in re baker - amicus brief of nixon peabody
TRANSCRIPT
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No. 09-13144-HH
__________________________________________________________________
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
__________________________________________________________________
In re: SARAH E. BAKER
Debtor.
__________________________________________
SARAH E. BAKER,
Appellant,
v.
ROBERT E. TARDIF, JR., as Chapter 7 Trustee,
Appellee.
___________________________________________/
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA, FORT MYERS DIVISION
_________________________________________________________________
BRIEF OF AMICUS CURIAE NIXON PEABODY LLP
IN SUPPORT OF APPELLEE AND FOR AFFIRMANCE
__________________________________________________________________
Dennis P. Waggoner
Florida Bar No. 509426Landis V. Curry III
Florida Bar No. 0469246
HILL, WARD & HENDERSON, P.A.
Suite 3700 Bank of America Plaza101 East Kennedy Boulevard
Post Office Box 2231
Tampa, Florida 33601
Telephone: (813) 221-3900
Facsimile: (813) 221-2900
Attorneys for Nixon Peabody LLP
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Sarah E. Baker v. Robert E. Tardif, No. 09-13144-HH
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CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT
Pursuant to Eleventh Circuit Rules 26.1-1 and 29-1, Nixon Peabody LLP
states that it has no parent corporation and no publicly held corporation owns more
than ten percent (10%) of its stock, and submits the following alphabetical list of
the judges, attorneys, persons, and firms with any known interest in the outcome of
this case.
1. Baker, Sarah E. Appellant/Debtor2. Bower, Holly A. Counsel for Appellant3. Curry III, Landis V. Counsel for Amicus Curiae Nixon Peabody LLP4. duPont Builders Creditor5. Fowler White Boggs, P.A. Counsel for Creditor duPont Builders6. Hill, Ward & Henderson, P.A. Counsel for Amicus Curiae Nixon Peabody
LLP
7. Johnston, Jr., Richard Counsel for Creditor duPont Builders8. Lazzara, Richard A. United States District Court Judge9. Lovett, Robert Steven Counsel for Appellant10. Nixon Peabody LLP Amicus Curiae11. Paskay, Alexander L. United States Bankruptcy Court Judge12. Phoenix, Charles PT Counsel for Appellant13. Tardif, Jr., Robert E. Appellee and Chapter 7 Trustee14. Waggoner, Dennis P. Counsel for Amicus Curiae Nixon Peabody LLP
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Sarah E. Baker v. Robert E. Tardif, No. 09-13144-HH
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I hereby certify that, except as disclosed above, I am unaware of any actual
or potential conflict of interest involving the district court judge and magistrate
judge assigned to this case, and will immediately notify the Court in writing on
learning of any such conflict.
Dated: September 2, 2009
Landis V. Curry III
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TABLE OF CONTENTS
TABLE OF CONTENTS........................................................................................... i
TABLE OF AUTHORITIES AND CITATIONS .................................................... ii
INTEREST OF AMICUS CURIAE ..........................................................................1
STATEMENT OF THE ISSUES...............................................................................1
SUMMARY OF THE ARGUMENT ........................................................................2
ARGUMENT.............................................................................................................3
I. THE LOWER COURTS CORRECTLY DETERMINED THATAPPELLANTS STATUS AS THE SOLE PARTICIPANT IN
HER PROFIT SHARING PLAN PRECLUDED EXEMPTION
UNDER SECTION 222.21..........................................................................3
II. IF APPELLANTS STATUS AS THE SOLE PARTICIPANT
DOES NOT PRELCUDE HER CLAIMED EXEMPTION, THIS
COURT SHOULD REMAND AND INSTRUCT THE
BANKRUPTCY COURT TO COMPLETE ITS EVALUATION
OF APPELLANTS PLAN. ........................................................................8
CONCLUSION........................................................................................................14
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
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TABLE OF AUTHORITIES AND CITATIONS
Cases
Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) ....................................6
Cornell-Young Co. v. United States, 469 F.2d 1318 (5th Cir. 1972) .............. 6, 9-11
In re Blais, 220 B.R. 485, 489 (S.D. Fla. 1997) .......................................... 10-11, 13
In re Blais, No. 93-32191, 2004 WL 1067577 (Bankr. S.D. Fla. Mar. 16, 2004) ..11
In re Kimmel, 131 B.R. 223 (Bankr. S.D. Fla. 1991) ..............................................11
In re Lawrence, 235 B.R. 498 (Bankr. S.D. Fla. 1999), vacated on other grounds,
244 B.R. 868 (S.D. Fla. 2000) .............................................................................12
In re Luttge, 204 B.R. 259 (Bankr. S.D. Fla. 1997) ................................................11
In re McDonald, 100 B.R. 598 (Bankr. S.D. Fla. 1989)..........................................11
In re Plunk, 481 F.3d 302 (5th Cir. 2007) ......................................................... 12-13
In re Yates, 541 U.S. 1 (2004) ............................................................................... 5-6
Statutes
Fla. Stat. 222.21 ............................................................................................ passim
26 U.S.C. 401(a) ........................................................................................... passim
Tex. Prop. Code 42.0021 ......................................................................................12
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INTEREST OF AMICUS CURIAE
NIXON PEABODY LLP is a full service law firm, with offices in 17 cities
around the world. Nixon Peabody has an interest in this case because this Courts
decision may affect another case in which Nixon Peabody is a party. Nixon
Peabody filed a Motion for Leave to File Brief as Amicus Curiae, which, if
granted, will authorize Nixon Peabody to file this Amicus Brief pursuant to Rule
29 of the Federal Rules of Appellate Procedure.
STATEMENT OF THE ISSUES
I. Whether the United States Bankruptcy and District Courts below correctly
denied Appellant/Debtors claim that her interest in a profit sharing plan was
exempt from the claims of creditors under section 222.21 of the Florida Statutes,
because Appellant/Debtor, a self-employed individual, was the sole participant in
the profit sharing plan.
II. If Appellant/Debtors status as the sole participant does not preclude her
claimed exemption, whether this Court should instruct the bankruptcy court on
remand to evaluate any other claimed operational deficiencies in Appellants
alleged profit sharing plan.
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SUMMARY OF THE ARGUMENT
This Court should affirm the district courts order below because the lower
courts properly determined that, under section 222.21 of the Florida Statutes
(2008), Appellants interest in the profit sharing plan is not exempt from the claims
of creditors. A debtor who is a self-employed individual, such as Appellant, does
not qualify under section 222.21(2)(a) as a participant in an exempt fund when the
debtor is the sole participant and employee in an alleged profit sharing plan.
Such a plan is not operated for the benefit ofemployees (plural), and therefore does
not meet the underlying purpose for qualifying profit sharing plans as tax exempt
under the Internal Revenue Code (IRC). Consequently, any interest that a
Florida debtor has in such a plan is not exempt from the claims of his or her
creditors. However, should this Court disagree and reverse the district courts
order below, this Court should remand and instruct the bankruptcy court to further
evaluate whether Appellants profit sharing plan was maintained and operated in
accordance with the applicable provisions of the IRC.
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ARGUMENT
I. THE LOWER COURTS CORRECTLY DETERMINED THAT
APPELLANTS STATUS AS THE SOLE PARTICIPANT IN HER
PROFIT SHARING PLAN PRECLUDED EXEMPTION UNDER
SECTION 222.21.
A debtors interest in a profit sharing plan should not be exempt from the
claims of creditors when the debtor is a self-employed individual who is the sole
participant in the plan. Granting such an exemption would be contrary to the plain
language of the controlling statutes. Moreover, it would encourage Florida citizens
to create sham profit sharing plans for purposes of unjustifiably evading taxes
and the potential claims of creditors.
In the present case, Appellant claimed that her interest in a profit sharing
plan was exempt from the claims of creditors under the provisions of section
222.21(2)(a)(1), Florida Statutes (2008). Section 222.21(2)(a)(1) states:
Except as provided in paragraph (d), any money or other assets
payable to an owner, a participant, or a beneficiary from, or any
interest of any owner, participant, or beneficiary in, a fund or account
is exempt from all claims of creditors of the owner, beneficiary, or
participant if the fund or account is:
1. Maintained in accordance with a master plan, volume
submitter plan, prototype plan, or any other governing instrument that
has been preapproved by the Internal Revenue Service as exempt fromtaxation under s. 401(a), s. 403(a), s. 403(b), s. 408, s. 408A, s. 409, s.
414, s. 457(b), or s. 501(a) of the Internal Revenue Code of 1986, as
amended, unless it has been subsequently determined that the plan or
governing instrument is not exempt from taxation in a proceeding that
has become final and nonappealable;
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Appellant, a self-employed individual, asserted that her interest as a participant in
the profit sharing plan was exempt because the form of the plan had been
preapproved by the Internal Revenue Service (IRS) under 26 U.S.C. 401(a).
The bankruptcy court below correctly looked beyond the form of the plan
and rejected Appellants claimed exemption because Appellants plan is a profit
sharing plan in which [Appellant] is the only participant. (Order on Trustees
Objections to Debtors Claim of Exemption p. 3.) The court noted that Appellants
plan is contrary to the requirements for qualification under 26 U.S.C. 401(a),
which qualifies plans that are created by an employer for the exclusive benefit of
his employees. (Id. (quoting 26 U.S.C. 401(a)).) The court therefore sustained
the Trustees objection to Appellants claim of exemption for her interest in the
profit sharing plan. (Id. at 6.)
The district court affirmed. (Order Affirming p. 1.) The district court also
noted that [s]ection 401(a) specifically provides that a trust created . . . for the
exclusive benefit of . . . employees . . . shall constitute a qualified trust under this
section. (Id. at 4.) The district court then held that because the [Appellant] is
the only participant who shares in the [profit sharing] plan, the [Appellant] does
not qualify as a participant for purposes of the exemption provided by section
222.21(2)(a)(1). (Id. at 3-4.)
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In assessing the status of Appellants profit sharing plan, both the
bankruptcy court and district court appropriately relied upon the United States
Supreme Courts decision in In re Yates, 541 U.S. 1 (2004). Although the Yates
decision addressed a plans qualification under the Employee Retirement Income
Security Act (ERISA), the courts below found its reasoning instructive on the
issue of whether Appellants interest in the profit sharing plan was tax exempt
under the IRC. In Yates, the Court held that a working owner could only qualify as
a participant in a profit sharing plan for purposes of ERISA [i]f the plan covers
one or more employees other than the business owner and his or her spouse.
Yates, 541 U.S. at 6.
The courts below properly relied upon the Yates Courts rationale in
evaluating the plain language of both section 222.21(2)(a)(1) and 26 U.S.C.
401(a). Section 222.21(2)(a)(1) states that a participants interest in a fund that is
tax exempt under section 401(a) is exempt from creditors claims. Section 401(a)
states that a fund is tax exempt if it is created by an employer for the exclusive
benefit of . . . employees. It does not state that a fund is tax exempt if it is created
by an employer for the exclusive benefit of a single, self-employed employee.
Congresss use of the plural term employees in section 401(a) indicates that an
owner-employers interest in a profit sharing plan is tax exempt only if the owner-
employer participates in the plan alongside other employees, but an interest in a
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plan providing for an owner-employer as the sole participant is not. The courts
below therefore correctly relied upon Yates as persuasive authority.
Appellant argues that the bankruptcy court was required to sustain
Appellants claimed exemption under section 222.21(2)(a)(1) simply because the
IRS preapproved the form of her profit sharing plan. This argument ignores the
material requirement and primary focus of section 222.21(2)(a)(1) that a retirement
fund or account be maintained in accordance with a plan that has been
preapproved as tax exempt. Fla. Stat. 222.21(2)(a)(1) (emphasis added). In
other words, the plan and its corresponding fund or account must be operationally
compliant with the IRCs requirements for the preapproved plan, including the
requirement that the plan be created for the exclusive benefit of employees. As the
Fifth Circuit Court of Appeals stated in Cornell-Young Co. v. United States, 469
F.2d 1318, 1324 (5th Cir. 1972):
In determining whether a pension plan is for the exclusive benefit of
employees in general, all of the surrounding and attendant
circumstances and all of the details of the plan will be considered. In
making this determination, the law looks not only to the form of the
plan but also to its operation.
(Emphasis added, citation omitted.)1
In this case, both the bankruptcy court and
the district court made the appropriate initial inquiry of whether the Plan qualified
for tax exempt status under 26 U.S.C. 401(a). Each court then properly
1 This Court has adopted as precedent all decisions of the former Fifth Circuit rendered prior to October 1, 1981.
Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981).
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concluded that because Appellants profit sharing plan did not qualify for tax
exempt status under section 401(a), Appellants interest in the plan could not be
considered exempt from the claims of creditors under section 222.21.
Appellants argument that self-employed individuals can qualify as
employees under section 401 also misses the mark. The question under section
401(a) does not turn on whether Appellant might be considered an employee.
Rather, it turns on whether Appellant is the only employee participating in this
alleged profit sharing plan. As the bankruptcy court rightly stated: the issue of
whether or not a self-employed person would qualify to be a participant is
answered in the affirmativeprovided that he or she is not the only participantwho
shares in the benefits and the protection of the [profit sharing] plan. (Order on
Trustees Objections to Debtors Claim of Exemption p. 3 (emphasis added).)
Here, the bankruptcy court correctly determined that section 401(a), by its
own terms, affords tax exempt status only to retirement plans established for the
benefit of actual employees, and not to an owner-employer establishing a plan to
share with his or herself. Therefore, because Appellants plan was not entitled to
exemption from taxation, both lower courts correctly concluded that the Plan was
not entitled to exemption from creditors claims under section 222.21, and the
district courts order must be affirmed.
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II. IF APPELLANTS STATUS AS THE SOLE PARTICIPANT DOES
NOT PRELCUDE HER CLAIMED EXEMPTION, THIS COURT
SHOULD REMAND AND INSTRUCT THE BANKRUPTCY COURT
TO COMPLETE ITS EVALUATION OF APPELLANTS PLAN.
Should this Court determine that the Appellant can qualify as a participant
under section 222.21 despite the fact that she is the only individual participating in
her profit sharing plan, this Court should remand so that the bankruptcy court can
evaluate any other claimed operational deficiencies in Appellants alleged profit
sharing plan. As discussed above, the relevant exemption under section 222.21 is
only available if Appellant has maintained, or operated, her profit sharing plan in
compliance with the applicable provisions of the IRC that would qualify the plan
as tax exempt. The bankruptcy court below relied upon only one operational
aspect of Appellants planthat Appellant was its sole participant. The court has
not evaluated other possible operational deficiencies that the Trustee might raise
(e.g., the sponsoring entitys lack of a valid business purpose, the lack of
contributions made, or the existence of improper distributions taken) in assessing
whether the plan is properly qualified as tax exempt.
Appellant suggests that the bankruptcy court is precluded from looking
behind the pre-approved status of the plans form to determine whether the plan
was maintained in accordance with the IRC. Again, this argument ignores the
operational prerequisite to exemption under section 222.21(2)(a)(1). If Appellants
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plan has not been maintained in accordance with the IRC, Appellants interest in
the plan is not exempt from the claims of creditors under section 222.21(2)(a)(1).
Moreover, Appellants argument ignores the last clause of section
222.21(2)(a)(1), which states that an underlying fund or account is not exempt
from the claims of creditors if it has been subsequently determined that the plan
or governing instrument is not exempt from taxation in a proceeding that has
become final and nonappealable. As discussed below, bankruptcy courts
evaluating an earlier version of section 222.21 (prior to the amendments in 2005)
have routinely made this determination by evaluating whether a plan is not exempt
from taxation due to operational deficiencies. The current version of section
222.21 (as amended in 2005) does not preclude bankruptcy courts from making
that determination, and no court assessing the statute has suggested otherwise.
Under Appellants reading of section 222.21, bankruptcy courts would be
precluded from looking beyond theform of a pre-approved retirement plan and any
favorable IRS determination letters concerning the form of the plan. The courts
would therefore be powerless to do anything other than rubber stamp the claimed
exemption, regardless of how the plan was utilized and maintained in the time
(often several years) since the IRS approved the plans form. Appellants
restrictive interpretation is directly contrary to the Fifth Circuits instruction in
Cornell-Young Co. v. United States, 469 F.2d 1318, 1324 (5th Cir. 1972), that the
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law looks not only to the form of the plan but also to its operation. Moreover,
such a rule would lead to debtors obtaining windfalls in bankruptcy proceedings by
exempting retirement plans from administration that, due to operational
deficiencies, are in fact no longer tax exempt.
United States District and Bankruptcy Courts assessing the pre-2005 version
of section 222.21 have consistently determined that analyzing a plans operations
in order to determine the plans exempt or nonexempt status is not only proper, but
required. In In re Blais, the district court for the Southern District of Florida
specifically considered whether the bankruptcy court erred in determining that the
debtors profit sharing plan was exempt under section 222.21, where the
bankruptcy court did not inquire into the actual operation of the plan. 220 B.R.
485, 486 (S.D. Fla. 1997). The trustee in Blais asserted that exemption under
section 222.21 required qualification under the IRC, which in turn meant that the
plan was not only organized in compliance with the applicable provisions of the
IRC, but was operated in compliance as well. Id. at 488. The trustee claimed
further that the bankruptcy court erred in relying only on favorable IRS
determination letters because those letters merely considered the form of the plan.
Id.
The district court agreed and, in reversing the bankruptcy courts order,
found that it was proper to look behind the favorable determination letters and
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inquire into the operational aspects of the plan because in deciding issues of tax
qualification, the law looks not only to the form of the plan, but also to its
operation. Id. at 489 (quoting Cornell-Young, 469 F.2d at 1324). The court
remanded the case back to the bankruptcy court to evaluate whether the debtors
operation of his profit sharing plan had any effect on the tax qualification of the
plan under section 401(a), stating that it was necessary for the bankruptcy court to
consider those federal tax issues in order to determine whether the debtor could
exempt his interest in the plan. Id. at 490.2
Other courts considering claimed exemptions for profit sharing and other
retirement plans under the pre-2005 version of section 222.21 have used the same
approach taken by the court in Blaisevaluating a claimed exemption by
independently considering a plans operation. See, e.g., In re McDonald, 100 B.R.
598, 600 (Bankr. S.D. Fla. 1989) (sustaining trustees objection to exemption
claimed for debtors pension plan, where evidence related to operation of plan
subsequent to issuance of favorable IRS letter indicated existence of disqualifying
events); In re Kimmel, 131 B.R. 223, 226-27 (Bankr. S.D. Fla. 1991) (overruling
trustees objection to exemption claim for pension plan after evidentiary hearing on
tax qualification of plan); In re Luttge, 204 B.R. 259, 262-63 (Bankr. S.D. Fla.
1997) (overruling trustees objection to exemption claim for SEP/IRA account,
2 On remand, the bankruptcy court determined that the plan was not entitled to exemption because the debtors
operation of the plan disregarded the applicable requirements of the IRC. In re Blais, No. 93-32191, 2004 WL
1067577 at *4 (Bankr. S.D. Fla. Mar. 16, 2004).
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where trustee presented no evidence regarding the plans qualifications under the
IRC);In re Lawrence, 235 B.R. 498, 509-10 (Bankr. S.D. Fla. 1999) (determining
that debtors plan was not compliant with the tax code based on operational
deficiencies, and was therefore not entitled to exemption under section 222.21),
vacated on other grounds, 244 B.R. 868 (S.D. Fla. 2000). Although these
decisions interpreted the pre-2005 version of section 222.21, nothing in the
language of the amended statute precludes bankruptcy courts from determining
that the plan or governing instrument is not exempt from taxation.
Courts interpreting similar statutes from other states have likewise
concluded that determining whether interest in a plan is exempt from a creditors
claims requires an analysis of the plans operation. In In re Plunk, 481 F.3d 302
(5th Cir. 2007), the Fifth Circuit Court of Appeals interpreted the Texas statutory
provision for exemption of pension plans. Much like the current version of section
222.21, the Texas statute exempts a plan if it is qualified under the IRC. Tex.
Prop. Code 42.0021. In Plunk, the debtor argued that his pension plan had been
deemed structurally qualified by the IRS under 401(a) of the IRC. 481 F.3d at
304. The bankruptcy court rejected that argument and concluded that the plan was
no longer qualified operationally due to the debtors misuse of the plans assets,
and the district court affirmed the bankruptcy courts ruling. Id. at 305.
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In affirming the lower courts decisions, the Fifth Circuit held that when
disqualifying events occur after the IRS has last determined that a plan is qualified,
a court may, under section 42.0021 of the Texas Property Code, determine that a
plan is no longer qualified based on those events. Id. at 307 (citing In re Blais,
220 B.R. 485, 489 (S.D. Fla. 1997)). The court found that several years had passed
since the IRS determined that the debtors plan was qualified, and even then, the
IRS determination considered only the plans form. Id. The court therefore
concluded that the bankruptcy court and district court were permitted to reach an
independent decision regarding the [p]lans qualified status and were not bound by
the previous IRS determination. Id.
Thus, if this Court reverses the decisions below concerning Appellants
participation as the sole employee in her profit sharing plan, this Court should
nevertheless remand with instructions so that the lower courts can further evaluate
the operational aspects of Appellants plan. Without such an assessment,
Appellant and other debtors claiming exemptions for an interest in retirement plans
might be erroneously afforded favorable treatment in bankruptcyto the detriment
of legitimate creditorsthat would not otherwise be available to the debtor outside
of bankruptcy.
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CONCLUSION
This Court should affirm the district courts order below because the lower
courts properly determined that, under section 222.21 of the Florida Statutes,
Appellants interest in her profit sharing plan is not exempt from the claims of
creditors. However, should this Court disagree and reverse the district courts
order below, this Court should remand with instructions so that the bankruptcy
court can evaluate any other claimed operational deficiencies in Appellants
alleged profit sharing plan.
Respectfully submitted,
Dennis P. Waggoner
Florida Bar No. 509426
Landis V. Curry IIIFlorida Bar No. 0469246
HILL, WARD & HENDERSON, P.A.
Suite 3700 Bank of America Plaza
101 East Kennedy Boulevard
Post Office Box 2231
Tampa, Florida 33601
Telephone: (813) 221-3900
Facsimile: (813) 221-2900
Attorneys for Nixon Peabody LLP
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CERTIFICATE OF COMPLIANCE WITH
FEDERAL RULE OF APPELLATE PROCEDURE 32(a)
1. This brief complies with the type-volume limitation of Federal Rule ofAppellate procedure 32(a)(7)(B) and 11th Circuit Rule 32-4 because this
brief contains 3,109 words, excluding the parts of the brief exempted by
Federal Rule of Appellate Procedure 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Federal Rule ofAppellate Procedure 32(a)(5) and the type style requirements of Federal
Rule of Appellate Procedure 32(a)(6) because this brief has been prepared in
a proportionally spaced typeface using Microsoft Office Word 2003 in 14-
point Times New Roman.
Landis V. Curry III
Attorney for Nixon Peabody LLP
Dated: September 2, 2009
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CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing has been furnished by
regular U.S. Mail on this 2nd day of September, 2009, to the following counsel of
record:
Charles PT Phoenix
Phoenix Law PA
12800 University Drive, Suite 260
Fort Myers, FL 33907
Attorney for Appellant
Robert E. Tardif, Jr.
2430 Shadowlawn Drive, Suite 18
Naples, FL 34112
Attorney for Appellee
______________________________
Landis V. Curry III