text:
    In re AMENDMENTS TO THE RULES REGULATING THE FLORIDA BAR—RULES 6-27 AND 6-28.
    No. SC08-1981.
    Supreme Court of Florida.
    June 11, 2009.
    Nancy Wood Gregoire, Chair, The Florida Bar Rules Committee, Fort Lauder-dale, FL, John George White, III, President, The Florida Bar, West Palm Beach, FL, John F. Harkness, Jr., Executive Director, Paul F. Hill, General Counsel, The Florida Bar, Tallahassee, FL, for Petitioner.
    Rosemary N. Palmer, Tallahassee, FL, Peggy Clarie Senentz of Clarie Law Offices, P.A., South Pasadena, FL, Responding with comments.
   PER CURIAM.

The Florida Bar petitions this Court to consider proposed amendments to the Rules Regulating the Florida Bar. We have jurisdiction. See art. V, § 15, Fla. Const.

The Bar proposes two additional practice areas of legal certification — in education law and adoption law — through a pair of new subchapters within chapter 6, Legal Specialization and Education Programs, of the Rules Regulating the Florida Bar. The Board of Governors of The Florida Bar voted unanimously to approve the proposed amendments. The proposals were published for comment in the September 15, 2008, edition of The Florida Bar News. In that publication, the Bar instructed interested parties to file any comments directly with the Court. Thereafter, the Bar filed its petition with the Court on October 22, 2008. Two comments were filed with the Court, and the Bar filed a reply to the comments.

The first proposal would create a certification area for education law and be identified in the Rules Regulating the Florida Bar as subchapter 6-27. The second proposal would create a new certification area for adoption law and be identified in the rules as subchapter 6-28. After considering the two proposals and the comments, the Court adopts the new subchapters.

Accordingly, the Court adopts the amendments to the Rules Regulating the Florida Bar as modified and as set forth in the appendix to this opinion. These amendments shall become effective immediately upon the release of this opinion.

It is so ordered.

QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.

APPENDIX

6-27 STANDARDS FOR CERTIFICATION OF A BOARD CERTIFIED EDUCATION LAWYER

RULE 6-27.1 GENERALLY

A lawyer who is a member in good standing of The Florida Bar and who meets the standards prescribed below may be issued an appropriate certificate identifying the lawyer as a “Board Certified Education Lawyer.” The purpose of the standards is to identify those lawyers who practice in the area of education law and have the special knowledge, skills, and proficiency, as well as the character, ethics, and reputation for professionalism to be properly identified to the public as board certified education lawyers.

RULE 6-27.2 DEFINITIONS

(a) Education Law. “Education law” means the practice of law involving the legal rights, responsibilities, procedures, and practices of “educational institutions,” students, personnel employed by or on behalf of educational institutions, and the guardians and parents of students participating in education. The term “education law” shall also mean the practice of law on behalf of public or private clients in matters including, but not limited to: state, federal, and local laws, regulations, and proceedings involving student rights and student discipline; administrative law and rules regulating the operations of schools and education in Florida; charter schools; finance issues involving educational institutions, including bond indebtedness, certificates of participation, impact fees, and educational benefit districts; litigation involving educational institutions, including matters of sovereign immunity, civil rights in educational environments, including the civil rights of students and personnel in education; labor issues involving educational institutions, including standards of professional performance and practices involving personnel employed by or on behalf of educational institutions; private school contract matters and litigation involving private school entities; disability law, including § 504, Individuals With Disabilities Education Act, and the Americans With Disabilities Act; laws of general governance, including the Sunshine Law, Public Records Act, Code of Ethics for Public Officers and Officials, purchasing and bid issues; and construction, land use and development law as these areas relate to educational facilities. The purpose of education law certification is to identify lawyers who, although they may not practice substantially in each of these areas, nonetheless concentrate their practice of law in a wide variety of these categories of law in the educational environment, either on behalf of persons dealing with or receiving educational services, or as practitioners on behalf of educational institutions. “Education law” also includes presiding as an administrative law judge, arbitrator, hearing officer, judge or member of another tribunal or panel over a dispute involving education law issues.

(b) Educational Institution. “Educational institution” means any entity, private, public, for-profit or not-for-profit, that has appropriate licensure (or otherwise is legally authorized) as a provider of educational services and instruction, and is primarily devoted to the provision of education and instruction to persons of any age. Without limitation, examples of educational institutions shall be public school boards and school districts, public and private universities, community colleges, private schools, charter schools, and technical or trade schools.

(c) Lead Attorney. “Lead attorney” means one serving as the primary attorney, whether as a team leader or alone, working on behalf of either a private party or an educational institution. Service as a supervisor and signatory of legal documents, but without substantial participation in the preparation of those documents, does not constitute service as lead attorney. Service in the role of lead attorney also includes presiding as a judge, administrative law judge, arbitrator, hearing officer, or member of an administrative tribunal or panel hearing or presiding over a dispute involving a matter of education law.

(d) Practice of Law. “Practice of law” is defined as set forth in rule 6 — 3.5(c)(1). RULE 6-27.3 MINIMUM STANDARDS

(a) Minimum Period of Practice. The applicant must have been engaged in the practice of education law for at least 5 years immediately preceding the date of application. Additionally, the applicant shall have been a member in good standing of the bar of any state of the United States or the District of Columbia for a period of 5 years as of the date of application.

(b) Substantial Involvement. The applicant must demonstrate substantial involvement in the practice of education law during at least 3 of the 5 years immediately preceding the date of application. An applicant who meets the practical experience requirements in subdivision (c) below shall be presumed to meet this requirement.

(c) Practical Experience. The applicant must demonstrate broad, substantial, practical experience in education law by providing examples of service as the lead attorney on behalf of a private or public client involved in education law issues. Using the point values and limitations assigned below; the applicant’s examples from the following actions must total at least 50 points during the 5 years immediately preceding the date of application. Unless expressly permitted by the standard itself in the following subdivisions, an applicant may only take points under 1 subdivision for each project of work. By way of illustration, and as an example only, an applicant may not take points under both subdivisions (c)(3)(C) and (c)(4)(A) for writing an opinion letter and presenting that letter at a meeting of an educational institution. In. cases where a project is subject to points in more than 1 category, and the rule does not expressly allow for points to be earned in more than 1 category, the applicant must elect the category under which the applicant wishes to receive points for such work.

To ensure a diversity of experience and involvement in the area of education law, the applicant cannot count more than the maximum points allowable for each section.

(1) The maximum points allowable for subdivision (1) are 30 points. Each item is worth 5 points or as otherwise indicated:
(A) The applicant participated in administrative hearings in which questions or matters of education law were at issue as lead attorney, including both formal and informal hearings (excluding student suspension hearings and expulsion hearings that are not appealed to a court) adjudicated through final order pursuant to the Florida Administrative Procedure Act, chapter 120, Florida Statutes. If the matter is appealed and the appeal is concluded by a court order or decision, or otherwise resolved after the case is fully briefed, the applicant will earn an additional 3 points. If the applicant is lead attorney in rulemak-ing proceedings covered in subdivision (c)(2)(A), the applicant shall receive 4 points for such work in addition to the points available under this subdivision.
(B) The applicant participated in other fully adjudicated administrative actions (including any formal arbitration or mediation proceeding) in which questions or matters of education law were at issue, as lead attorney for a client, including but not limited to labor/employment and rulemaking proceedings pursuant to the Federal Administrative Procedure Act, 5 U.S.C. §§ 551-559, and any arbitration agreement or federally required proceeding, including record review proceedings, pursuant to 5 U.S.C. §§ 701-706. If the matter is appealed and the appeal is concluded by a court or fully briefed to the court before the appeal is concluded, add 3 points for each. It is the intent of this standard that if the applicant is lead attorney in rulemaking proceedings covered in subdivision (c)(2)(A), the applicant shall receive 4 points for such work in addition to the points available under this subdivision.
(C)The applicant participated in fully adjudicated trial court proceedings as lead attorney in state or federal court, in which questions or matters of education law were at issue. If the matter is appealed and the appeal is concluded by a court or fully briefed to the court before the appeal is concluded, add 3 points for each.
(2) The maximum points allowable for subdivision (2) are 28 points. Each item is worth 4 points or as otherwise indicated:
(A) The applicant participated in rulemaking proceedings as lead attorney through rule adoption pursuant to Florida Administrative Procedure Act, chapter 120, Florida Statutes, which rulemaking involves a question or matter of education law or a rule on behalf of an educational institution.
(B) The applicant participated in administrative litigation, state or federal court litigation and arbitration, as lead attorney, resulting in settlement before final adjudication, and in which matter substantial questions or issues of education law were presented.
(C) The applicant conducted appeals as lead attorney in which the applicant either represented an educational institution or a party seeking relief against an educational institution on a question involving education law. This includes appellate matters that are settled on appeal, but only if the applicant, as lead attorney, filed at least 1 substantive brief in the appeal, including the appeal of student disciplinary matters pursuant to § 120.68, Florida Statutes.
(3) The maximum points allowable for subdivision (3) are 21 points. Each item is worth 3 points or as otherwise indicated:
(A) The applicant participated in student disciplinary hearings as a hearing officer or as lead attorney before a hearing officer or an educational institution which were not appealed.
(B) The applicant sought, on behalf of an educational institution as lead attorney, and obtained an advisory opinion from the Florida Commission on Ethics, Florida or United States Attorney General, or the Florida or United States Department of Education (and any constituent division thereof).
(C) The applicant appeared as lead attorney for a party or an educational institution before any governmental organization in a formal public meeting (Sunshine Meeting under § 286.011, Florida Statutes) including an appearance before an educational institution as lead attorney for such entity, involving a question of education law or a matter on behalf of an educational institution. Without limitation, this includes the applicant, as lead attorney, representing an educational institution before a local government or the Florida Department of Community Affairs on matters involving land use planning or zoning issues on behalf of an educational facility, appearing before a governmental entity or agency with regard to advocating a matter of interest to a client (either private or public) involving a question of education law or a matter of interest to an educational institution, and any other formal appearances before regulatory bodies and authorities with respect to a question of education law or matters of concern to an educational institution. This subdivision shall not apply and the applicant will not earn points when this appearance is in connection with another matter covered by another subdivision or practice for which points are awardable. By way of example, and for purposes of illustration only, an applicant will not earn points for appearing before an educational institution in an executive session to discuss pending litigation for which points are awarded under subdivision (c)(1)(C), nor will an applicant receive points when such appearance is in connection with a disciplinary hearing for which points are awardable under subdivision (c)(3)(A).
(D) The applicant participated in lobbying in support of a rule or law before any governmental authority, wherein the applicant is registered as a lobbyist with regard to a regulation or law involving education, education law, or a matter of concern to an educational institution. Each law or regulation for which the applicant has advocated before an authority shall constitute a separate matter of experience for accumulation of these points.
(E) The applicant conducted an investigation on behalf of an educational institution or represented a party being investigated, as lead attorney, during an investigation conducted by or on behalf of an educational institution. This includes all internal review procedures and work related to issues involving scientific misconduct, plagiarism, breach of test security, Institutional Review Board meetings, tenure, dismissal from or sanction of employment, and advising managerial staff or the governing body of an educational institution regarding such matters. Likewise, points in this category are awarded for each client involved in any of these types of matters in which the client is or may be adverse to an educational institution.
(F) The applicant participated in attempts to resolve through mediation or other negotiations a matter involving education law, as defined in rule 6-27.2(a), prior to filing before any tribunal.
(G) The applicant performed internal audits for an educational institution such as, but not limited to, assessing wage hour compliance, handbook review, etc.
(4) The maximum points allowable for subdivision (4) are 20 points. Each item is worth 2 points or as otherwise indicated:
(A) Two points will be awarded for each of the following actions on behalf of a client or educational institution involving a question of education law, to the extent such work is not covered by or included in the work under another subdivision of these standards: preparation of an opinion letter regarding a question or matter of education law; preparation of a contract involving educational services, technology, or other matters that will facilitate or allow for the delivery of educational services, or any agreement in which an educational institution is a party to the contract; or preparation of rules of procedure on behalf of an educational institution.

(d) Verification of Practical Experience Requirements. The education law certification committee will develop an application form to elicit specific information sufficient to verify the practical experience reported by the applicant. Due and appropriate regard will be made to preserve client and student-identifying confidences, but subject to the requirement of confidentiality, the application will provide for the applicant to identify case numbers for court and administrative litigation, parties in litigation (using initials with respect to student-identifying matters), the nature of the work performed, the dates on which the work was performed (or a period of time during which it was performed), the identity of any court or tribunal before which the work was performed, the results of the work, and the identity of any opposing attorney, as well as such other information the education law certification committee determines is reasonably required for the applicant to submit so that the practice requirements may be verified.

(e) Additional Points. The education law certification committee or the board of legal specialization and education may increase the number of points granted for activities of the type identified in subdivisions (c)(1) — (2), for good cause shown, such as the significant impact of a particular case on a question of education law.

(f) Peer Review. The applicant must submit the names and addresses of 5 individuals, at least 4 of whom are attorneys and 1 of whom is a federal, state, or administrative law judge before whom the applicant has appeared within the past 5 years preceding the date of application. In lieu of a judicial reference, the applicant may provide the name and address of the head of an educational institution (or a member of a collegiate body that serves as the head of the educational institution) if the applicant has advised or appeared before such person within the 5-year period preceding the date of application. The attorney references must be members of The Florida Bar, and may not be persons who practice currently in the applicant’s law firm or, if the applicant is employed by an educational institution, the references may not be employed in the same law department at the same educational institution as the applicant at the time the application is filed. Individuals serving as references shall be sufficiently familiar with the applicant to attest to the applicant’s special competence and substantial involvement in the field of education law, as well as the applicant’s character, ethics, and reputation for professionalism. The board of legal specialization and education and the education law certification committee may authorize references from persons other than attorneys and may also make such additional inquiries as they deem appropriate to determine the qualifications of an applicant for certification pursuant to this rule and rule 6 — 3.5(c)(6).

(g)Education. The applicant must demonstrate completion of 50 credit hours of approved continuing legal education in education law during the 3-year period immediately preceding the date of application. Credit for attendance or speaking appearances at continuing legal education seminars shall be given only for programs that are directly related to education law, and such programs may include but are not limited to continuing legal education in the areas of civil rights, disability law, legal issues relevant to the governance and operations of educational institutions, including Sunshine, public records and Code of Ethics, government procurement law (including bid protests), government finance topics, trial practice topics, administrative law, and labor and employment law. Additionally, the education law certification committee may conclude that the education requirement is satisfied in part by 1 or more of the following:

(1)lecturing at or serving on the steering committee of continuing legal education seminars;
(2) authoring or editing articles or books published in professional periodicals or other professional publications on questions of education law;
(3) teaching courses related to education law at an approved law school or other graduate level program presented by a recognized professional education association;
(4) completing such home study program as may be approved by the board of legal specialization and education or the education law certification committee subject to the limitation that no more than 50 percent of the required number of hours of education may be satisfied through home study; or
(5) such other methods as may be approved by the board of legal specialization and education and the education law certification committee.

The board of legal specialization and education or the education law certification committee shall, by policy, establish standards applicable to this rule, including but not limited to the method of establishment of the credit hours applicable to any of the above listed subdivisions.

(h) Examination. The applicant must pass an examination administered uniformly to all applicants to demonstrate sufficient knowledge, skills, proficiency, experience, and professionalism in education law to justify the representation of special competence in education law to the legal profession and the public.

(i) Exemption. An applicant who has been substantially involved in education law for a minimum of 20 years and who otherwise fulfills the standards set forth in rules 6-3.5(d) and rules 6-27.3(a)-(g), shall be exempt from the examination. This exemption is only applicable to those applicants who apply within the first 2 application filing periods from the effective date of these standards.

RULE 6-27.4 RECERTIFICATION

During the 5-year period immediately preceding the date of application, the applicant must demonstrate satisfaction of the following requirements for recertification:

(a) Substantial Involvement. The applicant must demonstrate continuous and substantial involvement in education law throughout the period since the last date of certification or recertification. An applicant who meets the practical experience and education requirements in (b) below shall be presumed to meet this requirement.

(b) Practical Experience Requirement. The applicant must demonstrate involvement as lead attorney on behalf of a private client or educational institution in matters totaling at least 10 points as described in rule 6-27.3(c) above. For good cause shown and at the discretion of the education law certification committee, the 10-point requirement may be waived for applicants who possess other extraordinary legal experience related to matters of education law. Examples of such extraordinary experience may include service as an administrative law judge, general counsel responsibility for an educational institution or other senior attorney experience with supervisory responsibilities on behalf of an educational institution, representation of or membership on a committee working on substantial matters of education law, teaching education law at the college level, and other appropriate legal experience described by the applicant and approved by the education law certification committee.

(c) Education. The applicant must demonstrate completion of at least 90 credit hours of approved continuing legal education for education law certification. If the applicant has not attained 90 credit hours of approved continuing legal education for education law certification, but has attained more than 60 hours during such period, successful passage of the examination given to new applicants will satisfy the education requirements. However, an applicant seeking recertification may also reduce the educational requirements in this subdivision to 60 hours by demonstrating involvement as lead attorney on behalf of a private client or an educational institution in matters of education law since certification or the last recertification, totaling at least 25 points as described in rule 6 — 27.3(c) above.

(d)Peer Review. The applicant must submit the names and addresses of 3 individuals, at least 2 of whom are attorneys and 1 of whom is a federal, state, or administrative law judge before whom the applicant has appeared during the 5-year period immediately preceding the date of application. In lieu of a judicial reference the applicant may provide the name and address of the head of an educational institution (or a member of a collegiate body that serves as the head of the educational institution) under circumstances where the applicant has advised or appeared before such person within the 5-year period immediately preceding the date of application. The attorney references must be members of The Florida Bar in good standing, and may not be members of the applicant’s law firm or, if the applicant is employed by an educational institution, the references may not be employed in the same law department at the same educational institution as the applicant at the time the application is filed. Individuals serving as references must be sufficiently familiar with the applicant to attest to the applicant’s special competence and substantial involvement in the field of education law, as well as the applicant’s character, ethics, and reputation for professionalism. The board of legal specialization and education and the education law certification committee may authorize references from persons other than attorneys and may also make such additional inquiries as they deem appropriate to determine the applicant’s qualifications for recertification pursuant to this rule and rule 6-3.5(c)(6).

(e) Waiver of Compliance. An applicant for recertification who, at the time of application is serving and has served full time for 3 or more years as an administrative law judge, is deemed to meet the recertification criteria in subdivisions 6-27.4(a) and (b).

6-28. STANDARDS FOR CERTIFICATION OF A BOARD CERTIFIED ADOPTION LAWYER

RULE 6-28.1 GENERALLY

A lawyer who is a member in good standing of The Florida Bar and who meets the standards prescribed below may be issued an appropriate certificate identifying the lawyer as a “Board Certified Adoption Lawyer.” The purpose of the standards is to identify those lawyers who practice adoption law and have the special knowledge, skills, and proficiency, as well as the character, ethics, and reputation for professionalism, to be properly identified to the public as board certified adoption lawyers.

RULE 6-28.2 DEFINITIONS

(a) Adoption Law. “Adoption law” is the practice of law dealing with the complexities and legalities of interstate and intrastate adoption placements, including civil controversies arising from termination of the biological parents’ parental rights, the Indian Child Welfare Act, and interstate placements. In addition to the actual adoption placement, “adoption law” in-eludes evaluating, handling, and resolving such controversies prior to the placement of a child for adoption and all post placement proceedings. The practice of adoption law in the state of Florida is generally unique in that decisional, statutory, and procedural laws are specific to this state.

(b) Practice of Law. “Practice of law” for this area is defined as set forth in rule 6 — 3.5(c)(1).

RULE 6-28.3 MINIMUM STANDARDS

(a) Minimum Period of Practice. The applicant must have at least 5 years of the actual practice of law, of which at least 50 percent has been spent in active participation in adoption law.

(b) Minimum Number of Cases. The applicant must demonstrate substantial involvement, as defined in subdivision (c) below, in a minimum of 50 adoption placements in circuit courts during the 5-year period immediately preceding the date of application. All such placements must have involved the placement of a minor child with an adoptive family who is not related to the child within the third degree of consanguinity or is not the minor child’s stepparent. In each of these 50 adoption placements the applicant must have appeared before the court as the adoption entity, as defined in chapter 63, Florida Statutes, on behalf of the adoptive parents or as the lawyer for the adoption entity. In each of these 50 adoption placements, the applicant must have been responsible for all or a majority of the legal decisions concerning the minor child’s adoption placement, termination of the biological and legal parents’ parental rights, and finalization of the adoption. If the applicant does not meet the minimum requirement of 50 adoption placements, the applicant must demonstrate substantial involvement, as defined in subdivision (c) below, in a minimum of 15 contested adoption proceedings or appeals within the 5-year period immediately preceding the date of application. In each of these 15 contested adoption proceedings or appeals, the applicant must have been responsible for all or a majority of the legal decisions in each case.

(c) Substantial Involvement. The applicant must demonstrate, within the 5-year period immediately preceding the date of application, substantial involvement in the placement of minor children for adoption sufficient to demonstrate special competence as an adoption lawyer. Substantial involvement includes active participation in interviewing and counseling adoptive parents, providing full disclosure to adoptive parents regarding applicable law and the subject minor child, providing legally mandated disclosure to biological and legal parents, investigating issues necessary to assure a legally stable adoption placement, preparation of pleadings, providing notice to individuals legally entitled to notice, taking consents for adoption, presentation of evidence in termination of parental rights and adoption proceedings, attendance at hearings, preparation of interstate adoption documentation, and drafting and preparation of post placement communication agreements. Substantial involvement in a contested adoption proceeding requires that the applicant demonstrate responsibility for at least 50 percent of the legal work in preparing and presenting the case for any trial or evidentiary hearing for disposition by the trier of fact.

(d) Peer Review.

(1)The applicant must select and submit names and addresses of 6 lawyers, who neither are relatives nor current associates or partners, as references to attest to the applicant’s substantial involvement and competence in adoption law, as well as the applicant’s character, ethics, and reputation for professionalism. At least 3 of the lawyers shall be members of The Florida Bar, with their principal office located in the state of Florida. Such lawyers should be substantially involved in adoption law and familiar with the applicant’s practice.
(2) The applicant must select and submit the names and addresses of 2 judges who have presided in circuit courts in the state of Florida before whom the applicant has appeared as an advocate or adoption entity in an adoption law case in the 2-year period immediately preceding the date of application.
(3) Peer review received on behalf of the applicant must be sufficient to demonstrate the applicant’s competence, ethics, and professionalism in adoption law. In addition, the adoption law certification committee may, at its option, send reference forms to other attorneys and judges, and make such other investigation as necessary.

(e)Education. The applicant must demonstrate completion of at least 30 credit hours of approved continuing legal education in the field of adoption law during the 3-year period immediately preceding the date of application. Accreditation of educational hours shall be subject to policies established by the adoption law certification committee or the board of legal specialization and may include such activity as:

(1) teaching a course in adoption law;
(2) completion of a course in adoption law;
(3) participation as a panelist or speaker in a symposium or similar program in adoption law;
(4) attendance at a lecture series or similar program concerning adoption law, sponsored by a qualified educational institution or bar group;
(5) authorship of a book or article on adoption law, published in a professional publication or journal; and
(6) such other educational experience as the adoption law certification committee shall approve.

(f) Examination. The applicant must pass an examination administered uniformly to all applicants to demonstrate sufficient knowledge, skills, proficiency, experience, and professionalism in adoption law to justify the representation of special competence to the legal profession and the public.

RULE 6-28.4 RECERTIFICATION

During the 5-year period immediately preceding the date of application, the applicant must demonstrate satisfaction of the following requirements for recertification:

(a) Substantial Involvement. The applicant must have continuous and substantial involvement in the field of adoption law. The demonstration of substantial involvement shall be made in accordance with the definitional language set forth in subdivision 6 — 28.3(c).

(b) Minimum Number of Cases. The applicant must have had substantial involvement as defined in subdivision 6-28.8(c) in a minimum of 50 adoption law cases as follows:

(1) The applicant must have either presided over as a judge or general magistrate, or handled as an advocate, a minimum of 50 adoption placements. All such placements must have involved the placement of a minor child with an adoptive family who is not related to the child within the third degree of consanguinity or is not the minor child’s stepparent. In each of these 50 adoption placements the applicant must have appeared before the court as the adoption entity, as defined in chapter 68, Florida Statutes, on behalf of the adoptive parents or as the lawyer for the adoption entity. In each of these 50 adoption placements, the applicant must have been responsible for all or a majority of the legal decisions concerning the minor child’s adoption placement, termination of the biological and legal parents’ parental rights, and finalization of the adoption. If the applicant does not meet the minimum requirement of 50 adoption placements, the applicant must demonstrate substantial involvement, as defined in subdivision (c) below, in a minimum of 15 contested adoption proceedings or appeals within the 5 years immediately preceding the date of application. In each of these 15 contested adoption proceedings or appeals, the applicant must have been responsible for all or a majority of the legal decisions in each case.
(2) The applicant must have either presided over as a judge or general magistrate, or handled as an advocate, a minimum of 50 adoption cases in which the applicant was substantially involved. Substantial involvement includes active participation in interviewing and counseling adoptive parents, providing full disclosure to adoptive parents regarding applicable law and the subject minor child, providing legally mandated disclosure to biological and legal parents, investigating issues necessary to assure a legally stable adoption placement, preparation of pleadings, providing notice to individuals legally entitled to notice, taking consents for adoption, presentation of evidence in termination of parental rights and adoption proceedings, attendance at hearings, preparation of interstate adoption documentation, and drafting and preparation of post placement communication agreements. Substantial involvement in a contested adoption proceeding requires that the applicant demonstrate responsibility for at least 50 percent of the legal work in preparing and presenting the case for any trial or evidentiary hearing for disposition by the trier of fact.
(3) On special application, for good cause shown, the adoption law certification committee may waive compliance with rule 6-28.4(b)(l) or (2) or both for an applicant who has been continuously board certified in adoption law under these standards for a period of 14 years or more.

(c) Education. The applicant must demonstrate completion of 75 credit hours of approved continuing legal education in the field of adoption law. The continuing legal education must logically be expected to enhance the proficiency of attorneys who are board certified adoption lawyers. If the applicant has not attained 75 hours of approved continuing legal education but has attained more than 50 hours during such period, successful passage of the examination given to new applicants shall satisfy the continuing legal education requirements.

(d) Peer Review.

(1)The applicant must submit the names and addresses of 3 lawyers, who neither are relatives nor current associates or partners, as references to attest to the applicant’s substantial involvement and competence in adoption law, as well as the applicant’s character, ethics, and reputation for professionalism. Such lawyers shall be involved in adoption law and familiar with the applicant’s practice.
(2) The applicant must submit the names and addresses of at least 2 judges before whom the applicant has appeared on adoption matters within the 2-year period immediately preceding the date of application to attest to the applicant’s substantial involvement and competence in adoption law, as well as the applicant’s character, ethics, and reputation for professionalism.
(3) The adoption law certification committee may, at its option, send reference forms to other attorneys and judges.

      . Also, two additional comments were filed directly with the Bar, each announcing support for the adoption certification area.

      . The Court has made minor technical corrections to new rules 6-28.3(b) and 6-28.4(b)(1).


source: Caselaw Access Project

author: RAMIREZ, J.

license: Public Domain

text:
    Edward BRIGHAM, Sandra Forbes Beran, Dana Forbes, Robin Forbes and Allen Forbes, Appellants, v. Dana BRIGHAM, individually and as trustee, Patricia Brigham, individually and as successor trustee, the Marion W. Brigham Trust, the EFP Brigham Land Trust No. 1, the Blue Rock Land Trust No. 1, the Seven Mile Ridge Land Trust No. 1, the Rice Road Land Trust No. 1, the Halls Chapel Land Trust No. 1, the Cloud Valley Land Trust No. 1, and the Coxes/Jacks Creek Land Trust No. 1, Appellees.
    No. 3D07-2123.
    District Court of Appeal of Florida, Third District.
    Feb. 25, 2009.
    Rehearing and Rehearing En Banc Denied July 8, 2009.

      Michael J. Schlesinger, Miami, for appellants.
    WM. Fletcher Belcher; Duane Morris and David R. Carlisle, Miami, for appel-lees.
    Before RAMIREZ, SUAREZ, and LAGOA, JJ.
   RAMIREZ, J.

Edward Brigham, Sandra Forbes Beran, Dana Forbes, Robin Forbes and Allen Forbes appeal the trial court’s final judgment entered in favor of the defendants, Dana and Patricia Brigham, and others. We reverse, concluding that the trial court erred in ruling that the trustee did nothing wrong in transferring the multi-million dollar Brigham Tree Farms Property to himself.

I. Factual Background

EFP Brigham died in 1982, leaving his widow, Marion, as the sole owner of his estate valued at the time of his death at approximately $3 million. EFP and Marion had four children: Edward Brigham, Dana Brigham (married to Patricia), Toby Brigham and Jerre Brigham Forbes.

Jerre died in 1996, leaving four children, appellants Allen Forbes, Robin Forbes, Dana Forbes and Sandra Forbes Beran. Appellant Peter Forbes was Jerre’s husband and the father of the four Forbes children.

On June 15, 2002, at the age of 98, Marion died. EFP’s estate contained real estate in North Carolina known as the “Brigham Tree Farms Property.” Brigham Tree Farms was an operating tree farm business consisting of 800 acres of forest land in western North Carolina.

Two trusts were created for Marion pri- or to 1990: one on May 21, 1984, and the second on April 11, 1985. In each of those trusts, the assets were to be divided among Marion’s four children. These trusts were funded with Marion’s real estate interests. On July 13, 1990, Marion executed the new Revocable Trust of Marion W. Brigham (the “1990 Revocable Trust”). Marion and Dana were co-trustees of the 1990 Revocable Trust, and Patricia was the successor trustee. The 1990 Revocable Trust, like each prior trust, divided Marion’s estate into four separate but equal shares for each of Marion’s children and their heirs.

The fourth trust, called the EFP Land Trust, was presented to Marion for her execution on September 28, 1991. The assets of the EFP Land Trust included numerous parcels of land in Florida and North Carolina, including the Brigham Tree Farms Property. Dana made himself the sole Trustee of the EFP Land Trust. The beneficiary of the EFP Land Trust was the 1990 Revocable Trust. Marion executed this document as Trustee of the 1990 Revocable Trust. Paragraph 8 of the EFP Land Trust states, as all of the land trusts did, that:

“[t]he interests of the beneficiary shall consist solely of the following rights respecting the Trust property:
a. The right to direct the Trustee to convey or otherwise deal with the title to the Trust property as hereafter set out.
b. The right to provide direction to the Trustee as to the management and control of the Trust property.
c. The right to receive the proceeds and avails from the rental, sale, mortgage or other disposition of the Trust property.
The foregoing shall be deemed personal property and may be assigned and/or otherwise transferred as such

Paragraph 3 of the EFP Land Trust also controls how the beneficiary’s interests can be assigned and/or transferred. It states that “the interest of a benefieiary(ies) may be assigned or transferred only if the consent of persons holding in excess of fifty percent (50%) of all such interests is first obtained and the provisions of paragraph 18 hereof are adhered to.” Paragraph 18 requires that any interest of the beneficiaries be transferred by written assignment signed by the beneficiary and delivered to the trustee. Paragraph 18 also provides that the failure to comply with the required formalities voids any such attempted transfer. Paragraph 11 of the EFP Land Trust states that the Trust may be amended, extended, revoked or terminated only by written agreement signed by the trustee and the beneficiaries.

On February 2, 1994, Marion executed the First Amendment to the 1990 Revocable Trust (the “First Amendment”), which stated that no provision had been made for her son, Toby, because Toby received advancements of her estate equal to his share, specifically the eminent domain practice of EFP’s law firm.

On August 22, 1994, Marion executed a plethora of documents, including a third trust (“the 1994 Revocable Trust”). The language of this new trust did not purport to supersede or amend the 1990 Revocable Trust. It was devoid of any such language. Marion and Dana Brigham were made co-trustees of the 1994 Revocable Trust, and Patricia was the successor trustee. The beneficiaries of the residuary of the 1994 Revocable Trust were Edward Brigham, Dana Brigham and Jerre Brigham Forbes, equally.

Additionally, on August 22, 1994, six properties held by the EFP Land Trust were transferred to separate “Illinois Land Trusts,” one for each separate parcel of land. Dana Brigham was Trustee of each of the land trusts. The land trusts that were formed were known as the Cloud Valley Land Trust, the Seven Mile Ridge Land Trust No. 1, the Blue Rock Land Trust No. 1, the Halls Chapel Land Trust No. 1, the Rice Road Land Trust No. 1, and the Coxes/Jacks Creek Land Trust No. 1.

With the exception of the Cloud Valley Land Trust, Marion signed each of the trust agreements with the beneficiary being the 1994 Revocable Trust. The Cloud Valley Land Trust was created on the same day as each of the other land trusts. However, unlike the other land trusts, Marion did not execute the Cloud Valley Land Trust, or execute the deed conveying her interest in the property to the trust, or sign a written assignment of her interest in the EFP Land Trust. Instead, Dana Brigham, as Trustee of the EFP Land Trust, signed the Cloud Valley Land Trust and the deed conveying the Brigham Tree Farms Property from the EFP Land Trust (of which the 1990 Revocable Trust, and therefore Jerre, Edward and Dana were equal beneficiaries) to the Cloud Valley Land Trust, of which Dana was the 100% and sole beneficiary. The only asset of the Cloud Valley Land Trust was the 688 acres of the Brigham Tree Farms Property as three acres were not transferred and remained in the EFP Land Trust until Dana, as Trustee, sold these acres in 2001.

As a result of this purported transfer, the Brigham Tree Farms Property was no longer an asset of the EFP Land Trust, or Marion’s estate. Dana Brigham, as Trustee, had transferred the Brigham Tree Farms Property to himself without court approval or a writing or assignment executed by Marion. Dana Brigham had the property appraised at $550,000 in 1994, and sold the property for $2.4 million in 2001.

II. Proceedings in the Trial Court

On June 11, 2003, appellants filed a complaint against Dana and Patricia Brigham. The complaint consists of eleven counts: (1) Undue Influence; (2) Breach of Fiduciary Duty; (3) Self Dealing; (4) Conversion of Trust Assets; (5) Mismanagement of Trust Assets; (6) Intentional Interference; (7) Constructive Trust; (8) Fraud; (9) Conspiracy; (10) Removal of Defendants as Trustees and Surcharge; and (11) Accounting. In November 2004, appellants filed a Motion to Restrict Payment of Attorneys’ Fees, arguing that appellees were prohibited from paying their individual attorneys’ fees with trust funds and without prior court approval. The trial court found that the appellees were prohibited from paying their individual attorneys’ fees with trust funds, concluding that court approval was necessary to pay litigation expenses out of the trust, as a personal conflict may exist since appellees were sued in their individual capacities as well as in their trustee roles. After the appointment of a special master who agreed with the trial court, Dana and Patricia appealed. This Court upheld the trial court’s decision in Brigham v. Brigham, 934 So.2d 544 (Fla. 3d DCA 2006), concluding that Dana and Patricia had violated section 737.403, Florida Statutes (2003), by paying their attorneys fees from trust assets without receiving prior court approval.

Appellants moved for partial summary judgment on numerous counts, including that the Brigham Tree Farms Property transfer must be voided as a matter of law. Appellees filed their own Motion for Summary Judgment based in part on the statute of limitations and certain trust provisions. The trial court appointed Senior Judge Herbert Stettin to hear and decide both parties’ summary judgment motions, as well as to conduct the trial on the appellants’ claims. Prior to the scheduled trial date, Judge Stettin denied both motions for summary judgment.

Judge Stettin then held a non-jury trial. The appellees argued that even though Marion allegedly gifted the Brigham Tree Farms Property to Dana Brigham on the same day, it was Marion’s intent according to paragraph “H” of article VII, “Disposition of Trust Estate Upon the Death of Settlor” of the 1994 Revocable Trust, to give Dana Brigham the entire Brigham Tree Farms Property allegedly denoted in the 1994 Revocable Trust as “Cloud Valley.” Appellants countered that “Cloud Valley” was not a legal description of any property, but as it was used in the 1994 Revocable Trust, it only described three acres located where the main house was located within the Brigham Tree Farms Property. The Brigham Tree Farms Property was not part of Marion’s Estate at the time of her death as it was sold in 2001 to William Moody by Dana Brigham, individually and as Trustee of the EFP Land Trust.

It was undisputed that Dana Brigham deeded the Brigham Tree Farms Property, as Trustee of the EFP Land Trust, to himself as Trustee of the Cloud Valley Trust. It was further undisputed that, when Dana Brigham, individually, sold the Brigham Tree Farms Property in 2001, including the three acres described above, he had to deed the three acres to the purchasers as the Trustee of the EFP Land Trust.

III. Evidence at Trial

The evidence at trial indicated that after EFP’s death, Dana Brigham, with Patricia’s assistance, began acting as Marion’s lawyer, trustee, and trusted investment and business advisor. Dana and Patricia assumed control of all of Marion’s finances, taxes and investments. Marion made no money from these investments and lost hundreds of thousands of dollars. Dana was the personal representative for EFP’s estate and served as Marion’s attorney and trusted advisor for many years. He was the Trustee or Co-Trustee of all of Marion’s numerous Trusts. He was the personal representative of Marion’s Estate. Marion used Dana’s firm, Brigham & Brigham, for her legal needs. Patricia, Marion’s daughter-in-law, was employed by Marion, performed paralegal work for her, was Marion’s bookkeeper, managed Marion’s bank accounts, prepared financial statements of Marion’s assets, income, and expenses, wrote Marion’s checks, was Marion’s de facto trustee and performed other tasks that placed her in a confidential relationship with Marion.

The trial court recognized that Dana and Patricia received significant gifts and assets from Marion for their own personal use, investment and purposes. The trial court also referred to several releases signed by Marion where she allegedly forgave these acts.

On December 29, 1994, Marion allegedly transferred twenty-four percent (24%) of the EFP Land Trust to Dana, consisting in part of the remaining three acres of the Brigham Tree Farms Property. Unlike the purported transfer of the 688 acres of the Brigham Tree Farms Property to Dana, there is a written assignment of interest regarding these three acres that complied with the express provisions of the EFP Land Trust. Marion expressly executed an assignment on that date transferring twenty-four percent (24%) of the EFP Land Trust to Dana. However, Dana did not obtain prior court approval for this transfer.

Dana, as Trustee of the various North Carolina land trusts, sold the parcels of North Carolina land held in these trusts. Marion did not provide Dana with written authority to sell these properties as required by the 1994 Revocable Trust and the individual land trusts. Dana was required by the express terms of the various land trusts to deposit the proceeds of these sales into the 1994 Revocable Trust bank account. There was no written instruction to make these transfers of assets out of the Trust, as was required under the language of article III of the 1994 Revocable Trust. Instead, Dana deposited the proceeds from these sales into a joint account owned by Dana and Marion. Dana then used Marion’s funds to make gifts and payments to himself and Patricia without prior court approval or any written authority from Marion.

For example, Dana signed numerous checks to himself using the proceeds of the sale of Marion’s property in the various trusts, without any written authority from Marion or prior court approval. Marion continued to pay the real estate taxes and other expenses of the Brigham Tree Farms Property, even after its alleged transfer to Dana on August 22, 1994. These payments, which total $200,000, were allegedly oral gifts or transfers to Dana and/or Patricia but they were not supported by a writing signed by Marion and/or without prior court approval. Only one gift observed any formalities — a $10,000 gift to Dana and Patricia evidenced by a writing signed by Marion.

In June 1996, Marion allegedly executed a deed in which she transferred the “Webb property” in North Carolina to Patricia for no consideration. There was no prior court approval and no duly executed instruction to the trustee of the Revocable Trust which would be necessary to transfer the property. Patricia contended that the Webb Property was worth only approximately $16,800 on the date of the transfer to her in December 1994, but she sold it on or about March 5, 2004, for approximately $125,977.22.

Patricia paid herself a salary for eleven years, from 1990 until Dana sold Cloud Valley in 2001, out of Marion and/or the Trust’s assets, without a document from Marion subsequent to 1988 acknowledging her confirmation of the salary or a gift of that salary. Patricia was paid approximately $300,000 over these eleven years in either gifts or salary for her part-time work (amounting to around six hours per month). Following the sale of the Brigham Tree Farms Property in 2001, Patricia and Dana fraudulently deducted $48,000 as a charitable donation on their individual tax return for 2001 for donating Marion’s admitted personal belongings to a church. Furthermore, Dana improperly paid for his personal legal fees from the trust funds subsequent to Marion’s death. See Brigham, 934 So.2d at 544.

Robert Freeman, a lawyer identified by Dana as Marion’s lawyer, testified that he never met or spoke to Marion prior to August 22, 2004, the day that she came into his office to sign the documents supplied by Dana. Freeman testified that no one represented Marion at the meeting, no one explained the trust documents to Marion and no one explained or confirmed the fact that Marion was allegedly making an oral gift of the Brigham Tree Farms Property.

Dana Brigham never informed his brothers, sister, nephews or nieces of the alleged gift of the Brigham Tree Farms Property to him by Marion. Dana concealed the transfer in his March 19, 1997 letter to his brother Toby, where as Marion’s lawyer, Dana offered Toby the right of first refusal in the purchase of the North Carolina properties. Dana never informed Toby that Marion no longer owned the Brigham Tree Farms Property. In addition, Dana and Marion both signed the letter to Toby, which stated that Dana was acting as Marion’s lawyer in selling the property.

Evidently in anticipation of a legal challenge to their self-dealing, Dana and Patricia brought Marion to the offices of Dr. Fernando Mata, a psychiatrist, to submit Marion to a competency examination in 1997. Dr. Mata stated in his report that Marion informed him, almost three years after Dana’s transfer of the Brigham Tree Farms Property to himself, that she owned 800 acres of land in North Carolina that was part of her Estate. According to Dr. Mata’s report, Marion also told him that it was her belief that her estate was divided equally between her children and made no mention of any oral gift of property to Dana three years earlier.

In July 2007, the trial court entered its Final Judgment, finding that the transfer of the Brigham Tree Farms Property and the other assets to appellees was not the result of Marion’s incompetence, undue influence or fraud on the part of the appel-lees. The court dismissed the appellants’ breach of fiduciary duty claims because appellants failed to show undue influence by a preponderance of the evidence that the trial court stated was required in order to sustain the breach of fiduciary duty claim. The court ruled that there was more credible evidence on the record to support the finding that Marion intended to gift the Brigham Tree Farms Property to appellees as part of her estate planning. The court also determined that appellants were unable to prove that appellees tor-tiously interfered with appellants’ rights in the Brigham Tree Farms Property. It held that all of the appellants’ causes of action, except for fraud and tortious interference, were time barred because they occurred more than four years prior to the filing of the suit and were not tolled by the appellants’ lack of knowledge or the appel-lees’ actions to conceal the transactions.

Finally, the trial court concluded that court approval of Dana’s conflicted transfer of Brigham Tree Farms Property, from a trust in which he was not a beneficiary to a trust in which he was the sole beneficiary and sole trustee, was not necessary and that the transfer did not violate Florida law despite the existence of a clear conflict of interest because the trial court did not have jurisdiction. The court made no ruling with regard to the application of the unambiguous terms of the trust documents which required that Dana receive a writing signed by Marion prior to transferring the Brigham Tree Farms Property out of the EFP Land Trust and the 1990 Revocable Trust.

IV. Analysis

Dana Brigham did not obtain prior court approval when he, as Trustee, transferred 688 acres of the Brigham Tree Farms Property to Dana individually, as Trustee of a new trust where he was the sole beneficiary. As a matter of law, the trial court should have voided this transfer and required Dana and Patricia to return the proceeds to the EFP Land Trust for distribution pursuant to that trust document. The clear intent of section 737.403(2), Florida Statutes (2003), is to prevent this type of conflicted transaction. In addition, the trial court should have voided this transfer because it violated the clear and unambiguous terms of the applicable trusts which required a “writing” and/or “assignment” signed by the beneficiary and/or the grant- or of the trusts, which was Marion. Finally, the trial court failed to set aside numerous other trustee payments, “gifts,” and other conflicted transfers made by Dana Brigham to himself and his wife Patricia. These actions were all breaches of appel-lees’ fiduciary duties.

The trial court’s failure to apply and/or the misinterpretation of several trust statutes are matters of law subject to de novo review. In addition, the standard of review is also de novo when reviewing the trial court’s interpretation and application of Florida law. See Gordon v. Regier, 839 So.2d 715, 718 (Fla. 2d DCA 2003); Gilliam v. Smart, 809 So.2d 905, 907 (Fla. 1st DCA 2002). Likewise, the interpretation of several unambiguous trust provisions is also subject to de novo review. See Miller v. Kase, 789 So.2d 1095 (Fla. 4th DCA 2001).

a. The Transfer of the Brigham Tree Farms Property by Dana as Trustee to himself individually was void, pursuant to section 737.403(2).

With respect to appellants’ first issue on appeal, we conclude that the trial court erred in not voiding Dana’s transfer of the Brigham Tree Farms Property. The appellants first allege that pursuant to section 737.403(2), Florida Statutes, the trial court was compelled to void the conflicted transfer of the Brigham Tree Farms Property by Dana as Trustee to himself, individually. The appellants are correct that as Trustee, Dana was required to obtain court approval prior to transferring the Brigham Tree Farms Property to himself.

The trial court found that:

[I]it is not disputed that as trustee, Dana, conveyed the Cloud Valley (Brigham Tree Farms) from a trust in which he was not a beneficiary to a trust in which he is the sole beneficiary. This transfer to Dana would be a conflict of interest if court approval (pursuant to 737.403(2) Fla. Stat.) were required.

It is undisputed that Dana, as Trustee, transferred and made a gift of the Brigham Tree Farms Property to himself without prior court approval. Section 737.402(2), provides that, “[i]f the duty of the trustee and the trustee’s individual interest or his or her interest as trustee of another trust conflict in the exercise of a trust power, the power may be exercised only by court authorization.” Thus, unless there was prior approval by the court authorizing the transfer that Dana made as Trustee, the transfer is void. We note that although there are some exceptions to the requirement of obtaining court approval in the current version of section 737.403 (none of which apply to the circumstances here), there are no exceptions to the version of section 737.403 that was in effect in August 1994, at the time during which the transfer occurred.

We found in Brigham, 934 So.2d at 544, that Dana and Patricia violated section 737.403, by paying their attorney fees from trust assets without receiving prior court approval. Similarly here, we conclude that Dana’s transfer of the Brigham Tree Farms Property to himself was a conflict of interest requiring prior court approval. The transfer was for Dana’s own individual benefit and was to the detriment of the beneficiary of the EFP Land Trust, which was the 1990 Revocable Trust, of which the appellants were beneficiaries. This transfer diminished the assets of the 1990 Revocable Trust. Because the appellants were beneficiaries, they had standing to challenge these actions, and thus the trial court had jurisdiction over the appellants, and the trusts and assets.

Appellants direct this Court to Keye v. Gautier, 684 So.2d 210 (Fla. 3d DCA 1996), in support of their position. In Keye, we affirmed summary judgment in favor of a beneficiary against a trustee. Id. The trial court found that the trustee failed to comply with the provisions of the trust by mismanaging and misappropriating trust funds for his own benefit. Id. The trustee reinvested the funds of the trust into a loan to himself secured by a mortgage on a building owned by the trustee and his wife. Id. The trustee did not identify the trust as a mortgagee. Id. The beneficiary sued, after the conflicted transaction, alleging breach of fiduciary duty by misappropriating trust assets. Id. at 210. We stated:

When Keye permitted the trust to make a loan from the trust to himself, for his own benefit, without providing the trust with a means of recourse if Keye defaulted upon his mortgage, he violated section 737.403(2), by not receiving express authorization from a court before engaging in this type of self-dealing. The public policy of this State, as articulated in numerous court decisions, frowns upon a trustee using trust funds unnecessarily at risk.

Id. at 211. Relevant to the case before us, we cited section 737.403(2), which requires a trustee to seek court approval from a court for the exercise of a trust power when it conflicts with the trustee’s individual interest. See Bailey v. Leatherman, 615 So.2d 810 (Fla. 3d DCA 1993); Barnhart v. Hovde, 490 So.2d 1271 (Fla. 5th DCA 1986).

Consequently, we agree with appellants that Dana’s improper transfer must be set aside and the final judgment reversed so that the proceeds from the sale and interest be returned to the EFP Land Trust and then distributed in accordance with the terms of the 1990 Revocable Trust. Appellees contend that the court approval requirement does not apply to the gift by Dana to himself because the statute does not apply to land trusts. We find this argument to be unpersuasive. The trial court found that:

[I]t is not disputed that as trustee, Dana, conveyed the Cloud Valley (Brigham Tree Farms) property from a trust in which he was not a beneficiary to a trust in which he is sole beneficiary. This transfer to Dana would be a conflict of interest if court approval (pursuant to 737.403(2) Fla. St.) were required.

Appellees argue that pursuant to section 731.201(33), land trusts are excluded from the definition of a “trust” under all of chapter 737. We disagree. Chapter 737 has been applied by courts to regulate and to rule on land trusts, and chapter 737 is directly referred to in the Florida Land Trust Act, section 689.071(5). The definition of a “trust” under section 731.201(33), states it does not include a land trust created under section 689.05. However, the trust created by the EFP Brigham Land Trust No. 1 dated September 28, 1991 (the “EFP Trust”), was not a land trust created under section 689.05. Although the EFP Trust was executed by Marion and was a written trust, it did not comply with the requirements of section 689.071.

A review of the Deed for the EFP Trust (the “EFP Trust Deed”) from Marion to Dana, as trustee to the EFP Trust, shows that it failed to qualify as a “recorded instrument” to create a Florida Land Trust under section 689.071. For the “recorded instrument” to create a Florida Land Trust, the deed must state the following pursuant to section 689.071(1):

(1) Every conveyance, deed, mortgage, lease assignment, or other instrument heretofore or hereafter made, hereinafter referred to as “the recorded instrument,” transferring any interest in real property in this state, ... is designated “trustee,” or “as trustee,” without therein naming the beneficiaries of such trust, whether or not reference is made in the recorded instrument to any separate collateral unrecorded declarations or agreements, is effective to vest, and is hereby declared to have vested, in such trustee full rights of ownership over the real property or interest therein, with full power and authority as granted and provided in the recorded instrument to deal in and with the pi'operty or interest therein or any part thereof; provided, the recorded instrument confers on the trustee the power and authority either to protect, conserve and to sell, or to lease, or to encumber, or otherwise to manage and dispose of the real property described in the recorded instrument.

The EFP Trust Deed failed to contain language that conferred on Dana, the trustee, the power and authority “either to protect, conserve and to sell, or to lease, or to encumber, or otherwise to manage and dispose of the real property described in the recorded instrument.” Because Dana, as the lawyer that created and transferred the Deed to North Carolina attorneys for recordation, failed to include the formalities in the Deed required to create a Florida Land Trust under section 689.071, it is a trust regulated by chapter 737.

Moreover, even if it had qualified as a land trust, we agree with appellants that the reasoning set forth in the case of In re Saber, 233 B.R. 547 (Bkrtcy.S.D.Fla.1999), is instructive on why the requirements of section 737.403, should apply to Dana, as the trustee: “Although the real and personal property interests of Florida land trust are divided between the trustee and beneficiary, a Florida Land Trust is essentially the same as an ordinary trust in terms of the duties, rights and responsibilities of the trustee and beneficiary.” Id. at 554. For these reasons, Dana, as Trustee, of either a land trust or a trust, was required to comply with section 737.403(2), when Dana gifted the Brigham Tree Farm Property to himself.

b. The Brigham Tree Farms Property Transfer from Dana as Trustee to Dana individually violated the clear and unambiguous terms of the trust documents.

Turning to the appellants’ second issue on appeal, we conclude that the trial court erred in not voiding the Brigham Tree Farms Property transfer from Dana to himself because it violated the clear and unambiguous terms of the applicable trust documents. These terms required that any transfer out of the trust or trust(s) or assignment of interest be in writing. .

Any transfer under an Illinois land trust must be in writing. As the court in LaSalle National Bank v. Federal Emergency Management Agent, No. 84 C 9066, 1985 WL 2081, at *5 (N.D.Ill. July 26, 1985), stated: “The trustee agrees to deal with the res of the trust only upon written direction of the beneficiaries.... The trustee is not required to ‘inquire’ into the propriety of any ‘direction’ received from the authorized persons.” See also In re Marriage of Gross, 324 Ill.App.3d 872, 258 Ill.Dec. 330, 756 N.E.2d 312 (2001). The court in LaSalle further stated:

An Illinois land trust is a unique creature of Illinois law whereby real estate is conveyed to a trustee under an arrangement reserving to the beneficiaries the full management and control of the property. The trustee executes deeds, mortgages or otherwise deals with the property at the written direction of the beneficiaries. The beneficiaries collect rents, improve and operate the property and exercise all rights of ownership other than holding or dealing with the legal title.... While legal title to the real estate is held by the trustee, the beneficiaries retain ‘the power of direction’ to deal with the title, to manage and control the property, to receive proceeds from sales or mortgages and all rentals and avails on the property. The trustee agrees to deal with the res of the trust only upon written direction of the beneficiaries.... The trustee is not required to “inquire into the propriety of any direction” received from the authorized persons.

LaSalle, 1985 WL 2081, at *5 (quoting Robinson v. Chicago Nat’l Bank, 32 Ill.App.2d 55, 176 N.E.2d 659, 661 (1961) (in its description of Illinois land trusts). As the court stated in: Gross:

The trustee accordingly is a mere vessel of title. It exercises no control over the property and only acts according to the beneficiaries’ directions. People v. Chicago Title & Trust Co., 75 Ill.2d 479, 27 Ill.Dec. 476, 389 N.E.2d 540 (1979). Accordingly, the single warranty or representation that a trustee makes upon execution of documents is that it has the power and authority to appropriately execute the instruments.

Gross, 756 N.E.2d at 315-16.

A review of the EFP Land Trust is unambiguous in its requirement that assignments of the interest or transfers of the trust corpus must be in writing. Paragraph 3 provides, in pertinent part: “The interest of a Beneficiary(ies) may be assigned or transferred only if the consent of persons holding in excess of fifty percent (50%) of all such interests is first obtained and the provisions of Paragraph 18 hereof adhered to.”

Paragraph 18 of the EFP Land Trust states:

Subject to Paragraph 2 hereof, the interest of a Beneficiary(ies), or any party thereof, may be transferred only by a written assignment thereof, executed in duplicate and delivered to the Trustee ... No assignment of any interest hereunder (other than by operation of law) that is not so executed, delivered and accepted shall be binding upon the Trustee, and any such assignment which is not so executed, delivered, and accepted shall be void as to all subsequent Assignees or purchasers with or without notice.

As such, by the very terms of the EFP Land Trust, any transfer or assignment of interest that did not comply with paragraph 18 is void as a matter of law. Moreover, the EFP Land Trust did not contain an express provision permitting the trustee to gift to anyone, including himself, property of the trust. In addition, paragraph 11 of the EFP Land Trust provided that the trust could be amended, extended, revoked or terminated only by written agreement signed by the trustee and the “Beneficiary(ies).”

Here, the beneficiary of the EFP Land Trust was the 1990 Revocable Trust. The terms of the 1990 Revocable Trust provide that any transfers must be in writing signed by Marion, and that transfers must be consistent with the requirements of Florida law in order for the recording of a deed or real property to be effective when delivered to the trustee. The 1990 Revocable Trust stated in article III that any withdrawals from the trust must be in writing:

The Settlor shall have the right, to be exercised from time to time by writing or writings signed and acknowledged by her in the manner required by the laws of the State of Florida for the recording of a deed or real property to be effective when delivered to the Trustee:

There was no duly executed written instruction to withdraw any trust property from the 1990 Revocable Trust, as required by the terms of the document. Thus, the Brigham Tree Farms Property could never have been removed from the 1990 Revocable Trust, and the trial court erred in upholding Dana’s transfer of the trust property to himself.

Moreover, we note that when a will is clear and unambiguous on its face, extrinsic evidence of the testator’s intent is inadmissible. See In re Estate of Benson, 548 So.2d 775, 777 (Fla. 2d DCA 1989); Dutcher v. Estate of Dutcher, 437 So.2d 788, 789 (Fla. 2d DCA 1983). This is the same principle applied to trusts. See Bryan v. Dethlefs, 959 So.2d 314, 317 (Fla. 3d DCA 2007) (refusing to consider extrinsic evidence after finding that the trust terms were unambiguous.)

In the case before us, the trial court impermissibly considered extrinsic evidence of Marion’s alleged intent to give the Brigham Tree Farms Property to Dana. The trial court thus erroneously disregarded the unambiguous terms of the EFP Land Trust and the 1990 Revocable Trust, as well as the requirements of section 737.403(2). See Robinson v. Robinson, 676 So.2d 511 (Fla. 4th DCA 1996). The trial court erred when it took testimony and made findings on Marion’s intent.

In addition, here, the trial court excused the numerous conflicted transactions presented at trial by finding that it was Marion’s intent and/or that Marion had signed several releases. The court made no findings regarding whether these conflicted transactions had to be submitted to the court for prior approval or had to be in writing per the unambiguous terms of the trusts. Accordingly, because we conclude that the Brigham Tree Farms Property transfer must be voided, the Final Judgment dealing with all of the other conflicted transactions where Dana and Patricia transferred property to themselves must be reversed.

c. Appellees’ actions were breaches of their fiduciary duties.

Finally, turning to the issue of whether appellees breached their fiduciary duties, the trial court excused the numerous conflicted transactions presented at trial by holding that it was Marion’s intent and/or that Marion had signed several releases. We conclude that the trial court also erred by requiring appellants to prove undue influence to maintain their breach of fiduciary duty claims. We could find no case law to support this requirement. As such, the Final Judgment denying the appellants’ breach of fiduciary claims against Dana and Patricia is reversed.

Dana Brigham had a fiduciary duty as Marion’s trustee and as a lawyer. Using the proper burden of proof to support this cause of action, the evidence is overwhelming that he breached his fiduciary duties as trustee. A trustee has the duty to administer the trust diligently for the benefit of the beneficiaries. See § 737.301, Fla. Stat. (1994); Friedman v. Friedman, 844 So.2d 789, 791 (Fla. 4th DCA 2003). A trustee must deal impartially with the trust beneficiaries, i.e., treat them even-handedly and act in the interest of the trust as a whole. Id. As we stated in Keye, 684 So.2d at 210,

“finding Keye had breached his fiduciary duty as trustee by mismanaging and misappropriating trust funds for his own benefit. Section 737.403(2) requires a trustee to seek approval from a court for the exercise of a trust power when it conflicts with the trustee’s individual interest.”

As Dana was also Marion’s lawyer, he likewise breached his fiduciary duty. An attorney in dealings with his client must exercise a much higher standard of good faith than is required in ordinary business dealings or arm’s length transactions. Waldeck v. Marks, 328 So.2d 490 (Fla. 3d DCA 1976). Transactions between an attorney and client, where the attorney profits at the client’s expense, will, if not void, be closely scrutinized to determine utmost good faith. Id. Business transactions between lawyers and clients are not prohibited by the Canons of Ethics. However, when they are alleged to have been unfair, this type of transaction is presumptively fraudulent and courts place the burden on the lawyer to prove complete good faith and the total absence of fraud or overreaching. Id.; The Fla. Bar v. Rhubottom, 132 So.2d 395 (Fla.1961). The attorneys must show not only that they exercised no undue influence, but also that they gave their clients all the information and advice which it would have been their duty to give if the transaction were made with a stranger. Abstract & Title Corp. of Fla. v. Cochran, 414 So.2d 284, 285 (Fla. 4th DCA 1982).

Here, Dana did not meet this burden. Dana used Marion’s funds as his personal piggy bank. The trial court erred when it did not set aside Dana’s conflicted payments of Marion’s funds to himself and his wife, Patricia.

An attorney who self-deals with a client must demonstrate that the transaction was as beneficial to the client as if conducted at arm’s length between strangers. Jordan v. Growney, 416 So.2d 24, 25 (Fla. 4th DCA 1982). There is a heavy burden upon the attorney to show that the transaction was not influenced by the attorney/client relationship. Waldeck, 328 So.2d at 493. “The whole burden of establishing by clear and convincing evidence the fairness of an agreement purporting to convey a property right from a client to his attorney, and that it was made upon full and adequate consideration, is cast upon the attorney.” Id.; Abstract, 414 So.2d at 285; Bolles v. O’Brien, 63 Fla. 342, 59 So. 133 (1912). Morever, where an attorney acquires from his client the subject matter of the litigation (as Dana did here), the burden is on the attorney to show the utmost good faith and fairness. Williams v. Bailey, 69 Fla. 225, 67 So. 877 (1915). As such, Dana should be held hable for breaching his fiduciary duty. Dana was involved in self-dealing as trustee and as attorney with his client and mother, and did not meet his burden of showing that these transactions occurred in good faith and fairness.

Turning now to Patricia, the record clearly shows that she acted as a fiduciary for Marion and as Dana’s de-facto trustee conducting all of the tasks either at the direction of Dana or on her own accord. Patricia owed a fiduciary duty to Marion. “If a relation of trust and confidence exists between the parties (that is to say, where confidence is reposed by one party and a trust accepted by the other, or where confidence has been acquired and abused), that is sufficient as a predicate for relief.” Doe v. Evans, 814 So.2d 370, 374 (Fla.2002); Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So.2d 204 (Fla. 3d DCA 2003). “Fiduciary relationships may be implied in law and such relationships are ‘premised upon the specific factual situation surrounding the transaction and the relationship of the parties.’ ” Id. at 207. Courts have found a fiduciary relation implied in law when “confidence is reposed by one party and a trust accepted by the other.” Capital Bank v. MVB, Inc., 644 So.2d 515, 518 (Fla. 3d DCA 1994): To establish a fiduciary relationship, a party must allege some degree of dependency on one side and some degree of undertaking on the other side to advise, counsel and protect the weaker party. Watkins v. NCNB Nat’l Bank of Fla., N.A., 622 So.2d 1063, 1065 (Fla. 3d DCA 1993).

Moreover, Patricia owed a duty to Marion as Marion’s employee. An employee owes a duty to her employer to exercise diligence and good faith in matters relating to the employment. Haynes v. The Singer Co., 1981 WL 2344 (N.D.Fla. June 19, 1981); Kilgore Ace Hardware, Inc. v. Newsome, 352 So.2d 918, 919 (Fla. 2d DCA 1977). It is undisputed that Patricia was Marion’s employee. Additionally, the record reflects that Patricia received $218,607, ostensibly as salary, plus $56,000 as gifts during the final years of Marion’s life.

V. Conclusion

In sum, based on the foregoing, the trial court’s Final Judgment is reversed with instructions to enter judgment in appellants’ favor regarding the Brigham Tree Farms Property and to direct Dana and Patricia Brigham to repay the proceeds from the sale of the Brigham Tree Farms Property with interest to the EFP Land Trust. We further remand for further proceedings consistent with this opinion.

Reversed and remanded with instructions.

      . Appellees also contend that the court approval requirement does not apply to the gift by Dana to Dana for two other reasons: because the statute was repealed prior to the entry of final judgment by the trial court and because appellants did not plead a claim under section 737.403, in their complaint. We find these arguments to be meritless.


author: TORPY, J. MONACO, J.,

text:
    Robert W. LATNER and Linda P. Latner, Appellants, v. PREUSLER & ASSOCIATES, INC., etc., Appellee.
    No. 5D08-1780.
    District Court of Appeal of Florida, Fifth District.
    March 13, 2009.
    Rehearing Denied April 13, 2009.

      S. LaRue Williams and Drew Williams of Kinsey, Vincent, Pyle, P.L., Daytona Beach, for Appellants.
    Kevin K. Dixon of Kevin K. Dixon, P.A., Inverness, for Appellee.
   TORPY, J.

The central issue in this construction contract dispute is whether the lower court erred in its interpretation of the jury verdict by entering judgment in favor of Ap-pellee, the contractor, even though the jury awarded no damages. We reverse.

Appellants contracted with Appellee to perform repairs to their house after it sustained hurricane damage. During the performance of the work, a dispute arose and Appellants terminated the contract before it was completed. Appellee recorded a construction lien and sued to foreclose it in a two-count complaint alleging breach of contract and lien foreclosure. Appellants counterclaimed seeking damages for a fraudulent lien and breach of contract. The case proceeded to jury trial culminating in a special interrogatory verdict, the form of which was presented to the jury without objection. During deliberations, the jury asked, “If we were to award for damages under breach of contract, paragraph two, and we award the lien, does that double the amount to [Appellee]?” After discussion with counsel, the judge decided to respond by writing, “No.”

Although the jury concluded that Appellants had breached the contract, it awarded zero damages. The jury also concluded that the lien was not fraudulent, but made no award on the lien foreclosure count because the verdict form was devoid of any questions on that claim. The signed verdict stated:

1. Who do you find, by the greater weight of the evidence, breached the contract? (check one)
/ (a) DEFENDANTS/COUNTERCLAIMANTS LATNERS
_(b) PLAINTIFF/COUNTERDEFENDANT RESTORATION
If you checked (a) DEFENDANTS/LATNERS, then you should complete number 2 below. If you checked (b) PLAINTIFF RESTORATION, you should skip Number 2 and go to Number 3 below.
2. What is the amount of money damages which RESTORATION sustained as a result of the breach of contract by LATNERS?
$ o
3. We find that Plaintiff/Counterdefen-dant RESTORATION breached the contract but is entitled to a set-off in the amount of:
$_
4. Do you find, by the greater weight of the evidence, RESTORATION’S Claim of Lien included claims of labor or services not performed or materials not furnished?
Yes_ No J_
If you answered “No”, your verdict is for RESTORATION on this issue. If your answer is “Yes”, proceed to question Number 5.
5. Did RESTORATION (a) exaggerate the amount of its claim of lien, or (b) include non-lienable items, or (c) untimely file its claim of lien?
Yes No
If you answered “No”, your verdict on this issue is for RESTORATION. Please skip the next question and to [sic] the bottom of the Verdict Form and date and sign the form. If your answer is ‘Tes”, your verdict on this issue is for LATNERS and you should proceed to question 6.
6. If there was no good faith dispute, should LATNERS be awarded punitive damages against RESTORATION because of either (or all) of the following:
(a) The lien amount was compiled with such willful and gross negligence as to amount to a willful exaggeration as to the Lien
(b) included non-lienable items; or
(c) untimely filed
Yes No
If you [sic] answer is “NO”, your verdict on this issue is for RESTORATION. If your answer is “Yes”, go to the next question Number 7.
7. How much should LATNERS receive in punitive damages from RESTORATION?
Amount of Claim of Lien Filed: $55,163.82 Amount of Lien that should have been filed • -_
Difference: $
Please sign and date the verdict form and return it to the courtroom.

When the jury returned the verdict, neither party objected or sought clarification. Subsequently, Appellants filed motions seeking entry of judgment or, alternatively, a new trial. Appellee filed no challenge to the verdict but sought judgment based on the verdict. The trial court concluded that the jury’s verdict was for Appellee on its lien foreclosure count and entered judgment for the full amount of the lien. It reasoned, “[T]he only figure in this verdict form, which both of you agreed to, which sets forth the claim of lien was 55, and the jury did not see fit to reduce that, so in my opinion that becomes the finding that the claim of lien is in that amount.” Accordingly, it denied Appellants’ post-trial motions and this appeal ensued.

We conclude that, based on the verdict and the lack of objection at the time the verdict was returned, the trial court had no alternative but to enter judgment for Appellants. As for the breach of contract claim, the verdict was inconsistent because it resolved the liability issue in favor of Appellee but awarded no damages. See MSM Golf, L.L.C. v. Newgent, 853 So.2d 1086, 1087 (Fla. 5th DCA 2003) (noting inconsistency in award of zero damages after finding breach of contract). The problem here is that Appellee failed to raise that issue at the time the verdict was returned, which constitutes a waiver of any right to have the verdict corrected on that basis. Cocca v. Smith, 821 So.2d 328, 330 (Fla. 2d DCA 2002) (“To preserve the issue of an inconsistent verdict, the party claiming inconsistency must raise the issue before the jury is discharged and ask the trial court to reinstruct the jury and send it back for further deliberations.”); Moorman v. Am. Safety Equip., 594 So.2d 795, 799 (Fla. 4th DCA 1992) (“It is quite basic that objections as to the form of the verdict or to inconsistent verdicts must be made while the jury is still available to correct them.”); Keller Indus., Inc. v. Morgart, 412 So.2d 950 (Fla. 5th DCA 1982) (holding that error regarding inconsistent interrogatory verdicts could not be corrected because counsel failed to bring inconsistency to court’s attention before jury discharged). Absent a proper challenge to the inconsistent verdict, the trial court was powerless to enter judgment for damages when none had been awarded by the jury and the amount of damages was disputed. See First Sealord Sur., Inc. v. Suffolk Const. Co., Inc., 995 So.2d 609, 610-11 (Fla. 3d DCA 2008) (applying rule in context of appellee who received judgment without challenge to verdict but who later sought new trial based on inconsistency).

As for Appellee’s lien foreclosure claim, the jury failed to deliver a verdict on that count. The jury found that the claim of lien did not include charges for labor or materials not furnished to the property (the issue on the counterclaim). That finding, however, does not equate to a finding in favor of Appellee on that claim because, at a minimum, the jury did not set a value on the labor or materials incorporated into the improvement, which was a disputed issue at trial. Although Appellee had the right to submit this issue for determination by the jury, by approving the form of the verdict and failing to bring the issue to the attention of the trial court before the jury was discharged, Appellee waived any objections to the verdict form and completeness of the verdict.

Cory v. Greyhound, Lines, Inc., 257 So.2d 36 (Fla.1971), cited by Appellee, is distinguishable. In that case, proper objections were levied before the jury was discharged. But even in that circumstance, our high court only authorized the amendment of a verdict when the verdict is “manifestly irregular” and the true intent of the jury can be “ascertained with certainty.” Id. at 40 (citing Southern Pac. R. Co. v. Mitchell, 80 Ariz. 50, 292 P.2d 827 (1956)).

Here, what the trial court was left with was a verdict awarding no damages to Appellee on any theory. In the absence of a proper and timely challenge to the inconsistency or sufficiency of the verdict, the court had no choice but to enter judgment according to the verdict in favor of Appellant. See Marianna Mfg. Co. v. Boone, 55 Fla. 289, 45 So. 754 (1908) (stating return of no verdict on count is verdict in favor of defendant on that count).

REVERSED AND REMANDED.

EVANDER, J., concurs.

MONACO, J., concurs and concurs specially with opinion.

MONACO, J.,

concurring.

I concur in the opinion of the majority, but I write because this result troubles me. While I agree that a reversal of the final judgment is required, I conclude that a new trial would probably be a fairer result. The difficulty is that neither party objected to the verdict form when it went to the jury, or to the verdict result before the jury was discharged. Under those circumstances and after searching the verdict for clues, I agree that a reversal is required and that the Latners, the homeowners, should prevail.

The facts of this case are well presented in the majority opinion, and I shall not repeat them. I begin my exploration of this rather strange ease with some fundamental notions about jury verdicts. Generally speaking a verdict is a determination of a jury with respect to issues framed by the pleadings, based upon the evidence considered by it. See Wismer v. Alyea, 103 Fla. 1102, 138 So. 763 (1932). The goal, however, is always to seek to implement the intention of the jury as set forth in the verdict. If the intention of the jury is apparent, its verdict will suffice to sustain a judgment entered in conformity with that intent. See Cory v. Greyhound Lines, Inc., 257 So.2d 36, 40 (Fla.1971); Buffett v. Geldhauser, 155 So.2d 844 (Fla. 3d DCA 1963). If the verdict is internally inconsistent or contains contradictory findings, a party must preserve the verdict error for appellate review before the jury is discharged. See Crawford v. DiMicco, 216 So.2d 769, 771 (Fla. 4th DCA 1968). If after pointing out the inconsistency of the verdict prior to discharge of the jury no relief is granted, then a new trial is the remedy. See Alvarez v. Rendon, 953 So.2d 702 (Fla. 5th DCA 2007); Southland Corp. v. Crane, 699 So.2d 332 (Fla. 5th DCA 1997).

A trial court can always correct a verdict where it appears that minor clerical, trans-positional or other simple errors are found on the face of a verdict. See Cory, 257 So.2d at 40; Continental Assurance Co. v. Davis, 538 So.2d 542, 544 (Fla. 1st DCA 1989). On the other hand, if a verdict results from a misconception by the jury of the facts or law involved, or if confusion is apparent and the verdict does not appear to reflect the true intention of the jury, then a court cannot correct the verdict. See Continental Assurance. It seems to me that the present case falls within the latter category, and we are, thus, left with trying to decipher what the jury meant.

Here, the jury first finds that the Lat-ners breached their contract with the contractor, yet awarded zero damages. It then made a specific finding that the contractor did not file a fraudulent lien, but it ignored the remainder of the questions. Remarkably, the jury was never asked to determine the amount that should have been awarded on the lien. That neither party suggested that the verdict was inconsistent before the jury was discharged is surprising. Equally surprising is the fact that both parties appeared to have thought that they won, because both asked for the trial court to enter a judgment on the verdict in their favor. Finally, no party objected to the verdict form, and neither party to this appeal has asked this court to remand for a new trial.

The trial judge concluded that the verdict should be for the contractor primarily because the only number found in the verdict other than zero was the preprinted $55,163.82 found in question 7, a question involving punitive damages. Yet the jury did not fill out that section as punitive damages were not awarded. Instead, the only question involving a dollar amount that the jury completed indicated that although the Latners breached the construction contract, the contractor sustained no damages.

I think the trial judge erred in entering a verdict based on the $55,163.82 number, particularly in view of the fact that everyone agreed that the maximum lien amount that could possibly have been claimed was $43,375.71. The jury simply never awarded any amount for the lien, and indeed were never asked to do so. As the only discernable result that can be mined from the verdict is the zero award for contract damages, I concur in the result reached by the majority. If, however, the error had been preserved, I would have favored a new trial.

      . We are unable to attribute any significance to this question. The question could have come from one juror and gives no insight into the deliberative process. Even if the question was from the entire jury, the judge answered the question correctly — that the jury could award damages under both theories. Notwithstanding the judge’s answer, the jury awarded no damages. We are unable to infer from this that the jury intended to award damages to Appellee.

      . Question 7, which the jury failed to answer, clearly pertained to the counterclaim.

      . Appellants argue that the verdict is not inconsistent because the jury could have determined that they breached the contract by terminating it prematurely but that the work was defective and had no value. We assume for argument's sake that tire verdict was inconsistent. We noted in MSM that the issue of preservation of the inconsistent verdict before discharge of the jury had not been raised in that appeal. Id. at 1087 n. 1.