IN THE SUPREME COURT OF

CASE NO. SC04-375

BRENDA FEINBERG,

Petitioner, On Discretionary Review from vs. the Third District Court of Appeal Case No. 3D02-1206

PILAR CALLAVA, f/k/a PILAR PEFAUR,

Respondent. /

RESPONDENT'S JURISDICTIONAL BRIEF (With Separately Bound Appendix)

By: GUY SPIEGELMAN, ESQ. BILLBROUGH & MARKS, P.A. Counsel for Respondent By: GEOFFREY B. MARKS, ESQ. 28 West Counsel for Respondent Suite 400 2600 Douglas Road, Suite 902 , FL 33130 Coral Gables, FL 33134 Tel: (305) 373-6634 Tel: (305) 442-2701 Fax: (305) 373-6638 Fax: (305) 442-2801

BILLBROUGH & MARKS, P.A. DOUGLAS CENTRE " 2600 DOUGLAS ROAD " SUITE 902 " CORAL GABLES, FLORIDA 33134 " TELEPHONE 305.442.2701 " FAX 305.442.2801 TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...... ii

TABLE OF CONTENTS ...... i

INTRODUCTION ...... 1

ISSUE ON REVIEW ...... i

WHETHER THIS COURT SHOULD EXERCISE ITS DISCRETIONARY JURISDICTION WHERE THE THIRD DISTRICT COURT OF APPEAL DID NOT EXPRESSLY CONSTRUE A PROVISION OF THE FLORIDA CONSTITUTION AND PETITIONER LACKS STANDING TO PURSUE THIS APPEAL

STATEMENT OF THE CASE AND THE FACTS ...... 1

SUMMARY OF THE ARGUMENT ...... 1

ARGUMENT ...... 2

THERE IS NO JURISDICTION IN THIS COURT WHERE THE THIRD DISTRICT COURT OF APPEAL DID NOT EXPRESSLY CONSTRUE THE FLORIDA CONSTITUTION ...... 2

THIS COURT LACKS JURISDICTION WHERE THE PETITIONER DOES NOT HAVE LEGAL STANDING TO PURSUE ANY FURTHER LEGAL REMEDIES OR RELIEF BECAUSE SHE HAS NO INTEREST IN THE PROPERTY ...... 9

CONCLUSION ...... 10

CERTIFICATE OF SERVICE ...... 11 -ii-

BILLBROUGH & MARKS, P.A. DOUGLAS CENTRE " 2600 DOUGLAS ROAD " SUITE 902 " CORAL GABLES, FLORIDA 33134 " TELEPHONE 305.442.2701 " FAX 305.442.2801 CERTIFICATE OF COMPLIANCE ...... 12 TABLE OF AUTHORITIES

Cases Page

Callava v. Feinberg, 851 So.2d 429 (Fla. 3d DCA 2003) ...... 1, 2, 8

City Nat’l Bank of Florida v. Tescher, 578 So.2d 701 (Fla. 1991) ...... 3

Coleman v. Williams, 146 Fla. 45, 200 So.2d 207 (1941) ...... 7

Conner v. Reed Bros., Inc., 567 So.2d 515, (Fla. 2d DCA 1990) ...... 4

Department of Agricultural and Consumer Serv’s v. Mid-Florida Growers, Inc., 541 So.2d 1243 (Fla. 2d DCA 1989) ...... 5

Elmowitz v. Estate of Zimmerman, 647 So.2d 1064 (Fla. 3rd DCA 1994) ...... 7

Havoco of America, Ltd. v. Hill, 790 So.2d 1018 (Fla. 2001) ...... 8

HCA Gulf Coast Hospital v. Estate of Dowling, 594 So.2d 774 (Fla. 1st DCA 1991) ...... 8

Herbert v. State, 543 So.2d 258 (Fla. 2d DCA 1989) ...... 5

Malicki v. Doe, 814 So.2d 347 (Fla. 2002) ...... 2

Melbourne v. State, -iii-

BILLBROUGH & MARKS, P.A. DOUGLAS CENTRE " 2600 DOUGLAS ROAD " SUITE 902 " CORAL GABLES, FLORIDA 33134 " TELEPHONE 305.442.2701 " FAX 305.442.2801 679 So.2d 759 (Fla. 1996) ...... 2

Menendez v. Rodriguez, 143 So.2d 223 (Fla. 1932) ...... 7

Milton v. Milton, 63 Fla. 533, 58 So. 718 (Fla. 1912) ...... 8

Mozo v. State, 632 So.2d 623 (Fla. 4th DCA 1994) ...... 4

Paez v City of Coral Gables, 851 So.2d 189 (3d DCA 2003) ...... 10

Palm Point Property Owners’ Association of Charlotte County, Inc.v. Pisarski, 626 So.2d 195 (Fla. 1993) ...... 10

Penabad v. A.G. Gladstone Associates, Inc., 823 So.2d 146 (3d DCA 2002) ...... 10

Rules

Fla.R.App.P. 9.030(a)(2)(A)(ii) ...... 2,3, 4

Fla.R.App.P. 9.030(a)(2)(A)(iv) ...... 3

Miscellaneous

Art. V, §3(b)(3), Fla. Const...... 2

Art. X, §4, Fla. Const...... 1,5,6

Phillip J. Padovano, Florida Appellate Practice, § 3.8 (2004) ...... 3

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BILLBROUGH & MARKS, P.A. DOUGLAS CENTRE " 2600 DOUGLAS ROAD " SUITE 902 " CORAL GABLES, FLORIDA 33134 " TELEPHONE 305.442.2701 " FAX 305.442.2801 INTRODUCTION

Petitioner Brenda Feinberg was the appellee before the Third District Court of

Appeal and the plaintiff in the trial court. In this proceeding, she will be referred to as petitioner or by name.

Respondent Pilar Callava, f/k/a Pilar Pefaur, was the appellant before the Third

District Court of Appeal and the defendant in the trial court. In this proceeding, she will be referred to as respondent or by name.

References to the respondent's appendix are by the letter A and appropriate page number.

STATEMENT OF THE CASE AND THE FACTS

Feinberg seeks review of a decision rendered by the Third District Court of

Appeal in Callava v. Feinberg, 864 So.2d 429 (Fla. 3d DCA 2003). The facts are accurately and fairly stated by the Third District in its decision, and they are incorporated herein.

SUMMARY OF THE ARGUMENT

This Court lacks jurisdiction over this matter. The Third District Court of

Appeal did not expressly construe the homestead exemption provision of the Florida

Constitution. The decision of the Third District held, consistent with a legion of authority from this Court and the district courts, that article X, section 4 does not designate how title to real property is held and it does not limit the estate that must be

BILLBROUGH & MARKS, P.A. DOUGLAS CENTRE " 2600 DOUGLAS ROAD " SUITE 902 " CORAL GABLES, FLORIDA 33134 " TELEPHONE 305.442.2701 " FAX 305.442.2801 owned. Consistent with that rule, the Third District held that respondent’s beneficial interest in the real property was sufficient to entitle her to homestead protection from forced sale. The Third District did not expressly construe, interpret, or engage in any legally ground breaking analysis of the Florida Constitution, and the Court should not exercise its discretionary jurisdiction over this appeal.

This Court should not exercise its jurisdiction where petitioner has no interest in the real property involved in this matter. The petitioner quit claimed her interest in the property to third parties thereby eliminating her interest in the subject property.

Therefore she lacks standing to pursue this appeal any further.

ARGUMENT

I. THERE IS NO JURISDICTION IN THIS COURT WHERE THE THIRD DISTRICT COURT OF APPEAL DID NOT EXPRESSLY CONSTRUE THE FLORIDA CONSTITUTION.

In Callava v. Feinberg, the Third District did not announce a new rule of law, expand to new legal ground an existing rule of law, does nor expressly construe a provision of the Florida Constitution inconsistently with prior decisions. Likewise,

Callava never said it was expressly construing a provision of the Florida Constitution.

Petitioner's belief that Callava represents a new interpretation of Florida's constitutional homestead exemption is misplaced, and the discretionary jurisdiction of this Court should not be exercised.

This Court’s limited discretionary jurisdiction under article V, section 3(b)(3)

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BILLBROUGH & MARKS, P.A. DOUGLAS CENTRE " 2600 DOUGLAS ROAD " SUITE 902 " CORAL GABLES, FLORIDA 33134 " TELEPHONE 305.442.2701 " FAX 305.442.2801 of the Florida Constitution is solely to review a decision of a district court of appeal that expressly construes a provision of the state or federal constitution. Art. V,

§3(b)(3), Fla. Const.; Fla.R.App.P. 9.030(a)(2)(A)(ii); Malicki v. Doe, 814 So.2d 347

(Fla. 2002) (District court decision expressly construed United States Constitution 1st

Amendment); Melbourne v. State, 679 So.2d 759 (Fla. 1996) (District court decision expressly construed United States Constitution 14th Amendment, and Florida

Constitution article I, sections 2, 16); City Nat’l Bank of Florida v. Tescher, 578

So.2d 701 (Fla. 1991) (District court decision expressly construed Florida

Constitution article X, section 4(c)).

Under this form of discretionary jurisdiction, review “is limited to district court decisions that ‘expressly’ construe the language or terms of a constitutional provision.

A decision of a district court of appeal is not reviewable under article V, section

3(b)(3) merely because it has the practical effect of construing a provision of the state or federal Constitution. Section 3(b)(3) plainly requires a written statement explaining or defining the disputed constitutional language.” Phillip J. Padovano, Florida

Appellate Practice, § 3.8 (2004).

The 1980 revision of article V, section 3(b)(3) rewrote the jurisdictional language of this Court. The importance of the newly added term “expressly” is illuminated in

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BILLBROUGH & MARKS, P.A. DOUGLAS CENTRE " 2600 DOUGLAS ROAD " SUITE 902 " CORAL GABLES, FLORIDA 33134 " TELEPHONE 305.442.2701 " FAX 305.442.2801 the 1980 Committee Notes to Fla.R.App.P. 9.030,1 which states in relevant part:

Subdivisions (a)(2)(A)(I) and (a)(2)(A)(ii) are new and pertain to matters formerly reviewable under the court’s mandatory appellate jurisdiction. Under former rule 9.030(a)(1)(A)(ii), the supreme court’s mandatory appellate jurisdiction could be invoked if a lower tribunal “inherently” declared a statute valid. See Harrell’s Candy Kitchen, Inc. v. Sarasota-Manatee Airport Auth., 111 So. 2d 439 (Fla. 1959). The 1980 amendments to article V and this subdivision require a district court to “expressly declare” a state statute valid before the supreme court’s discretionary jurisdiction may be invoked.

Several of the district courts of appeal have demonstrated their understanding of the “expressly construed” language. In Mozo v. State, 632 So.2d 623, 635 n.11

(Fla. 4th DCA 1994), the Fourth District wrote: “Since we have expressly construed

1 The “express” language was a prominent feature of the 1980 constitutional revisions. In discussing the form of discretionary jurisdiction for express and direct conflict of Fla.R.App.P. 9.030 (a)(2)(A)(iv), this Court stated in Jenkins v. State, 385 So.2d 1356, 1359 (Fla. 1980):

The pertinent language of section 3(b)(3), as amended April 1, 1980, leaves no room for doubt. This Court may only review a decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal or the Supreme Court on the same question of law. The dictionary definitions of the term “express” include: “to represent in words”; “to give expression to.” “Expressly” is defined: “in an express manner.” Webster’s Third New International Dictionary, (1961 ed. unabr.).

The same interpretation of "express" should be applied to the "expressly construed" constitutional jurisdictional analysis. -4-

BILLBROUGH & MARKS, P.A. DOUGLAS CENTRE " 2600 DOUGLAS ROAD " SUITE 902 " CORAL GABLES, FLORIDA 33134 " TELEPHONE 305.442.2701 " FAX 305.442.2801 a provision of our constitution, the supreme court will have discretionary jurisdiction over our decision pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(ii).

Therefore, there is no need to certify the issue in this case as one of great public importance.” In Conner v. Reed Bros., Inc., 567 So.2d 515, 516 n. 1 (Fla. 2d DCA

1990), the Second District wrote: “Since we are expressly interpreting a provision of the Florida Constitution, the Florida Supreme Court will have an avenue of jurisdiction.

Fla.R.App.P. 9.030(a)(2)(A)(ii).” See Herbert v. State, 543 So.2d 258, 274 (Fla. 2d

DCA 1989) (same); Department of Agricultural and Consumer Serv’s v. Mid-Florida

Growers, Inc., 541 So.2d 1243, 1252 (Fla. 2d DCA 1989) (recognizing that decision expressly construes a provision of state Constitution and certifying question as one of great public importance).

The decision of the Third District contains no statement, suggestion, or even innuendo that a provision of the Florida Constitution was expressly construed, expressly interpreted, or stated in an express manner. Under the plain reading of the jurisdictional language, and the well reasoned analysis that a district court should make such a statement, this Court should deny jurisdiction.

Even without the clear statement from the Third District of express construction, the decision itself does not contain a written statement explaining or defining the pertinent constitutional language. The district court decision held, in line with decisions from other district courts and this Court, that Florida's constitutional

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BILLBROUGH & MARKS, P.A. DOUGLAS CENTRE " 2600 DOUGLAS ROAD " SUITE 902 " CORAL GABLES, FLORIDA 33134 " TELEPHONE 305.442.2701 " FAX 305.442.2801 homestead exemption does not depend on the nature or quality of title to real property.

The sum total of the district court's discussion of article X, section 4 of the Florida

Constitution2 follows:

Article X, Section 4, of the Florida Constitution "exempts a homestead from forced sale and provides that no judgment or execution shall be a lien thereon." Bowers v. Mozingo, 399 So.2d 492, 493 (Fla. 3d DCA 1981). Feinberg argues that Callava is not entitled to the protection of the constitutional provision, because legal title to her home was not in Callava's name but is held by Jorge Gaviria, as Trustee.

Feinberg's argument is not well taken. The constitutional provision "does not designate how title to the property is to be held and it does not limit the estate that must be owned...." Southern Walls, Inc. v. Stilwell Corp., 810 So.2d 566, 569 (Fla. 5th DCA 2002). "[T]he individual claiming homestead exemption need not hold fee simple title to the property." Id. (citing Bessemer Props., Inc. v. Gamble, 158 Fla. 38, 27 So.2d 832 (1946)). See also HCA Gulf Coast Hospital v. Estate of Downing, 594 So.2d 774, 776 (Fla. 1st DCA 1991) (beneficiary of spendthrift trust entitled to claim homestead exemption as to trust property). Thus, even if Callava owns only a beneficial interest in the property, she is entitled to claim a homestead exemption to

2 The Florida Constitution's homestead exemption provides in pertinent part:

There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvements or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person: (1) homestead.... Art. X, § 4 (a)(1), Fla. Const. -6-

BILLBROUGH & MARKS, P.A. DOUGLAS CENTRE " 2600 DOUGLAS ROAD " SUITE 902 " CORAL GABLES, FLORIDA 33134 " TELEPHONE 305.442.2701 " FAX 305.442.2801 the forced sale of the property and the trial court erred in foreclosing her interest in the property.

Callava, 864 So.2d at 430.

There is nothing in the district court's analysis and holding that remotely stands in support of this Court's discretionary jurisdiction under the "expressly construe" language of the Florida Rules of Appellate Procedure. As cleanly and clearly stated by this Court in Menendez v. Rodriguez, 143 So.2d 223 (Fla. 1932):

The Constitution limits the homestead land area that may be exempted, but it does not define or limit the estates in land to which homestead exemption may apply; therefore, in the absence of controlling provisions or principles of law to the contrary, the exemptions allowed by section 1, article 10, may attach to any estate in land owned by the head of a family residing in this state, whether it is a freehold or less estate, if the land does not exceed the designated area and it is in fact the family home place.

See also Coleman v. Williams, 146 Fla. 45, 200 So.2d 207 (1941). The Third

District's decision does not deviate from this rule, nor is there any new interpretation, construction, or expression of the Florida Constitution homestead exemption.

Petitioner's reliance on Elmowitz v. Estate of Zimmerman, 647 So.2d 1064 (Fla.

3rd DCA 1994), is misplaced. In Elmowitz, the real property lost its homestead status when deeded to a trust. The decedent was not survived by a spouse or minor child and the real property was freely devised to a trust. The property become an asset of the trust, and the beneficiaries of the trust, the adult children of the decedent,

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BILLBROUGH & MARKS, P.A. DOUGLAS CENTRE " 2600 DOUGLAS ROAD " SUITE 902 " CORAL GABLES, FLORIDA 33134 " TELEPHONE 305.442.2701 " FAX 305.442.2801 distributed their interest to the trustee, and waived all their rights to the trust, and executed a quit claim deed.

Petitioner claims there is confusion in our courts about when to apply the homestead exemption in situations involving trusts. For authority petitioner cites HCA

Gulf Coast Hospital v. Estate of Dowling, 594 So.2d 774 (Fla. 1st DCA 1991). The holding in that case could not be more clear, and entirely consistent with this case. In

Dowling, 594 So.2d at 776, the court held that "[f]or purposes of Article X, Section

4 of the Florida Constitution, we hold that the benefit of the homestead forced sale exemption inures to a spendthrift beneficiary who would be otherwise entitled to claim homestead protection had title passed directly to her by devise or intestacy." Once again a court affirmed the rule that how title is held is not the qualifying factor for determination of homestead.

The undercurrent of petitioner's brief is a request for this Court to accept jurisdiction of this case to write a "one stop" opinion analyzing the homestead exemption and defining who and what may assert that exemption. The complete lack of a jurisdictional basis for such review aside, the simple fact remains that the homestead exemption is to be liberally construed in the interest of protecting the family home. Havoco of America, Ltd. v. Hill, 790 So.2d 1018 (Fla. 2001); Milton v. Milton, 63 Fla. 533, 58 So. 718 (Fla. 1912). The Third District's decision is not at odds with that policy of liberal construction, with decisions of this Court or the other

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BILLBROUGH & MARKS, P.A. DOUGLAS CENTRE " 2600 DOUGLAS ROAD " SUITE 902 " CORAL GABLES, FLORIDA 33134 " TELEPHONE 305.442.2701 " FAX 305.442.2801 district courts, and is nothing more than an application of well settled homestead and property law to the facts of this case. Callava hardly qualifies as an express construction of the Florida Constitution.

In sum, the arguments raised in support of jurisdiction constitute nothing more than challenge to the correctness of the Third District's decision. The Third District did not expressly construe the Florida Constitution either by "express" statement or inference.

II. THIS COURT LACKS JURISDICTION WHERE THE PETITIONER DOES NOT HAVE LEGAL STANDING TO PURSUE ANY FURTHER LEGAL REMEDIES OR RELIEF BECAUSE SHE HAS NO INTEREST IN THE PROPERTY.

In further support of this motion, petitioner submits that this Court lacks jurisdiction because respondent Feinberg has no interest in the subject property. She lacks standing to seek discretionary review because she has quit claimed her interest in the subject property to third parties.

During the appeal before the Third District, Feinberg conveyed one-half of her interest in the subject property on May 27, 2002 to her counsel Damodar S. Airan,

Esq.(A.2). Subsequently, Feinberg executed a deed on September 25, 2003 conveying the remaining one-half interest in her property to Omer Bader which deed was not recorded until October 24, 2003, nine days after this court rendered its opinion reversing the foreclosure.(A.1). Documents filed in the trial court confirm that

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BILLBROUGH & MARKS, P.A. DOUGLAS CENTRE " 2600 DOUGLAS ROAD " SUITE 902 " CORAL GABLES, FLORIDA 33134 " TELEPHONE 305.442.2701 " FAX 305.442.2801 Feinberg had conveyed all of her interest in the property and has no interest in the property-- "On May 27, 2002, more than a year prior to the ruling of the Third District

Court of Appeal as to foreclosure of equitable lien on 23rd Terrace property, Brenda

Feniberg had conveyed ½ interest in the property to her attorney in the collection case, Damodar S. Airan, by a quit claim lien . . . On September 23, 2003 prior to the

Third District's ruling, Feinberg conveyed her remaining ½ interest in the property to

Omar Bader by a quit claim deed also.” (A.3-7).

None of these facts were ever brought to the attention of the Third District by

Feinberg or her counsel during that court’s consideration of her motion for rehearing.

Because Feinberg has no interest in the real property subject to the foreclosure judgment she has no right to seek further consideration of the adverse appellate decision. She lacks standing to seek discretionary review in this Court. Penabad v.

A.G. Gladstone Associates, Inc., 823 So.2d 146 (3d DCA 2002); Paez v City of Coral

Gables, 851 So.2d 189 (3d DCA 2003); See Palm Point Property Owners’

Association of Charlotte County, Inc.v. Pisarski, 626 So.2d 195 (Fla. 1993).

For this additional reason, the Court should deny jurisdiction.

CONCLUSION

Based on the arguments and authority presented, it is respectfully submitted that review be denied.

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BILLBROUGH & MARKS, P.A. DOUGLAS CENTRE " 2600 DOUGLAS ROAD " SUITE 902 " CORAL GABLES, FLORIDA 33134 " TELEPHONE 305.442.2701 " FAX 305.442.2801 GUY SPIEGELMAN, ESQ. BILLBROUGH & MARKS, P.A. Counsel for Respondent Counsel for Respondent 28 West Flagler Street Douglas Centre Suite 400 2600 Douglas Road, Suite 902 Miami, FL 33130 Coral Gables, Florida 33134 Tel: (305) 373-6634 Tel: (305) 442-2701 Ext. 104 Fax: (305) 373-6638 Fax: (305) 442-2801

By: ______By: ______GUY SPIEGELMAN GEOFFREY B. MARKS Fla. Bar No.: 169689 Fla. Bar No.: 714860

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of the foregoing was mailed to: Amy D. Shield, Esq., Amy D. Shield, P.A., 20245 Back Nine Drive, Boca

Raton, FL 33498; D.S. “Dar” Airan, Esq., Levey, Airan, Brownstein, et al., 1320

South , Suite PH 1275, Coral Gables, FL 33146 and Guy Spiegelman,

Esq., 28 West Flagler Street, Suite 400, Miami, FL 33130 on April 8, 2004.

By: ______GEOFFREY B. MARKS Fla. Bar No.: 714860

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BILLBROUGH & MARKS, P.A. DOUGLAS CENTRE " 2600 DOUGLAS ROAD " SUITE 902 " CORAL GABLES, FLORIDA 33134 " TELEPHONE 305.442.2701 " FAX 305.442.2801 CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing Answer Brief was typed in Times New

Roman 14pt.

BILLBROUGH & MARKS, P.A. Counsel for Respondent Douglas Centre 2600 Douglas Road, Suite 902 Coral Gables, Florida 33134 Tel: (305) 442-2701 Ext. 104 Fax: (305) 442-2801

By: ______GEOFFREY B. MARKS Fla. Bar No.: 714860

T:\BRIEFS\Briefs pdf'd\04-375_JurisAns.wpd

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BILLBROUGH & MARKS, P.A. DOUGLAS CENTRE " 2600 DOUGLAS ROAD " SUITE 902 " CORAL GABLES, FLORIDA 33134 " TELEPHONE 305.442.2701 " FAX 305.442.2801