author: PER CURIAM. TORPY, C. J., LAWSON, J., TORPY, C.J.,

text:
    Howard BROWNING, Appellant, v. Lynn Anne POIRIER, Appellee.
    No. 5D12-1823.
    District Court of Appeal of Florida, Fifth District.
    Nov. 8, 2013.
    Sean P. Sheppard of Sheppard Firm, P.A., Ft. Lauderdale, for Appellant.

      Mark A. Sessums and Brian M. Monk of Sessums Law Group, PA., Lakeland, for Appellee.
   ON MOTION FOR REHEARING EN BANC

PER CURIAM.

We grant the motion for rehearing en banc, withdraw the panel opinion, and substitute the following opinion in its place.

This is an appeal filed by Howard Browning seeking review of a final judgment entered on a motion for directed verdict made by Appellee, Lynn Anne Poi-rier. We affirm in part and reverse in part.

Browning testified at trial that he and Poirier became romantically involved in 1991 and started living together that year. He moved into Poirier’s house and remained there cohabitating with her in a romantic relationship until approximately 2009. He further testified that in 1993, they entered into an oral agreement to split the proceeds of any lottery tickets they may purchase and that this agreement was to last as long as they remained romantically involved. Some fourteen years after the alleged agreement was made, and while the parties were still romantically involved and living together, Poirier purchased the winning ticket on June 2, 2007, and collected one million dollars minus deductions for taxes. Browning subsequently requested half of the proceeds, but Poirier refused. Browning then filed the underlying suit for breach of an oral contract and unjust enrichment seeking half of the proceeds. Poirier denied the existence of any oral agreement to split future lottery proceeds and interposed the defense of the statute of frauds.

At the close of Browning’s case, Poirier moved for a directed verdict on both counts of Browning’s complaint. The trial court granted a directed verdict on the claim for breach of oral contract, finding that the action was barred by the statute of frauds. § 725.01, Fla. Stat. (2007). The trial court also granted a directed verdict on Browning’s claim for unjust enrichment, holding that a party seeking to enforce an express contract cannot simultaneously disavow the contract and seek equitable relief in quasi-contract. Final judgment was then entered in favor of Poirier.

We believe the trial court was correct in granting a directed verdict pursuant to the statute of frauds, which provides in pertinent part:

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

§ 725.01, Fla. Stat. (2007). The leading case interpreting this statute is Yates v. Ball, 132 Fla. 132, 181 So. 341 (1937), wherein the court explained:

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

Id. at 344. The trial court granted the directed verdict concluding that “the intent was that the contract was to last and it did last, as it turns out, much longer than a year.”

Turning to the evidence in the record, the proponent of the alleged oral contract was Browning, and he testified that the oral contract was to last as long as he and Poirier were in a romantic relationship. Even the majority in the original panel opinion stated that “the parties contemplated that the relationship would last more than one year .... ” Indeed, Browning presented testimony from witnesses he called, including his three children, his ex-wife, and his son-in-law, that painted a picture for the jury that Browning intended to be, and was, in a committed relationship with Poirier for an extended period of time spanning many years after 1993. Browning’s ex-wife even testified that Poi-rier had established a loving relationship with Browning’s grandchildren.

Moreover, Browning presented evidence and testimony that when he moved into Poirier’s house in 1991, the house was in need of renovation and over the ensuing years, he spent his own money performing a variety of extensive repairs to the home. Browning further testified that he and Poi-rier started a business together raising and selling dogs and that he built dog pens on Poirier’s property next to her house where they lived together to promote that business. Remember that since 1991, Browning and Poirier remained together for approximately sixteen years prior to the purchase of the winning lottery ticket, and when Browning was asked, “During-— throughout the time that you were with her, did you plan on staying with her,” Browning answered, “Yes, sir.” In fact, Browning further testified that he stayed with Poirier in her home and remained in a “romantic and sexual relationship” with her until 2009. To suggest that these parties intended and agreed in 1993 that they would win the lottery, split the proceeds, and dissolve their romantic relationship in the span of one year, and that they intended anything other than a long-term relationship is belied by Browning’s own testimony and the testimony of his own witnesses.

Taking the evidence in the light most favorable to Browning and drawing the reasonable inferences in his favor, the trial court decided to grant Poirier’s motion for directed verdict as to the breach of the oral contract count and we believe it was correct in doing so.

Regarding the count for unjust enrichment, Browning alleged and testified that he gave Poirier the money to purchase the winning ticket and that they jointly purchased the ticket together with the implied understanding that they would share in the proceeds. Taking the evidence presented in the light most favorable to Browning, we do not believe the trial court properly granted a directed verdict in favor of Poirier on that count.

Accordingly, we affirm the judgment under review regarding the count for breach of the alleged oral contract, but reverse that part of the judgment regarding the count for unjust enrichment and remand this case to the trial court for further proceedings.

We certify to the Florida Supreme Court the following question as a matter of great public importance:

Is an oral agreement to play the lottery and split the proceeds in the event a winning ticket is purchased unenforceable under the statute of frauds when: there is no time agreed for the complete performance of the agreement; the parties intended the agreement to extend for a period longer than one year and it did extend for a period of fourteen years; and it clearly appears from the surrounding circumstances and the object to be accomplished that the oral agreement would last longer than one year?

AFFIRMED in part; REVERSED in part; REMANDED; QUESTION CERTIFIED.

SAWAYA, PALMER, ORFINGER, COHEN, BERGER and WALLIS, JJ., concur.

LAWSON, J., concurs specially, with opinion, in which ORFINGER, J., concurs.

TORPY, C. J.,

concurs in part and dissents in part, with opinion, in which

GRIFFIN, J., concurs.

EVANDER, J., recuses.

LAWSON, J.,

specially concurring.

I concur in the majority opinion, but write separately to briefly address three flaws in the dissent’s analysis.

First, the dissent discusses the “prevailing interpretation” of this portion of the statute of frauds as if there is no other recognized interpretation. The dissent correctly states the majority rule concerning contracts of “indefinite duration” — that only those contracts which “cannot possibly be completed within a year” are barred. Restatement (Second) of Contracts § 130 cmt. a (2012). “There is, however, a line of cases holding that where it clearly appears from the nature of the contract that the parties contemplated a permanent arrangement necessarily extending beyond the year or that they did not contemplate performance within a year, the contract is within the statute and must be in writing.” 72 Am. Jur. 2d Statute of Frauds § 13 (2013). Not surprisingly, this treatise lists Florida as one of four jurisdictions where this minority rule is used, citing to Yates v. Ball, 132 Fla. 132, 181 So. 341 (1937); 72 Am. Jur. 2d Statute of Frauds § 13 at n. 5; see also Leon v. Kelly, 618 F.Supp.2d 1334, 1342 (D.N.M.2008) (“The minority approach is to allow the parties’ actual understanding and the surrounding circumstances to influence whether an agreement is within the Statute of Frauds.” (citing LynlcUs Commc’ns, Inc. v. WebMD Corp., 965 So.2d 1161, 1165 (Fla. 2d DCA 2007))).

Second, I disagree with the dissent’s view that the “minority rule” “ignores the plain language of the statute, which only brings within its ambit those contracts that cannot be performed within [a year].” (Emphasis added). Section 725.01 provides in relevant part that:

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

§ 725.01, Fla. Stat. (2013) (emphasis added). The dissent reads the phrase “is not to be performed within the space of 1 year” to mean “is not [capable of being] performed within the space of 1 year.” The majority reads the phrase “is not to be performed within the space of 1 year” to mean “is [neither intended nor likely] to be performed within the space of 1 year.” Although both are plausible readings of the statute’s plain language, I believe the latter to be a more reasonable interpretation because it is consistent with the purposes' of the statute, which are to require more significant contracts to be in writing and to guard against the evidentiary problems that would occur if oral contracts where sought to be enforced years after their making. See, e.g., Larimore v. State, 2 So.3d 101, 106 (Fla.2008) (“A court’s purpose in construing a statute is to give effect to legislative intent ....”); see also Gen. Dynamics Corp. v. Brottem, 53 So.3d 334, 337 (Fla. 5th DCA 2010) (“A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably to contain all that it fairly means.’ ”) (quoting Antonin Scalia, A Matter of Interpretation: Federal Cowis and the Law 23 (1997)). It defies reason to suggest that the legislature intended this statute to apply to a fixed duration contract of one year and a day, but not to a contract that the parties fully expected and intended to last for years or decades based upon a hypothetical possibility, no matter how slight, that the contract might be performed in less than a year.

Ironically, the well-recognized origin of the “prevailing view” promoted by the dissent in this case is the judiciary’s expressed desire to narrow the rule to as few cases as possible based upon a view that the rule unfairly limits meritorious claims. See, e.g., C.R. Klewin, Inc. v. Flagship Props., Inc., 220 Conn. 569, 600 A.2d 772, 776 (1991) (“[T]he one-year provision [of the statute of frauds] no longer seems to serve any purpose very well, and today its only remaining effect is arbitrarily to forestall the adjudication of possibly meritorious claims. For this reason, the courts have for many years looked on the provision with disfavor, and have sought constructions that limited its application.”). Of course, it is beyond settled that a statute should “not be so narrowly construed that its purpose is undermined or frustrated!.]” Headley v. City of Miami, 118 So.3d 885, 891 (Fla. 1st DCA 2013) (citations omitted). Yet, the dissent advocates a narrowing construction that was adopted for the express purpose of undermining the statute. I favor a plain language construction that gives effect to the statute’s purposes.

Third, I take issue with the dissent’s criticism that the majority in this case is misreading the following critical language from Yates:

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

181 So. at 344. This is as clear a statement of the “minority view” as you will find in any case or treatise. The dissent’s strained reading of this passage hinges on defining the word “should” to mean “must,” which is again admittedly a possible definition of the word. The word is alternatively used “to express what is probable or expected.” Merriam-Webster’s Collegiate Dictionary 1153 (11th ed. 2012). To me, this meaning makes more sense in context. The dissent’s contrary reading renders the passage pointless. In other words, it makes no sense to focus on the “object to be accomplished” or what the “parties intended” if the question is governed solely by looking at whether the terms of the contract can possibly be performed within a year.

Finally, I note that confusion and uncertainty exists in Florida because the Yates court articulated both the prevailing view and the minority rule without choosing either, and our courts have been attempting to apply both ever since. It is my hope that our supreme court will finally and definitively address the issue in this case. Although the minority rule makes more sense to me, either approach is better than the uncertainty created by attempting to apply both.

ORFINGER, J., concurs.

TORPY, C.J.,

concurring in part and dissenting in part.

My colleagues hold for the first time in Florida that a garden-variety terminable-at-will contract violates the statute of frauds, as a matter of law, even though the parties could have fully performed it within one year or cancelled it at any time. The fact that the contractual relationship lasted more than a year is completely irrelevant. The contract was either valid or invalid on the day it was made. Yates v. Ball, 132 Fla. 132, 181 So. 341, 344-45 (1937) (fact that performance exceeded one year is not material to determination of whether contract violated statute of frauds). Nor does the fact that the contract was between two romantically involved people bear on the legal issue, because that relationship was itself terminable-at-will. Accordingly, I dissent.

Browning and Poirier entered into an oral agreement in 1993 to share lottery winnings. Browning testified that the oral agreement was that “[w]e would play [the lottery] together and we would buy lottery tickets and we would split it.” When pressed by defense counsel as to the actual words of the agreement, Browning reiterated that the two “would buy tickets and we would split the money.” No other words were spoken concerning the substance of the agreement. The parties performed the agreement by travelling together to buy tickets (locally and in other counties and states), entering the stores together, and purchasing tickets. Although they never won any jackpots, they did win small amounts, which they would together reinvest in more tickets.

Shortly before the purchase of the ticket that is at the heart of this dispute, Browning and Poirier discussed over dinner their desires to purchase tickets in the “Firecracker” drawing. After dinner, they went to a convenience store together to purchase tickets. As had been their past practice, they stood in line and purchased tickets in separate transactions to avoid sequentially numbered tickets. Browning handed Poirier the twenty dollars to buy the tickets she purchased. The winning ticket was in the batch procured by Poirier. Poirier retained the winning ticket and refused to split the winnings with Browning when he confronted her, culminating in this action.

The majority states that this lottery pooling agreement “was to last as long as [Browning and Poirier] remained romantically involved.” It then concludes that, because the parties intended to remain in the romantic relationship for more than one year, the agreement to pool lottery winnings violates the statute of frauds. This conclusion involves both a misinterpretation of the evidence and a misapplication of the law. As for the evidence, the majority relies on the following testimony by Browning to tie the duration of the agreement to the duration of the relationship:

Q: Sir, you acknowledge that this agreement that you’re saying you had with [Poirier] was only effective as long as you still had a relationship with her, correct?
A: Yeah, while we was [sic] together. We was [sic] together, yes.

(Emphasis added). This testimony was merely Browning’s acknowledgement that the end of the relationship would end the lottery pooling agreement. Browning did not say that the lottery pooling agreement must continue for as long as the parties remained romantically involved, only that the agreement would end at that time. Nothing in the lottery agreement precluded either party from terminating the lottery agreement, even before the end of the romantic relationship.

Even if the agreement was that they would play the lottery for as long as they stayed together, that does not support the conclusion that the agreement falls within the statute of frauds as one “not to be performed” within one year. Instead, such an agreement would be one of indefinite term that might or might not be performed within one year. The “not to be performed” language of the statute is expressed in the negative — meaning that the terms of the contract must contain a “negation of the right to perform it within the year” to bring the contract within the statute. Ark. Midland Ry. Co. v. Whitley, 54 Ark. 199, 15 S.W. 465, 466 (Ark.1891) (cited in L.S. Tellier, Annotation, Statute of Frauds Against Oral Contracts Not to be Performed Within Year as Applicable to Contracts Susceptible by its Terms, or by Construction, of Performance Within Year, Where Performance Within that Time is Improbable or Almost Impossible, 129 A.L.R. 534 (1940)). Accordingly, the “well-settled” rule is that only contracts that cannot be performed within one year are within the ambit of the statute. If it can be performed within one year, then it is not rendered unenforceable under the statute, even if actual performance takes longer than one year. As Williston states:

It is well settled that the oral contracts made unenforceable by the statute because they are not to be performed within a year include only those which cannot be performed within that period. A promise which is not likely to be performed within a year, and which in fact is not performed within a year, is not within the statute if at the time the contract is made there is a possibility in law and in fact that full performance such as the parties intended may be completed before the expiration of a year.

9 Richard A. Lord, Williston on Contracts § 24:3 (4th ed. 2012) (bold emphasis added).

The majority mistakenly concludes that, when parties to a contract believe that performance will likely take more than one year, the statute is implicated. This interpretation ignores the plain language of the statute, which only brings within its ambit those contracts that cannot be performed within that time. As one leading commentary states:

Under the prevailing interpretation, the enforceability of a contract under the one-year provision does not turn on the actual course of subsequent events, nor on the expectations of the parties as to the probabilities. Contracts of uncertain duration are simply excluded; the provision covers only those contracts whose performance cannot possibly be completed within a year.

Restatement (Second) of Contracts § 130 cmt. a (2012).

Gulf Solar, Inc. v. Westfall, 447 So.2d 363 (Fla. 2d DCA 1984), is particularly instructive here as it is the most analogous precedent available. There, the plaintiff sued on an oral employment contract for an indefinite term. During a deposition, the plaintiff admitted that he expected his employment to go on for more than one year. Id. at 365. On appeal from the denial of summary judgment based on the statute of frauds, the court held that the expectation of continued employment by both parties did not bring the contract within the statute because it was capable of performance within one year. Id. In other words, even though the expectation of the parties was to continue in the relationship for a long period of time, because neither party was bound to continue, and because complete performance of the contract could be accomplished in less than one year, the contract was not one that could not be performed within one year. The case is analogous here because, in both situations, there is some expectation that the relationship will continue for a long period. However, in both situations, performance is incremental. In the employment context, the employee is typically paid weekly or monthly. In the instant situation, the parties participated in a weekly drawing. In both, either party is free to end the contract at any time without breach. In the procedural posture of this case, we are compelled to assume that Browning was aware of the contract and could have ended it at anytime.

The holding in Gulf Solar, Inc., is buttressed by decades of decisions, including a decision of our state’s highest court. See, e.g., Berger v. Jackson, 156 Fla. 251, 23 So.2d 265, 267 (1945) (oral agreement to compensate another upon promisor’s death not within statute of frauds because promi-sor could die within one year); Terzis v. Pompano Paint & Body Repair, Inc., 127 So.3d 592, 2012 WL 6601316 (Fla. 4th DCA Dec. 19, 2012) (contract possibly performed within one year not invalid under statute of frauds); Aspsoft, Inc. v. Web-Clay, 983 So.2d 761, 769 (Fla. 5th DCA 2008) (contract not within statute of frauds if performance within one year is possible); Acoustic Innovations, Inc. v. Schafer, 976 So.2d 1139, 1143 (Fla. 4th DCA 2008) (only contract incapable of performance within one year falls within statute of frauds); Elliot v. Carl H. Winslow, Jr., P.A., 737 So.2d 609, 610 (Fla. 2d DCA 1999) (citing Yates for proposition that “[o]nly if a contract could not possibly be performed within one year would it fall within the statute”); Wilcox v. Lang Equities, Inc., 588 So.2d 318, 320 (Fla. 3d DCA 1991) (contract that can possibly be performed within one year not within statute of frauds); De Ribeaux v. Del Valle, 531 So.2d 992, 993 (Fla. 3d DCA 1988) (citing Yates and holding that oral joint venture agreement to “pool resources” in sale of real estate and split profits not within statute of frauds because nothing in agreement’s terms precluded performance within one year); Futch v. Head,, 511 So.2d 314, 319 (Fla. 1st DCA 1987) (citing Yates for proposition that unless contract, by its terms, cannot be performed within one year, contract not within statute of frauds, even if performance takes several years); City of Clewiston v. B & B Cash Grocery Stores, Inc., 445 So.2d 1038, 1040 (Fla. 2d DCA 1984) (because business could end within one year, agreement by city to furnish electricity to business for indefinite period not within statute of frauds, even though parties expected it to last longer than one year).

The majority neither explains, distinguishes nor contradicts any of these authorities. Instead, the majority simply concludes that the so-called qualifying rule in Yates compels reversal. Clearly, as Judge Lawson concedes, nothing in the holding in Yates supports this conclusion. In Yates, Ball, an investor in a financially troubled property, had agreed as part of a three-way agreement that he would “pay ... bonds ... [which fell] due approximately four years from the date of the agreement,” in exchange for the bondholders’ agreement to extend the maturity on the bonds and cooperate in the extinguishment of subordinate lienors. 181 So. at 342. When Ball defaulted, he interposed the defense of the statute of frauds because performance was not due for four years. In rejecting that defense, our high court said: “While the second mortgage bonds were not due for four years and the interest was payable semi-annually, they were by their terms susceptible of payment in full at any time upon notice given ....” Id. at 344 (emphasis added). The holding in Yates is that, when “there is nothing in [the] terms [of the contract] to show that it could not be performed within a year” and it is capable of performance within one year, the contract is outside the statute of frauds. Id.

The starting point in Yates is the court’s adherence to the principle that the applicability of the statute of frauds depends on the “terms of the contract.” Only “contracts which by their terms are not to be performed within a year” violate the statute. Id. (emphasis added) (citing McPherson v. Cox, 96 U.S. 404, 24 L.Ed. 746 (1877); see also 129 A.L.R. 534 (citing Yates among cases that “have taken the view that, unless it appeared from the contract itself that it was not to be performed within one year, an oral contract was not within the statute of frauds, even though full performance within that time appeared improbable” (emphasis added))). Thus, an oral contract by a painter to maintain the exterior of a building for a five-year term would violate the statute because, according to its terms, it could not legally be performed within one year. Conversely, an oral contract by a painter to maintain the exterior of a building for an indefinite period of time would not violate the statute because either party could terminate it at any time and still fully perform. This part of Yates is straight forward in application.

What is not so straight forward is the so-called qualifying rule, expressed in dicta, which has led to confusion and inconsistency in the district courts. The qualifying rule is not an exception to the general rule; it is a qualifier. It simply adds a corollary to the general rule that the determination of whether “contracts ... by their terms are not to be performed within a year” includes consideration of the contract’s object, the circumstances surrounding the making of the contract, as well as the contract’s express terms. Even then, only when these extrinsic circumstances clearly lead to the conclusion that the contract cannot be performed within one year, is the contract invalid. Thus, a contract by Michelangelo to paint the ceiling of the Sistine Chapel, although devoid of an express time for performance, might be invalid under the statute if it is “clearly established” in the evidence that it cannot in fact be performed within one year.

In his concurring opinion, Judge Lawson relies upon an American Jurisprudence article setting forth a “minority view” concerning contracts of indefinite duration. He quotes from the article that “where it clearly appears from the nature of the contract that the parties contemplated a permanent arrangement necessarily extending beyond the year or that they did not contemplate performance within a year, the contract is within the statute and must be in writing.” 72 Am. Jur. 2d Statute of Frauds § 13 (2013). Not quoted by Judge Lawson, however, is the very next sentence, which expounds on the sentence he quotes: “Thus, if it is quite clear that the defendant’s liability under the alleged oral contract would continue for an indefinite period of time beyond ... one year, and includes no event that might end the contractual relationship ... within a year, the contract is within the statute.” The omitted sentence makes clear that a terminable-at-will contract such as the one here is outside the statute. Liability to perform does not extend beyond one year and it may be ended before then, because it may be ended by either party at any time. Again, for purposes of directed verdict, we must assume that the contract was made and Poirier was fully aware of it.

One of the “minority view” cases cited in the American Jurisprudence article that Judge Lawson relies on provides a rare example of how the qualifying rule is applied. In Niday v. Niday, 643 S.W.2d 919 (Tex.1982), the alleged oral contract was between two brothers who worked together in a funeral home owned by one brother. The brother who owned the funeral home allegedly promised the other brother a share in the ownership of the business when and if the other brother obtained his funeral director’s license. Although the contract did not contain an express time for performance, it was undisputed that the brother could only get a license after completing one year of schooling, followed by one year of apprenticeship. Consequently, there was no way to perform the contract within one year, not because a contractual term required performance over a period of more of than one year, but because performance of the contract within one year was a factual impossibility.

According to the qualifying rule, the statute only applies if it “clearly appears[] that the parties intended that it should extend for a longer period than a year.” Yates, 181 So. at 344 (emphasis added). The majority and Judge Lawson construe this sentence as if the word “should” is omitted. This construction changes the meaning. In this context, “should” means obliged to or must. It is only when performance clearly must take more than one year that the statute applies. Yates drives this point home when it states that unless something “embraced within [the contract’s] terms ... shows conclusively that it was intended to run for more than a year,” it is outside the statute. Id. (emphasis supplied). To construe Yates otherwise disregards the plain language of the statute. Yates is in full accord with the universal interpretation of the phrase, “not to be performed.” Yates differs from the prevailing rule only in its authorization to consider extrinsic evidence to determine whether the contract can be performed within one year.

At the risk of being repetitive, I emphasize that the majority’s view of Yates creates an irreconcilable conflict with the Florida Supreme Court’s decision in Berger, which, post-Faies, concluded that a contract not to be performed until the death of the promisor (with no evidence that the promisor expected to die within one year) was not within the statute of frauds. The majority simply ignores Berger, rather than make any attempt to explain or distinguish it.

Here, the contract was to play the lottery and split the winnings. There was nothing within the express terms of the contract that required performance for any particular time period. Either party could have elected to end the arrangement after one day, one week or one month without breaching its terms. Nor is there anything within the object of this contract or circumstances to negate the possibility of full performance within a year. The lottery is a weekly drawing. The performance was accomplished by the purchase of tickets in a weekly drawing and, if the purchased tickets were winners, splitting the proceeds. The agreement was not “play for two years,” “play until we win big,” or even “play until we win”; rather, it was, “when we play, if we win, we split the prize.” Under this arrangement, full performance occurred every time the parties purchased a ticket and, if a winner, shared their winnings, no matter the amount.

Even if Browning and Poirier agreed to continue to play for the duration of the romantic relationship, because the romantic relationship was itself terminable at will, it was factually possible to perform the contract within one year — no less so than the life-of-the-person contract in Berger or life-of-the-business contracts in De Ribeaux and City of Clewiston. The fact that the parties stayed together for many years is irrelevant. The contract was either valid or invalid at its inception. Yates, 181 So. at 344-45 (fact that performance exceeded one year is not material to determination of whether contract violated statute of frauds; statute “does not apply because they may not be performed within that time”); Futch, 511 So.2d at 319; Williston on Contracts § 24:3 (if performance within year possible at time contract is made, makes no difference that performance takes longer than year). Neither the express terms nor surrounding circumstances “negated” the “right” to performance within one year. See 129 A.L.R. 534 (quoting Whitley, 15 S.W. at 466, and stating terms of contract must contain “negation of the right to perform it within the year” to bring contract within statute of frauds).

Finally, although I appreciate that my colleagues have agreed to certify a question of great public importance, and I agree that our high court’s decision in Yates should be explained, I am constrained to disagree with the question posited. The appropriate question in my view is as follows:

Is a terminable-at-will agreement to pool lottery winnings unenforceable in the absence of an express .agreement to continue the agreement for a period of time exceeding one year, when full performance of the agreement is possible within one year from the inception of the agreement.

I would reverse on both issues.

GRIFFIN, J., concurs.

      . The evidence revealed that Browning did not pay rent to Poirier and that later in their relationship-a few years before the winning ticket was purchased — Browning may have seen other women. Browning also could not produce most of the receipts for the extensive repairs he claims he made to Poirier’s home. The testimony from these witnesses Browning called was apparently presented to show the jury that Browning was not a person who simply took advantage of Poirier over the many years their relationship lasted.

      . It is easy to envision scenarios involving the factual context of this case — oral agreements to split lottery proceeds — where the majority rule would exempt from the statute of frauds the very kind of dispute that the statute appears to have been enacted to bar. For example, one college roommate says to the other (probably over a beer): "Let’s agree that if either of us ever wins the lottery, we will split the proceeds.” The other roommate says, "Sure.” They do not discuss the matter again and after graduating from college eventually lose touch with each other until one sees a news report announcing that the other has just claimed a large lottery jackpot twenty-eight years later. Most reasonable people reading the statute of frauds would probably agree both that: (1) the statute by its express terms bars a claim on this oral agreement; and (2) that it makes sense that it should do so. Yet, the majority rule which Chief Judge Torpy implores us to apply in this case would allow the claim to proceed in this hypothetical.

      . I concur with the conclusion that the directed verdict on the unjust enrichment count was error. The trial judge directed a verdict on this count based on the argument that the law will not imply a contract where an express contract exits. See, e.g., Kovtan v. Fre-deriksen, 449 So.2d 1 (Fla. 2d DCA 1984). The flaw in the trial judge's reasoning is that Browning had two alternative theories of recovery. One that the parties made an oral contract to split all winnings from playing the lottery. Two, that Browning provided the consideration for the purchase of the winning ticket with an implied understanding that they would split the winnings, if any. The jury can reject Browning's first theory, finding as a matter of fact that no contract was made, but agree with Browning on the alternative theory. If the jury concludes that an express contract did not exist, the alternative theory is not legally repugnant. Because no other issues were argued, I express no opinion on the viability of this claim or the correct measure of damages.

      . This is one of the rare occasions when I part company with my learned colleague, Judge Lawson, who relies on legislative intent to support his concurrence. A statute’s intent should be determined based on the plain meaning of the words used and without resort to other construction conventions unless an ambiguity is identified. Samples v. Fla. Birth-Related. Neurological, 40 So.3d 18, 21 (Fla. 5th DCA 2010). One reason for this rule is that legislative history is difficult to discern with accuracy, particularly where, as here, we are dealing with a statute that is patterned after one adopted in England in the seventeenth century. The words here are crystal clear. The language is unequivocal. Only those contracts that are "not to be performed" within one year are prohibited. "Not to be performed” means cannot be performed. Judge Lawson cites no legislative history or other authoritative source for his conclusion. The best evidence of intent is the statute itself. The fact that the Florida legislature has made no revision to the statute when reenacted, despite decades of decisions holding that a possibility of performance takes the contract out of the statute, bulwarks that interpretation. Gulfstream Park Racing Ass'n v. Dep't of Bus. Regulation, 441 So.2d 627 (Fla. 1983) (reenactment of statute after judicial construction carries presumption that construction is correct).

      . Some of the facts are more clearly presented in Ball v. Yates, 158 Fla. 521, 29 So.2d 729 0946).

      . See infra note 7.

      . LynldJs Communications, Inc. v. WebMD Corp., 965 So.2d 1161 (Fla. 2d DCA 2007), provides the only other example I have found. Because the case does not delineate the evidence adduced below, it is not particularly instructive. Without conceding the correctness of this decision, it is easily distinguished nevertheless. There, the evidence was "beyond dispute that the joint business arrangement ... would be a long-term arrangement ....” Id. at 1165. The question in these cases is whether "performance" can be accomplished in one year. The creation of a business that "would be a long-term arrangement" is a materially different objective than an agreement to roll the dice on the lottery and split the winnings. I do note, however, that LynkUs Communications, Inc. appears to be in conflict with City of Clewiston, 445 So.2d 1038, an earlier decision from the same court.

      .What is meant by "clearly appears” in this sentence is unclear to me. The later reference to "shows conclusively" adds to my confusion. I am not sure whether these are intended to be legal standards or fact issues. Many of these cases, including Yates, have been decided as a matter of law, suggesting that these are legal standards. In any event, the test seems unworkable. I suspect this is why only four jurisdictions have embraced it.

      . Judge Lawson says that "should” means "expected,” but this definition renders the use of the word completely unnecessary and requires that we assume its use to be mere surplusage. The word "should” is actually derived from the English word "sholde,” which meant "obliged to.” Merriam-Webster’s Collegiate Dictionary 1153 (11th ed. 2012).

      . See supra note 9.


source: Caselaw Access Project

author: VILLANTI, Judge.

license: Public Domain

text:
    Jason M. JOHNSON, a/k/a Jason Maurice Johnson, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4199.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 2013.

      Jason M. Johnson, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Jason M. Johnson appeals the denial of his motion and several amended motions for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Johnson raises nine claims of error in this appeal; however, we affirm on all claims except one. As to Johnson’s claim asserting that the State violated Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), we reverse and remand for the postconviction court to address the claim on its merits.

Johnson raised his Giglio claim for the first time in his motion for postcon-viction relief. In that claim, he asserted that the State allowed a witness’s false testimony at trial to go uncorrected even though the prosecutor knew the testimony was false. The postconviction court denied this claim on the basis that it was procedurally barred because Johnson could have raised it on direct appeal. However, this court has held that Giglio claims may be cognizable in a postconviction motion when the issue has not been raised on direct appeal. Robinson v. State, 65 So.3d 75, 76 (Fla. 2d DCA 2011) (citing Rodriguez v. State, 39 So.3d 275 (Fla.2010); and Davis v. State, 31 So.3d 277 (Fla. 2d DCA 2010)). Moreover, the supreme court has held that “ ‘a conviction obtained by the knowing use of perjured testimony is fundamentally unfair ... [for it] involve[s] a corruption of the truth-seeking function of the trial process.’ ” Johnson v. State, 44 So.3d 51, 53 (Fla. 2010) (quoting United States v. Agurs, 427 U.S. 97, 103-04, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (emphasis added)). The State’s use of perjured testimony to secure a conviction could amount to the denial of a defendant’s substantive due process rights. See Nwpue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Mooney v. Holohan, 294 U.S. 103, 112-13, 55 S.Ct. 340, 79 L.Ed. 791 (1935). And a claim alleging the denial of a defendant’s substantive due process rights may be raised at any time, including for the first time in a motion for postconviction relief. See, e.g., Hughes v. State, 22 So.3d 132, 136 (Fla. 2d DCA 2009) (quoting Haliburton v. State, 7 So.3d 601, 605-06 (Fla. 4th DCA 2009)).

Here, while Johnson could have raised his Giglio claim on direct appeal, he did not. Under this court’s decision in Robinson, Johnson’s failure to raise this claim on direct appeal does not render it proeedurally barred. And because the claim alleges a violation of Johnson’s substantive due process rights that would otherwise be cognizable under rule 3.850(a)(1), the post-conviction court should have considered the claim on its merits even though it was raised for a first time in Johnson’s post-conviction motion.

Accordingly, we reverse the summary denial of this single claim and remand for the postconviction court to consider it on the merits. In all other respects, we affirm.

Affirmed in part, reversed in part, and remanded for further proceedings.

CASANUEVA and SILBERMAN, JJ„ Concur.

      . "[T]he State may commit [a Giglio ] violation either by deliberately presenting false evidence or by allowing false evidence to go uncorrected when it appears.” Spencer v. State, 842 So.2d 52, 70 (FIa.2003) (citing Gig-lio, 405 U.S. at 153, 92 S.Ct. 763).


author: PER CURIAM.

text:
    Miguel A. SERRANO, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-477.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 2013.
    Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

We affirm the judgments and sentences in this case without prejudice to Miguel A. Serrano’s right to file a timely motion for postconviction relief. Any claim alleging ineffective assistance of counsel based on the fact that his attorney also represented his codefendant in a separate trial shall not be regarded as duplicative of issues raised in this direct appeal.

Affirmed.

ALTENBERND, CASANUEVA, and BLACK, JJ., Concur.


text:
    Roy BETTS, a/k/a Roy Neil Betts, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1756.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 2013.
    Rehearing Denied Dec. 13, 2013.
    Roy Betts, pro se.
   VILLANTI, Judge.

Roy Neil Betts appeals the postconviction court’s order denying his motion filed under Florida Rule of Criminal Procedure 3.800(a). We affirm in all respects; however, we remand for correction of a scrivener’s error in Betts’ written sentence.

The transcript of the sentencing hearing reflects that the trial court orally imposed a twenty-five year minimum mandatory sentence pursuant to section 775.087, Florida Statutes (2006). However, the written sentence indicates the minimum mandatory was not orally pronounced. This error in the written sentence is not the result of a judicial determination but rather is a scrivener’s error in the written document. See Fla. R.Crim. P. 3.800 court cmt. (defining a scrivener’s error as “a mistake in the written sentence that is at variance with the oral pronouncement of sentence or the record but not ... the result of a judicial determination or error”). Accordingly, we remand with directions that this scrivener’s error be corrected.

Affirmed; remanded to correct scrivener’s error.-

KHOUZAM and SLEET, JJ., Concur.


author: KHOUZAM, Judge.

text:
    Michelle ROWE, Appellant, v. Jose A. RODRIGUEZ-SCHMIDT, Appellee.
    No. 2D12-4967.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 2013.

      Victor R. Smith and Jeffrey I. Burry of Frost Van Den Boom & Smith, P.A., Bar-tow, for Appellant.
    Nathaniel White, Bartow, for Appellee.
   KHOUZAM, Judge.

Michelle Rowe appeals an order modifying the final judgment of dissolution of her marriage to Jose A. Rodriguez-Schmidt as well as a corrected order granting her attorney’s fees and costs. As to the two issues she raises challenging the modification, we affirm without comment. But we reverse and remand the order granting her attorney’s fees and costs because the court erred in failing to make specific factual findings to support its award.

“[T]he trial court must make specific factual findings — either at the hearing or in the written judgment — supporting its determination of entitlement to an award of attorney’s fees.” Perez v. Perez, 100 So.3d 769, 771 (Fla. 2d DCA 2012). And “if the trial court determines that there is an entitlement to fees, the court must ‘set forth findings regarding the factors that justify the specific amount awarded.’ Id. (quoting Rogers v. Rogers, 12 So.3d 288, 292 (Fla. 2d DCA 2009)). The court must consider the financial resources of the parties and evaluate their relative need for and ability to pay attorney’s fees. See § 61.16, Fla. Stat. (2012); Perez, 100 So.3d at 771. “The consideration of need and ability to pay includes a consideration of the overall financial resources of each of the parties, not just income and earning capacity.” Perez, 100 So.3d at 771.

Though the parties’ financial resources are the primary factor, the court may also consider other relevant factors, such as those set forth by the Florida Supreme Court in Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997). Those factors include “the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation.” Id. Ultimately, the court may consider “any factor necessary to provide justice and ensure equity between the parties.” Id.

Here, the court did not make any specific factual findings at the final hearing on attorney’s fees. In the order granting Ms. Rowe’s motion for attorney’s fees and costs, the court found that Ms. Rowe had a need for contribution and that Mr. Rodriguez-Sehmidt had a limited ability to pay. The court delineated the fees and costs that it determined to be reasonable. But the order did not include specific factual findings to justify a determination of entitlement to fees or the amount of fees awarded. Thus, we must reverse and remand for the trial court to set forth specific factual findings. And though the court is not required to address the factors set forth in Rosen, we note that the court may consider Rosen factors and include them in its written findings if they are used to justify the award.

Affirmed in part; reversed in part, and remanded.

ALTENBERND and SLEET, JJ., Concur.


author: PADOVANO, J.

text:
    FLORIDA STATE FIRE SERVICE ASSOCIATION, IAFF, LOCAL S-20, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-0117.
    District Court of Appeal of Florida, First District.
    Nov. 12, 2013.
    Rehearing Denied Dec. 20, 2013.

      Tobe M. Lev and Richard Siwica of Egan, Lev & Siwica, P.A., Orlando, for Appellant.
    Gregg Riley Morton of the Public Employees Relations Commission, Tallahassee; Michael Mattimore and Jason E. Vail of Allen, Norton & Blue, P.A., Tallahassee, for Appellee.
    Thomas W. Brooks of Meyer, Brooks, Demma & Blohm, P.A., Tallahassee, for Amicus Curiae Florida Education Association, NEA, AFT, AFL-CIO and Federation of Physicians and Dentists/Alliance of Healthcare and Professional Employees, NUHHCE, AFSCME, AFL-CIO; Pamela L. Cooper of the Florida Education Association, Tallahassee, for Amicus Curiae Florida Education Association, NEA, AFT, AFL-CIO; Donald D. Slesnick, II of the Law Offices of Slesnick & Casey, LLP, Coral Gables, for Amicus Curiae Florida Nurses Association; Paul A. Donnelly of Donnelly and Gross, P.A., Gainesville, for Amicus Curiae Communications Workers of America, AFL-CIO, CLC; Abma R. Gonzalez of AFSCME Florida Council 79, Tallahassee, for Amicus Curiae AFSCME Council 79, AFL-CIO; Richard A. Sicking, Coral Gables, for Amicus Curiae Florida Professional Firefighters, Inc., International Association of Firefighters, AFL-CIO.
   PADOVANO, J.

This is an appeal by the Florida State Fire Service Association, IAFF Local S-20, from a final order by the Florida Public Employee Relations Commission dismissing an unfair labor practice charge. The charge was based on a claim that the state had violated the association’s right to collective bargaining by failing to negotiate a condition in the agreement pertaining to retirement benefits. We conclude that the state was required to negotiate the provision at issue and that the Governor’s action in referring the matter to the Florida Legislature without further negotiations with the association amounted to a denial of the right to collective bargaining. Accordingly, we reverse the Commission’s order with directions to sustain the unfair labor practice charge.

The association is the certified bargaining agent for employees within the bargaining unit and has been engaged for the last ten years in collective bargaining with the Governor in his capacity as the employer. The condition of the contract at issue here provides that the employees in the bargaining unit are not required to make financial contributions to the state retirement fund. This provision is contained in Article 16 of the contract, which states, “All bargaining unit members shall continue to participate in the Florida Retirement System (FRS) at no cost to the employee.”

The contract was in effect for a period of three years from July 1, 2009 until June 30, 2012, but it included a provision that would enable the parties to negotiate a change in the article pertaining to wages and to propose changes to a limited number of other articles during the second and third years. On September 10, 2010, a representative of the Department of Management Services wrote to the association to request the submission of proposals to reopen negotiations for the coming fiscal year. The association responded on January 31, 2011, by proposing a request for a wage increase and a competitive pay adjustment. The association did not propose any change to the parties’ agreement as it pertained to the issue of pension benefits.

The Department replied with an email on behalf of the Governor expressing the state’s willingness to consider its requests and also informing the association that the state wished to reopen negotiations on two other matters, a provision relating to the health and welfare of the employees in the bargaining unit and a provision relating to a dues checkoff. At the bottom of the letter, the Department informed the association of the state’s intent to reopen negotiations on yet another matter that had been previously settled by the contract: the subject of retirement contributions. The letter states,

In addition to the above articles, we propose to open Article 16 Retirement, to address retirement as follows:

“The State agrees to administer the Florida Retirement System (FRS) in accordance with any statutory provision, or Act affecting the plan or its operation.”

This email was sent on Friday, February 4, 2011, and it was the first point in the bargaining process for that year in which either party had suggested a possible change in Article 16. The following Monday, the Governor submitted his proposed budget to the Florida Legislature. By operation of law, the submission of the budget creates an impasse in contract negotiations on all matters that have not been resolved by that point.

The Legislature resolved the impasse by passing a General Appropriations Act that required public employees, including association employees, to contribute 3% of their salaries to the Florida Retirement System, beginning on July 1, 2011. The association refused to ratify this change and filed an unfair labor practice charge against the State. It alleged that the manner in which the Governor had effected this change violated the association’s right to collective bargaining over pensions, under sections 447.501(l)(a) and (c), Florida Statutes (2010) and Article 1, section 6 of the Florida Constitution.

The hearing officer assigned by the Commission issued a recommended order concluding that the Governor’s proposed substitute for Article 16 impermissibly deprived the association of any right to future bargaining over the terms of employee pensions. He accepted the association’s argument that, by substituting the proposed language for the extant language of Article 16, the Governor had allowed the Legislature to change the pension plan without any bargaining with the association. Based on this reasoning, the hearing officer concluded, “The state violated section 447.501(l)(a) and (c), Florida Statutes, by obtaining through impasse resolution a waiver of future bargaining over pensions (Article 16) at the conclusion of the re-opener bargaining.” As a remedy, he recommended that “[t]he state should compensate the association for its necessary attorney’s fees and litigation costs for that portion of its original charge on which it prevailed.”

On December 10, 2012, the Commission issued a final order rejecting the hearing officer’s ultimate conclusion that the State had violated the law, as well as his recommendation that the State be ordered to pay the association’s attorney fees. It ruled instead that the substituted pension language could not be construed as a waiver of the right to bargain, nor could it operate as such. The Commission found that a plain reading of the language does not provide a basis for the State to refuse to bargain, either now or in the future, over the subject of pensions. The association then appealed the Commission’s order to this court.

Whether the Governor effectively circumvented the collective bargaining process by opening a provision of the contract to a potential change by . the Legislature without first negotiating that issue with the association is an issue of law. It is the kind of legal issue that turns on the plain meaning of the applicable statutes. Accordingly, we review the decision in this case by the de novo standard. See Fla. Pub. Emps. Council 79, AFSCME, AFL-CIO v. State, 921 So.2d 676, 681 (Fla. 1st DCA 2006); Miami-Dade County v. Government Supervisors Ass’n of Florida, OPEIU AFL-CIO, Local 100, 907 So.2d 591, 593-94 (Fla. 3d DCA 2005); Colbert v. Dep’t of Health, 890 So.2d 1165, 1166 (Fla. 1st DCA 2004); § 120.68(7)(d) Fla. Stat. (2010).

The right to collective bargaining is a fundamental right guaranteed by the Florida Constitution. As stated in Article I, section 6, “The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged.” This section prohibits not only an explicit denial of the right to collective bargaining, but also an action by a public employer that results in a denial of the right. As the court explained in Hillsbor-ough County Governmental Employees Assoc., Inc. v. Hillsborough County Aviation Authority, 522 So.2d 358, 363 (Fla. 1988), the constitution guarantees public employees the right of “effective” collective bargaining.

The constitutional right created by Article I, section 6 is implemented in Chapter 447, Florida Statutes. Section 447.501(1) provides in pertinent part:

(1) Public employers or their agents or representatives are prohibited from:
(a) Interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part.
(c) Refusing to bargain collectively, failing to bargain collectively in good faith, or refusing to sign a final agreement agreed upon with the certified bargaining agent for the public employees in the bargaining unit.

§ 447.501(l)(a) and (c), Fla. Stat. (2010). The Legislature further defined the duty to engage in collective bargaining in section 447.309(1), Florida Statutes (2010). This section requires the public employer and certified bargaining agent to bargain jointly and collectively in the determination of the wages, hours, and terms and conditions of employment of the public employees within the bargaining unit.

The right of public employees to collective bargaining includes a right to bargain on the subject of retirement benefits. This is said to be a mandatory subject of the bargaining process. See Scott v. Williams, 107 So.3d 379, 389 (Fla.2013) (stating that “retirement pensions and benefits are mandatory subjects of public collective bargaining”). Consequently, the right to bargain for retirement benefits may not be denied by the state. The Legislature may not remove the subject of pensions from the bargaining process, nor may the State reserve to the Legislature the exclusive authority to determine retirement benefits for public employees. See City of Tallahassee v. PERC, 393 So.2d 1147 (Fla. 1st DCA), affd, 410 So.2d 487 (Fla.1981).

It is axiomatic that a public employer may not violate a union’s right to collectively bargain on behalf of the employees by unilaterally imposing terms and conditions of employment. See Palm Beach Junior Coll. Bd. of Tr. v. United Faculty of Palm Beach Junior Coll, 475 So.2d 1221, 1224 (Fla.1985); Hillsborough County Governmental Employees Assoc., Inc. v. Hillsborough County Aviation Authority, 522 So.2d 358 (Fla.1988). The parties, the hearing officer and the Commission referred to a violation such as this as a “waiver” of the union’s rights. In this context, they are using the term “waiver” not in its ordinary sense to mean a voluntary relinquishment of a known right, but rather to mean a unilateral deprivation of the right to negotiate a term of the contract.

The Commission concluded that the state had not committed an unfair labor practice by the manner in which it resolved the impasse, because the Governor’s proposal did not constitute a “clear and unmistakable waiver” of the association’s rights. On this point, the Commission appears to have reversed the standard that should be applied in resolving an issue such as this. The question is not whether there was clear evidence to show that the employer had imposed a contract condition involuntarily, but whether there was clear evidence to show that the association gave up the right to argue about the condition. The absence of clear and unmistakable evidence of a waiver works in favor of the association, not the employer.

Courts that have applied the “clear and unmistakable waiver” rule uniformly use the term “waiver” in its true sense to mean that a party has given up a right. For example, in School Distnct of Polk County v. Polk Education Association, 100 So.3d 11 (Fla. 2d DCA 2011), the court stated the rule as follows:

Absent a clear and unmistakable waiver by the certified bargaining representative, exigent circumstances requiring immediate action, or legislative action imposed as a result of impasse, a public employer’s unilateral alteration of wages, hours or other terms and conditions of employment of employees represented by a certified bargaining agent constitutes a per se violation of [s]ection 447.501(a)(a) and (c).

[F]or inaction to ripen into a “clear and unmistakable waiver,” consideration of all the circumstances must reveal that the [bargaining agent’s] conduct is such that the only reasonable inference is that it has abandoned it right to negotiate over the noticed change.

Polk Education, 100 So.3d at 15 (quotations omitted).

Likewise, in Florida School for the Deaf and Blind v. Florida School for the Deaf and Blind, Teachers United, FTP-NEA, 483 So.2d 58, 59 (Fla. 1st DCA 1986), this court held that “absent a clear an unmistakable waiver by the certified bargaining representative, a public employer’s unilateral alteration of wages, hours or other terms and conditions of employment ... constitutes a per se violation” of the right to collective bargaining (emphasis added); see also Leon County Police Benevolent Ass’n v. City of Tallahassee, 8 FPER ¶ 13400 (1982), affd, City of Tallahassee v. Leon County Police Benevolent Ass’n, Inc., 445 So.2d 604 (Fla. 1st DCA 1984). The rule established in all of these cases is that it must be clear and unmistakable that the bargaining agent intended to give up a term or condition. Yet the Commission has applied the rule to mean that there must be clear and unmistakable evidence that the employer intended to make a unilateral change in the contract.

The Commission concluded that the state had not committed an unfair labor practice, because there was nothing in the Governor’s proposal that would give him a right to unilaterally change the terms and conditions of employment relating to pensions. This argument focuses on the language of the proposal and fails to take into account its effect. As the supreme court explained in United Teachers of Dade, FEA/United AFT, Local 197k, AFL-CIO v. Dade County School Board, 500 So.2d 508, 511 (Fla.1986), the court must look beyond the language of a proposal and consider its impact and effect in deciding whether it amounts to a unilateral condition of the contract.

In United Teachers, the lower court had held that a program mandated by the Legislature did not violate the right of collective bargaining because the Legislature was not a party to the employment contract. While affirming the lower court’s ultimate conclusion, the supreme court rejected the lower court’s reasoning that the Legislature was a “stranger to the employment relationship.” The supreme court found that this narrow focus was an “exercise in semantics” that “ignores the real impact or practical effect legislation may have on the rights guaranteed by article I, section 6.” The court emphasized that a correct analysis must “focus on the impact such decisions have on public employees’ constitutionally guaranteed collective bargaining rights.” Id. at 511; see also City of Tallahassee v. PERC, 410 So.2d at 489.

Applying these principles, we conclude that the actions by the Governor amount to a violation of the association’s right to collective bargaining. The Governor proposed to replace the rights established in Article 16 with an open-ended provision that would enable the state to administer the retirement system “in accordance with any statutory provision” that might be enacted into law. It is true that the proposal did not itself change the existing provision in Article 16; however, it did effectively open the subject of retirement benefits to a potential change by a third party, in this case the Florida Legislature. The practical effect of the Governor’s action in delegating the issue of pension benefits to the Legislature was to make it impossible for the association to negotiate the issue at all. Thus, we conclude that the action is one that amounts to a denial of the association’s right to collective bargaining.

One might argue that the association should have objected to the Governor’s proposal to leave the matter up to the Legislature, but the timing of the proposal would have made this difficult, if not impossible. The Governor made his proposal on a Friday and submitted his budget the following Monday. By operation of law, the submission of the budget results in an impasse in the negotiations. See §§ 447.403(5)(a) and 216.163(6), Fla. Stat. (2010). The sequence of events left the association with little else to do but make its case to the Legislature. That, of course, does not satisfy the Governor’s obligation to engage in collective bargaining.

The Governor’s proposal appears to be passive, in the sense that it left the issue of pension benefits up to the Legislature. However, the budget the Governor submitted to the Legislature included a provision that would require all state employees to contribute a portion of their pay to the retirement fund. Thus, while it is correct to say that the Governor did not directly remove the existing provision regarding the pension benefits in his dealings with the association, that was precisely the result he was advocating in the Legislature. The net effect of the proposal was to shift the issue of pension benefits from the process of negotiating a contract to the process of enacting legislation.

Our conclusion that the last-minute proposal amounted to a denial of the right to collective bargaining is supported not only by a practical assessment of the facts, but also by the applicable statutes. Section 447.309(1), Florida Statutes states that the “bargaining agent for the organization and the chief executive officer of the appropriate public employer or employers, jointly, shall bargain collectively in the determination of the wages, hours, and terms and conditions of employment of the public employees within the bargaining unit.” This statute plainly requires that the bargaining be done by the “chief executive officer of the public employer,” in this case the Governor, and not by a third party to whom the process has been delegated. Here, the Governor’s proposal granted a third party a unilateral right to impose a new condition in the agreement, and, in that respect, it was contrary to the requirements of section 447.309(1).

For these reasons, we conclude that the Commission erred in rejecting the hearing officer’s conclusion that the state had violated the association’s right to collective bargaining. The association sought several remedies in its unfair labor practice charge, but, in the present posture of the case, the only one that can be enforced is an award of costs and attorney fees. Accordingly, we reverse the final order by the Commission and direct that it enter a final order accepting the recommended order by the hearing officer and awarding costs and fees to the association.

Reversed.

BENTON, J., and SENTERFITT, ELIZABETH, Associate Judge, concur.

      . Federal courts apply the “clear and unmistakable waiver” rule in the same way to mean that there must be evidence that the union clearly and unmistakably relinquished its right to bargain over the mandatory subject at issue. See, e.g., Bath Marine Draftsmen's Association v. National Labor Relations Board, 475 F.3d 14, 22 (1st Cir.2007); Local Union 36, International Brotherhood of Electrical Workers, AFL-CIO v. National Labor Relations Board, 706 F.3d 73, 82-84 (2d Cir.2013).


text:
    Javares A. LANDRUM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4943.
    District Court of Appeal of Florida, First District.
    Nov. 12, 2013.
    Rehearing Denied Dec. 19, 2013.
    Javares A. Landrum, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied as untimely and successive. Fla. R.App. P. 9.141(d)(5) and (6).

WETHERELL, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Jeff S. POPLOFF, Appellant, v. FLORIDA DEPARTMENT OF FINANCIAL SERVICES, Appellee.
    No. 4D12-3556.
    District Court of Appeal of Florida, Fourth District.
    Nov. 13, 2013.
    Rehearing Denied Dec. 23, 2013.
    Jeffrey S. Poploff, Delray Beach, pro se.
    Dwight O. Slater, Tallahassee, for appel-lee.
   PER CURIAM.

Affirmed. See Aleong v. State, Dep’t of Bus. & Prof l Reg., 963 So.2d 799, 801 (Fla. 4th DCA 2007); see also Envtl. Res. As-socs. of Fla., Inc. v. State, Dep’t of Gen. Servs., 624 So.2d 330 (Fla. 1st DCA 1993); Gann v. Dep’t of Children & Family Servs., 813 So.2d 237, 239 (Fla.'2d DCA 2002); Williams v. Albertson’s, Inc., 879 So.2d 657, 659 (Fla. 5th DCA 2004).

WARNER, GROSS and LEVINE, JJ., concur.


text:
    Angelo ATWELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1972.
    District Court of Appeal of Florida, Fourth District.
    Nov. 13, 2013.
    Rehearing Denied Dec. 27, 2013.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Angelo Atwell appeals the denial of his motion for postconviction relief. The motion was not under oath as required by rule 3.850(c), but the motion alleged an illegal sentence and also sought relief under rule 3.800(a). Because appellant is not entitled to relief under either rule, we affirm.

In this case, appellant was convicted in 1992 of first degree murder and armed robbery. He was sixteen years old at the time of the offenses. The court sentenced him to life in prison on both counts. Pursuant to section 775.082(1), Florida Statutes (1989), appellant’s conviction for the capital offense of first degree murder required that the court impose a sentence of life imprisonment without the possibility of parole for 25 years. The court imposed a consecutive life sentence for the armed robbery in count two.

In February, 2013, long after the convictions and sentences became final on direct review, appellant filed the postconviction motion at issue. He argued that his life sentence for the murder constituted cruel and unusual punishment under Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). The trial court determined that the motion was without merit for three reasons: (1) the motion was not under oath and did not contain the information required by rule 3.850(c); (2) the motion was untimely and Miller did not apply retroactively; and (3) the sentence on count one was not unconstitutional under Miller because appellant was eligible for parole.

Even if his motion had been filed under oath and had complied with the content requirements of rule 3.850(c), appellant would not be entitled to relief. As explained below, he did not establish an illegal sentence that can be corrected at any time under rule 3.800(a).

Without deciding the issue of whether Miller applies retroactively, we conclude that Miller is inapplicable because Miller applies only to a mandatory sentence of life without the possibility of parole. The holding of Miller could not be more clear: “We therefore hold that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” 132 S.Ct. at 2469. In reaching this holding, the Court relied on its prior decision in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), where it held that a sentence of life without the possibility of parole is unconstitutional when imposed on a juvenile for a non-homicide offense. In announcing the holding in Miller, the Court quoted portions of Graham which state: “ ‘A State is not required to guarantee eventual freedom,’ but must provide ‘some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.’ ” Miller, 132 S.Ct. at 2469 (quoting Graham, 130 S.Ct. at 2030). It is clear that the underpinning of the holding of both Miller and Graham was the ineligibility for release on parole.

Appellant was not sentenced to life without the possibility of parole for his murder conviction. The sentencing scheme in place at the time of appellant’s offense did not require a mandatory sentence of life without parole for the murder. Miller is inapplicable, and appellant would not be entitled to relief even if Miller applies retroactively.

In his Initial Brief on appeal, appellant presents a new claim that he did not argue below. He claims that he was sentenced to life without the possibility of parole on the armed robbery count, and this violates Graham. It is improper for appellant’s counsel to argue this unpreserved legal issue for the first time in this appeal. We will not address it.

Affirmed.

GROSS, CIKLIN and LEVINE, JJ., concur.

      . The statute in effect at the time appellant committed his offenses on August 30, 1990, provided in relevant part:
      "A person who has been convicted of a capital felony shall be punished by life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole ...
      § 775.082(1), Fla. Stat. (1989).

      . This court affirmed on direct appeal in At-well v. State, 614 So.2d 1104 (Fla. 4th DCA 1993).


author: VAN NORTWICK, J.

text:
    HEART SURGERY CENTER, a Florida general partnership, composed of the General Partners Julian E. Hurt, M.D., P.A., David L. Saint, M.D., P.A., and Charles P. Murrah, M.D., P.A., Petitioners, v. THOMAS J. BIXLER, II, M.D., P.A., General Partner of Heart Surgery Center, a Florida general partnership, Respondent.
    No. 1D13-0965.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2013.
    Rehearing Denied Dec. 26, 2013.

      Ben A. Andrews and William R. Mabile, III of Andrews, Crabtree, Knox & Andrews, LLP, Tallahassee, for Petitioners.
    M. Stephen Turner, P.A. and Michael J. Tomkiewicz of Broad and Cassel, Tallahassee, for Respondent.
   VAN NORTWICK, J.

Julian E. Hurt, David L. Saint, and Charles P. Murrah, seek certiorari review of the trial court’s order which vacated an arbitration award and directed the parties to a new round of arbitration. Because we find that the petitioners have established entitlement to certiorari relief, we grant their petition and quash the trial court’s order.

Petitioners and respondent, Thomas J. Bixler II, are medical doctors and were general partners in the Heart Surgery Center. The partnership agreement provided that a partner could be expelled from the partnership with cause upon the unanimous vote of the other partners. The partnership agreement also provided that any dispute relating to the partnership must be submitted to arbitration under the Florida Arbitration Code.

In February 2010, petitioners notified respondent by letter that he was expelled from the partnership for cause. Respondent filed a complaint which alleged that petitioners expelled him for insufficient and unjust cause, and requested the circuit court to order arbitration and appoint an arbitrator. The circuit court ordered arbitration of the dispute and outlined the process for arbitrator selection and review of the arbitrator’s decision and the circuit court’s final judgment.

The parties mutually agreed to appoint William E. Bond, Jr., as arbitrator following an examination of potential sources of conflicts of interest, and the circuit court entered an order appointing Bond. Bond presided over the arbitration proceedings and later issued an arbitration award. Bond made factual findings related to whether there was sufficient and just cause to dismiss Dr. Bixler from the partnership, including that Dr. Bixler’s competence and capability were questioned only to the extent impacted by his use of alcohol, he had been arrested in 2007 and 2010 for alcohol-related incidents, which were publicized, embarrassing to the partnership, and, at least in regard to the 2007 incident, caused certain referring physicians to cease sending patients to the partnership. Bond also found that Dr. Bixler was scheduled to be on-call the day after his 2010 incident.

During the arbitration hearings, petitioners submitted several reasons why they expelled Dr. Bixler, although Bond found that his alcohol abuse was the “most significant factor,” and that “but for the 2010 DUI incident, [petitioners] would have tolerated their issues with [Dr. Bix-ler]” until he retired in two years. Bond noted each of the petitioners testified that Dr. Bixler’s alcohol consumption made them worry that another incident could occur, since the problem was plainly not under control, which would cause further embarrassment, or that respondent’s alcohol consumption would carry over to his medical duties, exposing the partnership to enormous liability. Ultimately, Bond concluded that petitioners had just and sufficient cause to expel Dr. Bixler.

After the award was entered, counsel for Dr. Bixler researched Bond on the Internet and discovered that, years earlier, Bond’s son had been involved in a serious traffic accident, from which he suffered major injuries, where the other driver was a naval flight surgeon named Houghton. Further research revealed that Houghton was intoxicated at the time of the accident, and that Bond, on behalf of his son, brought suit against Houghton’s estate, litigation of which lasted for several years and included an appeal to this court. See Houghton v. Bond, 680 So.2d 514 (Fla. 1st DCA1996).

Dr. Bixler filed a motion to vacate the arbitration award based, in part, on Bond’s failure to disclose this prior incident, which respondent asserted gave rise to a possible bias on Bond’s part, since the issue in arbitration included acts of drinking and driving by Dr. Bixler. The parties submitted affidavits, memoranda of law, and oral arguments to the circuit court on the motion to vacate. At a second hearing, the circuit court announced that it was “granting] the motion to vacate based solely on the arbitrator’s failure to advise both sides of these facts concerning his son and the litigation.” The circuit court stated that the failure to disclose “affects the whole process.” The court stated that it was persuaded by Dr. Bixler’s argument that the situation was congruent to disqualification of a judge and cause dismissal of a juror. The court opined that the duty to disclose is especially important where an arbitrator is deciding the facts of a case, and that neither party waived their right to object to the arbitrator because neither party knew about the non-disclosed event. The court entered a written order vacating the arbitration award for the reasons stated at the hearing and instructed the parties to essentially begin the arbitration process anew. This petition ensued.

Certiorari Jurisdiction to Review the Petition

“The certiorari jurisdiction of district courts of appeal may be sought to review: (A) non-final orders of lower tribunals other than as prescribed by rule 9.130.” Fla. R. App. P. 9.030(b)(2)(A). Florida Rule of Appellate Procedure 9.130(a)(3) describes the non-final orders that may be appealed to the district courts of appeal. An order vacating an arbitration award and remanding for renewed arbitration is not listed in Rule 9.130(a)(3), and is therefore non-appealable. Because petitioners are unable to obtain review through appeal of the circuit court’s order to vacate, we consider whether petitioners have properly invoked this court’s certiora-ri jurisdiction. See AVCO Co'i'p. v. Neff, 30 So.3d 597, 601 (Fla. 1st DCA 2010) (“Cer-tiorari is the proper remedy, in limited circumstances, to review a non-final order that is not subject to appeal under Florida Rule of Appellate Procedure 9.130.”).

To obtain a writ of certiorari quashing the order of a lower tribunal, “the petitioner must demonstrate that the order is a departure from the essential requirements of law thereby causing irreparable injury which cannot be remedied on appeal following final judgment.” Heartland Express, Inc., of Iowa v. Torres, 90 So.3d 365, 367 (Fla. 1st DCA 2012) (citation and internal quotation omitted). A reviewing court should initially determine whether a petitioner has established irreparable harm before considering whether the lower tribunal departed from the essential requirements of the law. AVCO, 30 So.3d at 601.

IiTeparable Injury Not Remediable on Appeal

In Felger v. Mock, 65 So.3d 625, 626 (Fla. 1st DCA 2011), we granted a petition for writ of certiorari and quashed a circuit court’s order vacating an arbitration award. Mock, the plaintiff during arbitration, argued that the arbitration panel had exceeded its authority by applying an incorrect burden of proof; the circuit court accepted Mock’s contention and vacated the award under section 682.13(l)(c), Florida Statutes. Id. Upon review, however, we observed that “Application of an incorrect standard [by the arbitrator(s) ] ... has consistently been rejected as a basis for vacating an award under section 682.13(l)(c),” effectively eliminating the sole basis upon which the circuit court’s order to vacate rested. Id. at 627. We also held that “[i]n the absence of one of these five factors [listed in section 682.13(1) ], neither the trial court nor this court has the authority to overturn the arbitration award.” Id. at 626.

In determining whether Felger established that he had suffered harm that could not be remedied on direct appeal, we analogized an order vacating an arbitration award to an order granting a new trial, and stated that review of the former was warranted for the same reasons as the latter. Id. at 628. We reasoned that the situation presented by an order vacating an arbitration award is capable of repetition while avoiding review, because the circuit court could simply continue to vacate subsequent arbitration awards and order new arbitration, even if none of the statutorily enumerated grounds for vacating an arbitration award existed. Id.

Although not referenced in Felger, the Fourth District had reached a different result under similar facts in Loewenstein, Inc. v. Draheim, 898 So.2d 1129 (Fla. 4th DCA 2005). In Loewenstein, the appellant appealed a circuit court’s order vacating an arbitration award. Id. at 1130. The appellate court determined that an order vacating an arbitration award was “a non-appealable, non-final order,” and that “[n]o rule of the supreme court authorizes review of an order vacating an arbitration award. Such a decision becomes subject to review in a district court of appeal upon entry of final judgment.” Id. The court further found that the order was not “an appealable, final order” because additional judicial labor is contemplated and required. Id. Perhaps most informative for purposes of the present case, the Fourth District held that “[c]ertiorari jurisdiction is not appropriate because [the appellant] has not suffered an irreparable harm that cannot be remedied on direct appeal.” Id.

Respondent relies on Loewenstein to support his contention that jurisdiction does not lie to allow this court to review the instant petition. However, the language in Loewenstein discussing the applicability of certiorari review to orders vacating arbitration awards is dicta, because the case involved an appeal, not a petition for certiorari. Further, to the extent that Loewenstein conflicts with our decision in Felger, Felger is controlling precedent in this district.

Departure from the Essential Requirements of the Law

“A ruling constitutes a departure from the essential requirements of the law when it amounts to ‘a violation of a clearly established principle of law resulting in a miscarriage of justice.’ The term ‘clearly established lavd refers to ‘recent controlling case law, rules of court, statutes, and constitutional law.’ ” State, Dep’t of Revenue ex rel. Camley v. Lynch, 53 So.3d 1154, 1156 (Fla. 1st DCA 2011) (citations omitted).

Section 682.13(1), Florida Statutes (2010) provides:

(1) Upon application of a party, the court shall vacate an award when:
(b) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or umpire or misconduct prejudicing the rights of any party.

The proper interpretation and application of section 682.13(l)(b) appears to be a case of first impression in this district. Both parties rely primarily on Brandon Jones Sandall Zeide Kohn Chalal & Mus-so, P.A. v. Beasley & Hauser, P.A., 925 So.2d 1142 (Fla. 4th DCA 2006). There, the Fourth District reviewed an appeal of a trial court’s order denying a motion to vacate an arbitration award under section 682.13(l)(b). Id. at 1143. The appellants urged the trial court to vacate because one of the arbitrators on the three-member arbitration panel represented a third-party on an unrelated1 matter; the appellees, who were attorneys, also represented the third-party on certain aspects of the unrelated matter. Id. at 1144. The arbitrator and the appellee-attorneys had contacts concerning potential litigation for the third-party on the unrelated matter; the arbitrator did not disclose these contacts and they were apparently not discovered by the appellants until after the arbitration award was entered. Id. Following an evidentiary hearing on the appellants’ motion to vacate the award, the trial court denied the motion, concluding that the doctors had failed to meet their burden of showing evident partiality on the part of the arbitrator in question and rejecting the appellants’ contention “that they were entitled to vacatur as a matter of law upon a showing of a mere appearance of partiality.” Id. at 1144-45. The trial court found that the arbitrator and the appellee-attorneys provided the third-party legal advice on different matters, were not consultants or co-counsel for the third-party, there was no evidence that the arbitrator was predisposed to rule for either party, and there was no indication that the arbitrator was biased or prejudiced in his role on the panel. Id. at 1144.

The Fourth District affirmed the trial court’s ruling, declaring that section 682.13(l)(b) “require[s] the complaining party to prove evident partiality prejudicing the rights of the party ... the partiality of the neutral must be obvious and plain and must be shown to have unfairly affected the rights of the complaining party.” Id. at 1145 (emphasis in original). The reviewing court went on to clarify its earlier decision in Boyhan v. Maguire, 693 So.2d 659 (Fla. 4th DCA 1997) by explaining, “[wjhat Boyhan really seeks to make clear is that the particular circumstance that a party relies on to show evident partiality must be something that logically would reasonably tend to tilt the decision of the arbitrator.” Id. at 1146. Applying the statute to the facts, the Fourth District found that the arbitrator’s “undisclosed contacts do not demonstrate an obvious case of bias, and there is nothing showing that the contacts prejudiced the outcome in any way. The evidence of the client doctors at best shows that any tendency of the contacts to bias was insignificant and was outweighed by a neutrality that was far more real.” Id.

The parties additionally cite RDC Golf of Fla. I, Inc. v. Apostólicas, 925 So.2d 1082 (Fla. 5th DCA 2006), which was favorably cited by the Brandon Jones court. Brandon Jones, 925 So.2d at 1145. In RDC, the Fifth District examined numerous state and federal cases to determine the appropriate standard for assessing motions to vacate an arbitration award under 682.13(l)(b). RDC, 925 So.2d at 1092-95. The RDC court determined that “the ‘reasonable impression of partiality’ standard” was the appropriate test, which consists of judging whether the complaining party “made a showing through credible evidence, giving rise to a ‘reasonable impression of partiality’ that was ‘direct, definite, and capable of demonstration,’ as distinct from a ‘mere appearance’ of bias that was remote, uncertain, and speculative.” Id. at 1095.

Here, the circuit court stated that there was nothing in the arbitration award that suggested an evident bias in Bond’s decision-making. The circuit court concluded, without referencing any specific portion of the arbitration award or any particular comments made by arbitrator Bond during arbitration, that Bond’s failure to disclose “affects the whole process,” and granted respondent’s motion to vacate solely on that basis. The circuit court stated that if Bond had disclosed the prior incident involving his son, it would have denied the motion and, presumably, certified the arbitration award. The circuit court found this situation analogous to scenarios involving judicial disqualification and dismissal of jurors for cause, and stated that these facts would have been grounds for judicial recusal or disqualification and for cause dismissal of a juror.

While the circuit court’s analogy may be apt, there is no mention in the court’s oral pronouncement or written order that Bond did anything “obvious and plain” to demonstrate his partiality. Brandon Jones, 925 So.2d at 1145. Rather, the circuit court inferred, first, that Bond would, because of the experience with his son, be biased against people associated with drinking and driving, and, second, that his purported partiality caused him to decide this case against respondent, who had been involved in drinking and driving incidents. To the extent that the circuit court concluded there was evident bias based on these stacked inferences, such stacking suggests that the bias was more “remote, uncertain, and speculative,” rather than “direct, definite, and capable of demonstration.” RDC, 925 So.2d at 1095.

The trial court also noted that Bond’s comment, “drinking and driving has consequences,” is generally accepted as true and unexceptionable. However, the court found that, when the statement was viewed in connection with the accident Bond’s son endured, the arbitration award was rendered unsustainable. Yet, Bond’s comments in the arbitration award relate to his determination of petitioners’ reasons for expelling respondent from the partnership. The statements are not Bond’s extraneous commentary on drinking and driving; rather, they are characterizations of petitioners’ feelings about respondent and his alcohol related problems, and petitioners’ views as to the consequences to the partnership if respondent, whose behavior the evidence showed to be uncorrected, was allowed to continue as a partner. The statements referenced by the circuit court are drawn directly from the evidence, and relate to the issue of whether petitioners believed they had just cause to expel respondent under the partnership agreement.

Even if the circuit court was correct in finding that evident bias existed, respondent must also establish that the perceived bias prejudiced his rights. Respondent argues that his rights were prejudiced because he was prohibited from objecting to Bond’s appointment at the beginning of the arbitration. That argument appears to have been implicitly rejected by the Bran don Jones court, which, instead of holding that a non-disclosure inherently taints the arbitration process, read the statute as requiring the reviewing court to ask whether the alleged bias “unfairly affected the rights of the complaining party.” Brandon Jones, 925 So.2d at 1144.

By vacating the arbitration award and remanding for additional arbitration, the circuit court deprived petitioners of an award to which they were entitled, and future arbitration may render an entirely different result. Therefore, by failing to apply the proper test provided by the applicable version of section 682.13(l)(b) and interpreting case law, which resulted in vacatur of the arbitration award, the circuit court departed from the essential requirements of the law. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla.2003) (“[C]learly established law can derive from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law. Thus, in addition to case law dealing with the same' issue of law, an interpretation or application of a statute, a procedural rule, or a constitutional provision may be the basis for granting certiorari review.”).

. Accordingly, we GRANT the petition for writ of certiorari, QUASH the trial court’s order vacating the arbitration award, and REMAND for further proceedings. We also recognize and certify direct conflict between both our decisions here and in Felger v. Mock, 65 So.3d 625 (Fla. 1st DCA 2011), and Zabawa v. Penna, 868 So.2d 1292 (Fla. 5th DCA 2004), reh’g denied (holding that a party could not obtain certiorari review of an order vacating an arbitration award pursuant to Florida Rule of Appellate Procedure 9.030(b)(2)(A) because time and money expended on additional arbitration does not equate to irreparable harm that cannot be remedied on direct appeal).

MARSTILLER and RAY, JJ., concur.

      . The arbitration award also addressed a second issue, concerning respondent’s compensation for capital contributions to the partnership, which is unrelated to the instant petition for certiorari.

      . Although Felger v. Mock, 65 So.3d 625 (Fla. 1st DCA 2011), controls the question in this district of whether an order vacating an arbitration award causes irreparable harm based on error which cannot be remedied on appeal after entry of a final order, for the reasons explained in Judge Benton's dissent in Felger, we believe that Felger is wrongly decided on such issue. See Felger, 65 So.3d at 628 (Benton, C.J., dissenting). Here, in our view, any harm caused by the order under review can be remedied on direct appeal of a final order in this case. See Loewenstein, Inc. v. Dra-heim, 898 So.2d 1129, 1130 (Fla. 4th DCA 2005); Zabawa v. Penna, 868 So.2d 1292, 1293 (Fla. 5th DCA 2004).

      . The current version of the statute was amended during the most recent legislative session and now reads:
      (1) Upon motion of a party to an arbitration proceeding, the court shall vacate an arbitration award if:
      (b) There was:
      1. Evident partiality by an arbitrator appointed as a neutral arbitrator;
      2. Corruption by an arbitrator; or

        3. Misconduct by an arbitrator prejudicing the rights of a party to the arbitration proceeding.
      Ch. 2013-232, § 24, Laws of Fla.


text:
    Julian CANTALUPO, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-976.
    District Court of Appeal of Florida, Fourth District.
    Nov. 27, 2013.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979).

DAMOORGIAN, C.J., GROSS and TAYLOR, JJ., concur.


text:
    Jerome HAMILTON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2232.
    District Court of Appeal of Florida, Second District.
    Dec. 4, 2013.
    Howard L. Dimmig, II, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bilal A. Faruqui, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Jerome Hamilton, Jr., challenges the revocation of his felony probation. We affirm, without comment, the trial court’s adjudication and finding that Hamilton willfully violated his probation by committing a new criminal offense. However, as conceded by the State, the revocation order incorrectly states that Hamilton admitted to violating his probation even though the trial court conducted a revocation hearing prior to finding him in violation. Accordingly, we remand for the trial court to correct this scrivener’s error. See Cald-ivell v. State, 72 So.3d 779, 779-80 (Fla. 2d DCA 2011); Neal v. State, 62 So.3d 1277, 1278 (Fla. 2d DCA 2011).

Affirmed and remanded with instructions.

WALLACE and KHOUZAM, JJ., Concur.


text:
    Hilka Odette STANDRIDGE, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-2015.
    District Court of Appeal of Florida, Second District.
    Dec. 4, 2013.
    David R. Carmichael, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

The appeal in this case is converted to a petition for writ of certiorari. See Spauld-ing v. State, 93 So.3d 473, 474-75 (Fla. 2d DCA 2012) (holding that an order denying a motion filed under Florida Rule of Criminal Procedure 3.800(c) is not appealable, but is subject to limited certiorari review). The petition has been considered on the merits, and it is hereby denied-

SILBERMAN and CRENSHAW, JJ., Concur.