IN THE SUPREME COURT OF FLORIDA CASE NO: SC WAL-MART STORES, INC., a Florida corporation, d/b/a Wal-Mart Super Center, Petitioner, vs.

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO: SC WAL-MART STORES, INC., a Florida corporation, d/b/a Wal-Mart Super Center, Petitioner, vs. JIM TODORA, as Property Appraiser of Sarasota County, Florida; BARBARA FORD-COATES, as Tax Collector of Sarasota County, Florida; and LARRY FUCHS, as Executive Director of the Florida Department of Revenue, Respondents ON REVIEW FROM THE SECOND DISTRICT COURT OF APPEAL LAKELAND, FLORIDA Case Nos. 2D and 2D REPLY BRIEF OF PETITIONER WAL-MART STORES, INC. HOLLAND & KNIGHT LLP Stacy D. Blank Robert E. V. Kelley, Jr. P.O. Box 1288 Tampa, FL

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3 TABLE OF CONTENTS TABLE OF CONTENTS...i TABLE OF CITATIONS... ii ARGUMENT IN REPLY... 1 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF TYPEFACE COMPLIANCE i

4 TABLE OF CITATIONS CASES Dade County v. Atlantic Liquor Co., 245 So. 2d 229 (Fla. 1970)... 3, 4 Page Havill v. Scripps Howard Cable Co., 742 So. 2d 210 (Fla. 1998)... 1, 2 Oyster Pointe Condominium Ass'n Inc. v. Nolte, 524 So. 2d 415 (Fla. 1988)...7, 9, 12 Public Health Trust of Dade County v. Valcin, 507 So. 2d 596 (Fla. 1987) Southern Bell Tel. & Tel. Co. v. Broward County, 665 So. 2d 272 (Fla. 4th DCA 1995)... 1 Southern Bell Tel. & Tel. Co. v. County of Dade, 275 So. 2d 4 (Fla. 1973)... 1 State Department of Assessments and Taxation v. Metrovision of Prince George's County, Inc., 607 A.2d 110 (Md. Ct. Spec. App. 1992) Turner v. Tokai Fin. Serv., Inc., 767 So. 2d 494 (Fla. 2d DCA 2000)...1, 2, 10 Wal-Mart Stores, Inc. v. Mazourek, 778 So. 2d 346 (Fla. 5th DCA 2000)...7, 9, 10, 15 Wal-Mart Stores, Inc. v. Todora, 2001 WL (Fla. 2d DCA April, 18, 2001) OTHER AUTHORITY Section , Florida Statutes... passim ii

5 Section , Florida Statutes...14, 15 Section , Florida Statutes... 7 Section (2), Florida Statutes... 5 Section (4), Florida Statutes... 5 Section 8-107(b), Maryland Code Ann. Tax-Prop. (1999) iii

6 ARGUMENT IN REPLY The Property Appraiser's answer brief in this case is nothing more than a series of erroneous statements of Florida law cobbled together to create an argument that defies common sense. The answer brief reads like a wish list of how the Property Appraiser wishes the law were, rather than how it really is. Characteristic of its approach in this case, the Property Appraiser argues that Sections (1) and (8), Florida Statutes, are intended to apply only to real property and thus are not even applicable to the Property Appraiser's assessment of tangible personal property in this case. The Property Appraiser's statement is incorrect. Every Florida court that has considered the issue has concluded that Sections (1) and (8) apply equally to tangible personal property and real property. See Havill v. Scripps Howard Cable Co., 742 So. 2d 210, 212 (Fla. 1998) (applying Section to assessment of tangible personal property); Southern Bell Tel. & Tel. Co. v. County of Dade, 275 So. 2d 4, 7 (Fla. 1973) (personal property is entitled to the same "cost of sale" adjustment that real property receives in the assessment process); Turner v. Tokai Fin. Serv., Inc., 767 So. 2d 494, 500 (Fla. 2d DCA 2000) (holding that costs of sale deduction not limited to real property), rev. denied, 780 So. 2d 916 (Fla. 2001); Southern Bell Tel. & Tel. Co. v. Broward County, 665 So. 2d 272, 275 (Fla. 4 th DCA 1995) (approving property 1

7 appraiser's and DOR's 15% "cost of sale" adjustment under Section (8) to assessment of personal property), rev. denied, 673 So. 2d 30 (Fla. 1996). Despite the uniform case law on this point, including case law from this Court, the Property Appraiser suggests that " no Florida courts, other than the Mazourek court, have found and applied any costs of sale, as provided in (1) and (8) to tangible personal property." Answer Brief at 19. No doubt recognizing the misleading nature of its argument, the Property Appraiser concedes one page later in its answer brief that the Second District Court of Appeal's decision in Turner v. Tokai specifically held that subsections (1) and (8) apply to tangible personal property. In fact, the court in Tokai described the contention that subsections (1) and (8) apply only to real property as "without merit." Moreover, the court in Tokai noted the property appraiser's admission in that case that certain costs of sale should be excluded from the assessed value of the tangible personal property. The Property Appraiser never mentions the other case law in Florida applying Sections (1) and (8) to tangible personal property. This Court should not accept the Property Appraiser's misstatement of the law in light of the numerous decisions in this state, including this Court's decision in Havill, applying Sections (1) and (8) to tangible personal property. The Property Appraiser also makes a series of arguments designed to convince this Court that sales tax is really an embedded cost of producing tangible 2

8 personal property and not an external cost of sale or purchase properly excludable under Sections (1) and (8). Again, the Property Appraiser misstates the law of Florida, ignores the law of Florida, or otherwise sets aside all common sense in its effort to convince this Court that sales tax -- a textbook example of an external transaction cost -- is really an embedded cost of production. First, the Property Appraiser argues that sales tax is akin to the costs of labor or raw materials used to manufacture tangible personal property. The Property Appraiser contends that sales tax, like the costs of labor and materials, cannot be separated from the purchase price of the item in determining its value. Therefore, according to the Property Appraiser, sales tax affects the value of tangible personal property and should be included in the Property Appraiser's assessment using a cost approach to value. The Property Appraiser relies on this Court's decision in Dade County v. Atlantic Liquor Co., 245 So. 2d 229, 231 (Fla. 1970) to support its argument. The Property Appraiser's reliance on Atlantic Liquor, and its analogy to labor and materials costs, reveals its misunderstanding of the way sales tax operates. In Atlantic Liquor, this Court determined that the federal beverage stamp tax at issue in that case was imposed upon the distillation of alcoholic beverages, and not on their sale. Thus, the stamp tax was a production tax and not a sales tax, and "[b]eing a production tax, the tax is viewed as a cost of manufacturing, payment of 3

9 which increases the value of the product so taxed." Atlantic Liquor, 245 So. 2d at 231. The manufacturer in Atlantic Liquor argued that the stamp tax was really imposed on the sale of the beverages and thus was not includable in the ad valorem assessment. This Court rejected the manufacturer's characterization of the stamp tax as a sales tax. In doing so, the Court concluded that the tax was levied during production, not on the ultimate sale, and therefore was a component cost of production, not a cost of sale. As a result, the cost of the stamp tax could be included in the ad valorem assessment. Unlike Atlantic Liquor, there is no dispute in this case that the tax at issue is a true sales tax imposed by the State on the sale of the final product. Atlantic Liquor permitted inclusion of the tax in the assessment precisely because it was not a sales tax like the tax at issue in this case. Thus, Atlantic Liquor, on which the Property Appraiser relies so heavily, actually supports Wal-Mart's argument in this case. The Property Appraiser apparently cannot see the difference between internal costs of component parts used to manufacture items of tangible personal property and the external transaction (sales) tax imposed by the State on the ultimate sale of the final product. The Property Appraiser persists in arguing that the sales tax imposed by the State on the sale of the final product is the equivalent of the costs incurred by the manufacturer for the raw materials used to manufacture the product. The Property Appraiser's argument just makes no sense. It is elementary that sales 4

10 tax is not an internal cost of manufacture. Sales tax is imposed by the State, not the manufacturer or distributor. The seller has no control over the amount of sales tax imposed and no ability to waive or discount the sales tax. The rate of sales tax bears no relationship to the actual costs incurred in the production or distribution of a particular item of property. Instead, the rate of sales tax is set by the State and the counties in which the property is sold. Moreover, the obligation to pay sales tax never arises unless and until the item of property is actually sold. Thus, unlike an embedded cost of production, which the manufacturer incurs in connection with actually producing the product, sales tax is never imposed or due until the sales transaction occurs. It is difficult to imagine a more classic example of an external cost of sale than sales tax. The Property Appraiser and its amicus cannot seem to agree on whether sales tax is imposed on the buyer or seller and the resulting impact of that allocation. The Property Appraiser argues that sales tax is not levied against the consumer, but rather the businessman engaged in the business or occupation of selling property. According to the Property Appraiser, because sales tax is imposed on the privilege of engaging in a particular business in Florida, it is a cost to the seller incurred somewhere in the chain of manufacture and distribution. Thus, the Property Appraiser argues that sales tax is not a cost of sale, but rather a cost of production and should be included in the assessed value of Wal-Mart's tangible personal 5

11 property. To the contrary, amicus curiae Mike Wells, as Property Appraiser of Pasco County, argues that sales tax is a cost to the buyer, not the seller. Wells states, "[t]he seller does not `pay' the sales tax, the seller merely collects and remits it to the state. The sale tax is not a cost of sale, the expense of which is traditionally included in the price of item [sic] of equipment as part of the seller's business operations." Amicus Brief of Mike Wells at 14 (emphasis added). Wells further points out that sales tax is separately stated, separately identified and collected, and separately transferred to the state. Id. Thus, even the amicus supporting the Property Appraiser's position in this appeal discredits the Property Appraiser's contention that sales tax is an embedded cost of manufacture or production inseparable from the purchase price of the tangible personal property. The Property Appraiser's argument that sales tax cannot be separated from the purchase price of the property is likewise based on a misstatement of Florida law. In fact, under Florida law, it is unlawful for a vendor to include sales tax in the purchase price of property or to advertise a price that includes sales tax. See (2) and (4), Florida Statutes. Sales tax must be separately added to the sales price of the product at the time of the sale. The Property Appraiser's contention that sales tax is inseparable from the sales price of tangible personal property ignores Florida law expressly prohibiting vendors from combining sales tax with the sales price of the property. 6

12 In addition, the Property Appraiser's contention that the sales tax paid on tangible personal property should be included in the assessed value of tangible personal property because it increases the value of the property makes no sense. To suggest that an item of property becomes more valuable immediately after its sale than it was before the sale simply because sales tax was imposed on the sales transaction defies logic and common sense. A quick example demonstrates the fallacy in the Property Appraiser's argument. If the Property Appraiser is correct, two identical items of used tangible personal property purchased on the same date, for the same sales price, and with identical depreciation, will have a different fair market value depending upon whether the property was purchased in a county with a 6% or 7% sales tax, and whether the property was initially sold to a tax exempt purchaser. The Property Appraiser's argument means that property originally sold to a tax exempt purchaser will always have a lower fair market value because no sales tax is included in the original cost. The Property Appraiser's argument ignores the economic reality of the marketplace. No purchaser of used tangible personal property will pay more for the property simply because the seller paid higher sales tax on its purchase of the property. The Property Appraiser's tortured characterization of sales tax as an embedded cost of production ignores the fact that sales tax on tangible personal property is the functional equivalent of documentary stamp tax on real estate 7

13 transactions. In Oyster Pointe Condominium Ass'n Inc. v. Nolte, 524 So. 2d 415, (Fla. 1988), this Court determined that documentary stamp tax imposed on transfers of real property, as well as other typical costs of sales such as brokers' fees and attorneys' fees, must be excluded from the assessed value of real property. The Fifth District Court of Appeal in Mazourek correctly recognized that sales tax imposed on sales of tangible personal property is no different than documentary stamp tax imposed on sales of real property. See Wal-Mart Stores, Inc. v. Mazourek, 778 So. 2d 346, 350 (Fla. 5 th DCA 2000). Both taxes are transaction taxes imposed by a governmental entity on the ultimate sale of real or tangible property. The Property Appraiser's attempt to distinguish sales tax from documentary stamp tax is particularly weak. The Property Appraiser relies on yet another incorrect statement of Florida law that sales tax is imposed only once, while documentary stamp tax is imposed on every sale of real property. The Property Appraiser's statement is erroneous. In Florida, every retail sale of used tangible personal property is subject to sales tax. See , Florida Statutes. Any consumer who has shopped at a used bookstore and paid sales tax on his or her purchase of used books understands that the Property Appraiser's single sales tax argument is erroneous. Sales tax is imposed on every retail sale of tangible personal property without regard to whether the property has been sold once or hundreds of times. 8

14 The Property Appraiser also argues that sales tax should be included in the assessed value of Wal-Mart's tangible personal property because buyers and sellers typically consider their total investment in the property when deciding the price at which they are willing to buy or sell the property. The Property Appraiser contends that because buyers will take into consideration their total cost, including sales tax, in deciding whether to buy, and sellers will likewise consider the total amount they will recoup upon the sale of the property, all of the elements making up the price paid by the buyer or recovered by the seller should be included in the assessed value of the property. The Property Appraiser's argument, however, requires this Court to completely ignore Sections (1) and (8). In those sections, the Florida Legislature specifically instructs that property appraisers electing to apply subsections (1) and (8) must exclude the costs of sale and purchase from the amount a willing buyer and willing seller would pay or charge for the property. Simply stated, all transaction costs, including the costs of sale and purchase, will factor into a buyer's or seller's total investment in the property. Sections (1) and (8), however, require that those costs of sale and purchase be excluded from the assessed value of property. Thus, the Property Appraiser's "total investment" argument is unpersuasive in light of Section In fact, the Property Appraiser could make the very same argument regarding costs of sale or purchase associated with real property transactions. For example, a 9

15 buyer contemplating the purchase of a new home will consider the total amount he or she must pay for the real property, including any amounts ultimately paid to brokers, attorneys, or for documentary stamp taxes. Likewise, a seller contemplating the sale of real property will consider the total sales price he or she is able to collect on the sale, keeping in mind his or her obligation to pay attorneys' fees, documentary stamp taxes, or brokers' fees. The fact that both parties to a real estate transaction will ultimately consider and negotiate a total price including all costs of sale in no way changes the treatment of those costs of sale under Sections (1) and (8). As this Court concluded in Oyster Pointe, costs of sale and purchase are excludable under Sections (1) and (8) even though the costs are quite clearly part of the total price paid for the real estate. There is nothing complicated about Sections (1) and (8), which require appraisers to consider only the net proceeds received by the seller or the net purchase price paid by the buyer, excluding any costs of sale or purchase. The fact that a willing buyer and willing seller consider the necessary transaction costs in deciding whether or not to buy or sell property does not mean that those transaction costs must therefore be included in the assessed value of the property. To the contrary, the statute says that property appraisers should consider what a willing buyer and willing seller would pay or accept for the property net of the costs of sale or purchase. The Property Appraiser asks this Court to write out of Sections 10

16 (1) and (8) the costs of sale and costs of purchase deductions. This Court should not accept the Property Appraiser's invitation to rewrite the statute. Along similar lines, the Property Appraiser argues that the Mazourek court erred in using the term "sales price" to describe the net figure referenced by the Legislature in Sections (1) and (8). According to the Property Appraiser, a cost approach must start with the original or acquisition cost of the property. The Property Appraiser, however, has refused to deduct from that original or acquisition cost the costs of sale and purchase as required by Sections (1) and (8). The Property Appraiser's argument is really nothing more than an exercise in semantics. The Property Appraiser apparently hopes to convince to this Court that the Mazourek court misused some appraisal terms of art. In fact, like the Mazourek court, the Tokai court also used the term "sales price" to refer to the price paid by the buyer and retained by the seller after the exclusion of costs of sale, including sales tax. See Tokai, 767 So. 2d at 499. Sections (1) and (8) prescribe that the assessed value of property must be based only on the value of the property itself and may not include any transaction costs. The Mazourek court explained that sales tax is not part of the "sales price" paid by a buyer for the property itself, but rather is a cost of sale imposed by the State on the sales transaction. See Mazourek, 778 So. 2d at 350. The court, therefore, determined that sales tax should be excluded from 11

17 the assessed value of Wal-Mart's tangible personal property. The Mazourek court did exactly what Sections (1) and (8) require. The Property Appraiser also attempts to distinguish assessments reached using the market approach from those reached using the cost approach. According to the Property Appraiser, sales tax must always be included in the assessed value of property under the cost approach even though the DOR and other courts have specifically stated that sales tax should not be included in assessments reached using the market approach. The Property Appraiser, however, has failed to identify any logical justification for excluding sales tax from assessments reached using the market approach, but not those reached using the cost approach. In fact, there is no rational reason for doing so. Again, the character of sales tax as an extraneous transaction cost, rather than an embedded cost of production, does not change depending on the method of appraisal selected by the Property Appraiser. Any argument that sales tax is an embedded cost of production under the cost approach but an extraneous cost of sale under the market approach makes no sense. Moreover, in this case, the Property Appraiser's cost approach is virtually identical to a market approach. Wal-Mart bought all of the property new, some just over a year before the assessment. The Property Appraiser started its cost approach with Wal-Mart's actual original cost of the property and depreciated that cost to bring the value current. The only difference between a market approach, which relies 12

18 on current sales, and the Property Appraiser's cost approach here, which relies on a historical sale, is the adjustment for depreciation. The sales relied on in the market and cost approaches occur at different points in time and depreciation must be considered to make the sales information current under the cost approach. There is no logical reason for permitting a cost of sale deduction for the current sale, but not for the historic sale. As the DOR Manual notes, when the starting point of the cost approach is the purchase of new property in an open competitive market, as was the case for the property here, the determination of original cost is much like the market approach. (R. 662). The Property Appraiser's attempt to draw a distinction between the cost approach and the market approach is much ado about nothing. It is no surprise that the Property Appraiser once again attempts to insulate its assessment in this case from any review by claiming the protection of the broad discretion afforded property appraisers in assessing property. This refrain, constant and overused by the Property Appraiser, does nothing to hide the Property Appraiser's error. When all else fails, the Property Appraiser drags out its argument that its erroneous decision is protected from review because it is an exercise of his discretion. The Property Appraiser must consider every factor, but is afforded substantial latitude in determining whether or not to apply the particular factors. Once the Property Appraiser exercises his discretion and decides to apply a factor, however, he must do so correctly. The failure to apply a factor correctly constitutes 13

19 a failure to properly consider that factor and deprives the assessment of its presumption of correctness. In this case, it is undisputed that the Property Appraiser chose to apply factors (1) and (8). 1 The Property Appraiser, however, erroneously applied those factors by refusing to deduct from Wal-Mart's original cost the costs of sale and purchase that is, the sales tax paid by Wal-Mart on its original purchase of the property. The Property Appraiser attempts to justify his decision by falling back on his discretion argument. While the Property Appraiser has the discretion to decide not to apply factors (1) and (8), once he decides to do so, he must apply them correctly. He has no discretion to modify the factors. The Property Appraiser contends that he has the discretion to exclude costs of sale in some cases, but require their inclusion in others. To accept the Property Appraiser's argument on that point, this Court must recede from its decision in Oyster Pointe. In that case, the Court determined that the property appraiser was required to exclude the costs of sale from its assessment of real property based on sales prices. The Property Appraiser would have this Court rule that, despite the holding in Oyster Pointe, the Property Appraiser may at its whim, exclude costs of sale from some real property assessments, but include them in others. This Court 1 The Property Appraiser effectively concedes in its brief that its cost approach in this case turns on the willing buyer/willing seller concepts in factors (1) and (8). 14

20 should reject the Property Appraiser's argument. Once the Property Appraiser exercises his discretion to apply a factor, the Property Appraiser must apply the factor properly and in its entirety. The Property Appraiser cannot apply factors (1) and (8), but then rely on his "discretion" to refuse to deduct the costs of sales and purchase as required by those factors. Finally, the Property Appraiser relies on general appraisal treatises and out-ofstate cases to support its contention that sales tax should be included in the assessed value of Wal-Mart's property. The fundamental flaw in the Property Appraiser's reasoning is that none of the cases cited come from jurisdictions with statutes like Section The Property Appraiser's reliance on Maryland case law is particularly telling. The Property Appraiser proudly points out that the Maryland appellate court in State Department of Assessments and Taxation v. Metrovision of Prince George's County, Inc., 607 A.2d 110, 118 (Md. Ct. Spec. App. 1992) held that "in applying the cost approach to tangible personal property, the taxing authority must include all costs necessary to get an asset operational, including freight, sales tax, and installation." Answer Brief at A cursory review of the Maryland statute, however, reveals that Maryland does not have a statutory provision like Sections (1) and (8). In fact, Maryland law is just the opposite. The Maryland code directs that the valuation of personal property shall include consideration of "any sum that is paid to acquire the personal property." 8-107(b), 15

21 Md. Code Ann. Tax-Prop. (1999). Thus, unlike Sections (1) and (8) which specifically require the exclusion of costs of sale and purchase, the Maryland code specifically requires the inclusion of those costs. The Property Appraiser likewise relies on general appraisal treatises which do not refer to or analyze Section The Property Appraiser asks this Court to ignore the Florida statute in favor of the general appraisal treatises. Those treatises, however, cannot prevail over the Florida statute. This Court must reject the Property Appraiser's reliance on out-of-state secondary authority and instead follow Sections (1) and (8). Finally, the Property Appraiser attempts to justify the Second District Court of Appeal's reliance on the statutorily overruled "no reasonable hypothesis" standard. Recognizing that it has little to work with, the Property Appraiser suggests that the Second DCA's citation to the "no reasonable hypothesis" standard is mere dicta. To the contrary, the Second DCA stated, " the appraiser's decision may be overturned only if there is no reasonable hypothesis to support it. [citation omitted]." Wal-Mart Stores, Inc. v. Todora, 2001 WL , at *1. It is difficult to understand how the appellate court's articulation of the legal test under which it would measure the assessment can be mere dicta. The Second DCA specifically said that the Property Appraiser's assessment could not be overturned absent proof 16

22 that the assessment was supported by no reasonable hypothesis. That is an incorrect statement of the law and warrants a reversal in this case. The Property Appraiser also suggests for the first time that Section , Florida Statutes, is invalid because it constitutes improper rulemaking by the Florida Legislature. The Property Appraiser, however, cannot raise that argument for the first time before this Court. Moreover, the Property Appraiser's statement of the law is again erroneous. The Property Appraiser contends that this Court has exclusive rulemaking authority. That power, however, is limited to rules governing procedural matters and does not extend to substantive law. As this Court recognized in Public Health Trust of Dade County v. Valcin, 507 So. 2d 596, 601 (Fla. 1987), the degree of persuasion or proof required to establish a matter, and the extent to which presumptions are rebuttal, are matters of substantive law and not mere procedural issues. Thus, the Legislatures' lowering of a taxpayer's burden of proof in Section is a matter of substantive law, outside the procedural rulemaking authority of this Court. Thus, contrary to the Property Appraiser's argument, Section is valid and binding on the Second DCA. CONCLUSION For all the foregoing reasons, this Court should reverse the decision of the Second District Court of Appeal in this case and approve the decision of the Fifth District Court of Appeal in Mazourek. Respectfully submitted, Stacy D. Blank Florida Bar No Robert E. V. Kelley, Jr. Florida Bar No

23 HOLLAND & KNIGHT LLP P.O. Box 1288 Tampa, Florida (813) (813) fax Attorneys for Wal-Mart Stores, Inc. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via U.S. Mail to: John E. Dent, Esq., and Sherri L. Johnson, Esq., Dent & Cook, P.A., 330 South Orange Avenue, Post Office Box 3259, Sarasota, Florida 34230; Scott H. Carter, Esq., and Jorge L. Fernandez, Esq., 1660 Ringling Blvd., Second Floor, Sarasota, Florida 34236; Gaylord A. Wood, Esq., and B. Jordan Stuart, Esquire, Wood & Stuart, P.A., 206 Flagler Avenue, New Smyrna Beach, Florida 32169; J. Ben Harrill, Esq., Figurski & Harrill, The Holiday Tower, 2435 U.S. Highway 19, Suite 350, Holiday, Florida 34691; Loren E. Levy, Esq., and Larry E. Levy, Esq., The Levy Law Firm, 1828 Riggins Road, Tallahassee, Florida 32308; Thomas B. Drage, Jr., Esq., and Kenneth P. Hazouri, Esq., Drage, de Beaubien, Knight, Simmons, Mantzaris & Neal, LLP, P.O. Box 87, Orlando, Florida ; and Joseph A. Mellichamp, III, Senior Assistant Attorney General, Room LL-04, the Capitol, Tallahassee, Florida on this 1 st day of November, Attorney CERTIFICATE OF TYPEFACE COMPLIANCE Counsel for petitioner, Wal-Mart Stores, Inc., certifies that this Reply Brief is typed in 14 point (proportionately spaced) Times New Roman. Attorney 18

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