Opposition Brief — Chopin Associates v. Smith, 111 S. Ct. 767 (1991) (No. 90-761)

ae FILE

No. 90-761

—wEC 17 we

In The JOSEPH F. SPANIOL, JR,

Supreme Court of the United_States-

October Term, 1990

A.

i

IN RE: HOLYWELL CORPORATION, et al.,

Debtors,

CHOPIN ASSOCIATES, acting by THEODORE B. GOULD and

MIAMI CENTER CORPORATION, its Partners, and MIAMI CEN-

TER LIMITED PARTNERSHIP, acting by THEODORE B. GOULD

and MIAMI CENTER CORPORATION, its GENERAL PARTNERS,

Petitioners,

Vv.

FRED STANTON SMITH, Trustee, THE BANK OF NEW YORK,

CITY NATIONAL BANK OF FLORIDA, as Trustee of Land Trust

#5008793, DADE COUNTY, FLORIDA, a Municipality, JOEL

ROBBINS, as Property Appraiser of DADE COUNTY, FLORIDA,

FRED GANZ, as Tax Collector of DADE COUNTY, FLORIDA,

RANDALL MILLER, as Executive Director of the FLORIDA

DEPARTMENT OF REVENUE, S. HARVEY ZIEGLER, as Escrow

Agent for the Miami Center Liquidating Trust, and HERBERT

STETTIN, as Escrow Agent for Miami Center Liquidating Trust,

Respondents.

- *

vv

Petition For Writ Of Certiorari To The United States

Court Of Appeals For The Eleventh Circuit

-_

_

BRIEF OF RESPONDENTS DADE COUNTY, FLORIDA,

JOEL ROBBINS AND FRED GANZ IN OPPOSITION

4

vr

Rosert A. GINSBURG

Dade County Attorney

Metro-Dade Center

Suite 2810

111 N.W. 1st Street

Miami, Florida 33128-1993

(305) 375-5151

By

James K. KRACHT

Danie, A. Wels,

Counsel of Record

Assistant County Attorneys

Attorneys for Dade County,

Joel Robbins & Fred Ganz

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

fe in 0 a ae eee ae ii

a 1

CLASS 1

STATEMENT OF THE CASE.................-.200- 2

SUMMARY OF ARGUMENT................-0.000: 5

REASONS WHY THE PETITION SHOULD BE

See dial eacesi iid ana ea a 7

I. CERTIORARI JURISDICTION HEREIN IS

LIMITED TO A REVIEW OF THE ELEVENTH

CIRCUIT’S DECISION APPROVING THE AD

VALOREM TAX SETTLEMENT AND DOES

NOT INCLUDE REVIEW OF THE CON-

FIRMED PLAN OF REORGANIZATION OR

OTHER UNRELATED ISSUES.............. 7

Il. THE BANKRUPTCY COURT DID NOT

ABUSE ITS DISCRETION IN APPROVING

THE AD VALOREM TAX SETTLEMENT

EITHER BY FAILING TO DETERMINE THE

COMPARATIVE PRIORITY OF CLAIMS

AGAINST THE ESTATE, OR BY FAILING

TO DETERMINE THE ESTATE’S NET

WOES PRED NGOs nh st ods 0s ROWES Koss bio >6 13

a

1 iets

|

TRIO

ii

TABLE OF CONTENTS - Continued

Page

III. THE BANKRUPTCY COURT ACTED

WITHIN ITS AUTHORITY AND DID NOT

ABUSE ITS DISCRETION IN APPROVING

THE AD VALOREM TAX SETTLEMENT

WHICH NECESSARILY DISPOSED OF

STATE COURT TAX CASES .............. 19

IV. FILING OF A CLAIM IN THIS BANK-

RUPTCY PROCEEDING IS NOT RELEVANT

BECAUSE THE CONFIRMED PLAN OF

REORGANIZATION PROVIDED FOR PAY-

MENT OF DADE COUNTY’S STATUTORY

AD VALOREM PROPERTY TAX LIENS IN

FULL FROM THE PROCEEDS OF SALE... 24

COREA AEE on bs toe ns ccpabepncnsigpentstuetusews 27

tg) eer ie err ers re or eer res App. 1

iii

TABLE OF CITATIONS

CASES — |

Allegheny Pittsburgh Coal Co. v. Webster County, 488

U.S. 336, 109 S.Ct. 633, 102 L.Ed.2d 688 (1988)....

Holywell Corp. v. Bank of New York, 59 Bankr. 340

SE OR ae ke ou guns sic kod iseebe cds.

In re Folendore, 862 F.2d 1537 (11th Cir. 1989)....

In re Holywell Corp., 49 Bankr. 694 (Bankr. S.D. Fla.

a nae Ren ke Wicks pines «5 dnee-oe-

In re Sillani, 9 Bankr. 188 (Bankr. S.D. Fla. 1981) ....

In re Teltronics, Inc., 762 F2d 185 (2nd Cir. 1985)

In re Work, 58 Bankr. 868, 869 (Bankr. D. Ore.),

aff'd, case no. CV 86-1028 FR (D. Ore. Nov. 21,

ee ciewewewenee

Lindsey v. Federal Land Bank of St. Louis, 823 F.2d

ME: biauwenhessepesscccveccsces

Matter of Aweco, Inc., 725 F.2d 293 (5th Cir.), cert.

denied, 409 U.S. 880, 105 S.Ct. 244, 83 L.Ed.2d

SU CR a pada whats sists car vevccencevesses

Miami Center Liquidating Trust v. Dade Some 75

a eg ee ee 4,

Miami Center Ltd. Partnership v. Bank of New York,

838 F.2d 1547 (11th Cir.), cert. denied, 488 U.S.

823, 109 S.Ct. 69, 102 L.Ed.2d 46 (1988). 3, 11,

N.L.R.B. v. Bildisco and Bildisco, 465 U.S. 513, 104

S.Ct. 1188, 79 L.Ed.2d 482 (1983)..............

Southern Bell Telephone v. Dade County, 275 So.2d 4

LE eR Da Cen aome s08 6a404d 00 090s

Tarnow v. Commodity Credit Corporation, 749 F.2d

Pee Or eee

Page

OPINIONS BELOW

The only opinions relevant to the Petition for Writ of

Certiorari herein are the Order Approving Amended Set-

tlement of Ad Valorem Tax Claims entered by the United

States Bankruptcy Court for the Southern District of Flor-

ida on November 18, 1988, Pet. App. 72; the Order

Affirming Bankruptcy Court’s Order Approving

Amended Settlement of Ad Valorem Tax Claims entered

by the United States District Court for the Southern Dis-

trict of Florida on July 6, 1989, Pet. App. 34; and the per

curlam affirmance of the Bankruptcy Court’s decision

entered by the United States Court of Appeals for the

Eleventh Circuit on August 14, 1990, Pet. App. 32.

~—

JURISDICTION

The Petitioners seek review of the Eleventh Circuit’s

single-sentence affirmance of the Bankruptcy Court’s

approval of the comprehensive ad valorem tax settle-

ment. The Petitioners have wholly failed to establish any

jurisdictional basis for granting the Petition for Writ of

Certiorari. They have not demonstrated the existence of a

conflict among the United States Courts of Appeals or the

existence of an important question of federal law which

has not been, but should be settled by this Court. See Sup.

Ct. R. 10.1(a)-(c).

2

STATEMENT OF THE CASE

Over six years ago, the Petitioners, two of five related

Debtors,’ filed voluntary Chapter 11 petitions in the

United States Bankruptcy Court for the Southern District

of Florida. This is their eighth attempt at review in this

Court. It follows their more than fifty appeals to the

lower courts.?

The Petitioners here seek review of an order of the

Eleventh Circuit Court of Appeals affirming the Bank-

ruptcy Court’s approval of a settlement of Dade County,

Florida’s ad valorem tax claims against the Miami Center.

The settlement was entered into by Dade County, the

Liquidating Trustee of the Miami Center Liquidating

Trust, and the Bank of New York, and submitted to the

Bankruptcy Court for judicial review and approval. The

Debtors objected to this settlement and filed a separate

adversary proceeding to block the compromise. After

lengthy hearings and extensive briefing, the Bankruptcy

Court by order dated November 18, 1988 approved the

amended settlement. The Debtors appealed to the District

Court and the Eleventh Circuit Court of Appeals, both of

which affirmed. From these appeals, this Petition follows.

After filing voluntary petitions for reorganization

under Chapter 11 of the Bankruptcy Code in 1984,

1 The Petitioner/Debtors are Chopin Associates and

Miami Center Liquidating Partnership, which in turn are

related to and/or controlled by Debtors Theodore B. Gould,

Miami Center Corporation and Holywell Corporation.

2 Of the other seven petitions, six have been denied and

one, filed in October, 1990, is pending.

and substantive consolidation of the Debtors’ estates in

1985, the Bankruptcy Court confirmed the Amended Plan

of Reorganization on August 8, 1985. Pursuant thereto, a

liquidating trustee was appointed and took charge of the

Debtors’ property, including for purposes relevant here,

the Miami Center Project and numerous lawsuits to

which the Debtors were parties. The Bank of New York

acquired the Miami Center Project from the trustee, for

$255.6 million, a valuation based upon an MAI appraisal.

Miami Center Ltd. Partnership v. Bank of New York, 838 F.2d

1547 (11th Cir.), cert. denied, 488 U.S. 823, 109 S.Ct. 69, 102

L.Ed.2d 46 (1988).

In accordance with the Plan, the property was trans-

ferred with Dade County’s tax liens in place, and with no

objection reserved in the Plan, or otherwise, to the val-

idity of these tax liens. Conversely, the only preserved

property tax question was the final amount of each of the

tax assessments and the resulting tax liability. In fact, the

Plan, with its contract for sale, required payment of the

taxes and interest at closing. This payment was never

made. Instead, an escrow fund was created in the amount

of $7,006,114.65 to ensure payment when the amount of

each assessment was finally determined in the State court

tax cases. |

For the past 11 years the Miami Center Project has

been involved in ad valorem tax litigation, contesting

each and every assessment, not the first of which has,

been tried. This State court litigation continued with the

full knowledge, consent and authorization of the Bank-

ruptcy Court. During reorganization, the Bankruptcy

Court authorized retention of special ad valorem tax

ltt til ht at i ee ee eS

counsel, as well as expert witnesses for this litigation. It

_ also authorized payment of large sums for costs and fees.

While taxes were paid in full for the years 1979

through 1981, in each year from 1982 through 1985 only a

portion of the taxes was paid. Thus, the statutorily-cre-

ated first priority ad valorem real property tax liens

attaching to the property annually from 1982 through

1985 remain outstanding and unsatisfied.

Immediately following the October 1985 closing, set-

tlement negotiations with the County were undertaken

and continued through 1986. After reaching an impasse,

Mr. Gould requested the J.iquidating Trustee to

instruct Irving Wolff to file the complaint

already prepared in the United States District

Court to both bar the County’s claim for not

having filed Proofs of Claim in the Chapter XI

proceeding and also for engaging in discrimina-

tory and non-uniform assessment practices.*

Subsequent to dismissal of that district court action,

Miami Center Liquidating Trust v. Dade County, Fla., 75

Bankr. 61 (S.D. Fla. 1987), settlement discussions were

again commenced between the County, the Liquidating

Trustee and new counsel for the Trust, Herbert Stettin.

Ultimately, a settlement was reached between the Liq-

uidating Trustee and the County. As amended and |

approved it was a settlement of all of the issues and

disputes between the parties. Pet. App. 63. It reduced the

liability of the Trust for disputed 1979 through 1985 ad

3 Letter from Theodore B. Gould to Fred Stanton Smith,

dated December 9, 1986, re: proposed settlement of 1979

through 1985 taxes.

5

valorem taxes to $2,720,324 as of March 31, 1988. On

November 18, 1988, the Bankruptcy Court entered a 12-

page order approving the amended ad valorem tax settle-

ment complete with detailed findings of fact and conclu-

sions of law. Pet. App. 72.

+

SUMMARY OF ARGUMENT

The Petition for Certiorari should be denied. The

Petition brings before this Court a single-sentence deci-

sion and opinion of the Eleventh Circuit Court of Appeals

finding that the lower courts did not abuse their discre-

tion in approving the ad valorem tax settlement. in that

opinion, the Eleventh Circuit correctly affirmed the Dis-

trict Court decision, which in turn affirmed the Bank-

ruptcy Court’s findings and conclusions that the

amended settlement of the ad valorem tax claims was

reasonable and in the best interest of the Liquidating

Trust and the creditors. The record overwhelmingly sup-

ports the Bankruptcy Court’s findings and conclusions. In

this-appeal, Petitioners continue to insist on individual

merit determinations of every property tax-related issue.

The case law specifically holds, however, that the

.. Debtors’ arguments must be viewed as the Bankruptcy

Court viewed them, i.e., in light of: (1) the probability of

success; (2) the disastrous effect that the likely adverse

result in the State court tax cases would have on the

Liquidating Trust; and (3) the expense, inconvenience,

and delay of continued litigation.

|

The Petition fails to demonstrate that the Eleventh |

Circuit decision departs from or conflicts with any

decision of this Court or of any Circuit Court. Instead, the

Petition constitutes in the main an untimely and imper-

missible collateral attack on certain features of the con-

firmed Plan of Reorganization. That Plan has long since

become final and law of the case.

i

The priority and status of Dade County’s real prop-

erty tax liens were fully determined and firmly estab-

lished vis-a-vis all classes of creditors in the confirmed

Plan of Reorganization. The Bankruptcy Court could not

have erred for failing to decide these questions of status

and priority since it had already done so.

The ad valorem tax settlement properly disposed of

14 separate tax disputes pending in State court for as long

as 9 years. These lawsuits had been recognized and con-

tinually dealt with in the administration of this bank-

ruptcy at substantial expense to the estates of the

Debtors. Termination of lawsuits by settlement is an

appropriate function of a bankruptcy court. This was

especially appropriate here where the significant eco-

nomic advantage to the Liquidating Trust was found to

substantially outweigh the devastating impact that

adverse rulings would have had.

The ad valorem tax settlement also properly disposed

of issues surrounding whether the County had filed a

proof of claim. Resolution of the County’s statutory ad

valorem tax liens was necessary to achieve long overdue

compiiance with the Bankruptcy Court’s 1985 Plan of

Reorganization. The Debtor’s scheduling of the property

tax liability, pre- and post-confirmation conduct of the

parties and case law were correctly considered and

applied by the lower courts in resolving the issues in this

property tax settlement.

The Eleventh Circuit dispatched the claims of Peti-

tioners herein in a single sentence, with no citation to

authority. It is apparent that the Circuit Court viewed the

Debtors’ claims as lacking precedent:al significance.

Thus, in addition to disposing of the issues correctly, the

Circuit Court’s single-sentence opinion lacks impact as

stare decisis.

For the foregoing reasons, the Petition should be

denied.

a

ww

REASONS WHY THE PETITION SHOULD BE DENIED

I. CERTIORARI JURISDICTION HEREIN IS LIM-

ITED TO A REVIEW OF THE ELEVENTH CIR-

CUIT’S DECISION APPROVING THE AD

VALOREM TAX SETTLEMENT AND DOES NOT

INCLUDE REVIEW OF THE CONFIRMED PLAN

OF REORGANIZATION OR OTHER UNRELATED

ISSUES.

By certiorari the Petitioners seek review of a single-

sentence affirmance by the Eleventh Circuit Court of

Appeals unequivocally holding that neither the Bank-

ruptcy Court nor the United States District Court, South-

ern District of Florida, abused their discretion or acted

improperly in approving and affirming the comprehen-

sive ad valorem tax settlement.* The Liquidating Trustee

of the Miami Center Liquidating Trust, the Bank of New

York and the Dade County Taxing Authorities submitted

this settlement to the Bankruptcy Court, Pet. App. 59, and

the court approved the same. Pet. App. 71. Thereafter, the

District Court affirmed with a thorough and extensive

review. Pet. App. 34. The Eleventh Circuit affirmed.

The Bankruptcy Court order, from which the affirm-

ances originate, is replete with thorough and extensive

findings of fact and conclusions of law supporting the

Court’s approval of the comprehensive ad valorem tax

settlement. Entry of this detailed order followed a two-

day evidentiary hearing, submission of substantial testi-

mony, documentary evidence and deposition testimony,

exhaustive written closing arguments by the Petitioners

and Respondents herein, a Bankruptcy Court-mandated

amendment to the settlement in response to specific

objections and complaints of the Petitioner/Debtors, and

a final evidentiary hearing.

4 In its entirety this decision reads:

PER CURIAM:

The bankruptcy court had the authority to con-

sider the settlement reached between the trustee and

Dade County concerning questions surrounding out-

standing ad valorem real property taxes and did not

abuse its discretion in approving the settlement.

AFFIRMED. Pet. App. 32.

In rejecting the Petitioners’ plea for specific merit

determinations of every objection and legal claim pro-

posed to be compromised by the tax settlement, the Bank-

ruptcy Court explained the rationale for its approval of

this settlement by quoting from In re Teltronics, Inc., 762

F.2d 185 (2d Cir. 1985), as follows:

20 . . . The probable outcome in the event of

litigation, the relative advantages and disadvan-

tages are, of course, relevant factors for evalua-

tion. But the very uncertainties of litigation, as

well as the avoidance of wasteful litigation and

expense, lay behind the Congressional infusion

of a power to compromise. This is a recognition

of the policy of law generally to encourage set-

tlements. This could hardly be achieved if the

test on hearing for approval meant establishing

success or failure to a certainty. . . . Thus, this

Court need not resolve each disputed matter in

determining the propriety of the settlement,

rather, the Court may, and should, make a prag-

matic decision on the basis of all equitable fac-

tors. Pet. App. 80.

In paragraph 23 the Court continues,

One of the obligations imposed by Jackson Brew-

ing Corp., supra, [624 F.2d 605 (5th Cir. 1980)]

upon bankruptcy courts engaged in determining

whether to approve a settlement proposed

requires a consideration of ‘all the factors bear-

ing on the wisdom of the compromise’. The

Court believes it has done so and it recognizes

the benefits which flow to each of the parties

involved. The taxing authorities received a sub-

stantial amount of cash and an end to time-

consuming and expensive litigation on their

part. The Bank of New York receives property

free of any further claims by the taxing authori-

ties, and the debtors receive the resolution of

10

County tax claims on excellent terms. In sum,

having reviewed the evidence and the docu-

ments received into evidence, together with

having considered the equities involved, the

Court finds and determines that the amended

settlement agreement dces not ‘fall below the

lowest point in the range of reasonableness.’

The terms of the amended settlement are rea-

sonable and in the best interest of the liquidat-

ing trust. . . . Pet. App. 81-82.

This tax settlement resolved disputes over ad val-

orem taxes on the Miami Center property which had been

valued by an MAI appraisal—accepted and relied upon

by the courts administering this bankruptcy—at a fair

market value of $255.6 million. While this $255.6 million

valuation would have been probative of the fair market

value of the subject property in the pending State court

tax litigation seeking substantial assessment reductions,

the $162.5 million assessment for the tax years 1984 and

1985, utilized in the overall tax settlement, odviously

achieved substantial savings and significant economic

benefits to the Liquidating Trust necessarily inuring to

the creditors.

Because the Petitioners continue to insist on entitle-

ment to a merit determination of each separate aspect of

the tax settlement, and because they continue to confuse

and intermix in this proceeding the issues adjudicated or

pending in other proceedings or between other parties,

the Petition for Certiorari herein can best be understood

by first briefly examining what this appeal does not

involve.

This is not an appeal of the confirmed Plan of Reor-

ganization for the five consolidated Petitioner/ Debtors.

11

The provisions of that Plan were approved by the Bank-

ruptcy Court? in its order of confirmation entered August

8, 1985. The United States District Court affirmed® and

appeal thereof was dismissed by the Eleventh Circuit as

moot.” Certiorari was denied by this Court.® The plan of

reorganization has thus become law of the case.

This is not an appeal of the transfer from the individ-

ual Debtors to the Miami Center Liquidating Trust of

right, title and interest in the fourteen ad valorem tax

cases pending in State court. Transfer of control of those

cases to the Miami Center Liquidating Trust was an inte-

gral part of the terms of the Amended Plan of Reorgani-

zation long since final and binding on the parties.

This is not an appeal of determinations of the individual

classes of lienholders and creditors. These determinations

were made as an integral part of the Amended Plan of

Reorganization approved by the Bankruptcy Court on

August 8, 1985, now final and the law of the case.

This is not an appeal of the income tax issues that

pend in the Eleventh Circuit Court of Appeals. The Inter-

nal Revenue Service is not now and never has been an

objector to the ad valorem tax settlement and related

issues involved herein.

This is not an appeal of numerous orders entered

by the Bankruptcy Court at the request of both the

5 In re Holywell Corp., 49 Bankr. 694 (Bankr. S.D. Fla. 1985).

6 Holywell Corp. v. Bank of New York, 59 Bankr. 340 (S.D. Fla.

1986).

7 Miami Center Limited Partnership v. Bank of New York, 838

F.2d 1547 (11th Cir. 1988).

8 488 U.S. 823, 109 S.Ct. 69, 102 L.Ed.2d 46 (1988).

12

Liquidating Trustee and/or the Petitioners pre- and post-

confirmation which specifically authorized (1) the filing

of additional State court tax cases; (2) use of Trust assets

to make partial payments of property taxes; (3) use of

Trust assets to maintain the State court tax litigation

through the payment of court costs, attorney’s fees and

expert witness fees; and (4) authorizing retention of spe-

cial counsel and expert witnesses for prosecuting the

State court tax litigation. These orders long since became

final and the law of the case.

This is not an appeal of any pre-confirmation (i.e.,

timely-filed) adversary complaint to determine the

extent, priority and/or validity of Dade County’s real

property tax liens. This is so because no such complaint

was ever filed. Moreover, the priority and validity of

these liens was fully recognized and established in the

Amended Plan of Reorganization as confirmed by the

Bankruptcy Court and now the law of the case.

This is not an appeal of the creation of the escrow

fund done as a post-confirmation pre-sale amendment to

the plan of reorganization and contract for sale of the

Miami Center property to the designee of the Bank of

New York. This fund was created at the time of closing to

ensure that there could be an ultimate delivery of the

Miami Center Project to the Bank of New York free and

clear of liens in accordance with the Amended Plan, and

at the same time allow the Debtors and/or Liquidating

Trust to continue toward reaching a final resolution of the

State court tax cases without being prejudiced by having

to comply with the Amended Plan’s requirement—pay-

ment in full of pending tax liens. Creation of this fund—

as well as its specific designation for the payment of

property taxes—has long since become final pursuant to

13

orders of the Bankruptcy Court, no appeal of which

remains pending.

Finally, this is not an appeal of any equal protection

or constitutional objection to the individual tax assess-

ments on the Miami Center property for the years 1979

through 1985. When the Bankruptcy Court approved the

tax settlement, these objections had been raised and/or

remained pending in the State court for as long as nine

years without any resclution thereof in fourteen separate

tax cases. Not one of these cases was ever litigated to

finality nor were any of the Debtors’ constitutional chal-

lenges ever proven.

Consequently, in the event this Court were te grant

the Petition for Certiorari, the only issue before this Court

would be the propriety vel non of the Eleventh Circuit

decision. In one sentence, the Circuit Court rejected

(without citation to authority) all of Petitioners’ claims.

See note 4 at p. 8, for the text of the Eleventh Circuit

decision. In addition to being correct, the Circuit Court

decision approving settlement of property tax claims

does not conflict either facially or in principle with any

other circuit court decision or with any decision of this

Court. The Petition should be denied.

Il. THE BANKRUPTCY COURT DID NOT ABUSE ITS

DISCRETION IN APPROVING THE AD VAL-

OREM TAX SETTLEMENT EITHER BY FAILING

TO DETERMINE THE COMPARATIVE PRIORITY

OF CLAIMS AGAINST THE ESTATE, OR BY FAIL-

ING TO DETERMINE THE ESTATE’S NET VALUE.

The voluminous evidence and argument amassed in

response to the Motion for Approval of the ad valorem

14

tax settlement and addressed in the orders of the Bank-

ruptcy Court, District Court, and the Eleventh Circuit

Court of Appeals make it amply clear that the Bankruptcy

Judge herein fully apprised himself of all of the facts,

equitable considerations and legal principles necessary to

make a reasoned and lawful decision approving the tax

settlement. Notwithstanding the welter of evidence and

legal argument below, Petitioners ask this Court to grant

certiorari review, belatedly asserting that the Bankruptcy

Court abused its discretion in approving the tax settle-

ment for the alleged reasons that it did not adequately

determine either the priority of tax claims or the net

value of assets in the bankruptcy estate.

First and foremost, conspicuous by its absence from

the record herein is any such contention by way of argu-

ment, evidence or legal objection presented to the Bank-

ruptcy Court in opposition to the settlement.

Second, wholly ignored by the Petitioners is that the

status of Dade County’s property tax liens was fully

determined and established with the Bankruptcy Court’s

approval of the amended plan of reorganization in

August of 1985 and implementation thereof with the clos-

ing on the contract for sale of the Miami Center in Octo-

ber of 1985. Pursuant thereto, the superiority of these tax

liens was fully recognized and established and the pay-

ment thereof required as a condition precedent to deliv-

ery of Miami Center to the Bank of New York or its

designee free and clear of liens. This determination of

priority, vis-a-vis the eight classes of creditors defined in

the Amended Plan, became law of the case when the

Eleventh Circuit Court of Appeals dismissed as moot the

15

Debtors’ attack on the amended plan of reorganization.’

Having determined the superiority of the tax liens in

August of 1985, and having never been asked by the

Debtors or anyone else to revisit this issue at the April

and November 1988 hearings on the tax settlement, the

Bankruptcy Court cannot be said to have abused its dis-

cretion because it failed to redecide that already decided.

Third, no evidence was adduced below supporting

the Debtors’ reliance upon the decision in Matter of

Aweco, Inc., 725 F.2d 293 (5th Cir.), cert. denied, 469 U.S. 80,

105 S.Ct. 244, 83 L.Ed.2d 182 (1984). No creditors—senior

or junior—have raised a single objection to the Compre-

hensive Tax Settlement. Moreover, there is no evidence

supporting Petitioners’ suggestion that the assets of the

Liquidating Trust are insufficient to pay any creditors

whose claims might be senior to those of Dade County.

Approval of the ad valovem tax settlement in November

of 1988 enabled the Liquidating Trustee to finally achieve

compliance with the requirements of the Amended Plan.

By virtue thereof, the escrow fund—as an escrow fund

and not property of the Liquidating Trust—became avail-

able for distribution.

The Plan of Reorganization required satisfaction of

Dade County’s real property tax liens prior to convey-

ance of the property to the nominee of the Bank of New

York. For the sole purpose of allowing a continuation of

the State court proceedings objecting to the amount—as

distinguished from the validity—of the County’s real

® In their appeal of the order confirming the amended plan

of reorganization, the Debtors never objected to the provisions

dealing with payment of the ad valorem tax liens as superior

first priority tax liens.

16

property taxes, an escrow fund of $7,006,114.65 was

established at the time of the closing on the Miami Center

property. Notwithstanding the Debtors’ assertions to the

contrary, this escrow fund never became property of the

Liquidating Trust. For three years after the October 1985

closing, the State court tax assessment cases continued

accruing interest and further draining the estate of assets

expended for attorney’s fees and expert witness fees. At

the end thereof, not a single State court action had been

brought to conclusion. As a result of the Comprehensive

Tax Settlement, a net of $2,720,325 as of March 31, 1988

plus interest was payable for Dade County taxes, releas-

ing the balance of said escrow fund, $4,285,790 plus inter-

est, to the Trust as Trust property for payment of its other

liabilities. Approval of the tax settlement greatly reduced

liabilities of the Liquidating Trust, increased its assets,

and, as found by the Bankruptcy Court, was fair, reason-

able and in the best interest of the Liquidating Trust, its

creditors and beneficiaries.

The tax settlement allowed for compliance with the

previously-approved Amended Plan of Reorganization,

by finally satisfying pending tax liens on property which

was required to be conveyed free and clear thereof. It

settled the amount of tax liability which had been pend-

ing for as long as nine years. It terminated the endless

expenses to the Liquidating Trust of continuing this liti-

gation, and it assured the availability of additional assets

—earmarked three years earlier for the payment of ad

valorem taxes—for other c-editors and beneficiaries of

the estate. Consequently, the Bankruptcy Court did not

abuse its discretion or otherwise violate the principles of

law enunciated by the Fifth Circuit Court of Appeals in

Matter of Aweco. Id.

17

Fourth, well illustrative of the equitable factors

before the Bankruptcy Court in its consideration of

whether to approve the tax settlement was the Peti-

tioners’ own conduct before the Bankruptcy Court for the

four years between August of 1984 and November of 1988

in dealing with the tax controversies. The Bankruptcy

Court had been asked to and did appoint special counsel

for handling the State court tax cases. Retention of var-

ious experts for that litigation had been authorized.

Expert witness and attorney fee awards had been

approved. Not only had the Liquidating Trustee acquired

the lawsuits by operation of the Plan of Reorganization,

but dominion and control thereover had been a familiar

part of the administration of these bankruptcy estates.

From the inception of these bankruptcies, the Debtors

scheduled claims for taxes and led the Bankruptcy Court,

Dade County and all other parties to believe that the

Debtors were disputing only the amount—as distin-

guished from the validity of the tax claims. District Judge

Kehoe recounted the Bankruptcy Court’s anger when two

and one-half years after the commencement of these pro-

ceedings the Chief Bankruptcy Judge learned that the

Debtors and Liquidating Trustee were, then, for the first

time attempting by an action in the United States District

Court to challenge the validity of the tax liens, as well as

the propriety of the assessments on constitutional and

equal protection grounds. The Court concluded this new

strategy was “playing games” and that:

This is the first moment since the beginning of

this lawsuit that it has been indicated to me in

any respect that the status of the County tax

claim as a claimant against this estate is not

recognized because no claim was filed. It is the

18

first time that it has been hinted. The Debtor

ized it constantly and you have recog-

nized it constantly up until now, you have set

aside a reserve for it, and now you are saying

this whole matter must be decided in a court

that cannot even hear it earlier than a year from

now because no claim was filed. I am appalled.

Miami Center Liquidating Trust v. Dade County, 75 Bankr.

61, 64 (S.D. Fia. 1987).

Inconsistencies and position changes by these Peti-

tioners are not new in these proceedings. While the Peti-

tioners continued to object to the approved settlement

satisfying the Liquidating Trustee’s liability for disputed

ad valorem taxes with $2.7 million plus interest from the

escrow fund, the Debtors ignore their own scheduling of

tax liability to Dade County in the amount of

$4,959,186.16. App. 3. When reminded of this scheduling

on Coure Paper 121, the Petitioners simply averred in

their Reply Brief to the Eleventh Circuit Court of Appeals

that they mistakenly omitted designation of the claim as

contingent, disputed or unliquidated. The approved tax

settlement certainly satisfied the tax liability for an

amount substantially less than that listed on the Peti-

tioner/Debtors’ own schedules. Standing alone, this fact

is sufficient to sustain affirmance of the Bankruptcy

Court’s approval of the ad valorem tax settlement. The

Bankruptcy Court is a court of equity. N.L.R.B. v. Bildisco

and Bildisco, 465 U.S. 513, 527, 104 S.Ct. 1188, 1197, 79

L.Ed.2d 482, 496 (1983).

Approval of the tax settlement was not an abuse of

discretion. The United States District Court, Southern

District of Florida, and the Eleventh Circuit fully and

completely reviewed all issues raised and/or re-raised by

19

the Petitioners herein. The Plan of Reorganization has

long since become final, has been substantially consum-

mated and is incapable of being unwound so as to restore

the parties to the status quo. Miami Center Ltd. Partnership

v. Bank of New York, 838 F.2d 1547, 1554 (11th Cir.), cert.

denied, 488 U.S. 823, 109 S.Ct. 69, 102 L.Ed.2d 46 (1988). Its

requirement of full payment of Dade County’s real prop-

erty taxes necessarily established the priority of the tax

liens as of the time of its approval, August 8, 1985. With

this Court’s denial of certiorari in 1988, the priority of

payment of claims as an integral part of the approved

Plan of Reorganization became final. The Bankruptcy

Court in approving the ad valorem tax settlement did not

abuse its discretion and did not fail to make full and

complete findings as were necessary for a reasoned and

proper judgment.

Il. THE BANKRUPTCY COURT ACTED WITHIN ITS

AUTHORITY AND DID NOT ABUSE ITS DIS-

CRETION IN APPROVING THE AD VALOREM

TAX SETTLEMENT WHICH NECESSARILY DIS-

POSED OF STATE COURT TAX CASES.

Petitioners suggest to this Court, as they have in

every earlier facet of these proceedings, that the Bank-

ruptcy court acted improperly in approving the tax settle-

ment because that approval necessarily resolved the

pending State court tax cases. Petitioners’ logic is flawed

and certainly falls far short of any demonstration that the

decision of the Eleventh Circuit Court of Appeals herein

is either “(a) . . . in conflict with the decision of another

United States court of appeals on the same matter; . . . or

(c) . . . decided an important question of federal law which

20

has not been, but should be, settled by this Court... . ”

Sup. Ct. R. 10.

First, a fundamental aspect of the property tax settle-

ment as approved by the Bankruptcy Court was that it

was to operate as a resolution of all related property tax

disputes. In addition to fixing with certainty the amount

of tax liability as between the parties, the settlement

terminated ongoing liability for court costs and attorney’s

fees. Finalizing the amount of liability for the Liquidating

Trust is harmonious with the spirit and intent of the

Bankruptcy Code.

Second, Petitioners’ suggestion that the State court

actions should not have been settled because the tax

questions were pending in courts other than the Bank-

ruptcy Court is frivolous in the context of bankruptcy

proceedings. While the Petitioners continue to advance

this position, the Eleventh Circuit Court of Appeals in a

related proceeding categorically rejected Petitioners’

chastisement of the Bankruptcy Court for settling non-

bankruptcy court cases. As therein stated:

Dismissal of lawsuits that are assets of the estate

is a not-unfamiliar feature of reorganization

plans. The Debtors’ suggestion that the Bank-

ruptcy Court lacks power, exercised pursuant to

a reorganization plan, to direct a trustee to dis-

miss a suit in a court other than the bankruptcy

court is not supported by authority cited to us

or by common sense.

Miami Center Limited Partnership v. Bank of New York,

supra, 838 F.2d at 1557.

Third, the Petitioners attempt to create a distinction

between the 1979 through 1982 and the 1983 through 1985

21

Overassessment State court tax cases based upon whether

either a refund of taxes or reduction in tax liability was

sought. Such distinction is meritless as one without a

legal difference. The result of the tax settlement was to

achieve finality of the Liquidating Trust’s liability for

taxes, interest, court costs and attorney’s fees. The

approved settlement did that. The Bankruptcy Court’s

approval thereof was proper, not an abuse of discretion,

and not outside the court's jurisdiction.

Fourth, as they have in each of the lower courts,

consistent with their position over the past eleven years,

the Petitioners continue to argue that the settlement is

improper because either each of the initial tax assess-

ments or the settlement as approved by the Bankruptcy

Court is discriminatory or constitutes a denial of equal

protection. From 1979 through 1985 the Petitioners filed

State court actions challenging every assessment of the

Miami Center Project on the basis of alleged discrimina-

tion. The Petitioners never proved any such discrimina-

tion. From 1984 through 1988 when the Bankruptcy Court

approved the tax settlement, these tax cases had

remained pending with the blessing of the Bankruptcy

Court, yet no judicial finding of discrimination was ever

made. The Petitioners also took their claims of discrimi-

natory assessment practices to the United States District

Court, Southern District of Florida, after their attempts to

reach a settlement with Dade County taxing officials had

failed. They were similarly unsuccessful in establishing

the validity of these claims. Miami Center Liquidating Trust

v. Dade County, Fla., 75 Bankr. 61 (S.D. Fla. 1987).

22

Best illustrative of why the Petitioners have been

wholly unable to prove discrimination is their own con-

voluted aberration of the record in these proceedings

with respect to the tax assessments here at issue. (1)

Petitioners argue on page 26 of their Petition that because

the Florida Supreme Court in Southern Bell Telephone and

Telegraph Co. v. County of Dade, 275 So.2d 4, 9 (Fla. 1973),

held that “the price at which property is sold as indicated

by documentary stamps on the instrument is prima facie

evidence of its value... ,” the 1979 assessment on the

subject property, $1,373,024 higher than the purchase

price, is discriminatory. It is axiomatic in tax assessment

law that one sale does not a market make. The sale in

question occurred fourteen months after the 1979 assess-

ment was made. More importantly, if one is to accept as

correct the Petitioners’ reliance upon their suggested

application of Southern Bell, then it must follow that the

1984 and 1985 tax assessments on the Miami Center Pro-

ject settled at $162.5 million for each year should be

increased to the $255.6 million price reflected by the sales

contract closed on October 10, 1985. Of course, this Court

can readily perceive the economically disastrous results

that such increased assessments would have on the Liq-

uidating Trust’s ability to pay remaining creditors. (2)

Petitioners have attempied to elicit this Court’s sympathy

for their equal protection arguments by their claim in

note 29, page 26, that the 1984 assessment on the hotel

portion of the property, as reduced by the settlement, was

allegedly further reduced by 38% for the 1989 assessment.

The 1989 tax assessment on the hotel is certainly nowhere

in the record. Without a detailed response thereto, but so

that this Court be correctly informed, suffice it to say that

23

the property assessed as the hotel in 1989 was substan-

tially different than that assessed as the hotel in earlier

years because of a redistribution and/or reallocation of

portions of the original hctel property (parking, commer-

cial and retail space) to other folio numbers. The 1989

assessment on the total Miami Center Project exceeded

the settlement value for 1984 notwithstanding the Peti-

tioners’ erroneous statement to the contrary.

From the foregoing it should be apparent that Peti-

tioners’ repeated attempts to “examine the trees and

ignore the forest” is simply not a meaningful tool for the

review of this comprehensive tax settlement. Not only do

the Petitioners misconstrue the record and non-record

facts upon which they attempt to build their legal argu-

ments, but their legal arguments fall far short of constitu-

ting any basis for certiorari review by this Court.

Both the Bankruptcy Court and District Court opin-

ions discussed at length principles related to the Peti-

tioners’ equal protection arguments. While Petitioners

continue to insist that they are entitled to a “merit deter-

mination” or mini-trial on their alleged claims of discrim-

ination, they have wholly failed to establish its existence

in either the original assessments or the settlement values

approved by the Bankruptcy Court. The lower court's

decisions are not in conflict with any decision cited by the

Petitioners. The Petitioners’ continued pronounced

beliefs of the existence of discrimination simply do not

take the place of proof necessary to establish its existence.

The record before the Bankruptcy Court lacked a proffer

of the slightest scintilla of expert evidence showing the

existence of any such discrimination. Similarly, nothing

but the Petitioners’ own suggestions of comparability

24

with respect to several parcels of property mentioned in

the Petition establishes their comparability from an

assessment standpoint. Moreover, the record and Peti-

tioners’ own unsupported assertions do not suggest dis-

parity between the assessments of the subject property

and comparable properties in the magnitude of 800% to

3,500% which formed the basis of this Court’s decision in

Allegheny Pittsburgh Coal Co. v. Webster County, 488 U.S.

336, 109 S.Ct. 633, 102 L.Ed.2d 688 (1988).

The Bankruptcy Court properly evaluated the risks,

liabilities, benefits and gains associated with continuation

of the fourteen separate State court actions. The lawsuits

in question were clearly assets of the Liquidating Trust

and as such the settlement thereof was a proper function

in the administration of this bankruptcy. The Petitioners

have wholly failed to establish that the Eleventh Circuit’s

single-sentence affirmance conflicts with any decisions of

the other Circuit Courts of Appeal or of this Court on the

question of discrimination, or improperly decides a fea-

eral question.

IV. FILING OF A CLAIM IN THIS BANKRUPTCY

PROCEEDING IS NOT RELEVANT BECAUSE

THE CONFIRMED PLAN OF REORGANIZATION

PROVIDED FOR PAYMENT OF DADE COUNTY’S

STATUTORY AD VALOREM PROPERTY TAX

LIENS IN FULL FROM THE PROCEEDS OF SALE.

The following section responds to sections II and IV

of the Petition. The Debtors introduce the second issue in

their Petition with the following one-sentence paragraph:

A Writ should be issued to determine

whether a bankruptcy court has statutory authority

25

to confirm a plan granting a local government

taxing authority “ster ag pie treatment, which

provides for the Dade County Tax Collector’s

participation in the distribution of the estate,

notwithstanding his failure to file timely proofs

of claim or an application for payment as

administrative expenses of disputed real prop-

erty taxes. Pet. 16. (Emphasis supplied).

Confirmation of the Plan has long since become final and

the Petitioners’ attempt to again attack its provisions is

beyond the Court’s certiorari jurisdiction in this proceed-

ing. Similarly, Petitioners’ final and retreating argument,

under point IV, was disposed of by provisions of the

confirmed Plan of Reorganization, and is therefore

beyond the Court’s certiorari jurisdiction herein.

Unfortunately for the Petitioners, the Plan the terms

of which they here still attempt to contest has long since

been confirmed by the Bankruptcy Court, substantially

consummated, and subjected to three layers of judicial

review, including a petition for certiorari to this Court.

See notes 6, 7 and 8, supra. Petitioners have had their days

in court. See text accompanying note 2, supra. Petitioners’

present attempt to seek review of features of the con-

firmed Plan providing for payment of the real property

ad valorem taxes on the Miami Center Project is therefore

untimely and improper.

In contravention of the confirmed plan, Petitioners

argue that they have a vested legal right to recover cer-

tain expenses and that the County is precluded from

obtaining payment in satisfaction of tax liens because no

claim was filed. Pet. 16-21; 28-30. It is axiomatic that

Petitioners’ failure to raise these objections in response to

the proposed plan of reorganization constitutes waiver. If

26

the objections had been timely made and « >nsidered jus-

tified by the Bankruptcy Court or creditors, the Bank of

New York, as proponent of the Plan, need only have

reduced its proposed purchase price by the amount of the

ad valorem property tax liens, and purchased the prop-

erty subject to the liens. This is true because if not paid

under the Plan, the County would have been free to

enforce its unimpaired liens in state court against the

collateral. See In re Folendore, 862 F.2d 1537 (11th Cir.

1989); Lindsey v. Federal Land Bank of St. Louis, 823 F.2d 189

(7th Cir. 1987); Tarnow v. Commodity Credit Corporation,

749 F.2d 464 (7th Cir. 1984); In re Sillani, 9 Bankr. 188, 189

(Bankr. S.D. Fla. 1981). For the court to have subject

matter jurisdiction thereover, a debtor must question the

validity of a lien prior to, not five years after, confirma-

tion. This principle applies to real property tax liens. In re

Work, 58 Bankr. 868, 869 (Bankr. D. Ore.), aff'd, case no.

CV86-1028FR (D. Ore. November 21, 1986).

The Eleventh Circuit dispatched the claims of Peti-

tioners herein in a single sentence, with no citation to

authority. It is apparent that the Circuit Court viewed the

Debtors’ claims as lacking precedential significance.

Thus, in addition to disposing of the issues correctly, the

Circuit Court’s single-sentence opinion lacks impact as

stare decisis. See note 4 at p. 8.

| Moreover, there is nothing surrounding Petitioners’

proof of claim argument which makes it any less capable

of being resolved by settlement than the other issues

resolved by the Bankruptcy Court’s order approving the

comprehensive property tax settlement. The record below

amply demonstrates that the Petitioners’ arguments were

27

given full consideration and contributed to the substan-

tial economic savings realized by the Trust from the set-

tlement.

,

—

CONCLUSION

The Eleventh Circuit’s single-sentence affirmance of

the District Court’s affirmance of the Bankruptcy Court’s

decision approving the amended settlement of ad val-

Orem tax claims is correct. The Circuit Court decision

does not conflict, either facially or in principle, with any

decisions of this Court or of any circuit court.

The Petition should be denied.

Respectfully submitted,

Rosert A. GINSBURG

Dade County Attorney

Metro-Dade Center

Suite 2810

111 N.W. 1st Street

Miami, Florida 33128-1993

(305) 375-5151

James K. KRracnt

Assistant County Attorney

and

Danie. A. Weiss

Counsel of Record

Assistant County Attorney

Attorneys for Dade County,

Joel Robbins & Fred Ganz

APPENDIX

Voluntary Petition Under eg 11;

B;

Case No. 84-01593-BKC-T

In Re: Chopin Associates

App. 1

UNITED STATES BANKRUPTCY COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

used by debtor within last 6 years

) CASE NO.

n re ) §4-01593-BKC-TCB

CHOPIN ASSOCIATES, ) (Chapter 11)

a Florida General Partnership

LD. NO. 52-1167860 ) ea

Debtor ) UNDER

Include here all names ‘ CHAPTER 11

)

)

RELIEF ORDERED

1. Petitioner’s post-office address is 100

Chopin Plaza, Miami, Florida 33131

2. Petitioner has had his principal place of

business for-principatassets) within this dis-

trict for the 180 days immediately » receding

the filing of this petition for-for-a-tonger

portior- ofthe +66 days iminediatety-preced=

ing -the-fiting—of-this—petition than in-any

other-cistrict.

3. Petitioner is qualified to file this petition in

that he is qualified to be a debtor under

Chapter 7 of the Bankruptcy Code as a vol-

untary debtor.

4. A schedule of debtor’s assets and liabilities

and a statement of debtor’s financial affairs

(or a list of debtor’s creditors) accompanies

this petition (or a list of debtor’s creditors

accompanies this petition).

App. 2

Wherefore, petitioner prays for relief under Chapter 11 of

the Bankruptcy Code.

KENT WATTS DURDEN KENT

NICHOLS & MICKLER

Signed: /s/ illegible

[X] Attorney for Petitioner

[ ] Petitioner

(Petitioner sign if not

represented by attorney.)

Address 850 Edward Ball Building

Jacksonville, Florida 32202

CERTIFICATION

INDIVIDUAL: I, __, the petitioner named in the fore-

going petition, certify under penalty of perjury that the

fore-going is true and correct.

CORPORATION: I, __, the president (or other officer or

an authorized agent) of the corporation named as peti-

tioner in the foregoing petition certify under penalty of .

perjury that the foregoing is true and correct, and that the

filing of this petition on behalf of the corporation has

been authorized.

PARTNERSHIP: I, Theodore B. Gould, President of

Miami Center Corporation, General Partner of Chopin

Associates, a Florida General Partnership, a-substitute-tor

ar-authorized-agent) of the partnership named as peti-

tioner in the foregoing petition, certify under penalty of

perjury that the foregoing is true and correct, and that the

een

App. 3

filing of this petition on behalf of the partnership has

been authorized.

Executed on: August 22, 1984

Signed: /s/ Theodore B. Gould

Theodore B. Gould

App. 4

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.

CHAPTER 11

IN RE:

THEODORE B. GOULD

Debtor.

LIST OF TWENTY LARGEST UNSECURED

CREDITORS

There is one unsecured creditors [sic] of this Debtor.

DATED this 22nd day of August, 1984.

/s/ Theodore B. Gould

eodore B. Gou

App. 5

CHOPIN ASSOCIATES

ACCOUNTS PAYABLE/ACCRUED LIABILITIES

JULY 31, 1984

Tax Collector-Dade County 4,959,186.16

App. 6

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.

CHAPTER 11

IN RE:

CHOPIN ASSOCIATES, a

Florida General Partnership,

Debtor.

LIST OF ALL CREDITORS

Attached hereto is list of all creditors to the Debtor.

DATED this 22nd day of August, 1984.

CHOPIN ASSOCIATES

By: /s/ Theodore B. Gould

App. 7

CHOPIN ASSOCIATES

ACCOUNTS PAYABLE/ACCRUED LIABILITIES

JULY 31, 1984

Bank of New York $ 33,682,791.94

Tax Collector-Dade County 4,959,186.16

$ 38,641,978.10

App. 8

CERTIFICATE OF RESOLUTION

STATE OF FLORIDA )

COUNTY OF DADE SS.

Before me, the undersigned authority, this day

appeared THEODORE B. GOULD, to me known and

known to me to be the President of MIAMI CENTER

CORPORATION, a Florida corporation, who after being

first duly sworn upon oath did depose and say that the

following Resolution was duly adopted at a Special Meet-

ing of the Board of Directors of MIAMI CENTER CORPO-

RATION, a Florida corporation, at 3:30 p.m. on the 21st

day of August, 1984, at Miami, Florida:

RESOLVED: That this Corporation, as a General

Partner of Chopin Associates, a Florida General

Partnership, execute and file a Petition for a

voluntary Chapter 11 under the Bankruptcy

Reform Act of 1978 for Chopin Associates and

that KENT, WATTS, DURDEN, KENT,

NICHOLS & MICKLER, Attorneys at Law, be

retained as counsel for the purpose of prepar-

ing, presenting and filing said Petition and to

represent Chopin Associates in the proceedings.

FURTHER AFFIANT SAYETH NAUGHT.

/s/ Theodore B. Gould

THEODORE B. GOULD, President

Sworn to and subscribed before me

this 21st day of August, 1984.

App. 9

/s/ illegible

otary Public, State of Florida

My Commission expires: |

Notary Public; State of Florida at Large

My Commission Expires June 29, 1986

on