author: CANADY, C.J.

text:
    SHANDS TEACHING HOSPITAL AND CLINICS, INC., Appellant/Cross-Appellee, v. MERCURY INSURANCE COMPANY OF FLORIDA, Appellee/Cross-Appellant.
    No. SC09-2069.
    Supreme Court of Florida.
    June 7, 2012.
    Rehearing Denied Sept. 4, 2012.

      Joel W. Walters, Elinor E. Baxter and Thomas C. Valentine of Walters, Levine, Klingensmith and Thomison, P.A., Sarasota, FL, for Appellant/Cross-Appellee.
    Jeffrey W. Kirsheman, and Jamie B. Moses of Fisher, Rushmer, et al., Orlando, FL, for Appellee/Cross-Appellant.

      Pamela Jo Bondi, Attorney General and Louis F. Hubener, III, Deputy Solicitor General, Tallahassee, FL, on behalf of the Attorney General’s Office; Edward J. Poz-zuoli, III, of Tripp, Scott, P.A., Fort Laud-erdale, FL, Stephanie D. Alexander of Tripp, Scott, P.A., Tallahassee, FL, on behalf of the Florida Hospital Association; and Philip M. Burlington of Burlington and Rockenback, P.A., West Palm Beach, FL, on behalf of the Florida Justice Association, As Amicus Curiae.
   CANADY, C.J.

In this case we consider the constitutionality of the Alachua County Lien Law, chapter 88-539, Laws of Florida (Lien Law), and the Alachua County Hospital Lien Ordinance, Alachua County Code sections 262.20-262.25 (1997) (Ordinance), both of which establish certain lien rights for charitable hospitals in Alachua County. We have for review the decision of the First District Court of Appeal in Mercury Insurance Co. of Florida v. Shands Teaching Hospital & Clinics, Inc., 21 So.3d 38 (Fla. 1st DCA 2009), which reversed the trial court’s judgment for Shands Teaching Hospital and Clinics, Inc. (Shands) and held that the Lien Law and Ordinance were unconstitutional under the prohibition on “special law[s]” pertaining to “liens based on private contracts” contained in article III, section 11(a)(9) of the Florida Constitution. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

For the reasons set forth below, we conclude that the Lien Law is unconstitutional under article III, section 11(a)(9) of the Florida Constitution. We hold, however, that the Ordinance is not unconstitutional and that the First District should have upheld the trial court’s judgment on the basis of the Ordinance. In addressing a cross-appeal presented by Mercury Insurance Company of Florida (Mercury), we hold that the trial court properly limited Shands’ damages to $10,000 and properly awarded Shands attorney fees. We reverse the First District’s decision, and we remand the case for proceedings consistent with this opinion.

I. BACKGROUND

Krystal Price was struck by a vehicle insured by Mercury. As a result of this accident, Ms. Price received treatment at Shands valued at $38,418.20. Pursuant to the Lien Law and the Ordinance, Shands perfected and recorded a lien on Ms. Price’s potential causes of action arising from her injury and any judgments or settlements entered by virtue of such causes of action. Shands sent a copy of the lien to Ms. Price on the date the lien was recorded.

Mercury’s insured carried a policy with bodily injury liability coverage in the amount of $10,000 and Personal Injury Protection (PIP) coverage in the amount of $10,000. After Shands’ lien had been recorded, Mercury tendered to Ms. Price $10,000, the full amount of bodily injury liability coverage and accepted Ms. Price’s signed release. Mercury did not join Shands in the release, nor did Mercury satisfy Shands’ lien prior to obtaining the release.

After the settlement between Mercury and Ms. Price, Shands sent a copy of the hospital lien to Mercury. Subsequently, Mercury paid Shands $10,000, the remaining coverage available under the policy. Shands then filed suit against Mercury to recover the remaining $28,418.20 of Ms. Price’s medical expenses, alleging that Mercury had impaired Shands’ lien. Mercury served a settlement proposal on Shands pursuant to section 768.79, Florida Statutes (2006), offering to pay Shands $17,700 as final satisfaction of Shands’ lien. Shands did not accept the settlement offer.

The trial court denied cross-motions for summary judgment, rejecting Mercury’s arguments that the Lien Law violated article III, sections 11(a)(9) and (12) of the Florida Constitution; the impairment of contracts clauses found in article I, section 10 of the United States Constitution and article I, section 10 of the Florida Constitution; and Mercury’s substantive due process rights under the Fifth and Fourteenth Amendments of the United States Constitution and article I, section 9, of the Florida Constitution. Ultimately, the trial court determined that Mercury had impaired Shands’ lien and that but for the impairment, Ms. Price’s underlying cause of action would have resulted in a judgment far greater than the cost of her treatment. The trial court also found, however, that all damages in excess of $10,000 were “nominal damage[s]” because the “judgment would have been uncollectible and of no commercial value.” Shands Teaching Hosp. & Clinics, Inc. v. Mercury Ins. Co. of Fla., No. 01-2006-CA-3631 (Fla. 8th Cir. Ct. final judgment filed Feb. 7, 2008) (Final Judgment). Therefore, the trial court limited Shands’ damages to $10,000, the amount of the liability coverage that Mercury had paid to Ms. Price, as well as attorney fees and costs.

Mercury appealed the judgment, asserting that the Lien Law and Ordinance violated article III, sections 11(a)(9) and ll(a)(12) of the Florida Constitution, as well as Mercury’s substantive due process rights under the Florida and United States Constitutions. Mercury also argued that if the Lien Law and Ordinance were upheld, any damages awarded to Shands must be limited to the $10,000 amount of the settlement between Mercury and Ms. Price or, at most, the $20,000 policy limits. Finally, Mercury appealed the award of attorney fees to Shands and claimed entitlement to attorney fees and costs pursuant to its settlement proposal. The First District reversed the trial court’s judgment, holding that the Lien Law and Ordinance were unconstitutional under article III, section 11(a)(9) of the Florida Constitution. Accordingly, the First District remanded the case with instructions to enter judgment in favor of Mercury and to consider whether Mercury was entitled to attorney fees pursuant to the settlement proposal. Mercury Ins., 21 So.3d at 39.

Shands now appeals the First District’s decision, arguing that the Lien Law and Ordinance are constitutional under article III, section 11(a)(9). Shands further contends that it should receive damages for the full reasonable amount of Ms. Price’s treatment and attorney fees as the prevailing party in this case. Mercury cross-appeals, arguing that the Lien Law and Ordinance also violate both the prohibition on special laws granting a privilege to private corporations in article III, section ll(a)(12) of the Florida Constitution, and Mercury’s substantive due process rights under the Fifth and Fourteenth Amendments of the United States Constitution and article I, section 9 of the Florida Constitution. Mercury also argues on cross-appeal that if this Court reverses the First District’s decision, Shands’ damages should be limited to the $10,000 settlement amount that Mercury paid Ms. Price.

II. ANALYSIS

In the analysis set forth below, we first explain that we affirm the First District’s conclusion that the Lien Law is unconstitutional because it is a proscribed “special law” pertaining to “liens based on private contracts” under article III, section 11(a)(9) of the Florida Constitution. We then explain that the Ordinance — which is not a “special law” — is not unconstitutional and that the First District erred in failing to uphold the trial court’s judgment on the basis of the Ordinance. Finally, we explain that the trial court properly limited Shands’ damages to $10,000 and properly awarded attorney fees to Shands.

“The determination of a statute’s constitutionality and the interpretation of a constitutional provision are both questions of law reviewed de novo by this Court.” Fla. Dep’t of Revenue v. City of Gainesville, 918 So.2d 250, 256 (Fla.2005). “While we review decisions striking state statutes de novo, we are obligated to accord legislative acts a presumption of constitutionality and to construe challenged legislation to effect a constitutional outcome whenever possible.” Id. (quoting Fla. Dep’t of Revenue v. Howard, 916 So.2d 640 (Fla.2005)).

The relevant portion of the Lien Law and the corresponding portion of the Ordinance provide:

Any nonprofit corporation operating a hospital that has qualified pursuant to s. 501(c)(3) of the Internal Revenue Code as a charitable hospital, located in Ala-chua County, shall be entitled to a lien for all reasonable charges for hospital care, treatment, and maintenance of ill or injured persons upon any and all causes of action, suits, claims, counterclaims, and demands accruing to such persons or the legal representatives of such persons, and upon all judgments, settlements, and settlement agreements rendered or entered into by virtue thereof, on account of illness or injuries giving rise to such causes of action, suits, claims, counterclaims, demands, judgment, settlements, or settlement agreements and which necessitate or shall have necessitated such hospital care, treatment and maintenance.
... No release or satisfaction of any action, suit, claim, counterclaim, demand, judgment, settlement, or settlement agreement, or of any of them, shall be valid or effectual as against such lien unless such lienholder shall join therein or execute a release of such lien. Any acceptance of a release or satisfaction of any such cause of action, suit, claim, counterclaim, demand, or judgment and any settlement of any of the foregoing in the absence of a release of satisfaction of the lien referred to in this act shall prima facie constitute an impairment of such lien and the lienholder shall be entitled to an action at law for damages on account of such impairment, and in such action may recover from the one accepting such release or satisfaction or making such settlement the reasonable cost of such hospital care, treatment, and maintenance. Satisfaction of any judgment rendered in favor of the lien-holder in any such action shall operate as a satisfaction of the lien. Any action by the lienholder shall be brought in the court having jurisdiction of the amount of the lienholder’s claim and may be brought and maintained in the county wherein the lienholder has his, its, or their residence or place of business. If the lienholder shall prevail in such action, the lienholder shall be entitled to recover from the defendant, in addition to costs otherwise allowed by law, all reasonable attorney’s fees and expenses incident to the matter.

Ch. 88-539, §§ 1, 4, Laws of Fla.; see also Alachua Cnty.Code §§ 262.20, 262.23.

Article III, section 11(a)(9), Florida Constitution, states:

(a) There shall be no special law or general law of local application pertaining to:
(9) creation, enforcement, extension or impairment of liens based on private contracts, or fixing of interest rates on private contracts.

Here, the First District correctly held that the Lien Law “is a special law which creates a lien based on a private contract between Shands and its patient,” and is thus unconstitutional under article III, section 11(a)(9) of the Florida Constitution. Mercury Ins., 21 So.3d at 39. Shands raises multiple challenges to the First District’s holding, none of which are meritorious.

Shands first asserts that the Lien Law does not create a true lien but instead creates a cause of action by which hospitals can recover from third parties against whom the hospital would not otherwise be able to recover. This argument is without merit. The distinction on which Shands relies is without any basis in the law.

In construing a statute, we should give effect to legislative intent, which is discovered primarily through the plain language of the statute. BellSouth Telecomms., Inc. v. Meeks, 863 So.2d 287, 289 (Fla.2003). Here, the Lien Law clearly states that any qualifying hospital

shall be entitled to a lien for all reasonable charges for hospital care, treatment, and maintenance of ill or injured persons upon any and all causes of action, suits, claims, counterclaims, and demands accruing to such persons or the legal representatives of such persons, and upon all judgments, settlements, and settlement agreements rendered or entered into by virtue thereof, on account of illness or injuries giving rise to such causes of action, suits, claims, counterclaims, demands, judgment, settlements, or settlement agreements and which necessitate or shall have necessitated such hospital care, treatment and maintenance.

Ch. 88-539, § 1, at 284-85, Laws of Fla. The Lien Law explicitly creates a lien and refers to the “lien” and “lienholder” throughout. There is no basis for concluding that “lien” has a different meaning in the Lien Law than it has in article III, section 11(a)(9) of the Florida Constitution. Thus, the plain language of the Lien Law refutes Shands’ argument.

Shands also argues that its lien was created by the Lien Law and is thus a statutory lien, not a lien “based on” a private contract. This argument is also without merit. Shands fails to recognize— as the text of section 11(a)(9) plainly requires — that liens created by statute nonetheless may be based on a private contract. Adopting Shands’ argument would effectively read the portion of article III, section 11(a)(9), relating to the “creation” of liens out of existence or place an unwarranted and arbitrary restriction on its scope.

Finally, Shands contends that its relationship with Ms. Price resulted in a quasi-contract and that article III, section 11(a)(9), does not apply to liens based on quasi-contracts. But Shands did not properly present this argument to the First District. We therefore do not address it.

We conclude that the First District erred, however, in holding the Ordinance to be unconstitutional. The First District concluded that the Ordinance, being “enacted pursuant” to the Lien Law, is also unconstitutional. Mercury Ins., 21 So.3d at 39. An ordinance enacted by authority of an unconstitutional law is void. See State ex rel. Numen v. Greer, 88 Fla. 249, 102 So. 739, 743 (1924) (holding that a legislative enactment declared unconstitutional is rendered inoperative ab initio, “and bonds issued thereunder are void because issued without authority of law”). But the Ordinance here was not “enacted pursuant” to the Lien Law. The fact that the Ordinance mirrors the language of the Lien Law and includes references to the corresponding sections of the Lien Law does not support the conclusion that the Ordinance was enacted by authority of the Lien Law. The Ordinance does not state that it was enacted pursuant to the Lien Law, and the Lien Law does not contain a grant of power authorizing Alachua County to enact an ordinance. The Ordinance is therefore not unconstitutional by virtue of the Lien Law’s invalidity.

Mercury argues that the Ordinance is nevertheless unconstitutional in light of the prohibition in article III, section 11, on special laws pertaining to certain subjects. Mercury contends that “[t]he piecemeal enactment of legislation concerning these [subjects] by local government goes against the overriding purpose for the constitutional prohibition.” Appellee/Cross-Appellant’s Answer Brief & Initial Brief on Cross-Appeal at 35. Mercury’s argument is premised on the constitutional rule that a charter county cannot enact ordinances that are inconsistent with a general or special law. See art. VIII, § 1(g), Fla. Const. (“Counties operating under county charters shall have all powers of local self-government not inconsistent with general law, or with special law approved by vote of the electors.”). Mercury’s argument is without merit. We have previously held that “a county ordinance can be inconsistent with state law and therefore unconstitutional” under article VIII, section 1(g), only if it directly conflicts with a state statute or if the State has preempted the subject area in which field the ordinance is passed. Phantom of Brevard, Inc. v. Brevard Cnty., 3 So.3d 309, 314 (Fla.2008). Here, neither fatal flaw is present.

The Ordinance does not directly conflict with any state statute. The only statute relating to hospital liens for Ala-chua County is the Lien Law, which we conclude is unconstitutional, and thus has no effect. Nor does the Ordinance occupy a field preempted by the Legislature. Courts should be reluctant to “preclude a local elected governing body from exercising its local powers” by finding preemption by implication “in the absence of an explicit legislative directive.” Phantom of Clearwater, Inc. v. Pinellas Cnty., 894 So.2d 1011, 1019 (Fla. 2nd DCA 2005) (citing Tallahassee Mem’l Reg’l Med. Ctr., Inc. v. Tallahassee Med. Ctr., Inc., 681 So.2d 826 (Fla. 1st DCA 1996)). Thus, implied preemption should be found only “if the senior legislative body’s scheme of regulation of the subject is pervasive and if further regulation of the subject by the junior legislative body would present a danger of conflict with that pervasive regulatory scheme.” Tribune Co. v. Cannella, 458 So.2d at 1075, 1077 (Fla.1984) (quoting Tribune Co. v. Cannella, 438 So.2d 516, 525-26 (Fla. 2d DCA 1983) (Lehan, J., dissenting)). There is no such pervasive regulatory scheme enacted by the Legislature with respect to hospital liens. Ala-chua County therefore validly exercised its broad powers of local self-government in enacting the Ordinance.

Nor do we find merit in Mercury’s argument to the extent that it challenges the validity of the Ordinance under article III, section 11(a)(9), or article III, section ll(a)(12) of the Florida Constitution. Article III, section 11(a) of the Florida Constitution states that “[t]here shall be no special law or general law of local application pertaining to” the enumerated subjects. Because section 11(a) forbids only the Legislature from enacting certain special laws and general laws of local application, a county ordinance cannot violate that provision of the Florida Constitution. See Brooks v. Town of Orange Park, 286 So.2d 593, 596 (Fla. 1st DCA 1973) (“[T]he special or general laws of local application referred to in [a provision of article III, section 11(a) ] apply to laws enacted by the state legislature and not to ordinances adopted by the various municipalities of the state.”).

Additionally, the Ordinance does not violate Mercury’s substantive due process rights under the Florida and United States Constitutions. When a law challenged on substantive due process grounds does not infringe upon a fundamental right, we must review the law under the rational basis test, which requires that the law bear “a reasonable relation to a permissible legislative objective and is not discriminatory, arbitrary or oppressive.” Lasky v. State Farm Ins. Co., 296 So.2d 9, 15 (Fla.1974). Here, Mercury contends that the Ordinance violates substantive due process as applied by the trial court. Specifically, Mercury claims that there is no rational basis for “shifting] the financial burden from the hospital to the insurance carrier beyond” the amount that the insurance company paid to the injured party or, at most, the total amount of the insurance policy. Appellee/Cross-Appel-lant’s Answer Brief & Initial Brief on Cross-Appeal at 56. This argument is rendered moot, however, by our conclusion—which we explain hereafter—that the Ordinance does not allow for such recovery here.

Given the constitutionality of the Ordinance, the First District erred in reversing the trial court’s judgment for Shands. According to the “longstanding principle of appellate law” known as the “tipsy coachman” doctrine, an appellate court should affirm a trial court that “reaches the right result, but for the wrong reasons” if there is “support for the alternative theory or principle of law in the record before the trial court.” Robertson v. State, 829 So.2d 901, 906-07 (Fla.2002). Therefore, “if a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.” Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999).

Here, although the trial court based its judgment solely on the Lien Law, the record supports the trial court’s judgment under the alternative theory that Mercury is liable to Shands pursuant to the Ordinance. The parties litigated the constitutionality of the Ordinance in the trial court after Mercury challenged the constitutionality of the Lien Law and Ordinance at the summary judgment stage of litigation. Because the record supports the trial court’s judgment on this alternative theory, we conclude that the trial court properly ruled in favor of Shands.

As mentioned above, we also conclude that the trial court properly limited Shands’ damages to $10,000. The trial court found that Mercury had damaged Shands in the amount of $10,000 by virtue of its settlement with Ms. Price in that amount. The trial court also found that Mercury’s settlement with Ms. Price extinguished Shands’ lien on Ms. Price’s cause of action against Mercury’s insured for damages over and above the $10,000 settlement—which the trial court found “by the greater weight of the evidence” would have resulted in a judgment in excess of the total policy limits. However, the trial court found that any damages awarded in that cause of action beyond the $10,000 liability policy limits would have been “nominal” because “under the circumstances presented, said judgment would have been uncollectible and of no commercial value.” Final Judgment at 2. Mercury argues that if this Court reverses the First District’s decision, this Court should affirm the trial court’s ruling limiting Shands’ damages to the collectible value of any lost judgment against Mercury’s insured. We agree.

The Ordinance states that upon impairment of a lien, the lienholder “shall be entitled to an action at law for damages on account of such impairment.” Alachua Cnty.Code § 262.28. “On account of’ is defined as “by reason of’ or “because of.” Webster’s Third New Int’l Dictionary 13 (1981) (unabridged). Shands’ claim against Mercury for Mercury’s impairment of Shands’ lien is therefore limited to the damages Shands suffered because of Mercury’s impairment. As the trial court found, any judgment that Ms. Price might have received against Mercury’s insured would have been uncollectible. Because Shands’ lien on an uncollectable judgment would not have resulted in additional recovery, Shands would still not have collected more than the policy limits absent Mercury’s impairment of the lien. Thus, because the total policy limits were $20,000 and Mercury had already paid Shands the $10,000 PIP limits, Shands’ damages “on account of’ Mercury’s impairment are limited to the $10,000 in liability coverage that Mercury paid to Ms. Price.

Finally, we conclude that the trial court properly awarded attorney fees to Shands and in doing so properly denied Mercury’s claim for attorney fees based on its settlement proposal. Although the trial court improperly awarded attorney fees to Shands based on the Lien Law, the award should nonetheless be upheld pursuant to the Ordinance, which states:

If the lienholder shall prevail in such action, the lienholder shall be entitled to recover from the defendant, in addition to costs otherwise allowed by law, all reasonable attorney’s fees and expenses incident to the matter.

Alachua Cnty.Code § 262.23.

The standard of review for an award of prevailing party attorney fees is abuse of discretion. See DiStefano Constr., Inc. v. Fid. & Deposit Co. of Md., 597 So.2d 248, 250 (Fla.1992). In examining the prevailing party attorney fee provisions in lien laws, we have held that “trial courts are required to apply the ‘significant issues’ test of [Prosperi v. Code, Inc., 626 So.2d 1360 (Fla.1993) ] ... even when the lienor obtains a judgment on the lien.” Trytek v. Gale Indus., Inc., 3 So.3d 1194, 1196 (Fla.2009) (quashing the holding of the Fifth District Court of Appeal that trial courts must grant lienholder “prevailing party” attorney fees if lienholder recovers any net judgment on lien claim). Thus, the fact that Shands obtained a net judgment “is a significant factor but [does not necessarily] control the determination of who should be considered the prevailing party.” See Prosperi, 626 So.2d at 1363.

We conclude that the trial court did not abuse its discretion in awarding Shands attorney fees as the prevailing party. The trial court applied the correct “significant issues” test, as opposed to the “net judgment” test, and found that Shands had

indeed successfully recovered monetary judgment against [Mercury] and has prevailed on significant issues of law including, but not limited to: 1) the validity of the hospital lien law despite constitutional challenge; 2) the disputed issues of liability and damages regarding the underlying bodily injury cause of action; 3) the nature, scope and extent of [Shands’] lien ... and 4) obtaining a resolution not only favorable with respect to the case at hand but favorable in establishing a basis upon which to inform the parties’ continuing dealings together in the area of settlement of claims involving hospital liens.

Final Judgment at 2-3. Despite Mercury’s contention that there was only one significant issue in the case, the record supports the trial court’s finding that Shands prevailed with respect to several significant issues.

Moreover, the trial court properly-considered and denied Mercury’s claim for attorney fees pursuant to its settlement offer. Section 768.79(1), Florida Statutes (2006), provides in relevant part:

(1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees ... from the date of filing of the offer if the judgment .. \ obtained by the plaintiff is at least 25 percent less than such offer....

In determining the amount of the plaintiffs “judgment obtained,” courts should include not only “the amount of the net judgment entered,” but also “any postoffer collateral source payments received or due as of the date of the judgment, plus any postoffer settlement amounts by which the verdict was reduced.” § 768.79(6), Fla. Stat. (2006). We have interpreted the “judgment obtained” under section 768.79 to include “the total net judgment, which includes the plaintiffs taxable costs up to the date of the offer and, where applicable, the plaintiffs attorneys’ fees up to the date of the offer.” White v. Steak & Ale of Fla., Inc., 816 So.2d 546, 551 (Fla.2002).

Before awarding attorney fees to Shands, the trial court properly “determine[d] the effect of [Mercury’s] § 768.79 proposal for settlement.” Final Judgment at 3. The trial court applied our formula set forth in Steak & Ale, “adding to the amount of damages recovered the attorney’s fees, costs and pre-judgment interest accrued up to the date of the proposal for settlement.” Id. at 4. The trial court determined that based on Mercury’s offer of $17,700, Shands’ “judgment obtained” must not have exceeded $13,275 in order for Mercury to be awarded attorney fees. Id. The trial court calculated Shands’ preoffer interest and attorney fees, which, when added to the $10,000 in damages, equaled $18,050.09. Even without accounting for Shands’ preoffer costs, “[t]his amount not only exceeded] the ‘target’ amount of $13,275.00, but exceed[ed] the total amount of the offer.” Id. Thus, the trial court properly determined that Mercury was not entitled to attorney fees based on its settlement offer and properly awarded attorney fees to Shands as the prevailing party.

III. CONCLUSION

For the reasons explained above, we approve the First District’s ruling that the Lien Law is unconstitutional under article III, section 11(a)(9) of the Florida Constitution. We conclude, however, that the Ordinance is constitutional, and that the trial court’s judgment should be upheld on the basis of the Ordinance pursuant to the “tipsy coachman” doctrine. We also conclude that the trial court correctly limited the damages awarded to Shands and properly awarded attorney fees to Shands.

Accordingly, we quash the First District’s decision and remand for proceedings consistent with this opinion.

It is so ordered.

PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.


source: Caselaw Access Project

author: PERRY, J.

license: Public Domain

text:
    Justin KOREN, Petitioner, v. SCHOOL BOARD OF MIAMI-DADE COUNTY, et al., Respondents.
    No. SC10-2366.
    Supreme Court of Florida.
    June 7, 2012.

      Thomas E. Elfers, Miami, FL, for Petitioner.
    Luis M. Garcia and Jorge A. Lopez of School Board of Miami-Dade County, Miami, FL, for Respondent.
   PERRY, J.

Justin Koren seeks review of the decision of the Third District Court of Appeal in Koren v. School District of Miami-Dade County, 46 So.3d 1090 (Fla. 3d DCA 2010), on the ground that it expressly and directly conflicts with the decision of the Second District Court of Appeal in Gibbons v. State Public Employees Relations Commission, 702 So.2d 536, 537 (Fla. 2d DCA 1997), on the standard to apply when reviewing an unfair labor practice (ULP) charge for a statement of a prima facie ease. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons expressed below, we quash the decision of the Third District below and remand with instructions to reinstate the charge for further proceedings.

FACTS AND PROCEDURAL HISTORY

Koren was a teacher at Southwood Middle School, where he had worked as a language arts teacher since 2005. In February 2008, he assisted a security guard, Kimberly Morris, in drafting a charge of harassment for sexual orientation against the School District and the school principal, Deborah Leal. After learning about Morris’s complaint, Leal summoned Koren to a meeting in her office. Leal confronted Koren about the Morris complaint, insinuating that he was the author of the complaint. She questioned Koren about whether he believed that the contents of the Morris complaint were true, and if that was why his behavior toward Leal had changed. Koren filed a charge against the School Board of Miami-Dade County alleging unfair labor practices violations pursuant to sections 447.501(l)(a) and (d), Florida Statutes (2008).

In his ULP charge, Koren alleged that after that meeting Leal began to retaliate against him — subjecting him to two groundless disciplinary actions and transferring him, without explanation, to a school twenty-four miles away. Koren filed his initial ULP charge against the School Board on February 9, 2009. The General Counsel of the Public Employees Relations Commission (PERC) dismissed the charge with leave to amend. The General Counsel found that Koren failed to prove by a preponderance of the evidence that his protected conduct was “a substantial and motivating factor” in Leal’s alleged retaliatory actions. Koren subsequently filed two more charges, both of which were summarily dismissed by the General Counsel. Koren appealed to PERC, which approved the dismissals.

Koren appealed the summary dismissals to the Third District. The Third District affirmed, stating that “[a]fter a thorough reading of the record, we cannot say that the events set forth in Koren’s complaints rise to the level of retaliation or employment discrimination contemplated by sections 447.501(l)(a) and (d), Florida Statutes (2008) and conclude that the record reveals no basis for finding a prima facie violation of that statute.” Koren, 46 So.3d at 1093 (citing Sch. Bd. of Lee Cnty. v. Lee Cnty. Sch. Bd. Employees, Local 780, AFSCME, 512 So.2d 238 (Fla. 1st DCA 1987)). The Third District found that although “the two parties had disagreements, there is just not sufficient evidence of animus, or relation of adverse events to Koren’s participation in a protected activity, necessary to sustain the allegations of unfair labor practices as set forth by statute and case law.” Id. (citing Lawrence v. Wal-Mart Stores, Inc., 236 F.Supp.2d 1314 (M.D.Fla.2002)). Because we find that the actions alleged in Koren’s claim were sufficient to establish a prima facie violation of section 447.501 we conclude that the Third District incorrectly affirmed PERC’s dismissal of Koren’s charges.

Koren’s complaint filed against the School Board of Miami-Dade County alleged violations pursuant to sections 447.501(l)(a) and (d). Section 447.501 (l)(a), Florida Statutes (2008), provides:

Public employers or their agents or representatives are prohibited from interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part.

§ 447.501(l)(a), Fla. Stat. (2008). Section 447.501(l)(d) provides:

Public employers or their agents or representatives are prohibited from discharging or discriminating against a public employee because he or she has filed charges or given testimony under this part.

§ 447.501(l)(d), Fla. Stat. (2008). Section 447.503, Florida Statutes (2008), outlines the requirements for filing a ULP complaint, including that the complaint “shall contain a clear and concise statement of facts constituting the alleged unfair labor practice,” make specific reference to the provisions alleged to have been violated, and be accompanied by sworn statements and documentary evidence sufficient to establish a prima facie violation. § 447.503(1), Fla. Stat. (2008). Section 447.503 then requires that PERC “review the charge to determine its sufficiency.” § 447.503(2), Fla. Stat. (2008).

On September 29, 2008, Leal sent Koren a certified letter advising him that a formal investigation had begun regarding whether he had violated a School District policy by giving his user name and password to a substitute teacher and paraprofessional in order to enter students' grades into the grade book during his leave of absence.
On March 6, 2009, Koren was removed from his classroom and sent home without explanation. On March 10, 2009, Koren was transferred to another school.

Relying on Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1977), PERC determined that Ko-ren’s complaint was insufficient. Pasco provides:

In order to determine whether the evidence sustains a charge alleging an unfair labor practice, when it is grounded upon an asserted violation of protected activity, the following general principles should be considered by the hearing officer and by PERC:
(1) In any such proceeding the burden is upon the claimant to present proof by a preponderance of the evidence that (a) his conduct was protected and (b) his conduct was a substantial or motivating factor in the decision taken against him by the employer.
(2) If the hearing officer determines the decision of the employer was motivated by a non-permissible reason, the burden shifts to the employer to show by a preponderance of the evidence that notwithstanding the existence of factors relating to protected activity, it would have made the same decision affecting the employee anyway. In considering the employer’s explanation, the examiner should attempt to strike an equitable balance between the rights of an employer whose duty, as here, is to promote the efficiency of public services through its public employees, and the rights of a non-tenured public school teacher to be secure in his employment, free from discrimination due to his union activity.
(3)PERC, when reviewing the hearing officer’s recommendations, shall evaluate them pursuant to the procedure set forth by Section 120.57(l)(b) 9, requiring generally that before PERC reject or modify the hearing officer’s findings of fact that it first determine from a review of the entire record the findings were not based on competent substantial evidence.

Pasco, 353 So.2d at 117-18 (footnotes omitted). As noted by the Pasco court, the “preponderance of the evidence” standard “is the usual burden upon the charging party at agency proceedings.” Id. at 117 n. 5 (citing Florida Dep’t of Health & Rehab. Servs. v. Career Serv. Comm’n, 289 So.2d 412, 415 (Fla. 4th DCA 1974)). We do not disagree that this is the appropriate standard to be applied before an administrative tribunal. See also School Bd. of Lee Cnty. v. Lee Cnty. School Bd. Employees, Local 780, AFSCME, 512 So.2d 238, 239 (Fla. 1st DCA 1987) (“In proving a violation of section 447.501(l)(a), an employee must show that his or her otherwise protected activity was a substantial or motivating factor in the employer’s decision or action which constituted the alleged violation.”). However, this heightened standard is not appropriate when first determining whether a claimant has stated a prima facie violation in his or her charge.

The only court to provide an explanation of the requirements to establish a prima facie charge alleging a violation of section 447.501(l)(a), (d) has been the Second District Court of Appeal in Gibbons v. State Public Employees Relations Commission, 702 So.2d 536, 537 (Fla. 2d DCA 1997) (“We have been unable to find an opinion from a Florida court setting forth the requirements necessary to establish a prima facie charge alleging a violation of section 447.501(a), (d) and section 447.301(3), (4).”).

Relying on federal caselaw, the Gibbons court provided:

[P]roof of a prima facie case of retaliation requires a showing that: 1) the plaintiff was engaged in protected activity; 2) the plaintiff was thereafter subjected by his employer to an adverse employment action; and 3) there is a causal link between the protected activity and the adverse employment action.

Id. at 587. We find this standard appropriate and apply it here. We find that the record demonstrates that Koren established a prima facie charge of a violation of section 447.501.

As for the first prong, there is no dispute from the parties that Koren was engaged in a protected activity and that it is impermissible to retaliate against an employee for engaging in protected activity. Koren’s first complaint stemmed from Leal’s alleged reaction to his helping Morris draft a complaint. Assisting a fellow employee in drafting a ULP charge is clearly a protected activity under section 447.501.

Koren alleges three actions to satisfy the second prong under Gibbons: (1) that he was falsely accused of job abandonment; (2) that he was falsely charged for the misuse of his password; and (3) that he was involuntarily transferred more than twenty-four miles from his current school. Treated together, we find that the totality of circumstances alleged in Koren’s charge were sufficient to demonstrate prima facie evidence that Koren suffered an adverse employment action.

As it relates to the involuntary transfer, the United States Supreme Court has stated, ‘Whether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and ‘should be judged from the perspective of a reasonable person in the plaintiffs position, considering all the circumstances.’ ” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 71, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (quoting Oncale v. Sundowner Offshore Sens., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). Koren alleged that he was transferred to a school twenty-four miles away. Koren stated that the transfer adds 960 miles each month for an additional $200 expense. There is no bright-line rule regarding the necessary distance of transfer to be considered adverse. We do not think one needs to exist. We find that irrespective of the number of miles, a reasonable person in Koren’s circumstances would find such an additional drive and cost an adverse action. Accordingly, we find that Koren’s allegations regarding his transfer provided sufficient evidence of adverse employment action to survive summary dismissal.

Lastly, we find that Koren sufficiently alleged a causal link between the protected activity and the adverse employment action. The Gibbons court is again instructive:

[T]he causal link in the [retaliatory discharge] formula [is not] the sort of logical connection that would justify a prescription that the protected participation in fact prompted the adverse action. Such a connection would rise to the level of direct evidence of discrimination, shifting the burden of persuasion to the defendant. Rather, we construe the ‘causal link’ element to require merely that the plaintiff establish that the protected activity and the adverse action were not wholly unrelated.

Gibbons, 702 So.2d at 537 (quoting Simmons v. Camden Cnty. Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir.1985)). Gibbons alleged that during the summer of 1995, he criticized management staff in his office and counseled colleagues regarding their union rights. Gibbons, 702 So.2d at 536. Gibbons further alleged that management resented his activities and punished him by transferring him to an office fifty miles away. Id. Although PERC dismissed Gibbons’ complaint stating that it failed to allege a prima facie violation and finding that Gibbons was required to provide affidavits from witnesses who heard Gibbons’ supervisors state their intention to retaliate against him by transferring him to another office, the Second District found that Gibbons had alleged a prima facie case:

Gibbons alleged a causal link between his protected activity and the adverse employment action by claiming that his employer was aware of his protected expression when his employer took the adverse employment action. Gibbons stated in his charge that he had informed his supervisors about his complaints on numerous occasions.

Id. Additionally, the First District has found that an unfair labor practice can be found by circumstantial evidence. See Pasco Cnty. Sch. Bd. v. Fla. Pub. Employees Relations Comm’n, 353 So.2d 108, 119 (Fla. 1st DCA 1977) (“The timing of the decision by the employer in connection with the employee’s union activity is a proper consideration to a determination whether an unfair labor practice was committed. A discharge of an employee, followed closely on the heels of an employer’s display of anti-union animus, supports a finding of an unfair labor practice.”).

Koren assisted Morris in drafting her complaint on February 24, 2008. He was confronted by Leal about the complaint on March 12. On March 17, Leal allegedly composed a “half-hearted recommendation” after Koren was nominated for Rookie Teacher of the Year. On March 20, Leal responded to efforts to get her to write a stronger recommendation that she was- uncomfortable doing so. Once Koren won the award, Leal did not make the announcement herself to the school and instead passed the microphone to someone else. Additionally, she displayed the award on the marquee only during spring break and on the side that did not face traffic. The following school year began with the false charge of job abandonment. Koren’s first complaint was filed February 9, 2009, and he was involuntarily transferred on March 6, 2009. The charge based on the timing of these events was adequate to survive the summary dismissal.

Accordingly, we quash the decision below with instructions to remand for proceedings consistent with our ruling.

It is so ordered.

PARIENTE, LEWIS, QUINCE, and LABARGA, JJ., concur.

CANADY, C.J., and POLSTON, J„ concur in result.

      . Koren became sick three weeks after the 2008-2009 school year began. His last day of work was September 5, 2008. On September 8, 2008, Leal signed and dated Koren’s leave of absence form, indicating that she recommended approval. However, on September 22, 2008, Koren received a certified letter accusing him of job abandonment and stating that if he did not respond, he would be dismissed.


author: PER CURIAM.

text:
    Summer JASSER, Lena Mamone and Anthony Saadeh, As Co-Trustees of the Trust Agreement of Karim H. Saadeh dated June 24, 2009, Appellants, v. Karim H. SAADEH, Appellee.
    Nos. 4D09-3974, 4D09-4879, 4D10-140, 4D10-119S, 4D10-3991.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Rehearing Denied Oct. 10, 2012.

      Brian M. O’Connell and Ashley N. Giro-lamo of Casey Ciklin Lubitz Martens & O’Connell, P.A., West Palm Beach, for appellants.
    Irwin R. Gilbert and Bryan J. Yarnell of Gilbert Yarnell, Palm Beach Gardens, for appellee.
   PER CURIAM.

In their consolidated appeals, Summer Jasser, Lena Mamone, and Anthony Saa-deh, the children of appellee, Karim Saa-deh, appeal five orders, arising out of proceedings to determine the incapacity of their father as well as the appointment of an emergency temporary guardian. In connection with these proceedings, Saadeh executed a trust agreement, the validity of which was later contested by him after competency proceedings were dismissed. The crux of this appeal is a challenge to the court’s summary judgment determining that the trust was void ab initio. Because we conclude that the court correctly determined that Saadeh did not have legal authority to create the trust, we affirm the summary judgment.

Karim Saadeh, now in his eighties, emigrated from Jordan with his wife, raised a family of three children, and became a very successful businessman. He and his wife were wealthy at the time of his wife’s death in 2007. After her demise, Saadeh contemplated remarrying.

Saadeh met a younger woman through one of his wife’s relatives. He loaned her money, which greatly disturbed his children even though he had his lawyer draw up a promissory note. The children then worried about his other substantial bank accounts on which they were named ac-countholders. The children became concerned that their father was not completely competent and expressed that concern to his business and estate planning attorney, Michael Singer. To prevent Saadeh from draining his accounts, the children transferred over a million dollars from these accounts to other accounts over which he had no control without his knowledge.

Saadeh was upset when he discovered that his children had drained his accounts. Around the same time, he discovered that substantial money and jewelry located in a safe were missing. Because his children had the combination to his safe, he suspected that they had likewise taken these assets. He called the police, who then made a report of the theft. In the report, the children denied taking the money and jewelry from the safe; however, they admitted transferring the monies from the bank accounts. The police report states that the officer found that Saadeh appeared in control of his faculties. Still angry about what he considered his children’s deceit, Saadeh removed his remaining funds from the bank to prevent his children from acquiring more of his money-

In November 2008, Saadeh visited a neurologist because of some memory loss issues. The doctor found that despite the memory loss, he was competent and scored appropriately on tests. His condition was basically unchanged from an exam that occurred three years earlier. Six months later, Saadeh visited the neurologist again. Even though Saadeh scored nearly the same on all of the administered tests but one, the neurologist diagnosed him as being in the high stages of dementia, probably Alzheimer’s.

At the end of April 2009, after Saadeh met several times with Singer, Singer wrote to the children. The letter explained that based upon the attorneys meetings with Saadeh, he thought that Saadeh was completely capable of managing his own affairs. Singer informed them that Saadeh had revoked his power of attorney and health care surrogate, under which his children could exercise powers. Instead, Saadeh appointed his long-time accountant William Levine as attorney in fact and health care surrogate. In the letter, Singer demanded the children return the money they removed from the accounts.

The children consulted a lawyer, Col-lette Meyer, who works with a professional guardian, Deborah Barfield. On May 5, 2009, Barfield visited Saadeh on the ruse that she was somehow connected with his deceased wife’s family. At that meeting, Saadeh complained to her about his children’s actions with his money. Based upon that meeting, on May 12, Barfield filed a petition to determine Saadeh’s incapacity, alleging that he had Alzheimer’s dementia, attaching the neurologist’s report.

In the petition, Barfield alleged that Saadeh needed a guardian appointed to exercise all delegable rights of the ward. As is required under section 744.331(2)(a), Florida Statutes (2008), the court appointed an attorney, Jacob Noble, to represent the ward. Saadeh’s original attorney was not notified of the proceedings. In addition, the court appointed an examining committee. At the same time, Barfield filed a petition for the appointment of an emergency temporary guardian and scheduled a hearing for May 18.

Singer learned of the hearing, but could not attend because he was out of town. He sent his partner to the hearing to object. Because the court had appointed another attorney to represent Saadeh, and no motion for substitution had been made, the court denied a continuance. The court then conducted the hearing on the appointment of the emergency temporary guardian.

At the hearing, the neurologist testified that he observed in Saadeh an increased inability to function even though he admitted that the testing did not change much from his previous testing. He told the court that he was concerned with Saadeh managing his own affairs and giving away money as exemplified by the loan to the younger woman. The neurologist specifically stated that Saadeh should not retain the right to contract. The court also heard from a bank employee who related an incident in which bank personnel thought that Saadeh was making a threat against his children and himself. Barfield testified to her meeting with Saadeh, in which he related his complaints against his children. She did not believe that the children had taken anything from his safe, and she implied that his belief constituted part of the reason that he needed a guardian.

Counsel called one of the ward’s daughters. She expressed her concern for her father giving away his money. In cross-examination, she was asked, “If your father were to give you money right now, do you believe he would lack the capacity to give that money to you?” She answered yes.

On behalf of Saadeh, his court appointed-attorney called a tenant of Saadeh to relate that in all her dealings with him over the years, he acted appropriately and did not exhibit any inability to handle his affairs, even recently. He also called Saa-deh, who testified about his fractured relationship with his children. Saadeh explained the professional guardian’s ruse in coming to his house to question him. He denied making any threats against his children.

Although the court did not make a formal determination of incapacity, it appointed Barfield as emergency temporary guardian (ETG) because the court found that the evidence showed that Saadeh was diagnosed with high stage Alzheimer’s and was in danger of financial abuse. In so doing, the court removed all of Saadeh’s rights, except his right to vote. Despite the fact that no one testified that he could not drive, the court also took away his right to drive. The order appointing Bar-field as ETG delegated to her the power to exercise all delegable legal rights and powers of the ward with the exception of his right to vote. Pursuant to statute, the court set the term of the temporary guardianship for ninety days.

The day after the hearing, two of the members of the examining committee filed their reports, both stating that Saadeh was fully capable of managing his own affairs and was completely competent. Unfortunately, the third person appointed to examine Saadeh passed away before the hearing. It does not appear that the court ever saw these reports. Within two days of the appointment of the ETG, Singer filed an emergency petition to set aside the guardianship and for rehearing. The ward’s court-appointed attorney joined in the petition and also moved for rehearing.

The next day, only three days after the appointment of the ETG, Meyer, the attorney for the ETG, and the appointed counsel for Saadeh, submitted to the court an agreed order to “settle” the guardianship. The parties agreed that execution of a trust would be the “least restrictive alternative to plenary guardianship in this matter.” The May 21 order provided for Saa-deh to execute a trust agreement with his children serving as co-trustees, which could be amended only with consent of the co-trustees. Upon Saadeh’s death, the trust assets would be distributed to the children. Saadeh would also execute a pour-over will, naming his three children as his co-personal representatives, and devising the residue of his estate to his children. In addition, Saadeh would create a new healthcare surrogate designation, appointing his three children as his surrogates. The ETG would acquire all of Saa-deh’s assets and place title to them in the trust. Thereafter, the ETG could seek leave of court for her discharge. The order provided that Saadeh shall execute the trust, will and healthcare surrogate within seven days. The last provision of the order states that “All pending incapacity proceedings for the Ward in this Court are hereby dismissed, subject to the Court’s retention of jurisdiction to enforce the terms of this Agreed Order if necessary.” At the same time, the court dismissed the examining committee and denied the pending petition to set aside the guardianship filed by Singer the day before. It does not appear that Singer was notified of any hearing on this issue.

After the petition to set aside the guardianship failed, the accountant, Levine, who had power of attorney [POA] and who was Saadeh’s current health care surrogate, filed his own petition to set aside the guardianship and requested rehearing. In his petition, Levine alleged that he had never been provided notice of the ETG proceedings. He attached the reports of two doctors, who stated that Saadeh was competent to attend to his own affairs. The court scheduled this motion for hearing on June 25, 2009.

Despite the fact that the agreed order “dismissed” the pending incapacity proceedings, neither the parties nor the court operated as though anything was dismissed. A few days after entry of the agreed order, Noble, the court-appointed attorney for the ward, filed a motion for clarification of the order appointing the ETG. The court entered an order of clarification. In addition, both sides filed motions to disqualify attorneys. Noble wanted to disqualify Singer from representing Levine, and Singer sought to disqualify Meyer from representing Barfield because Meyer simultaneously represented Saa-deh’s children. In addition, Noble complained that Levine was not forwarding bills that the ETG was required to pay on behalf of Saadeh, thus acknowledging that the ETG continued to exercise Saadeh’s rights. Moreover, Saadeh was not allowed to hire Singer as his attorney in the incapacity proceedings.

At a hearing, Singer raised the issue of whether the guardianship proceedings had been vacated and whether Saadeh’s rights were restored. The ETG and the ward’s court-appointed attorney argued that the order appointing the ETG took away all of Saadeh’s rights, except the right to vote, and his rights had not been restored. The court agreed that all of his rights, with the exception of the right to vote, had been removed.

The same afternoon and without notification to Singer, the ETG had Saadeh sign a new trust agreement. Contrary to its title as an “initial revocable trust,” the trust was not revocable by Saadeh. There are disputed issues of fact as to the circumstances surrounding the execution of the trust and what Saadeh was told regarding the terms of the trust. The ward’s court-appointed attorney, however, admitted that he told him that if he signed the trust, the proceedings would be over. To transfer property to the trust, the ETG executed deeds to Saadeh’s property, and Saadeh executed quit-claim deeds to some of the properties.

When the parties next appeared before the court, the court questioned whether it had “pulled the trigger” too quickly in signing the order of settlement because Saadeh was not really incapacitated. In other words, the court was concerned that it did not possess the authority to order Saadeh to enter into trusts if he were not incapacitated and would have his rights restored at the end of the temporary guardianship. The court stated:

If it’s determined that he’s not incapacitated, then it seems to me there’s no reason that the court should have entered this settlement agreement in the first place because he should be allowed to exercise his own free will with regard to this instrument.... If it’s wrong, I want to undo it.

A lengthy hearing ensued regarding whether Saadeh should have the right to choose his attorney. Both the ETG and the ward’s court-appointed attorney argued that he did not have the right to choose his attorney. Nevertheless the court permitted Saadeh to hire his own attorney. The court also reappointed an examining committee for the purpose of determining Saadeh’s incapacity. In all other respects, the guardianship continued, and Saadeh did not regain any of his rights. In fact, his attorneys had to request and receive permission for him to travel.

Each member of the new examining committee met with Saadeh and declared him fully competent and capable of managing his own affairs. At the hearing to determine incapacity, the recently retained attorney for the children as trustees under the trust contended that because of the May 21st order dismissing the incapacity hearings, there was no competency issue to be resolved. Nonetheless, the court pointed out that all parties had labored under the assumption that incapacity was still at issue. The court proceeded to consider the examining committee reports. Based upon the unanimous determination of the examining committee that Saadeh was competent, the court dismissed the petition.

Unfortunately, this did not end the litigation, far from it. Saadeh had already filed a petition to revoke the trust. In his petition, he claimed the following: 1) he had executed the trust based upon undue influence, coercion, and duress and without understanding its terms; 2) his children participated in the coercion and duress imposed on him and stood to gain substantially through the provisions of the trust; 3) he was denied the right to consult counsel of his choice; 4) the trust was inconsistent with the terms that he had previously discussed he would be willing to enter; 5) he did not agree to a trust that he could not revoke; and, 6) because he had never agreed to the trust when the settlement was presented to the trial court, a fraud on the court had been committed. The children defended as trustees and filed a declaratory judgment action to determine the validity of the trust.

Eventually, Saadeh moved for summary judgment. The three questions addressed to the court were: 1) whether the May 2009 order requiring the execution of the trust and dismissal of the incapacity proceedings was properly entered and valid; 2) whether Saadeh lacked the legal right or power to enter into the settlement or trust agreement; and 3) whether the trust agreement was void ab initio. The court did not reach the question of undue influence, coercion, duress, or fraud on the court.

The court found that the May 2009 order was entered, but it did not authorize the execution of an irrevocable trust. When the court entered the order, it was not informed of catastrophic gift tax consequences if the trust was created, nor was it informed that the trust could not be revoked by Saadeh himself. When it appointed the ETG and granted her all of the ward’s legal rights, it thereby removed them from the ward. Thus, Saadeh had no legal capacity to enter into the trust agreements. Therefore, the June 2009 trust agreement was void ab initio.

In addition, while the May 2009 order provided that the execution of the trust was the least restrictive alternative to a guardianship, the court found that “[t]he implementation of a least restrictive alternative to plenary guardianship presupposes the appointment of a plenary guardian is warranted.” See § 744.344(2), Fla. Stat. (2008). If the court does not find a need for a plenary guardianship, then there is no need for a least restrictive alternative. The court could not order any less restrictive alternative before it found incapacity on the part of the ward. Finally, the court found that the trust went beyond the terms of the order in that the trust was executed as an irrevocable trust with very significant tax consequences. For these reasons, the trial court determined the trust was void ab initio and ordered the return of the trust assets to Saadeh. From this order, the trustees appeal.

The co-trustees attack the trial court’s final judgment by first arguing that the May 2009 agreed order was final, but not appealed; therefore, it is no longer subject to attack. They cite, however, to cases involving a voluntary dismissal of proceedings. This was not a voluntary dismissal, but rather an allegedly agreed settlement and a mutual dismissal. They also contend that the court was without jurisdiction to vacate the May 2009 order of dismissal because there was no incapacity petition pending due to its earlier dismissal. We disagree.

First, the statutes and rules do not provide for the dismissal of a petition to determine the incapacity of an individual before the actual determination of the issue. In Borden v. Guardianship of Borden-Moore, 818 So.2d 604 (Fla. 5th DCA 2002), the court held that a petition for guardianship could not be dismissed before receiving the report of the examining committee:

Section 744.331 contemplates that once a facially sufficient petition to determine incapacity has been filed, the court must ensure that the alleged incapacitated person has an attorney, that an appropriately qualified examining committee promptly examines the person, and that an adjudicatory hearing be set no more than fourteen days after the filing of the report of the examining committee, unless good cause is shown to extend that time. Compliance with the requirements of section 744.331 is mandatory and the trial court’s failure to adhere to those requirements constitutes reversible error.

Id. at 608-09. See § 744.331(4), Fla. Stat. (2008); see also In re Keene, 343 So.2d 916, 917 (Fla. 4th DCA 1977) (“Proceedings to determine the competency of a person are generally controlled by statute and where a statute prescribes a certain method of proceeding to make that determination, the statute must be strictly followed.”) (citation omitted). An attorney for the person may not waive an adjudicatory hearing when required. See In re Frederick, 508 So.2d 44, 45 (Fla. 4th DCA 1987).

There is good reason for such a rule. If a person is incompetent, it is the duty of the court to assure that person’s protection and his or her autonomy is respected to the greatest extent possible. See § 744.1012, Fla. Stat. (2008). To permit dismissal of proceedings where a party is in fact incompetent may endanger that person. On the other hand, without knowing whether the person is actually incompetent, the court could restrict a person’s independent ability to deal with his property and place it out of the control of a person who may be completely capacitated. The guardianship statutes and rules should not be used to protect competent persons from then* spendthrift ways or to protect their beneficiaries. An individual who is competent should not be subject to the control of the courts through guardianship proceedings, temporary or plenary.

That the order dismissing the plenary guardianship proceedings was a nullity is further supported by the fact that the order did not dismiss the petition for emergency temporary guardian, revoke the letters of guardianship, or terminate the same. Section 744.3031(1), Florida Statutes (2008), permits the appointment of an ETG only after a petition for determination of incapacity has been filed. For an ETG to be appointed there must be a pending determination of incapacity. As such, the court could not dismiss the petition for incapacity and retain the ETG. Unfortunately, that is what occurred in these proceedings.

The ETG, and even court-appointed counsel for Saadeh, never intended to restore any rights to him during the period of the temporary guardianship, and their statements to the court that all of Saadeh’s rights had been removed were made at a hearing on the same day he executed the trust agreement. At a separate hearing, the attorney for the children as trustees also told the court that because of the appointment of the ETG, Saadeh could not be a trustee of his own trust. Thus, the trustees acknowledged that the appointment of the ETG deprived Saadeh of all of his rights. Because all parties relied on the ETG’s appointment as depriving Saa-deh of the ability to exercise all rights, they are now judicially estopped from taking the position that the incapacity proceedings were final. See Blumberg v. USAA Cas. Ins. Co., 790 So.2d 1061, 1066 (Fla.2001). Because the order did not dismiss the ETG proceedings and restore Saadeh’s rights, it was legally impossible to continue to deprive Saadeh of his rights unless incapacity was determined. The court, recognizing its mistake in entering the order which purported to dismiss the incapacity proceedings, appointed the new examining committee. Then, when the examining committee unanimously found that Saadeh was completely competent, it appropriately dismissed the petition for determination of incapacity and terminated the ETG. The court was within its authority in these rulings.

We agree with the trial court that when the court conferred the ward’s rights on the ETG, it removed them from the ward; both cannot simultaneously exercise those rights. Section 744.3031(1) provides that the court shall specify the rights to be exercised by the ETG. In this case, the order delegated to the ETG all legal rights, reserving only the right to vote to the ward. Thus, the court removed the ward’s right to contract. The fact that the court removed his right to contract was specifically discussed not only in the original hearing appointing the ETG but in almost every other hearing thereafter.

To permit both a ward and the guardian to exercise the right to contract would render the protection afforded by an ETG non-existent. In such cases, the ward could continue to deal with his or her property and conceivably give it all away while a petition for incapacity is pending even though that person’is incompetent but not officially adjudicated as such. The ETG would be faced with the difficult task of recovering missing property.

This case is distinguishable from Holmes v. Burchett, 766 So.2d 387 (Fla. 2d DCA 2000). In Holmes, an ETG was appointed for the ward. Id. at 388 n. 2. The trial court refused to permit an attorney retained by the ward from participating in the incapacity proceedings even though, pursuant to section 744.331(2)(a), the alleged incapacitated person was entitled to substitute his or her own attorney for the one appointed by the court. Id. The appellate court granted certiorari, concluding that until the ward is declared incompetent, she is presumed competent to contract and to substitute her chosen counsel. Id. However, in Holmes there is no mention as to what rights were conferred on the ETG. Thus, the opinion does not stand for the proposition that even though the legal right to contract is removed from a ward, the ward may still contract until found incapacitated.

In re Guardianship of Graham, 963 So.2d 275 (Fla. 4th DCA 2007) is more on point. In that case, a petition to determine the incapacity of the ward was filed, and an ETG with plenary authority over the ward’s person and property was appointed, much like the ETG authority in this case. See id. at 276-77. The trial court did not adjudicate the ward incapacitated before the ward filed a motion to substitute counsel, which the trial court denied. See id. On petition for writ of certiorari to this Court, we denied the petition on the ground that where the ward’s right to contract had been removed by the appointment of a plenary guardian, she did not possess the right to contract and enter into an agreement with the attorney. See id. at 278. Graham is consistent with the trial court’s conclusion that where an ETG is granted the right to contract, the ward can no longer exercise that power.

As found by the trial court in granting summary judgment, at the time of the execution of the trust, the right to contract had been removed from Saadeh, as the parties acknowledged to the court the day that the trust was signed. Section 736.0402(1), Florida Statute (2008), provides that “[ajtrust is created only if: (a) the settler has capacity to create a trust.” § 736.0402(l)(a), Fla. Stat. (2008) (emphasis added). Thus, because Saadeh had no legal right to execute the trust, the trust was invalid and void. The trial court’s ruling was correct.

With respect to the issues raised in connection with the remaining orders on appeal, we find no error.

Affirmed.

WARNER, DAMOORGIAN and CONNER, JJ., concur.

      . The five orders include: 1) "Order Dismissing Incapacity Proceedings” dated September 9, 2009; 2) "Order on November 10, 2009 Hearing Re Saadeh’s Motion to Strike Co-Trustees’ Motion to Dismiss” nunc pro tunc to November 10, 2009; 3) "Order Granting Motion for Partial Summary Judgment and Rendering Final Judgment” dated December 22, 2009; 4) “Order on Karim Saadeh’s Motion to Enforce Judgment and Release Funds to Karim H. Saadeh and for Attorney Fees” dated March 23, 2010; and 5) "Order Granting Saadeh's Amended Motion to Dismiss” dated September 17, 2010.

      . The ETG prepared an affidavit which Saa-deh signed, stating that he had executed the trust agreement voluntarily. However, Saa-deh has continually testified that he was misled as to the terms of the trust and that his execution was not voluntary. He was told that the execution of the trust was the only way he could end the guardianship proceedings and get his life back to normal.


author:
PER CURIAM.
      SCHWARTZ, Senior Judge

text:
    Mitchell HEDMAN, Appellant, v. Gretchen N. HEDMAN, Appellee.
    No. 3D10-2751.
    District Court of Appeal of Florida, Third District.
    July 25, 2012.
    Rehearing Denied Oct. 9, 2012.
    Greenman & Manz and David L. Manz, Marathon, for appellant.
    Richard J. Fowler, Key West, for appel-lee.
    Before CORTINAS and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed.

SCHWARTZ, Senior Judge

(dissenting in part, specially concurring in part).

I.

In this appeal from a final dissolution judgment, I disagree with affirmance of the trial court’s “equitable” distribution of the husband’s half interest in the couple’s marital home, which was held by the en-tireties, to the wife. It is undisputed that, after the husband’s family provided the funds for the purchase of the residence, the wife’s father did so. The law is clear

(a) that the titling of the property in the parties’ names as tenants by the entireties during the marriage renders the home “marital property” subject to equitable distribution, see § 61.075(6)(a)2., Fla. Stat. (2010); Jurasek v. Jurasek, 67 So.3d 1210, 1212 (Fla. 3d DCA 2011); David v. David, 58 So.3d 336, 339 (Fla. 5th DCA 2011), review denied, 75 So.3d 1244 (Fla.2011);

(b) that doing so raises a presumption that the transfer was a gift to both parties, see Júrasele, 67 So.3d at 1212; David, 58 So.3d at 339, which it is also clear, was not rebutted in any way; and (c) that the similar presumption that marital property is to be distributed on an equal basis, § 61.075(1), Fla. Stat. (2010), also arose and was also uncountered by any cognizable basis for the supremely inequitable distribution which occurred below.

The trial court based its ruling, however, on the idea that the award was simply a matter of equity because the father stated that he intended to give the entire interest in the property to the wife (notwithstanding the manner in which the property was titled) and that, as reflected in his will, which divided his property equally among his other children and left out the appellee, he also intended that the home stand in the place of what he would have otherwise given or left to her.,

There are two, definitive I think, answers.

(1) It is a settled principle that the courts may not, as the trial judge did here, exalt its own view of the equities of the situation over the demands of established law which are clearly to the contrary.

[Njeither the ground of fairness nor “the ‘ground’ of benevolence and compassion ... constitute^] a lawful, cognizable ha-sis for granting relief to one side to the detriment of the other, and thus cannot support the order below: no judicial action of any kind can rest on such a foundation.”

Phoenix Holding, LLC v. Martinez, 27 So.3d 791, 793 (Fla. 3d DCA 2010) (quoting Republic Fed. Bank, N.A. v. Doyle, 19 So.3d 1053, 1054 (Fla. 3d DCA 2009)); see TBOM Mortg. Holding, LLC v. Brown, 59 So.3d 322, 323 (Fla. 3d DCA 2011) (holding that “it is established ... that the trial court is not free to refuse to follow the law because of some personal disinclination or otherwise”); Guardian Ad Litem Program v. O.R., 45 So.3d 974, 974 (Fla. 3d DCA 2010) (holding that “a trial court may not ... impos[e] a condition not authorized by law — in this case a costly one-just because she thinks it is a good idea or the “fair” thing to do”).

(2) Even if the contrary principle could be accepted, it is the complete opposite of equity to indulge the estate planning of the donor (which, of course, was in any case entirely subject to change at any time at his whim) by depriving the husband of his established interest in valuable property.

II.

I do agree with the ruling, also challenged by the husband, which awarded alimony to the wife in a nominal amount. See Purrinos v. Purrinos, 34 So.3d 244 (Fla. 3d DCA 2010); Gulbrandsen v. Gulbrandsen, 22 So.3d 640, 645 n. 8 (Fla. 3d DCA 2009); Lightcap v. Lightcap, 14 So.3d 259, 260 (Fla. 3d DCA 2009).

      . The final judgment states: "This is a court of equity and must do what is right. The Husband is no worse off than he was prior to the Wife’s father’s purchase of the marital home.... It would not be fair to give him 50% of her devise, then dissolve the marriage giving her no claim to his expected substantial inheritance.” Final Judgment at ¶ 6(e).
      The Order on Motion for Rehearing and Clarification states: "Equity requires the unequal distribution of the marital home to the Wife as her predetermined inheritance that was fully paid for by her parents. It would be unjust to equally distribute the short term marital asset between the parties as this is her inheritance and she is barred from seeking any portion of his inheritance.” Order at H8(j).

      . The final judgment provides: “The uncon-troverted testimony revealed that it was the Wife's father’s testamentary intent to purchase the home for her and her alone. Her father’s will clearly announced his intentions and this portion was admitted with Er-hardt’s blessings.” Final Judgment at ¶ 6(c). Footnote 1 states, in pertinent part: "Section E of his Will provides for Gift Equalization Bequests at Death of Last Spouse to Die. Contained therein, are the sentences, ‘For purposes of this provision, if we gift our residence to WILLIAM, based upon contemporaneous appraisal, it shall be deemed to have a gift value of $398,000. In addition, we are hoping to assist our daughter, GRETCHEN N. HEDMAN, purchase a residence in Florida. We intend that our three children be treated equally, notwithstanding such gifts.’ ”

      .In an order on rehearing, the court characterized the wife's interest as a "predetermined inheritance,” an expression previously unknown to the law and one which should have stayed that way.


author: ROTHENBERG, J.

text:
    Rosa LaRUE, Appellant, v. KALEX CONSTRUCTION AND DEVELOPMENT, INC., et al., Appellees.
    No. 3D11-2368.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 2012.
    Rehearing Denied Oct. 10, 2012.

      Vincent F. Vaccarella, P.A., and Vincent F. Vaccarella and Craig R. Lewis, Ft.Lauderdale, for appellant.
    Welbaum Guernsey, and John H. Gregory and Melissa J. Gomberg, Coral Gables, for appellees.
    Before SUAREZ, ROTHENBERG and EMAS, JJ.
   ROTHENBERG, J.

The issue we must resolve in-this appeal is whether full performance of an alleged oral employment agreement, which was incapable of performance within one year, is barred by the statute of frauds. Because we conclude that it is barred, we affirm the trial court’s order granting summary judgment and entering final judgment in favor of Kalex Construction and Development, Inc. (“Kalex”).

The salient facts are as follows. Rosa LaRue (“LaRue”) sued Kalex for breach of contract and for an accounting. It is uncontested that LaRue agreed in November 2005 to leave her employer, Florida Power & Light, where she was earning $103,000 annually, and to accept a position with Kalex as a vice-president with a starting annual salary of $140,000 plus substantial benefits, including a company truck, cell phone, and laptop; health insurance; and paid vacations. What is disputed is whether LaRue, as she contends, was also orally promised that after three years of employment with Kalex, she would receive a 25% ownership interest in the company. LaRue commenced working at Kalex in February of 2006 and she was terminated in December of 2009. During her employment with Kalex, her annual salary increased from $140,000 to $180,000.

Section 725.01, Florida Statutes (2010) (“the statute of frauds”), provides in pertinent part:

No action shall be brought ... upon any agreement that is not to be performed within the space of 1 year from the making thereof ... unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by her or him thereunto lawfully authorized.

The statute of frauds was enacted to prevent fraud and the enforcement of claims based on loose verbal statements made faulty by the lapse of time, and as the Florida Supreme Court stated in Yates v. Ball, 132 Fla. 132, 181 So. 341, 344 (1937), the statute should be strictly construed.

The statute of frauds grew out of a purpose to intercept the frequency and success of actions based on nothing more than loose verbal statements or mere innuendos. To accomplish this, the statute requires that all actions based on agreements for longer than one year must depend on a written statement or memorandum, signed by the party to be charged. The statute should be strictly construed to prevent the fraud it was designed to correct, and so long as it can be made to effectuate this purpose, courts should be reluctant to take cases from its protection.

Over time, questions arose as to whether the doctrine of promissory estoppel should apply and the effect of partial and full performance of an oral contract. In Tanenbaum v. Biscayne Osteopathic Hospital, Inc., 190 So.2d 777, 779 (Fla.1966), the Florida Supreme Court rejected the application of promissory estoppel as a defense, agreeing with this Court’s recognition that to do so would “ingraft[ ] onto the law of this State a provision which may have the effect of nullifying the legislative will of the State as expressed by the inactment [sic] of the Statute of Frauds.” Tanenbaum 190 So.2d at 778 (quoting Tanenbaum v. Biscayne Osteopathic Hosp., Inc., 173 So.2d 492, 495 (Fla. 3d DCA 1965)).

Where the contract is for the sale of land and the relief sought is for specific performance or other equitable relief, partial performance may remove an oral agreement from the statute of frauds. However, the doctrine of partial performance does not remove the bar of the statute of frauds for actions seeking damages based on the breach of an oral contract. See Hosp. Corp. of Am. v. Assocs. in Adolescent Psychiatry, 605 So.2d 556, 558 (Fla. 4th DCA 1992) (noting the distinction that where the contract is for the sale of land and the relief sought is for specific performance, partial performance may remove the contract from the statute of frauds); see also Collier v. Brooks, 632 So.2d 149, 153 (Fla. 1st DCA 1994) (holding that “the doctrine of partial performance is not available in an action solely for damages at law”); Miller Constr. Co. v. First Indus. Tech. Corp., 576 So.2d 748, 750 (Fla. 3d DCA 1991) (holding that the doctrine of partial performance does not apply to personal service contracts); Johnson v. Edwards, 569 So.2d 928, 929 (Fla.

1st DCA 1990) (“It is now well established that partial performance of a contract for personal services is not an exception to the provisions of the Statute of Frauds.” (citing Tobin & Tobin Ins. Agency, Inc. v. Zeskind, 315 So.2d 518 (Fla. 3d DCA 1975); Rowland v. Ewell, 174 So.2d 78 (Fla. 2d DCA 1965))).

Full performance of an oral agreement, however, may remove the agreement from the statute of frauds if the agreement is capable of being performed within a year and was, in fact, performed within one year. For example, in Dobbs v. Gorlitz, 443 So.2d 1068,1068 (Fla. 3d DCA 1984), this Court reversed the trial court’s order granting summary judgment in favor of Gorlitz, Dobbs’ employer, after this Court concluded that there were material disputed issues as to whether the alleged oral employment agreement could have been performed within one year.

Where uncontroverted affidavits and deposition testimony submitted in support of a summary judgment motion showed that the defendant, a business owner, had in 1981 renewed an earlier oral promise to plaintiff, his employee, to give plaintiff ownership in the business upon defendant’s retirement in exchange for the plaintiff remaining in his employ, and that within the year defendant retired from the business and sold all his stock in the business to a third party, defendant had not demonstrated conclusively that plaintiff’s cause of action for breach of contract was barred by the statute of frauds. Summary judgment was, therefore, inappropriate. There was nothing in the terms of the oral agreement to show that it could not be performed within a year. Further, the fact that the defendant did sell his business interest within a year of the agreement is a strong factor weighing against construction of the agreement as one within the statute of frauds.

See also Grossman v. Levy’s, 81 So.2d 752, 753 (Fla.1955) (holding that an oral renewal of an oral one-year employment agreement, which commenced on the day the renewal was made, was not within the statute of frauds); Rubenstein v. Primedica Healthcare, Inc., 755 So.2d 746, 749 (Fla. 4th DCA 2000) (finding that appellant sufficiently stated a cause of action for breach of an oral agreement as the oral renewal of a one-year oral contract took the contract out of the statute of frauds); Sanz v. R.T. Aerospace Corp., 650 So.2d 1057,1060 (Fla. 3d DCA 1995) (“Under the statute of frauds, any agreement that is not to be performed within the space of one year from its making must be reduced to writing in order to be enforceable.”); First Realty Inv. Corp. v. Gallaher, 345 So.2d 1088,1089 (Fla. 3d DCA 1977) (holding that “in order to avoid the statute of frauds, the agreement must have been capable of performance within one year of its ‘making’ ”); Dworkin v. Alamo Auto Leasing, Inc., 334 So.2d 77, 78 (Fla. 3d DCA 1976) (noting that where Dworkin admitted in his deposition that he entered into an oral agreement for a period in excess of one year, his claim under an oral employment agreement was barred by the statute of frauds); Davis v. Ferraro, 303 So.2d 407, 408 (Fla. 3d DCA 1974) (concluding that because the alleged oral employment agreement provided that Ferraro was not to receive the promised interest in the employer’s business until after two years after his arrival in Florida, his action was barred by the statute of frauds); Manas v. S. Diversified Indus., Inc., 193 So.2d 480, 481 (Fla. 3d DCA 1967) (holding that even though the employee fully performed the services, because the alleged oral agreement to pay the employee a bonus was for services to be performed over a three-year period, the agreement fell within the statute of frauds).

The intent of the parties is a determinative factor. In Yates, the Florida Supreme Court noted that “to make a parol contract void, it must be apparent that it was the understanding of the parties that it was not to be performed within a year from the time it was made.” Yates, 181 So. at 341 (emphasis added). Thus, when an oral contract is for an indefinite period, the court must determine whether it was the intent of the parties that the contract be fully performed within one year.

[W]hen no time is agreed on for the complete performance of the contract, if from the object to be accomplished by it and the surrounding circumstances, it clearly appears that the parties intended that it should extend for a longer period than a year, it is within the statute of frauds, though it cannot be said that there is any impossibility preventing its performance within a year.

Id. at 344. Therefore, when an agreement is “susceptible of performance within a year, and the evidence shows that it was expected to have been performed within that time,” it is not barred by the statute of frauds. Id. at 344.

The following are examples of the application of this principle. In Hospital Corp. of America, 605 So.2d at 557-58, the Fourth District rejected the appellee’s argument that because the contract was capable of being performed within one year, it fell outside of the statute of frauds, as it was clear that the parties intended that the contract extend past one year. In reaching this conclusion, the Fourth District adopted the reasoning of All Brand Importers, Inc. v. Tampa Crown Distributors, Inc., 864 F.2d 748, 749 (11th Cir. 1989), which held that “the Florida Statute of Frauds, Fla. Stat. § 725.01, bars en-

forcement of an oral contract that was intended by the parties to last longer than a year, even though the contract could have been terminated for cause within a year.” Similarly, the Fourth District found in Byam v. Klopcich, 454 So.2d 720, 721 (Fla. 4th DCA 1984), that the oral employment agreement, which was of indefinite duration and therefore capable of performance within one year, was not within the statute of frauds.

Likewise, in Cabanas v. Womack & Bass, 706 So.2d 68, 69 (Fla. 3d DCA 1998), this Court found that the statute of frauds did not bar Cabanas’ breach of contract claim where the oral employment contract was for an indefinite time, terminable at will by either party, and it had been fully performed by Cabanas. Because Cabanas was hired for work that did not require his performance for a period of time exceeding one year, the oral employment agreement did not fall under the statute of frauds. See also Martinez v. Lieberman, 920 So.2d 128, 129 (Fla. 3d DCA 2006) (finding that at best, the agreement was an oral contract for an indefinite time, and therefore it was not barred by the statute of frauds); Richey v. Modular Designs, Inc., 879 2d 665, 666 (Fla. 1st DCA 2004) (concluding that the statute of frauds did not bar recovery because a salaried employee’s employment contract was terminable at will, with an indefinite duration; his claim was for commissions earned for past services; and there was no evidence the parties intended the contract to extend beyond a year); Collier, 632 So.2d at 158 (reversing summary judgment and remanding for a determination as to whether it was the intention of the parties that Collier fully perform his part of the agreement within one year and if so, whether he did fully perform within a year, and holding that, absent such a showing, the agreement would be barred by the statute of frauds); Elliot v. Carl H. Winslow, Jr., P.A., 737 So.2d 609, 609 (Fla. 2d DCA 1999) (“[U]n-der our controlling precedent, the statute of frauds does not bar enforcement of an employment agreement for an indefinite period.”); AV-MED, Inc. v. French, 458 So.2d 67, 68-69 (Fla. 3d DCA 1984) (holding that an employment agreement for a specific salary plus commissions for an indefinite period of time, which was fully performed, removed the agreement from the statute of frauds).

In applying these principles to the instant case, it is clear that the trial court correctly determined that LaRue’s claims were barred by the statute of frauds. It is undisputed that LaRue’s complaint was based on an alleged oral employment agreement, and the agreement and the intent of the parties was that LaRue would receive a 25% ownership interest in the company if she worked for the company for three years. Because the alleged agreement was incapable of being performed in one year, her claim is barred by the statute of frauds.

In Collier, the First District noted that although there appears to be a trend towards eviscerating the statute of frauds, 632 So.2d at 157, “great caution should be exercised ‘in the consideration of the advisability of ingrafting onto the law of this State a provision which may have the effect of nullifying the legislative will of the State as expressed by the inactment [sic] of the Statute of Frauds.’” Collier, 632 So.2d at 157 (citing Tanenbaum v. Biscayne Osteopathic Hospital, Inc., 190 So.2d at 778). We also agree with the First District that the refusal to enforce promises that are not to be performed within one year,

is based upon public welfare and policy ... [and] [i]f Florida is to move toward enforcing oral promises intended to be performed beyond one year, or towards compensating those who enter into such agreement, it is the proper function of the Florida Legislature to announce that public policy change, not the function of a district court of appeal. While the Florida Supreme Court has occasionally chosen to depart from its own precedent on public policy grounds, we note that it frowns on such departures by lower courts.

Collier, 632 So.2d at 157. As the Florida Supreme Court noted in Tanenbaum v. Biscayne Osteopathic Hospital, Inc., 190 So.2d at 779, “[LaRue] had but to follow the provisions of the Statute of Frauds to secure [her] rights under the arrangement with [Kalex] instead of taking the position, rather tardily that they did not apply to [her].” Accordingly, we affirm the order on appeal.

Affirmed.


text:
    T.H., the father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 3D12-1146.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 2012.
    Rehearing Denied Oct. 3, 2012.
    Albert W. Guffanti, Miami-Dade, for appellant.

      Karla Perkins, Appellate Counsel for the Department of Children and Families; Hillary S. Kambour, Appellate Counsel for the Guardian ad Litem Program.
    Before SHEPHERD, CORTINAS and EMAS, JJ.
   PER CURIAM.

We affirm the final order of termination of parental rights, but do so without prejudice for T.H. to file a motion or petition with the court below, seeking collateral relief on his claim (raised in this appeal) that his appointed counsel provided constitutionally ineffective assistance. This is neither a comment on the relative merits of such a claim, nor even an explicit recognition that T.H. has a right to seek such relief. But see In re D.B., 385 So.2d 83, 87 (Fla.1980) (holding “a constitutional right to counsel necessarily arises where the proceedings can result in permanent loss of parental custody”); S.B. v. Dep’t of Children and Families, 851 So.2d 689, 692 (Fla.2003) (explaining the right to counsel in TPR proceedings is “based on the recognition that there is a constitutionally protected interest in preserving the family and raising one’s children”); E.T. v. State, Dept, of Children & Families, 930 So.2d 721, 726 (Fla. 4th DCA 2006) (recognizing “a constitutional right to counsel means effective counsel; otherwise, the right is meaningless”).

      . If a right to seek such relief exists, however, we do not believe under the facts and procedural posture of this case that it was properly raised on direct appeal. But see E.T., 930 So.2d at 729 (holding a claim of ineffective assistance of counsel in a TPR proceeding should be raised on direct appeal, and certifying two questions to the Supreme Court of Florida for its consideration: "Does Florida recognize a claim of ineffective assistance of counsel arising from a lawyer’s representation of a parent(s) in a proceeding for the termination of parental rights? If so, what procedure must be followed to pursue a claim of ineffective assistance of counsel?")