Third DCA Watch
By Kluger, Kaplan, Silverman, Katzen & Levine, P.L. August 24, 2012
This week Alan J. Kluger comments on the Third District Court of Appeals decision in LaRue v. Kalex Construction and Development, Inc., et. al.
On its face, this case may seem like a run-of-the-mill law school hypothetical – does the statute of frauds apply to an oral employment agreement? The court affirmed the trial court’s finding that the statute of frauds barred plaintiff’s claim, despite her contention that she fully performed under the contract. The court declined to apply any exceptions.
But this case is particularly interesting to me because it addresses the battle that is raging across the country as to the continued viability of the statute of frauds as a defense. Some courts have created so many exceptions that the enforcement is in the minority. The line, as the Third DCA correctly noted, must be clear or there is no reason for the statute of frauds to exist in the first place. The Third correctly affirmed the summary judgment since the contract (by its terms) could not be performed with one year, and therefore had to be in writing. If the statute of frauds is to be eviscerated then it should come from the legislature and not the courts. Businesses need certainty and this case helps move us in that direction.