constitutional SHAW, J., concurs in part and dissents in issue in Shingleton was whether the right of part with an opinion, in which ADKINS, J., action against the insurer could be denied or concurs. delayed until such time as judgment was obtained against the insured defendant. Our answer was an BOYD, J., dissents with an opinion. unequivocal no, because, inter alia, “[t]his hardly comports with Section 4, Declaration of Rights, SHAW, Justice, concurring in part and State Constitution [1885], F.S.A., that the courts dissenting in part. shall be open so that persons injured shall have remedy by due course of law without denial or The incident in this case occurred prior to the delay.” 223 So.2d at 717. effective date of section 627.7262, Florida Statutes (Supp.i982), which delays the right of an In explaining the Shingleton decision, then injured plaintiff to sue a liability insurer until