author: SILBERMAN, Judge.

text:
    Brendon John BOULE, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-275.
    District Court of Appeal of Florida, Second District.
    Oct. 13, 2004.
    James Marion Moorman, Public Defender, and Jean Marie Henne, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

Brendon John Boule appeals the trial court’s order denying his motion to withdraw plea after sentencing. Because the record does not conclusively refute Boule’s claims, particularly the claim that his plea was involuntary due to his attorney misad-vising him concerning the certainty of a life sentence if Boule went to trial, we reverse and remand for further proceedings.

Boule entered a no contest plea in six cases to multiple counts of possession of child pornography, promoting a sexual performance by a child, and lewd or lascivious battery. The plea agreement called for a total sentence of twenty years’ imprisonment followed by ten years’ sexual offender probation. After the trial court sentenced Boule in accordance with the plea agreement, his public defender filed a motion to withdraw plea indicating that Boule would state the grounds for the motion at a hearing on the motion.

The trial court held a hearing at which Boule testified that he wanted to withdraw his plea because his attorney bullied and threatened him into taking the plea. He also testified that his attorney represented that he had talked with the judge and the judge would sentence Boule to life if Boule did not take the plea. Boule’s attorney, who did not testify under oath, stated that at a pre-plea conference he had asked the court whether it would consider a below-guidelines sentence and the court stated that it would not. The attorney added that Boule’s sentencing scoresheet reflected substantially more points than were needed for a life sentence. At the State’s suggestion, the trial court appointed conflict-free counsel to represent Boule and continued the hearing until Boule’s new counsel was ready to proceed.

Boule’s new attorney filed a second motion to withdraw plea alleging several grounds, including that Boule felt coerced into entering the plea because the original attorney insisted that if Boule went to trial he would receive a life sentence. At a hearing on this motion the judge indicated that he would read Boule’s motion. The judge also asked for the State’s position. The State argued that Boule’s claims were refuted by the plea transcript. The trial court then denied Boule’s motion. Our review of the trial court’s denial of the motion to withdraw plea is for abuse of discretion. Crawley v. State, 851 So.2d 739, 740 (Fla. 2d DCA 2003); Gunn v. State, 841 So.2d 629, 631 (Fla. 2d DCA 2003).

Because Boule filed his motion after sentencing, it is governed by Florida Rule of Criminal Procedure 3.170(0, which permits a motion to withdraw plea pursuant to the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(a)-(e). “[W]hen a defendant files a facially sufficient motion to withdraw a plea, the trial court must either afford the defendant an evidentiary hearing or accept the defendant’s allegations in the motion as true except to the extent that they are conclusively refuted by the record.” Iaconetti v. State, 869 So.2d 695, 699 (Fla. 2d DCA 2004); see also Cherry v. State, 837 So.2d 597, 598 (Fla. 2d DCA 2003).

Boule’s claim that his attorney misled him regarding the certainty that he would receive a life sentence if he went to trial is a valid basis to seek withdrawal of a plea under rule 3.170(0. See Cherry, 837 So.2d at 598 (“A defendant may seek to withdraw his plea on the ground that it was involuntary due to reliance on counsel’s misadvice or misrepresentation regarding the length of a sentence or the amount of time the defendant would serve.”); Iaconetti, 869 So.2d at 699 (same). Although the State argued that the plea colloquy refuted Boule’s claim, the record before us does not support that conclusion.

Boule acknowledged at the plea hearing that no one had made him any promises other than what was contained in the plea agreement, including the sentence that he would receive. However, nothing in the transcript of the plea hearing or otherwise contained in the record on appeal conclusively refutes Boule’s claim that his attorney told him he would definitely receive a life sentence if he rejected the plea offer and went to trial. Although the sentencing scoresheet reflects that Boule was exposed to the possibility of a life sentence, the record does not reflect that such a sentence was a certainty.

Accordingly, we reverse the denial of Boule’s motion to withdraw plea and remand for the trial court to conduct an evidentiary hearing to resolve the motion.

Reversed and remanded.

NORTHCUTT and VILLANTI, JJ., Concur.

      . Because a rule 3.170(Z) motion stays rendition of the judgment and sentence, the denial of the motion comes to us on direct appeal in connection with the judgment and sentence. See Fla. R.App. P. 9.020(h). In such an appeal, a record is provided to this court. See Fla. R.App. P. 9.140(b)(2)(B). Thus, if a defendant files a facially sufficient motion alleging one of the grounds for relief available under rule 3.170(f), but the allegations are conclusively refuted by the record, the trial court need not attach to its order copies of the pertinent documents. See Mourra v. State, 29 Fla. L. Weekly D2026 (Fla. 2d DCA Sept.8, 2004). However, the trial court should identify the documents which it determines conclusively refute the defendant’s allegations. As we suggested in Mourra, a hearing may assist the trial court in determining whether record documents exist that conclusively refute the defendant's allegations. See id.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert S. YOUNG, Appellant, v. Alice G. HECTOR, Appellee.
    No. 3D03-1561.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 2004.

      Karen J. Haas, Miami, for appellant.
    Bette Ellen Quiat, and Stephens Lynn & Klein, and Marlene S. Reiss, Miami, for appellee.
    Jay M. Levy, for Bette Ellen Quiat.
    Before LEVY, GERSTEN, and GREEN, JJ.
   PER CURIAM.

The former husband, Robert S. Young (“former husband”), seeks review of the trial court’s order on appellate costs and attorney’s fees. We reverse.

In June of 2003, this Court partially granted certiorari in favor of the former husband, finding the trial court had exceeded its jurisdiction in freezing certain trust account proceeds. A few months later, this Court granted the former husband’s motion for attorney’s fees, and remanded to the trial court to fix the amount of the fees. Young v. Hector, 851 So.2d 762 (Fla. 3d DCA 2003). The former wife, Alice G. Hector (“former wife”), then filed a petition to withdraw the mandate and challenged the propriety of the award of appellate attorney’s fees to the former husband. The petition to withdraw was denied.

Thereafter, the trial court conducted a hearing on the former husband’s motion for attorney’s fees. The former husband’s expert witness testified that the reasonable number of hours expended by the former husband’s attorney was 75.3 hours, and that the $300 per hour rate was a reasonable hourly rate. Thus the expert witness opined that the reasonable amount of the fee award would be $22,590.

No expert witness testified on behalf of the former wife. However, notwithstanding the mandate, the former wife’s counsel again argued against the former husband’s entitlement, raising the same issues argued on appeal and in her petition to withdraw mandate. In apparent agreement with the arguments made by the former wife’s counsel, the trial court determined the reasonable hours to be 15 hours (instead of 75.3), and awarded attorney’s fees of $4,500 (instead of $22,590). The trial court also awarded expert fees in the amount of $1350 and awarded costs only for the filing fee in the amount of $250.

The former husband then filed the instant “Motion For Review of Order on Appellate Costs and Attorney’s Fees”, and a “Motion for Attorney’s Fees” with this Court. The former husband essentially argues in this proceeding that the trial court was misled into revisiting the attorney’s fees entitlement issue, and erred in reducing the reasonable attorney’s fees by $18,900 and in awarding only the filing fee for costs. We agree.

We see no reason why the former husband was not awarded the full amount of costs including charges for preparation of the record. See Fla. RApp. P. 9.400. The trial court’s order which awarded an unreasonably low amount of attorney’s fees and costs, is not supported by the record. See Larsen v. Larsen, 429 So.2d 725 (Fla. 3d DCA 1983). Therefore we remand with instructions to increase the award of appellate attorney’s fees to $22,590, and to increase the award of costs to $488.

With regard to the attorney’s fees incurred in the instant action, we grant attorney’s fees in favor of the former husband and against the former wife, based upon the need to file an appeal made necessary by frivolous claims brought before the trial court. See Forum v. Boca Burger, Inc., 788 So.2d 1055 (Fla. 4th DCA 2001).

The former wife’s counsel argued to the trial judge that it was improper to grant fees which were clearly proper, and re-argued issues which had already been denied by this Court. By so doing, the trial judge was plainly misdirected and misled. No possible view of the law would sustain the former wife’s counsel’s arguments which led the trial judge to the incorrect result that the former husband was needlessly forced to appeal. See Savage v. Macy’s East, Inc., 719 So.2d 1208 (Fla. 3d DCA 1998); Citibank, N.A. v. Plapinger, 469 So.2d 144 (Fla. 3d DCA 1985).

We remind counsel that, especially in the area of family law, great care should be taken to reduce emotional strife and to avoid vexatious and needless litigation. This Court will not hesitate to impose sanctions against parties and their counsel where unnecessary fees are incurred in response to frivolous positions and claims. In Visoly v. Sec. Pac. Credit Corp., 768 So.2d 482 (Fla. 3d DCA 2000), this Court assessed attorney’s fees against the appellant and appellant’s counsel finding that the issues raised on appeal were neither supported by the record, cogent argument, nor pertinent legal authority. We granted attorney’s fees in favor of the appellee for the unnecessary litigation costs incurred in being forced to defend a frivolous appeal.

Here, we are asked to grant a motion for attorney’s fees in favor of the appellant for the unnecessary litigation costs in being forced to pursue appeal. Although Visoly differs procedurally from the instant case, the same basic principles regarding ethical responsibilities and responsibilities for payment of attorney’s fees apply.

In fulfilling his or her primary duty to a client, a lawyer must be ever mindful of the profession’s broader duty to the legal system. This broader duty to the administration of justice and the judiciary cannot be forsaken in the name of zealous advocacy or self-interest. See Visoly v. Sec. Pac. Credit Corp., 768 So.2d at 482. It is simply unacceptable for an attorney to misdirect a trial judge to achieve a result that is clearly erroneous. See Forum v. Boca Burger, Inc., 788 So.2d at 1055. This Court will impose sanctions not only to deter those who would pursue appeals which clearly lack merit, but also to deter those who would argue unsupported positions that are clearly contrary to appellate mandate.

Here, counsel for the former wife, even in the responses filed in the instant proceeding, continued to argue and re-litigate matters already determined non-meritorious and which should have been finally concluded by this Court’s mandate. These arguments were contradicted by the record and established case law. See Savage v. Macy’s East, Inc., 719 So.2d at 1208; Citibank v. Plapinger, 469 So.2d at 144. Accordingly, the former wife and her counsel shall be jointly responsible for the attorney’s fees incurred by the former husband in the instant action based upon their conduct both in the trial court and in this Court. See Forum v. Boca Burger, Inc., 788 So.2d at 1055; Visoly v. Sec. Pacific Credit Corp., 768 So.2d at 482; Wood-Cohan v. Prudential Ins. Co. of America, 715 So.2d 999 (Fla. 4th DCA 1998).

Reversed and remanded with instructions.

      . The former wife, appellee Alice Hector ("former wife") had successfully obtained a freeze on the minor children’s trust account proceeds related to the sale of certain property. The former wife argued in support of the freeze that the proceeds needed to be frozen in order to be available in case the former wife’s motion for child support was granted. Despite the fact that evidence in the record suggested the former wife's salary was fifteen (15) times greater than the former husband’s salary, and that no order for the former husband to pay child support existed, the trial court ordered the trust account proceeds frozen.
      On appeal, this Court reversed finding "the trial court exceeded its jurisdiction in freezing assets in a purported trust account without either a basis in the pleadings or the evidence." This Court observed: "We further note that the trial court would not allow the petitioner, who was neither disrespectful nor disruptive, to speak to his attorney. The court stated: 'No, you may not speak to your attorney in this hearing. You may give your attorney a,note. Is that clear?' This, we believe, is somewhat improper.” Young v. Hector, 851 So.2d 762 (Fla. 3d DCA 2003). Shortly after this Court’s mandate, the former wife withdrew her motion to determine child support.

      . The mandate from this Court issued on August 29, 2003.

      . We note that the petition to withdraw the mandate did not allege any new basis for jurisdiction and did not allege any new information that, if true, would have mandated a contrary result.

      . It is unfortunate that even in this appellate proceeding, counsel for the former wife was not forthright in her responses to the former husband’s motion. This necessitated an order requiring the parties to file supplemental responses addressing the specific issues raised and whether sanctions were appropriate. Thereafter, the former wife retained new counsel to represent her in responding to this Court's order. Both prior counsel and the former wife through her new counsel filed supplemental responses which, this time, did address the issues at bar, albeit at the expense of causing further unnecessary litigation and costs. We do find troubling the fact that the former wife's prior counsel, Bette Ellen Quiat, through her newly retained appellate counsel, Jay M. Levy, thereafter decided to file a "supplemental reply” to a previously filed reply, which was neither ordered by this Court nor authorized by appellate rule. Particularly in light of the fact that we have warned both parties that this case has already been tortuously over-litigated, the filing of this unauthorized “supplemental reply” was clearly improper and is ordered stricken.

      . We reiterate our warning in Visoly that this Court will not tolerate unprofessional behavior: "The privilege to practice law requires attorneys to conduct themselves in a manner compatible with the administration of justice. While counsel does have an obligation to be faithful to their clients’ lawful objectives, that obligation cannot be used to justify unprofessional conduct by elevating the perceived duty of zealous representation over all other duties. See P.T.S. Trading Corp. v. Habie, 673 So.2d 498 (Fla. 4th DCA 1996)(fees awarded for abuse of process, quoting Rules Regulating the Florida Bar, Rule 4-3.1). Counsel has a concurrent duty to the legal system and the public good to ensure appeals are pursued in good faith and are not frivolous. See R. Regulating Fla. Bar 4-3.1, ('A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous ....'); see also R. Regulating Fla. Bar 4-3.2 ('A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.').” Visoly v. Sec. Pac. Credit Corp., 768 So.2d at 492.

      . As eloquently stated in Forum v. Boca Burger, Inc., 788 So.2d at 1062: "Might does not make right, at least in the courtroom. We do not accept the notion that outcomes should depend on who is the most powerful, most eloquent, best dressed, most devious and most persistent with the last word — or, for that matter, who is able to misdirect a judge.... [I]t is [not] acceptable for lawyers to suggest a trial judge into applying a rule or a discretion that they know — or should know — is contrary to existing law.”


author: KLEIN, J.

text:
    Melvin Floyd MOUERY, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2374.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 2004.
    Rehearing Denied Nov. 10, 2004.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant was convicted of robbery with a firearm, based on an incident with a cab driver. We reverse for a new trial because the court erred in refusing to admit evidence of the cab driver’s dishonesty which could have been a motive for accusing appellant.

The cabbie testified that when he picked appellant up at a bar, appellant mentioned that he did not have money. When they arrived at his home, appellant went inside to get the money. When appellant came out of his home, appellant was carrying a handgun and a shotgun and ordered the cabbie to take him to a different bar where someone had threatened him. Appellant did not get out of the cab at the bar, however, and while the cab was taking appellant back to his home, appellant threatened the cabbie with the gun and fired a shot out of the window. After the cabbie dropped appellant off, he reported the incident and identified appellant after his arrest.

At trial, the officer who arrested appellant testified that the appellant had given a statement in which he said that he had given the cab driver $100. The cab driver testified that he had not received any money from appellant.

Appellant attempted to attack the credibility of the cabbie with testimony that the cabbie had been accused by the cab company of keeping fares which should have gone to his employer, but the court would not permit it. On the proffer of this testimony, the cabbie admitted that he had not been honest about fares with his employer when he first started working. Whether the cabbie was eventually terminated as a result was unclear.

The trial court ruled that this evidence was not admissible because there had been no direct testimony by appellant that he had given the cabbie $100. The trial court believed that, because the only evidence of payment of $100 was the testimony of the arresting officer, the payment was not really a defense. The trial court concluded that this testimony would have to be given by appellant and subject to cross examination.

Appellant argues that the officer’s testimony that appellant asserted he had paid the cabbie was sufficient to raise the issue that the cabbie was not being truthful when he testified he had not been paid. It was clearly relevant as the robbery charge was based on the failure to pay the fare.

In Pomeranz v. State, 634 So.2d 1145 (Fla. 4th DCA 1994), the defendant accused of a theft attempted to cross-examine the eyewitness, the night manager of a fast food restaurant who was making a night deposit, about the fact that the night manager owed a debt in the same amount that he claimed was stolen by defendant. We reversed the trial court’s refusal to admit this evidence because it was relevant in that it gave the witness a motive for falsely accusing the appellant. Similarly, in the present case appellant’s defense was that he had paid the cabbie, but that the cabbie had kept the fare. The cabbie’s admission that he had done so in the past was evidence that the cabbie had a motive to falsely accuse appellant.

We conclude that this evidence should have been admitted under section 90.608(2), Florida Statutes (2002), which provides that a party may attack the credibility of a witness by demonstrating bias or motive to be untruthful. Barows v. State, 805 So.2d 120, 122 (Fla. 4th DCA 2002) (“section 90.608(2), Florida Statutes, as well as the Sixth Amendment to the United States Constitution, guarantee a defendant ‘the right to a full and fair opportunity to cross-examine prosecution witnesses in order to show their bias or motive to be untruthful’ ”).

We therefore reverse for a new trial.

STEVENSON and SHAHOOD, JJ., concur.


text:
    Thomas Perry WELLS, Jr., Appellant, v. James HARRIS, Warden, Martin Correctional Institution, and Jean Sager, Librarian, Martin Correctional Institution, Appellees.
    No. 4D04-197.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 2004.

      Thomas Perry Wells, Jr., Indiantown, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Charles M. Fahlbusch, Assistant Attorney General, Ft. Lauder-dale, for appellee Jean Sager.
   PER CURIAM.

We treat this petition for certiorari as a notice of appeal. Appellant filed a petition for writ of mandamus and declaratory judgment in the trial court against the warden of the institution in which he is serving a prison sentence and one of its employees, challenging disciplinary action against him and seeking declaratory judgment that the rule under which he was disciplined is unconstitutional. The trial court denied the petition for writ of mandamus as to the disciplinary action and dismissed the declaratory action.

In Smith v. Florida Department of Corrections, 752 So.2d 59 (Fla. 1st DCA 2000), a prisoner filed a petition for writ of mandamus/declaratory judgment challenging through declaratory judgment, as petitioner does here, the constitutionality of the rule under which he was disciplined, as well as the disciplinary action itself. The trial court dismissed the petition for declaratory judgment. The First District reversed, finding that the trial court erred in dismissing the declaratory judgment portion of the petition attacking the validity of the rule itself without providing Smith with the opportunity to address the issue. 752 So.2d at 60. It held that where the petition stated a cause of action for declaratory judgment, it was error for the court to make a final determination as to the disciplinary action before hearing the prisoners challenge to the validity of the rule under which he was disciplined. Id.

Smith applies to this case. The order of the trial court is reversed and remanded for further proceedings consistent with this opinion.

WARNER, STEVENSON and MAY, JJ., concur.


author: LEVY, Judge.

text:
    The STATE of Florida, Appellant, v. Miguel PEREZ-GONZALEZ, Appellee.
    No. 3D03-2428.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 2004.

      Charles J. Crist, Jr., Attorney General, and Barbara A. Zappi, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellee.
    Before SCHWARTZ, C.J., and LEVY and FLETCHER, JJ.
   LEVY, Judge.

The State appeals from a final judgment of conviction and sentence on the ground that the trial court erroneously sentenced the defendant, Miguel Perez-Gonzalez, to a downward sentence without valid reasons for the departure.

Section 921.0026(1), Florida Statutes, prohibits a downward departure from the lowest permissible sentence as calculated by the guidelines score sheet. § 921.0026(1), Fla. Stat. (2003). Section 921.0026(2)©, Florida Statutes, permits a downward departure sentence where the defendant can establish that the crime was an isolated incident, that the crime was committed in an unsophisticated manner, and that the defendant showed remorse. § 921.0026(2)(j), Fla. Stat. (2003)(emphasis added); State v. Jordan, 867 So.2d 635 (Fla. 5th DCA 2004); State v. Santomaso, 764 So.2d 735, 737 (Fla. 2d DCA 2000).

In the instant ease, the Record arguably supports the court’s finding that the defendant showed remorse. However, we are at a loss to comprehend how the court could come to the conclusion that defendant’s act was an isolated incident, especially where the court sentenced the defendant as a habitual offender based on his three previous felony convictions. State v. Jordan, 867 So.2d 635, 636 (Fla. 5th DCA 2004) (reversing the trial court’s departure sentence, finding that the crime for which defendant was charged was not an isolated incident where the defendant had previously been convicted of several felonies and misdemeanors). Moreover, the Record refutes the finding that the crime was committed in an unsophisticated manner where the Record reflects that the defendant made a “surgical strike” to reach in and take the one item he wanted, the bird; He broke into the victim’s property, knew what he wanted, and got it.

Because the defendant is unable to meet the three prongs, isolated incident, unsophisticated manner, and remorse, for a downward departure sentence, the matter must be reversed. See State v. Brannum, 876 So.2d 724, 725 (Fla. 5th DCA 2004); Jordan, 867 So.2d at 636. Accordingly, we reverse defendant’s sentence and remand to the trial court with directions to enter an appropriate sentence within the guidelines or allow the defendant an opportunity to withdraw his plea.

Reversed and remanded.

      . The Record clearly support the court’s finding that defendant is a habitual offender.

      . Apparently, the bird that was stolen was the one specific item sought by defendant in this case. The fact that defendant was arrested, convicted, and sentenced solely for the burglary and theft of the bird, gives new meaning to the adage:' "A bird in the hand is worth two in the bush” except that in this case, the bush was worth a three year prison sentence.


author: PER CURIAM. COPE, J.

text:
    William H. GRAVITT, III, and Javco International Corporation, Appellants, v. ANOVA FOOD BV, a foreign corporation and Constant Mulder, Appellee.
    Nos. 3D04-353, 3D04-1251.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 2004.
    Jack P. Attias, North Miami, for appellant.
    David L. Rich, P.A. and Adam E. Miller (Margate); McManus Smith, LLP, and Ray S. Smith, III (Georgia), for appellee.
    Before COPE, GERSTEN, and GREEN, JJ.
   PER CURIAM.

In this consolidated appeal, Javco International Corporation and William H. Gravitt, III appeal from final summary judgments entered in favor of the defendants, Anova Food BV. and Constant Mulder, in these malicious prosecution cases. Because we find that there are genuine issues of material fact as to whether there were bona fide terminations on the merits, we reverse. See Alamo Rent-A-Car, Inc. v. Mancusi 632 So.2d 1352 (Fla.1994) (whether bargained for agreement constitutes bona fide termination is question of fact for jury).

GERSTEN and GREEN, JJ., concur.

COPE, J.

(concurring in part and dissenting in part).

In my view the trial court correctly entered summary judgment against Javco International Corporation on one of its malicious prosecution claims in the order dated October 7, 2003. I concur in reversing the summary judgment on the remaining claims.


text:
    Greg GOMEZ, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Asset Acceptance LLC, Appellees.
    No. 2D03-5159.
    District Court of Appeal of Florida, Second District.
    Oct. 13, 2004.

      Thomas G. DiFiore of Bay Area Legal Services, Inc., Tampa, for Appellant.
    John D. Maher, Deputy General Counsel, for Appellee Unemployment Appeals Commission.
    No appearance for Appellee Asset Acceptance LLC.
   SILBERMAN, Judge.

Greg Gomez appeals a final order of the Unemployment Appeals Commission (UAC) affirming the appeals referee’s decision that Gomez is disqualified from receipt of benefits because he was discharged for misconduct connected with work. We reverse the order because the factual finding to support the determina,tion of misconduct was based entirely on hearsay evidence.

The decision of the appeals referee reflects that Gomez was employed as a skip tracer for a collection agency from May 21, 2001, until December 30, 2002. The appeals referee based his finding of misconduct on (1) a final warning issued to Gomez on December 6, 2002, for using the Internet for personal reasons during business hours, in violation of the employer’s policy; (2) Gomez’s subsequent promise not to use the Internet for nonbusiness purposes; and (3) hearsay testimony that a computer-generated report, which was not introduced into evidence, showed that Gomez repeatedly broke that promise from December 7, 2002, through December 23, 2002, and accessed Internet sites for non-business purposes. Although the referee mentioned an earlier final warning given to Gomez in June 2002 for insubordination, the referee specifically relied on the Internet abuse that occurred after the December 6 warning to find misconduct.

The UAC upheld the referee’s decision, with one member dissenting. We agree with Commissioner Forst’s dissenting opinion that evidence of any Internet abuse after the warning of December 6, 2002, was hearsay and insufficient to support a finding of misconduct. In unemployment compensation hearings, “hearsay evidence is admissible only for the purpose of explaining or supplementing other evidence. It is not sufficient, standing alone, to prove a material fact in issue unless it would be admissible over objection in a civil proceeding.” Yost v. Unemployment Appeals Comm’n, 848 So.2d 1235, 1237 (Fla. 2d DCA 2003); see also § 120.57(l)(c), Fla. Stat. (2003). Although the employer had the right to terminate Gomez, the evidence was insufficient to prove misconduct connected with work so as to deny unemployment compensation benefits. See Yost, 848 So.2d at 1238. Therefore, we reverse the final order of the UAC and remand with directions to award Gomez unemployment compensation benefits.

Reversed and remanded.

FULMER and VILLANTI, JJ., Concur.


text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. C.B., a child, Respondent.
    No. 4D04-2849.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 2004.
    John A. Raymaker, Tallahassee, for petitioner.
    No response for respondent.
   KLEIN, J.

C.B. is a juvenile being detained under the Jimmy Ryce Act, sections 394.910-394.931, Florida Statutes (2002). The circuit judge presiding over his criminal case ordered petitioner, the Department of Children & Families (DCF), to “provide continued sexual offender treatment, perform a psychiatric evaluation within five (5) days, continue prescribed antidepressant medication, and provide adequate security to the Defendant in light of his age and immaturity as relates to those pedophiles currently incarcerated at FCCC.” DCF, which is not a party to the criminal case, seeks certiorari review, arguing that the court exceeded its authority in ordering DCF to provide a specific treatment. We have jurisdiction. Dep’t of Children & Families v. Harter, 861 So.2d 1274 (Fla. 5th DCA 2003).

In Harter, a defendant in a criminal case was involuntarily committed to a state hospital under Chapter 916, Florida Statutes after being found not guilty by reason of insanity, and, as in the present case, the trial court ordered DCF to provide sex offender treatment to the defendant at the state hospital. The Harter court granted certiorari and held that the trial court lacked the authority to direct DCF as to the manner of treatment.

Similarly, in Department of Children & Family Services v. I.C., 742 So.2d 401 (Fla. 4th DCA 1999), we held that a juvenile court judge was without the authority to order DCF to provide specific treatment or placement of a child. For the same reasons expressed by this court in I.C., and by the Harter court, we grant the petition and quash that portion of the order quoted in this opinion.

GUNTHER and WARNER, JJ„ concur.


author: PER CURIAM. WARNER, J.,

text:
    Jessie WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-855.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 2004.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s conviction and sentence for attempted lewd or lascivious molestation of a child under twelve years old. Appellant raises two issues, neither of which merit reversal. First, he contends the court should have granted his motion for judgment of acquittal because the state failed to exclude his reasonable hypothesis of innocence. He cites circumstantial evidence cases for the proposition that where the only evidence against a defendant is circumstantial, the state must present evidence sufficient to exclude every reasonable hypothesis of defendant’s innocence. See Durrant v. State, 839 So.2d 821, 823 (Fla. 4th DCA 2003); Everett v. State, 831 So.2d 738, 741 (Fla. 4th DCA 2002). However, the victim’s testimony that the defendant fondled her genitals is completely inconsistent with his hypothesis of an “innocent” touching. Furthermore, as the victim’s testimony constituted direct evidence of appellant’s actions, this is not a case where the totality of evidence is circumstantial. Thus, this special rule is not applicable. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002) (deciding not “to apply the special standard of review applicable to circumstantial evidence cases” because both circumstantial and direct evidence was presented against the defendant).

Second, appellant claims that the court abused its discretion in reinstructing the jury on all charges when the jury requested an instruction only on the lesser included charge of battery. The trial court’s instruction was a correct statement of the law, and it is within the trial court’s discretion to give additional instructions to the jury so long as they are complete on the subject. See Henry v. State, 359 So.2d 864, 866 (Fla.1978); see also Gonzalez v. State, 502 So.2d 66, 67 (Fla. 3d DCA 1987) (finding no abuse of discretion where trial court responded to jury’s request for rein-struction on lesser included offense by giving all of the charges related to the offense).

SHAHOOD and GROSS, JJ., concur.

WARNER, J., concurs specially with opinion.

WARNER, J.,

concurring specially.

While I agree that the trial court has broad discretion in reinstruction of the jury, Henry and its progeny all deal with cases where the judge omitted instructions rather than giving them all. Only Gonzalez deals with a case in which the court gave instructions on the greater offense when the jury requested instructions only on the lesser included charges. There the court found no abuse of discretion as the instructions were complete on the subject.

Because the issue is so clearly one of broad discretion, the case should be affirmed. Yet I am troubled that a court’s inclusion of the greater charges may suggest to the jury that the court believes consideration should continue to be given to the greater charges and not the lesser. Anything which may suggest to the jury the departure of the court from a position of absolute neutrality should be avoided. In this case, the judge’s policy is to reread all of the instructions on the charges when reinstruction is requested. If that is so, then to make the rereading seem more neutral, I think the jury should be told of the judge’s policy so as to avoid any possible misinterpretation.

Despite these concerns, no prejudice has been shown, nor could the reinstruction be considered coercive of the jury so as to call the verdict, which was amply supported by the evidence, into question.


text:
    James RILEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3773.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 2004.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

James Riley appeals his adjudications of guilt for violation of probation following guilty pleas to attempted second degree murder, fleeing a police officer, and driving with a suspended license.. He was sentenced to twenty-seven years in prison.

Appellant’s assistant public defender filed a motion to withdraw as counsel and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and the state has no objection to the motion.

Review of the briefs and record on appeal reveals no issues of arguable merit. However, we find no record of a written order of revocation of probation other than a court disposition sheet. Therefore, we affirm the revocation of probation and resulting sentence, but remand for entry of a written order revoking probation and specifying which conditions appellant was found to have violated. See Campbell v. State, 776 So.2d 1036, 1037 (Fla. 4th DCA 2001); Walker v. State, 710 So.2d 747, 747 (Fla. 4th DCA 1998).

AFFIRMED, but REMANDED.

STONE, WARNER and TAYLOR, JJ., concur.


text:
    INDIAN RIVER COUNTY HOSPITAL DISTRICT, Appellant, v. Anna JOHNSON, individually, and as Personal Representative of the Estate of Gene A. Johnson, Crown Cork and Seal Company, Inc., Good Samaritan Hospital, Inc., and St. Mary’s Hospital, Inc., et al., Appellees.
    No. 4D03-4320.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 2004.

      Helaine S. Goodner, Edward J. Briscoe and June G. Hoffman of Fowler White Burnett, P.A., Miami, for appellant.
    Reed A. Bryan, Fort Lauderdale, and Mitchell Cohen of Greitzer & Locks, Philadelphia, Pennsylvania, for appellee Anna Johnson.
   PER CURIAM.

Affirmed. See Fla. State Lottery v. Woodfin, 871 So.2d 931 (Fla. 5th DCA 2004).

FARMER, C.J., STEVENSON and GROSS, JJ., concur.


text:
    Joseph BELLEME, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D03-4629, 4D03-4630.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 2004.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898, 902 (Fla.1979).

POLEN, STEVENSON and GROSS, JJ., concur.


author: PETERSON, J.

text:
    ONE HARBOR FINANCIAL LIMITED COMPANY, Appellant, v. HYNES PROPERTIES, LLC, Appellee.
    No. 5D03-3629.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 2004.

      David G. Larkin and Jesse L. Kabaser-vice of Fallace & Larkin, L.C., Melbourne, for Appellant.
    Alfred A. Lasorte, Jr., of Shutts & Bowen LLP, West Palm Beach, for Appellee.
   PETERSON, J.

One Harbor Financial Limited Company, (“One Harbor”), appeals a final judgment quieting title to property owned by Hynes Properties, LLC, (“Hynes”).

One Harbor and Hynes own title to adjoining parcels of land and deraign title from the same remote grantor, Paul M. Hoffenberg. Hoffenberg had acquired the two parcels by separate deeds in which his name appeared as grantee followed by the words “as trustee” or “trustee.”

At some time prior to August 19, 1986, Hoffenberg constructed a 75,000 square foot building on the parcel now owned by One Harbor. In an attempt to meet the then-existing zoning regulations which required thirteen additional parking spaces to that available on the parcel, on August 19, 1986, Hoffenberg “individually and as trustee,” executed an easement agreement, (“Agreement”), that purported to convey a perpetual, non-exclusive easement for thirteen parking spaces along with a twenty-foot strip of land to be used for ingress and egress, from the adjacent New Haven Avenue to those parking spaces upon the property now owned by Hynes in favor of the property now owned by One Harbor. In the Agreement, Hoffenberg was identified as both the grantor and grantee. Two days later, on August 21, 1986, Hoffenberg “individually and as trustee” conveyed the parcel now owned by Hynes to Curtis Hendrix without making any reference to the easement. The Agreement was duly recorded on August 29, 1986 and use of the easement began on or about August 21, 1986, and has continued ever since.

Through subsequent conveyances, Hynes acquired title to the parcel purported to be encumbered by the easement. Aware of the easement, Hynes purchased the property on the advice of counsel that the underlying Agreement was invalid and the easement unenforceable. Hynes then filed a quiet title action seeking to eliminate the easement from its title so that it could construct a building that would encroach upon the area described in the Agreement. The complaint alleged that the Agreement was invalid because title to the dominant estate (currently owned by One Harbor), and the servient estate (currently owned by Hynes) were held by the same person (Hoffenberg) at the time of the creation of the easement, rendering the Agreement void under Florida law.

One Harbor’s answer admitted that Hoffenberg owned both properties “individually and as trustee” at the time the Agreement was executed, but asserted that the easement was valid because the grantee and grantor did not maintain the same indicia of title and ownership as to both properties. Additionally, One Harbor argued that even if the Agreement was deemed invalid as drafted, an easement over Hynes’ property existed as the result of an implied reservation from a pre-existing use. Because all predecessors in interest to Hynes and One Harbor acknowledged the existence of the easement over Hynes’ property, One Harbor further asserted that Hynes is equitably estopped from denying the validity of the easement because Hynes purchased the parcel with full knowledge of the Agreement regarding the easement and was aware that One Harbor claimed an interest in Hynes’ property. One Harbor also counterclaimed seeking to quiet title to the easement and alleging that as a result of Hoffenberg’s pre-existing use, One Harbor acquired an easement by implied reservation and that as a result of continued use by One Harbor and its predecessors in interest, One Harbor acquired an easement by prescription.

The trial court specifically found that Hoffenberg took title to each parcel “individually and as trustee,” that no trust or beneficiary was identified in any conveyance of either parcel, and that there was no evidence that a trust relating to either parcel was ever recorded. The trial court applied the provisions of section 687.07, Florida Statutes (1959), and concluded, inter alia, that Hoffenberg was the fee simple “individual” owner of each parcel at the time that the Agreement was executed. The trial court also found that at the time the Agreement was recorded Hoffenberg owned both parcels of land. Because the Agreement purported to convey an easement from Hoffenberg, as both grantor and grantee, the trial court held that Hoffenberg’s attempt to create an easement over his own property was void ab initio. The trial court further held that One Harbor neither proved the establishment of an easement by prescription nor an implied easement because the equitable arguments raised were not supported by the facts, the record or the law. We agree with the trial court’s findings.

APPLICATION OF SECTION 687.07, FLORIDA STATUTES

In reaching its decision, the trial court applied section 689.07, Florida Statutes (1959). Section 689.07 provides:

(1) Every deed or conveyance of real estate heretofore or hereafter made or executed in which the words “trustee” or “as trustee” are added to the name of the grantee, and in which no beneficiaries are named, the nature and purposés of the trust, if any, are not set forth, and the trust is not identified by title or date, shall grant and is hereby declared to have granted a fee simple estate with full power and authority in and to the grantee in such deed to sell, convey, and grant both the legal and beneficial interest in the real estate conveyed, unless a contrary intention shall appear in the deed or conveyance; provided, that there shall not appear of record at the time of recording of such deed or conveyance, a declaration of trust by the grantee so described declaring the purposes of such trust, if any, declaring that the real estate is held other than for the benefit of the grantee.

The purpose of section 689.07 is to protect persons who rely upon the public land records to ascertain title to real property when a beneficiary’s interest is not disclosed in the grantor/grantee index by either the deed transferring title or a recorded declaration of trust. In re Schiavone, 209 B.R. 751 (Bkrtcy.S.D.Fla.1997). The statute prevents “secret trusts” that impede the exchange of marketable title by vesting both the legal and beneficial-interest in the trustee, unless a contrary intention appears in the deed or conveyance, or a declaration of trust is recorded. The statute also permits any person to record a declaration of trust before or after the recordation of the deed.

Because the deeds used in the initial conveyance of the parcel to Hoffenberg did not identify either trust, name the trust beneficiaries or state the nature or purpose of either trust, and because a declaration of trust was never recorded under section 689.07, the trial court was correct in finding that Hoffenberg owned each parcel in fee simple absolute. See, e.g., Zosman v. Schiffer, 697 So.2d 1018 (Fla. 3d DCA 1997) (recognizing language referring to the owners as trustees did not change the nature of the transaction); Terry v. Zaffran, 483 So.2d 526 (Fla. 5th DCA 1986) (holding that without a declaration of trust being recorded or any beneficiary specifically named, the words “as trustee” in an instrument of conveyance do not encumber or effect a grantee’s individual ownership of real estate); Glusman v. Warren, 413 So.2d 857 (Fla. 4th DCA 1982) (holding that where grantee was named as trustee without identification of the beneficiaries or the nature and purposes of the trust and no trust agreement of record was identified, the grantee received fee simple title).

AGREEMENT VOID AB INITIO

Under Hensel v. Aurilio, 417 So.2d 1035 (Fla. 4th DCA 1982), Hoffenberg never had the legal ability to grant an easement over his own property. In Hensel, the appellant acquired title to lots A, B, C and D. Appellant later sold lots B, C and D to appellee. Thereafter, the parties entered into a written contract which provided that lot B was to be repurchased by appellant. As originally drawn, that contract provided for an easement to be retained by appellee over a portion of lot B. At appellant’s insistence, that provision was deleted prior to execution of the contract. However, on the day of the closing, appellee secretly prepared an easement subjecting lot B to an easement in favor of lot D, and subsequently recorded the deed. The court held that appellee could not, while owner of both the dominant estate (lot D) and servient estate (lot B), carve out an -easement by grant to himself. No other reported Florida case has specifically addressed the issue of whether one who owns adjoining, unencumbered parcels in the same right, may create an easement over one parcel in favor of the other, but several, other átate and federal courts have disapproved of such action. See, e.g., Mottos v. Seaton, 839 A.2d 553 (R.I.2004) (holding no easement can be created over a section of land in favor of another adjoining parcel when one owner owns both properties); Mikels v. Roger, 232 Cal.App.3d 334, 284 Cal. Rpt. 87 (Cal.App. 4 Dist.1991) (holding one cannot grant an easement to oneself; one can only reserve such interest in land granted to another); Hayes v. Moreau, 104 N.H. 124, 180 A.2d 438 (1962) (recognizing that while all of the tract was in common ownership of a single owner, no easement could arise in favor of one lot in tract over another lot); Hidalgo County Water Control and Imp. Dist. No. 16 v. Hippchen, 233 F.2d 712 (C.A.5 Tex. 1956),(recognizing that for an easement to exist the dominant and servient estates must be held by different owners); Marshall v. Callahan, 241 Mo.App. 336, 229 S.W.2d 730 (1950) (recognizing that to acquire an easement there must be a dominant and a servient estate and they must not be lodged in the same person); Goldstein v. Beal, 317 Mass. 750, 59 N.E.2d 712 (1945) (holding that where there is common ownership of two parcels, there could be no,easement in favor of one lot operating as a burden to the other); Magnolia Petroleum Co. v. Caswell, 1 S.W.2d 597 (Tex.Com.App.1928) (recognizing that one cannot have an easement in his own land); Bales v. Butts, 309 Mo. 142, 274 S.W. 679 (1925) (recognizing that as long as the lots belonged to the same owner, there could be no easement in favor of one lot, or servitude upon the other).

An easement, by definition, is the right to use land owned by another. Black’s Law Dictionary 527 (Bryan A. Garner ed., 7th ed. West 1999). This court made clear that that right exists in one other than the owner of the land to use land for some particular purpose or purposes. (Emphasis added.) Dean v. MOD Properties, Ltd., 528 So.2d 432, 433 (Fla. 5th DCA 1988). Hoffenberg, as fee simple owner of both parcels, did not possess the legal right to grant an easement over his own property. Accordingly, the Agreement was void ab initio.

IMPLIED EASEMENT

An easement is a real property interest subject to the statute of frauds, and apart from prescription, requires a writing for its creation. Dotson v. Wolfe, 391 So.2d 757, 759 (Fla. 5th DCA 1980). The Florida Supreme Court has recognized only two circumstances where an easement will be implied. See Tortoise Island Communities, Inc. v. Moorings Ass’n, Inc., 489 So.2d 22 (Fla.1986) (adopting Judge Cowart’s dissent in Moorings Ass’n, Inc. v. Tortoise Island Communities, Inc., 460 So.2d 961 (Fla. 5th DCA 1984)). The first circumstance implies an easement from terms contained in a “duly executed” writing that is ambiguous, but otherwise valid. Id. The second circumstance implies, an easement from a factual situation giving rise to the creation of a way of necessity as a matter of public policy and is not an issue in the instant case. Id.

One Harbor asserts that if the Agreement is deemed invalid, it still maintains an easement over Hynes’ property by implied reservation through a pre-existing use. Under the holding in Tortoise Island, to imply such an easement, the implication must arise from a “duly-executed” writing. It necessarily follows that the writing from which such an easement is implied must itself be a valid legal instrument.

Documents that convey easements are subject to the same rules of construction as other contracts and should be interpreted using contract principles. See, e.g., Los Angeles County v. Wright, 107 Cal.App.2d 235, 236 P.2d 892 (1951); Percy A. Brown & Co. v. Raub, 357 Pa. 271, 54 A.2d 35 (1947); U.S. v. Sea Gate, Inc., 397 F.Supp. 1351 (D.C.N.C.1975). The right to contract is.subject to the limitation that the agreement must be legal. In general, Florida courts are under no obligation to discern the intent of the parties from language contained within an illegal contract. E.g., Katz v. Woltin, 765 So.2d 279 (Fla. 4th DCA 2000) (recognizing that where a contract is illegal, no action may be brought on it, whether in law or in equity); Castro v. Sangles, 637 So.2d 989 (Fla. 3d DCA 1994) (holding that no action may be maintained on an illegal agreement). Here, the Agreement is invalid on its face because it attempts to create an easement over one parcel in favor of an adjacent parcel, the titles to. which were simultaneously owned by Hoffenberg.

One Harbor’s reliance on this court’s ruling in Martin v. Kavanagh, 773 So.2d 1250, 1253 (Fla. 5th DCA 2000), is misplaced because a valid writing sufficient to satisfy the statute of frauds was present in that case. Similarly, One Harbor’s reliance on Williams Island Country Club, Inc. v. San Simeon at the California Club, Ltd. 454 So.2d 23 (Fla. 3d DCA 1984), is misplaced because in implying an easement by reservation from a pre-existing use, the court interpreted ambiguous terms contained in an otherwise valid contract. We agree that if the Agreement were otherwise valid but contained ambiguous terms, this court could interpret its terms to give effect to the express intent of the parties. But invalidity, not ambiguity, is the issue. Both parties agree, and the trial court specifically found that the Agreement was intended to create the easement. With no other valid instrument from which to infer the intent of the parties, this court cannot create an easement by implication; notwithstanding the temptation to do so in view of the circumstances involved in this case.

One Harbor urges this court to employ its equitable powers to give effect to the intent of the parties in view of fifteen years of uncontested use of the property, and to declare the easement valid, but such remedy is beyond this court’s power. Courts of equity simply have no power to issue rulings which they consider to be in the best interest of justice without regard to established law. E.g., Flagler v. Flagler, 94 So.2d 592 (Fla.1957); see also Florida High School Athletic Ass’n v. Mel bourne Central Catholic High School, 867 So.2d 1281 (Fla. 5th DCA 2004) (recognizing that courts of equity do not have any right or power to issue such orders as they consider to be in the best interest of “social justice” at the particular moment without regard to established law). We share the trial court’s reservations regarding the fairness of its ruling but the law compels such a result.

EASEMENT BY PRESCRIPTION

It is uncontested that use of the easement began on August 21, 1986 and has continued ever since. Because the statutory twenty-year period required to obtain an easement by prescription had not run prior to the filing of this action on June 18, 2001, no easement arose through prescription. See, e.g., Downing v. Bird, 100 So.2d 57 (Fla.1958); Crigger v. Florida Power Corp., 436 So.2d 937 (Fla. 5th DCA 1983).

One Harbor has exhausted its inventory of theories to establish the validity of the attempt by Hoffenberg to establish an easement, and we agree with the trial court that none of those theories can support its position. Therefore, we must affirm the judgment quieting title.

AFFIRMED.

THOMPSON, J., and SMITH, C. M., Associate Judge, concur.

      . The record does not disclose whether Hendrix had or did not have notice of the easement when he acquired title and the concept of the bona fide purchaser for value without notice is not an issue in this appeal.

      . The record is unclear as to when the Agreement was recorded. Appellant’s initial brief indicates that the Agreement was recorded on August 20, 1986. During a hearing on January 4, 2002, counsel for the Appellant stated that the Agreement was recorded on August 29, 1986. The Agreement appears to be date stamped on August 29, 1986.

      . An estate in fee simple can only be held in severalty. See 4 Thompson on Real Property § 1770 (1979) (citing In re Sullivan’s Estate, 121 Colo. 494, 218 P.2d 1064 (1950)). There can be but one estate in fee simple to a particular described tract of land. See 28 Am. Jur 2d Freehold Estates § 13 (2000) (citing Humphreys-Mexia Co. v. Gammon, 113 Tex. 247, 254 S.W. 296 (1923)). Accordingly, we note that the use of the term "individual” is redundant and unnecessary in the order on appeal.

      . The trial judge also held that Hoffenberg was the owner of the fee simple title of each parcel at the time that the Agreement was executed, yet noted that the properties had merged upon their initial conveyance to Hof-fenberg. One Harbor disagrees, stating that because the properties were never owned under a common deed, and were acquired at different times, under different documents, the properties did not merge. One Harbor is correct, but for the wrong reason. The merger doctrine is applied to separate parcels owned by the same individual in the same right where there is an existing easement that creates both a dominant and a servient estate. See, e.g., Lacy v. Seegers, 445 So.2d 400 (Fla. 5th DCA 1984). An otherwise valid easement may be extinguished as a matter of law through the doctrine of merger when ownership of the dominant and servient estates becomes united in one person. Id. Here, it cannot be said as a matter of law that either of the parcels initially conveyed to Hoffenberg were a "greater estate” or a "lesser estate,” as both were initially conveyed to Hoffenberg in fee simple. Nor can it be said that one parcel was servient to the other because the alleged easement was not formed until several years after the land was conveyed to Hoffen-berg. Accordingly, we do not believe that the application of the merger doctrine in this case was appropriate.

      . The trial court likely reviewed the statute as amended in 1959. The 1959 amendment added sections (2) through (5) and provided the grantee with the additional authority in section (1) to "encumber” the legal and beneficial interest. Prior to the amendment, the proviso now in section (1) required the declaration of trust to "appear of record.” The provision was expanded by the amendment to read "appear of record among the public records of the county in which the real property is situated.”

      . § 689.07(4), Fla. Stat. (2003).


author: SAWAYA, C.J. PLEUS, J.,

text:
    ANDERSON TRUCKING SERVICE, INC., et al., Petitioners, v. Diane GIBSON, etc., et al., Respondents.
    No. 5D03-3312.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 2004.

      Edward W. Levine and Jessica S. Forbes of Wagenfeld Levine, Miami, for Petitioners.
    Richard A. Staggard of Anderson & Howell, P.A., Jacksonville Beach, for Respondents.
   SAWAYA, C.J.

Intermodal Caribbean Express, Inc. [ICE] and Anderson Trucking Services, Inc. [Anderson] seek certiorari review of an order rendered by the trial court disqualifying their counsel from further representation of them in 'the underlying wrongful death action filed by Diane Gibson, as parent and next friend of Ladaise Gibson, a minor, and as personal representative of the estate of Bennie Evans James Jr., deceased. The issues we must resolve are: 1) whether Gibson had standing to seek and obtain the disqualification order we now review; and 2) if Gibson had standing, whether the trial court misapplied the standard for disqualification adopted by the court in State Farm Mutual Automobile Insurance Co. v. K.A.W., 575 So.2d 630, 634 (Fla.1991). We conclude that under the facts and cireum-stances of this particular case, Gibson did not have standing and, even if she did, the trial court incorrectly applied the K.A.W. standard. Accordingly, we grant the petition and quash the order under review.

Gibson filed suit against a number of defendants seeking damages for the wrongful death of the decedent caused by a fatal tractor trailer accident. The defendants involved in the disqualification proceedings are ICE and Anderson, owners of the trailer, and Steven Minchew, driver and owner of the tractor. As to these defendants, the complaint alleged that ICE and Anderson were vicariously liable for the acts of Minchew based on the theories of joint venture and ultrahazar-dous activities. A third count alleged that ICE and Anderson were directly liable for failing to check the qualifications of Min-chew before allowing him to transport the trailer owned by them.

The disqualification order was directed to Edward W. Levine, who initially represented all three defendants. Levine withdrew from representation of Minchew to avoid the appearance of a conflict, and Minchew retained other counsel. A couple of days after Levine withdrew from representation of Minchew, Gibson filed a motion to disqualify Levine from further representation of Anderson and ICE, alleging that Levine had taken a position in the litigation adverse to Minchew. In its order of disqualification, the trial court explained why it granted Gibson’s motion to disqualify:

It is well-settled by case law that Gibson has standing to seek Mr. Levine’s disqualification in a case in which a conflict of interest clearly calls into question, the fair or efficient administration of justice. See Zarco Supply Company v. Bonnell, 658 So.2d 151, 154 (Fla. 1st DCA 1995). It is also clear that actual proof of prejudice to a party is not a prerequisite to disqualification of an attorney before disqualification can be ordered. See State Farm Mutual Automobile Insurance Company v. K.A.W., 575 So.2d 630, 634 (Fla.1991). In that latter case, the Supreme Court set forth the standard which should be applied in a conflict of interest case to determine whether an attorney should be disqualified. The Court specifically stated that:
“One seeking to disqualify opposing counsel was required to show that (1) an attorney/client relationship existed, thereby giving rise to an irrefutable presumption that confidences were disclosed during the relationship, and (2) the matter in which the law firm subsequently represented the interest adverse to the former client was the same or substantially related to the matter in which it represented the former client.” 575 So.2d at 633.
In this case, it is clear that an attorney/client relationship existed between Minchew and Mr. Levine. As the Supreme Court noted in its opinion in State Farm, that relationship creates an irrefutable presumption that Mr. Levin[e] and Minchew exchanged confidential information. It is also clear [thjat the second prong of the test is met because Mr. Levine has represented both Min-chew and ICE/Anderson in this case. Thus, the Court need only determine whether Minchew and ICE/Anderson may potentially have adverse interests in this case as the case develops.
Here, Gibson has alleged (i) that ICE and Anderson are vicariously liable for the actions of Minchew and (ii) that ICE and Anderson have committed independent torts which make them jointly liable with Minchew. It is conceivable, and perhaps even likely, that Minchew and ICE/Anderson will be pointing fingers at each other, with each seeking to establish that the other party is subject to all of the liability. This scenario leads to at least the possibility that information disclosed by Mr. Minchew in the course of his attorney/client relationship with Mr. Levine could be used by ICE/Anderson to support any position which they may take contrary to Min-chew’s interests. It is that very possibility which causes this Court to conclude that Mr. Levine and his law firm must be disqualified from further participation in this case.

Certiorari is the appropriate remedy to review orders granting a motion to disqualify counsel. See Carnival Corp. v. Romero, 710 So.2d 690 (Fla. 5th DCA 1998); City of Apopka v. All Corners, Inc., 701 So.2d 641 (Fla. 5th DCA 1997). The standard of certiorari review we must apply in the instant case is whether the trial court’s order of disqualification constitutes a departure from the essential requirements of law. Key Largo Rest., Inc. v. T.H. Old Town Assocs., Ltd., 759 So.2d 690 (Fla. 5th DCA 2000); Swensen’s Ice Cream Co. v. Voto, Inc., 652 So.2d 961 (Fla. 4th DCA 1995).

Disqualification of counsel implicates a wide range of interests. It is generally agreed that a client has a right to counsel of his or her choice. Disqualification may impose extreme hardships on the client because this very valuable right is taken away. Time and effort must be expended to find a suitable replacement and, when one is found, the client may suffer financial hardship in attempting to retain the substitute. Moreover, disqualification may unalterably damage the relationship and confidences developed between attorney and client. Although the ethical rules that govern attorney/client ' relationships are primarily intended to protect the client, see K.A.W., disqualification also implicates the attorney’s interest in representing clients of his or her choice, and in some instances it may adversely affect counsel’s ability to trade on his or her experiences and expertise in a specified area of the law. Hence, attorneys are not fungible items that can be removed and conveniently replaced without causing undue hardship to the client and to the attorney. Because slavish adherence to conflict of interest rules may produce unwarranted results in some instances, the courts have consistently recognized that “[disqualification of a party’s chosen counsel is an extraordinary remedy and should be granted spáringly.” Cunningham v. Appel, 831 So.2d 214, 215 (Fla. 5th DCA 2002) (citations omitted); see also Vick v. Bailey, 777 So.2d 1005 (Fla. 2d DCA 2000); Carnival Corp.; City of Apopka.

In order to determine whether the trial court departed from the essential requirements of the law in granting the extraordinary remedy of disqualification in the instant case, we must first determine whether Gibson had standing to seek the disqualification of counsel for ICE and Anderson. See KAW. If Gibson had standing, we must next determine whether disqualification is appropriate by applying the standard adopted by the court in K.A.W., which requires the party seeking the disqualification to show that: 1) an attorney/client relationship existed; and 2) the attorney represents another client regarding a matter, or substantially related matter, that is adverse to the interests of the former client seeking the disqualification. K.A.W., 575 So.2d at 633. As to the first part of the standard, if an attorney/client relationship existed, an irrefutable presumption arises that the client disclosed confidences to the attorney.

Regarding the standing issue, Gibson is seeking to disqualify the attorney of an opposing party who never represented Gibson. In K.A.W., the court held that certain instances may arise when this may be appropriate. In that case, Mr. and Mrs. Wilkerson and their daughter were injured in a two-car accident and retained the Schlesinger law firm to file a personal injury action against the driver of the other car, the owner of the other car, and the plaintiffs uninsured motorist insurer. The Wilkersons subsequently added as defendants the uninsured motorist insurer of Mr. Wilkerson’s employer and another insurance company. In addition, the same law firm represented the Wilkersons in a medical malpractice action filed against various health-care providers for alleged negligent treatment of the Wilkersons’ daughter after the accident. Counsel for the Wilkersons determined that Mr. Wilkerson may have committed a negligent act that contributed to the accident, so Mr. Wilkerson discharged that attorney and retained another who had formerly been a member of the Schlesinger firm. The Schlesinger law firm, on behalf of the wife and daughter, filed an amended complaint in the personal injury action, this time naming Mr. Wilkerson as a defendant. Mr. Wilkerson consented to be sued up to the limits of his insurance coverage. Mr. Wilkerson’s insurers, not surprisingly, protested by moving to disqualify the Schlesinger law firm on the basis that the potential existed that the Schlesinger firm had obtained and would use confidential information gained during the course of its prior representation of Mr. Wilkerson to obtain a judgment that the insurers would be obligated to pay. Concluding that these insurers had standing to seek the disqualification of the Schlesinger firm, the court specifically stated:

The question then is whether the insurers may “stand in the shoes” of their insured for purposes of seeking disqualification of the Schlesinger firm on grounds of conflict of interest. Comments to the Rules of Professional Conduct indicate that under certain circumstances someone other than the client may request disqualification. Thus, where a conflict “is such as clearly to call in question the fair or efficient administration of justice, opposing counsel may properly raise the question.” Comment to Rule Regulating The Florida Bar 4-1.7. See In re Gopman, 531 F.2d 262 (5th Cir.1976) (government had standing to challenge alleged conflict of interest involving simultaneous representation of labor union and three union officials who appeared as witnesses before a grand jury).

K.A.W., 575 So.2d at 632-33.

The fair administration of justice was compromised in K.A.W. because the Schlesinger law firm was in a position to use confidential information gained during the course of the prior representation of Mr. Wilkerson in the subsequent action against him. In addition, the insurance carriers had standing to seek the firm’s disqualification because it was they who were obligated to pay any damage award rendered against Mr. Wilkerson. In essence, the suit against Mr. Wilkerson was in name only because the true targets were the insurance carriers. Therefore, the insurance carriers were actually the real parties in interest and stood in the shoes of Mr. Wilkerson, which gave them standing to seek disqualification of the Schlesinger firm.

The instant case is totally different. Here, Gibson is not responsible for any judgment that may result, and Gibson certainly does not stand in the shoes of Min-chew or any other defendant. Moreover, the court in KA.W. held that one of the purposes of requiring an attorney to maintain the confidences of a client is to prevent the attorney from gaining “an informational advantage in the form of confidences gained during a former representation of his client’s current opponent.” K.A.W., 575 So.2d at 632 (citations omitted). Unlike the situation in K.A.W., because the attorney for ICE and Anderson never represented Gibson, that attorney did not gain an informational advantage from confidences gained from a former representation of Gibson that can be used against Gibson in the attorney’s current representation of ICE and Anderson. Hence, in the instant case, it is not the alleged conflict that calls into question the fair administration of justice; rather, it is the disqualification of ICE and Anderson’s chosen counsel. The Comment to Rule Regulating The Florida Bar 4-1.7 recognizes that certain ethical rules relating to conflict of interest may be misused:

Where the conflict is such as clearly to call in question the fair or efficient administration of justice, opposing counsel may properly raise the question. Such an objection should be viewed with caution, however, for it can be misused as a technique of harassment.

While we do not say that the motion to disqualify constitutes a form of harassment, we do say that the trial court departed from the essential requirements of the law in holding that Gibson had standing to seek disqualification of ICE and Anderson’s counsel.

Moreover, even if Gibson had standing, the trial court departed from the essential requirements of the law in concluding that the second prong of the K.A.W. standard was met. That prong requires that the attorney subject to the disqualification motion represent the interests of a current client that are adverse to the same interests of the current client’s opponent who the attorney formerly represented. But because the attorney never represented Gibson and because Gibson, unlike the situation in K.A.W., does not stand in the shoes of Minchew or ICE or Anderson, this requirement cannot be met. Specifically, the trial court held that the interests of Minchew were adverse to the interests of his co-defendants, ICE and Anderson, and that this circumstance satisfied the second prong of the KA.W. test. We disagree. .But even if we agreed, the trial court’s reasoning is flawed. Specifically, the trial court reasoned that ICE and Anderson had adverse interests to Minchew sufficient to grant the disqualification because: 1) ICE and Anderson were vicariously liable for the actions of Minchew;. and 2) ICE and Anderson committed independent acts of negligence that made them jointly liable with Minchew.

The courts have consistently held that a party may not be held vicariously liable if the tortfeasor is exonerated. Mobil Oil Corp. v. Bransford, 648 So.2d 119 (Fla.1995); Bankers Multiple Line Ins. Co. v. Farish, 464 So.2d 530 (Fla.1985); Georgia-Pac. Corp. v. Reid, 501 So.2d 653 (Fla. 5th DCA 1986), review denied, 509 So.2d 1118 (Fla.1987). Here, Gibson has alleged that Minchew, the tortfeasor, directly acted in a manner that caused damage to Gibson and that any liability on the part of ICE and Anderson flows from that act under theories of vicarious liability. Because a finding that Minchew is not liable precludes vicarious liability of ICE and Anderson, their interests are most accurately characterized as consistent with one another, not adverse. Hence, as to the counts based on joint venture and ultrahazardous activity wherein Gibson alleges .that ICE and Anderson ' are vicariously liable for the negligence of Minchew, the interests of each defendant are the same, to-wit: to establish that Minchew was not negligent at the time the accident occurred.

Gibson argues that the count for negligent hiring is based on direct negligence rather than vicarious liability and, therefore, the interests of Minchew and ICE and Anderson are adverse because of the perceived need to lessen the amount of liability of a single party via joint and several liability. While we agree that an action for negligent hiring is based on the direct negligence of the employer, we disagree that the interests of Minchew and ICE and Anderson are adverse. In order to establish liability based on negligent hiring, the plaintiff must first establish that the employee committed a wrongful act that caused the injury. Unless Min-chew committed a wrongful act that caused the injury in the instant case, no liability can befall ICE and Anderson for negligently hiring him. Hence, the interests of Minchew and ICE and Anderson are consistent for the purpose of establishing that Minchew did not commit a wrongful act.

We conclude that given the facts and circumstances of the instant case, Gibson did not have standing to seek the disqualification of the attorney for ICE and Anderson. We further conclude that notwithstanding our resolution of the standing issue, the trial court misapplied the standard for disqualification adopted in K.A.W. Because the trial court departed from the essential requirements of the law, we grant the writ and quash the order granting Gibson’s motion to disqualify.

PETITION GRANTED; ORDER QUASHED.

SHARP, W., J., concurs.

PLEUS, J., dissents with opinion.

PLEUS, J.,

dissenting.

I respectfully dissent.

The trial court’s order is well-reasoned and correctly applies Florida law. I con-elude that Judge Barlow followed the correct procedure in this case and did not depart from the essential requirements of the law.

I further note there is no transcript of the disqualification hearing, so particular deference is owed to the trial court’s factual findings. Arthur v. Gibson, 654 So.2d 983 (Fla. 5th DCA 1995).

The determinative issue is whether there are potentially adverse interests. Respondents cite two compelling ones: (1) if ICE/Anderson is found vicariously hable, Minchew’s personal assets will be protected in case the verdict exceeds $1 million; and (2) if ICE/Anderson is found actively negligent, liability can be apportioned, thereby reducing Minchew’s liability.

The petitioner misrepresents that the allegations against it are in the nature of vicarious liability rather than active negligence. The amended complaint alleges that ICE/Anderson negligently caused the accident by requiring the load to be picked up later at night and delivered early the next day without determining if the driver was physically able to safely complete the trip.

The petitioner repeatedly alleges that “no confidences have been learned,” which ignores the fact that the law creates an irrebutable presumption that confidences were passed if the attorney/client relationship is established.

For these reasons, I would affirm the trial court.

      . See Island City Flying Serv. v. General Elec. Credit Corp., 585 So.2d 274, 278 (Fla.1991) ("As noted, General Electric's suit against Island City was based on a theory of negligent hiring or retention. Unlike a suit based on the doctrine of respondeat superior, this cause of action is grounded upon the negligence of the employer.”) (citation omitted); Williams v. Feather Sound, Inc., 386 So.2d 1238, 1239-40 (Fla. 2d DCA 1980) ("Most jurisdictions, including Florida, recognize that independent of the doctrine of responde-at superior, an employer is liable for the willful tort of his employee committed against a third person if he knew or should have known that the employee was a threat to others.”) (footnotes omitted), review denied, 392 So.2d 1374 (Fla.1981). The reason that negligent hiring is not a form of vicarious liability is that unlike vicarious liability, which requires that the negligent act of the employee be committed within the course and scope of the employment, negligent hiring may encompass liability for negligent acts that are outside the scope of the employment. See Tallahassee Furniture Co., Inc. v. Harrison, 583 So.2d 744 (Fla. 1st DCA 1991), review denied, 595 So.2d 558 (Fla.1992); Watson v. City of Hialeah, 552 So.2d 1146 (Fla. 3d DCA 1989); Garcia v. Duffy, 492 So.2d 435 (Fla. 2d DCA 1986).

      . Texas Skaggs, Inc. v. Joannides, 372 So.2d 985, 987 (Fla. 2d DCA 1979) ("The Joannides are correct in their position that Florida recognizes negligent hiring, training or retention as legitimate bases of recovery against an employer. Skaggs-Albertsons argues, and we agree, however, that in order to impose liability on an employer for such torts, a plaintiff must first show that he was injured by the wrongful act of an employee.”) (citations omitted), cert. denied, 381 So.2d 767 (Fla.1980); Walsingham v. Browning, 525 So.2d 996, 998 (Fla. 1st DCA 1988) ("The establishment of a wrongful act by an employee has also been required in order to impose negligence liability upon an employer for negligent hiring or retention of an employee whose conduct is in question.”) (citation omitted); see also Malicki v. Doe, 814 So.2d 347, 363 (Fla.2002) ("The claim of negligent hiring is brought after an employee has harmed a third party through his or her office of employment.”); Muzzio v. Auto-Owners Ins. Co., 799 So.2d 272, 274 (Fla. 2d DCA 2001) ("The negligent hiring theory provides no remedy to the plaintiffs unless the negligently hired employee is also negligent in the operation of the motor vehicle.”), review denied, 817 So.2d 848 (Fla.2002).


author: ALTENBERND, Chief Judge.

text:
    RDR COMPUTER CONSULTING CORPORATION, Appellant, v. EURODIRECT, INC., Appellee.
    No. 2D03-3140.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 2004.

      Ricardo A. Roig of Ricardo A. Roig, P.A., Tampa, for Appellant.
    Alan M. Gross of Powell, Carney, Gross, Mailer & Ramsay, P.A., St. Petersburg, for Appellee.
   ALTENBERND, Chief Judge.

RDR Computer Consulting Corporation (RDR) appeals a final judgment that was entered in its favor against Eurodirect, Inc. RDR challenges the trial court’s decision to deny its request for attorneys’ fees and prejudgment interest. We reverse both the denial of prejudgment interest and the denial of attorneys’ fees.

I. PREJUDGMENT INTEREST

RDR entered into written agreements with Eurodirect to provide certain computer software services for a one-year period ending on April 28, 2000. Soon after the contract went into effect, the relationship between the parties soured. In September 1999, Eurodirect filed a four-count complaint against RDR alleging civil conspiracy to defraud, conversion, unjust enrichment, and breach of a confidential relationship. RDR filed a counterclaim alleging breach of contract and amounts due pursuant to the contract or on open account. The case proceeded to trial by jury in January 2003, and the jury denied relief to Eurodirect on all counts and found for RDR on its counterclaim, awarding RDR $49,214.40 in damages for breach of contract and open account. The jury’s award was precisely the amount claimed by RDR for services rendered through April 28, 2000. The jury was not asked to determine the date this payment was due.

RDR’s counterclaim requested damages “including interest” but did not expressly request “prejudgment interest.” Prejudgment interest was not addressed in the pretrial order. Both the jury instructions and the verdict form relied on language similar to the language in Florida Standard Jury Instruction (Civil) 12.1(1), which does not mention prejudgment interest and instructs the jury to return an amount that will “fairly and adequately compensate” the claimant for damages caused by the breaching party’s failure to perform. RDR expressly raised the issue of prejudgment interest for the first time in a post-verdict motion that requested entry of a judgment including such interest. The trial court denied the request for prejudgment interest because RDR had not formally reserved this issue for resolution by the judge prior to the case being submitted to the jury for a determination of damages.

There is considerable merit to the trial court’s position that a claimant who intends to seek prejudgment interest from the judge following a jury verdict should be required to declare its intent prior to closing arguments. There certainly is a risk that a party’s failure to disclose this issue prior to the jury’s deliberations could make it impossible to know whether the jury had considered this element of damage. That risk should be borne by the claimant. In this case, however, the jury received no instructions on prejudgment interest and it is obvious that the jury awarded RDR the damages that were due on or before April 28, 2000. The damages were thus liquidated from that date.

Under the loss theory for prejudgment interest and the rule announced in Argonaut Insurance Co. v. May Plumbing Co., 474 So.2d 212 (Fla.1985), RDR was entitled to an award of prejudgment interest because the verdict involved damages that were liquidated as of a date certain, April 28, 2000. RDR was entitled to this award “as a matter of law,” which simply means that the function of adding interest to the verdict could be performed by the trial judge. See Argonaut, 474 So.2d at 215; Summerton v. Mamele, 711 So.2d 131, 133 (Fla. 5th DCA 1998); see also Broward County v. Finlayson, 555 So.2d 1211 (Fla.1990) (upholding Argonaut but stating that prejudgment interest can be denied if it would be inequitable). This court has held that it is not necessary for the jury to actually determine the date on which the damages were liquidated, so long as that date is clear from the context of the litigation. See Charles Buzbee & Sons, Inc. v. Falkner, 585 So.2d 1190, 1191 (Fla. 2d DCA 1991); see also Vining v. Martyn, 660 So.2d 1081, 1082 (Fla. 4th DCA 1995). In this case it is clear that the jury liquidated damages in the amount of $49,214.40, the exact amount due no later than April 28, 2000, when the contract terminated.

Nothing in existing case law requires the claimant to expressly reserve the issue of prejudgment interest for resolution by the trial judge after the jury’s verdict. Indeed, prejudgment interest is merely an element of damage. It does not need to be specially pleaded. See Fayed v. Altshuler, 676 So.2d 1062 (Fla. 4th DCA 1996); Tillman v. Howell, 634 So.2d 268, 270 (Fla. 4th DCA 1994). Thus, the trial court erred in ruling that RDR was required to expressly reserve this issue for resolution by the trial judge. Accordingly, we reverse the trial court’s denial of prejudgment interest and remand to award prejudgment interest from April 28, 2000, to the date of the judgment.

II. ATTORNEYS’ FEES ON THE PROPOSAL FOR SETTLEMENT

After the trial, RDR filed a motion for attorneys’ fees based on a proposal for settlement that it had served on Eurodi-rect pursuant to Florida Rule of Civil Procedure 1.442 and section 768.79, Florida Statutes (2001). That offer had proposed to settle Eurodirect’s claim for $250. It did not propose to settle RDR’s counterclaim against Eurodireet.

At the time the proposal was served, the procedural posture of this suit was very unusual. In its initial complaint, Eurodi-rect had sued both RDR and RDR’s sole officer and director, Richard Rodriguez. An amended complaint filed on April 3, 2001, continued to list Mr. Rodriguez as a defendant in the style and alleged in the general allegations that he was the sole officer and director of RDR. However, none of the four counts in the amended complaint made any additional reference to Mr. Rodriguez and none of the counts sought damages or other relief from him. On April 16, 2001, RDR filed a motion to dismiss this amended complaint which pointed out that Mr. Rodriguez was identified in the style and preamble of the amended complaint but that there was no cause of action alleged against him nor did any of the counts seek relief from him.

It was at this stage of the litigation that RDR served its proposal for settlement dated May 11, 2001. This proposal was expressly made only by “Defendant, RDR Computer Consulting Corporation,” and was intended to resolve all of the claims asserted by Eurodireet against “Defendant.” RDR conditioned its proposal upon Eurodireet filing a notice of voluntary dismissal with prejudice in the action against the “Defendants.”

Shortly thereafter, in June 2001, the trial court entered an order denying the motion to dismiss the amended complaint. The order indicated that Eurodireet had acknowledged that Richard Rodriguez was not intended to be a defendant in the amended complaint. Therefore, the court ordered his name stricken from the amended complaint.

Given the allegations of the amended complaint, it was logical for RDR to propose a settlement of all claims against it conditioned on a dismissal of the amended complaint as to its sole officer. The offer should not have confused Eurodireet since Eurodireet acknowledged that Mr. Rodriguez was not a proper defendant at the time the proposal was made. Nevertheless, the trial court denied the motion for fees because the proposal did not contain separate monetary offers for both RDR and Mr. Rodriguez.

The trial court’s ruling was supported, at least in spirit, by this court’s decision in Allstate Insurance Co. v. Materiale, 787 So.2d 173, 175 (Fla. 2d DCA 2001), in which we announced that “[w]hen two of-ferors make a proposal for settlement to one offeree, the offeree is entitled to know the amount and terms of the offer that are attributable to each offeror in order to evaluate the offer as it pertains to that party.” Likewise, the supreme court has held that “an offer from multiple plaintiffs must apportion the offer among the plaintiffs.” See also Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 279 (Fla.2003).

Both Materiale and Willis Shaw Express involved an offer by two plaintiffs to a single defendant. Because the offer failed to detail the amount each individual plaintiff was seeking, the defendant was unable to evaluate the offer as it related to each plaintiff. It is not clear, however, that the same rule should apply to an offer by multiple defendants to a single plaintiff when the defendants are jointly and severally liable for all damages claimed by the plaintiff. This court has approved an offer made by one of two co-defendants that proposed to settle a single plaintiffs claims against both defendants when the offering defendant was vicariously liable for the actions of the other. See Barnes v. The Kellogg Co., 846 So.2d 568 (Fla. 2d DCA 2003).

We conclude, however, that this unique case is distinguishable from all of these precedents. The issue here is whether a proposal from one. defendant seeking dismissal of the entire lawsuit must make a separate.allocation for a second defendant whose name appears in the style but whom the plaintiff does not claim to be suing. Even under a strict construction, we conclude that the language in rule 1.442 permits such .a proposal. The rule expressly states that a proposal shall “state with particularity any relevant conditions.” ’ See Fla. R. Civ. P. 1.442(c)(2)(C). The dismissal of the lawsuit, including a named defendant from whom the plaintiff seeks no relief, would appear to be a proper and relevant condition.

Accordingly, we reverse the order denying fees and remand for further consideration of RDR’s motion for attorneys’ fees.

Reversed and remanded.

FULMER and CASANUEVA, JJ., Concur.

      . It is probable that installment payments were actually due on this contract prior to the end of the contract. In the absence of a more specific verdict or a clearer record, we conclude that RDR has failed to establish a right to any additional interest that may have accrued on earlier installment amounts. See generally Nat’l Educ. Ctrs., Inc. v. Kirkland, 678 So.2d 1304 (Fla. 4th DCA 1996).

      . Prior to the adoption of the loss theory for prejudgment interest in Argonaut, this court had suggested that there may be a special pleading requirement for prejudgment interest. See Harry E. Robbins Assocs. v. Sudbury, 467 So.2d 343 (Fla. 2d DCA 1985). After Argonaut, this court clearly cannot compel plaintiffs to specially plead an element of damage that does not require special pleading as special damage under the Florida Rules of Civil Procedure. See Fla. R. Civ. P. 1.120(g); see also Augustine v. S. Bell Tel. & Tel. Co., 91 So.2d 320 (Fla.1956).

      . A trial court may be authorized to include in its standard pretrial order a requirement that a party indicate whether it is seeking prejudgment interest from the judge or from the jury. Whether a court could thereafter deny prejudgment interest to a party who failed to expressly reserve the issue is an interesting question not presented by this case.

      . Although other district courts have expressly declined to follow the rule announced in Barnes, they have done so in cases with distinctly different facts. See Cohen v. Arvin, 878 So.2d 403 (Fla. 4th DCA 2004) (disapproving unallocated offer made by two defendants to three plaintiffs); McElroy v. Whittington, 867 So.2d 1241 (Fla. 4th DCA 2004) (reversing award of attorneys' fees where two plaintiffs made unapportioned proposal to single defendant); Matetzschk v. Lamb, 849 So.2d 1141 (Fla. 5th DCA 2003) (reversing attorneys' fee award where single plaintiff made undifferentiated offer of judgment to two defendants); see also Meyer v. Hutchinson, 861 So.2d 1185 (Fla. 5th DCA 2004) (reversing attorneys' fees because two plaintiffs' failed to apportion proposal for settlement made to single defendant). Again, in each of these cases, the apportionment was necessary to permit the party or parties receiving the offers (the offer-ees) to adequately assess the proposals as they related to each offeror.