author: ALTENBERND, Judge. .

text:
    Porter J. GOSS and Mary R. Goss, Appellants, and Ralph W. Woodring, individually, Joinder/Appellant, v. Wallace H. DUNBAR, Appellee.
    No. 2D01-2547.
    District Court of Appeal of Florida, Second District.
    Aug. 2, 2002.

      Mark A. Ebelini of Humphrey & Knott, P.A., Fort Myers, for Appellants Porter J. Goss and Mary R. Goss.
    William L. Rogers of William L. Rogers, P.A., Naples, for Appellee.
   ALTENBERND, Judge. .

Porter J. Goss and Mary R. Goss appeal the trial court’s final order declaring that Wallace H. Dunbar holds title to a small strip of land by adverse possession. We conclude that the trial court resolved this dispute under a theory of adverse possession by color of title that was not tried by the parties. Perhaps as a result of this fact, the trial court resolved the issue under an' incorrect burden of proof.' We conclude that the parties are entitled to retry the issue of adverse possession.

In 1891, S.B. Woodring received a homestead grant from the United States under the Swamp and Overflowed Land Act. He obtained title to 120 acres of land on Sani-bel Island. This region of Sanibel Island is now named “Woodring’s Point” and is adjacent to the eastern edge of the John Ding Darling National Wildlife Reserve.

In 1902, S.B. Woodring recorded a subdivision plat that subdivided a portion of his land. The Woodring Subdivision consisted of sixteen lots at the end of a narrow isthmus dividing Ladyfinger Lake from Tarpon Bay. At the northern end of this subdivision, Mr. Woodring retained a large parcel that remained in his family for many years.

In 1968, Mr. Dunbar and his former wife purchased lot 16, the lot adjacent to the unplatted Woodring parcel. In 1995, in connection with a divorce, Mr. Dunbar obtained sole title to the eastern half of lot 16, which fronts on Tarpon Bay. By that time, a small road divided the eastern half of the subdivision from the western half.

In 1998, Mr. and Mrs. Goss purchased a lot from the estate of Esperanza Woodr-ing. This lot had been created recently by further subdivision of the remaining un-platted portion of the Woodring property. It is immediately adjacent to Mr. Dunbar’s lot. Thus, Mr. Dunbar’s northern property line is the Goss’s southern property line.

Since 1902, several surveys have been performed on this fragile isthmus. Not .surprisingly, the surveys generated some conflict concerning the northernmost property line of the original Woodring Subdivision. A small slice of land about six- to ten-feet wide has been in dispute among the surveys. After Mr. and Mrs. Goss purchased their lot and began constructing a home near the disputed property line, Mr. Dunbar gave notice that he claimed ownership under surveys conducted prior to 1989 that are most favorable to him. Mr. and Mrs. Goss claimed ownership under a more recent survey, the Johnson survey, which had been performed in 1989 for the Dunbars. In connection with the 1989 survey, new survey markers were installed and one or more markers installed in 1981 were removed.

Mr. Dunbar filed an action to quiet title relying on the older surveys. His complaint did not allege adverse possession under color of title. Mr. and Mrs. Goss filed a counterclaim to quiet title relying on the newer survey. In his answer to the counterclaim, Mr. Dunbar raised adverse possession as an affirmative defense without pleading factual allegations to support this “defense.” The parties scheduled an evidentiary hearing but never filed any documents identifying adverse possession as an issue for resolution at the hearing. The court’s order in preparation for the hearing did not identify the issues to be resolved at the hearing.

The evidentiary hearing occurred in October 2000. From the opening statements to the end of the hearing, each party tried to prevail by proving the validity of their preferred survey. Mr. Dunbar briefly testified that he cleared underbrush along the property line consistent with his understanding of that line. He relied on recent photographs to demonstrate his clearing of the land. He did not disturb any trees in the disputed area, but cleared the underbrush down to the soil. He apparently also used this strip on occasion to back a boat into the water.

At the conclusion of the hearing, the trial court ruled that the property line established by the Johnson survey was the correct line. Mr. Dunbar has not appealed that ruling, and it is supported by competent, substantial evidence. Thus, there is no basis for this court to revisit that determination. However, the trial court then proceeded to rule that Mr. Dunbar had raised adverse possession under color of title as an affirmative defense. The trial court noted that this pleading was poorly drafted, but it decided that the parties had tried the issue by consent in light of Mr. Dunbar’s testimony. Thus, the trial court found that the Johnson survey established the correct property line by the greater weight of the evidence, but that Mr. Dunbar was entitled to have the strip' of land titled in his name by virtue of adverse possession.

Adverse possession under color of title is a statutory claim. See § 95.16, Fla. Stat. (2001). Since 1968, this statute has been substantially amended on several occasions, and the elements of this claim are somewhat dependent upon the dates of possession. The plaintiff must prove this cause of action, not by the greater weight of the evidence, but by “clear and positive proof’ or by “clear and convincing evidence.” See Downing v. Bird, 100 So.2d 57, 65 (Fla.1958); Bailey v. Hagler, 575 So.2d 679, 681 (Fla. 1st DCA 1991). In general, the claim requires proof that the party claiming the land by adverse possession under color of title has been in continuous, open, exclusive, and notorious possession of the land for an uninterrupted period of seven years. See generally Robert G. Cochran & Andrew K MacFarlane, Boundary Disputes, in Florida Real Property Litigation, § 2.10 (Continuing Legal Educ. Publ’ns, The Fla. Bar, 3d ed.2001).

Because Mr. Dunbar was primarily seeking to establish a property line by survey and not by adverse possession, he never pleaded the elements of any specific version of this statute. He never clearly established the date when he commenced his adverse possession of this strip of land. For example, we are uncertain whether he believes that the seven-year period commenced in 1968 or even earlier when a prior owner may have first mowed the underbrush, or in 1989 when the new survey markers were installed. He never provided positive proof of open, exclusive, and notorious possession for a continuous period of seven years from his chosen commencement date.

Most adverse possession claims involve evidence of a fence, a substantial enclosure, or cultivation. See § 95.16(2), Fla. Stat. (2001). Mr. Dunbar’s theory does not depend upon these usual proofs. Instead, he is arguing that he obtained exclusive and notorious possession of this property by keeping it cleared of all vegetation except for trees, and by occasionally using the strip as a boat ramp. This case does not involve a typical property line between two lots in a residential neighborhood. For virtually the entire time that Mr. Dunbar lived adjacent to the Woodring property prior to the Goss’s purchase of their lot, the Woodring property was apparently a tropical jungle with an unoccupied, dilapidated house. We are uncertain that Mr. Dunbar’s evidence that he cleared undergrowth to a line that he believed to be the property is sufficient evidence to establish the high burden of proof required in this setting. It is clear from the record that the trial court did not appreciate the heightened proof required for this theory. We emphasize that we are not holding that Mr. Dunbar cannot prove adverse possession; we simply conclude that the issue must be examined in greater detail in the trial court before any judgment is entered.

Mr. and Mrs. Goss did not move for involuntary dismissal of an adverse possession theory at the close of Mr. Dunbar’s case, even though they may have been entitled to such a dismissal. They clearly failed to make this motion because they did not appreciate that the “affirmative defense” was part of Mr. Dunbar’s primary case. In fairness to Mr. Dunbar’s counsel, we are inclined to believe that he would have argued in response to such a motion that the parties had not intended to try this more complex issue during this evidentiary hearing. Mr. Dunbar’s counsel never requested to amend his complaint to conform to the limited evidence on the issue of adverse possession.

On appeal, Mr. and Mrs. Goss argue that the issue of adverse possession was not tried by consent. Under the standards discussed in Buday v. Ayer, 754 So.2d 771 (Fla. 2d DCA 2000), we agree. Because neither side has had a full and fair opportunity to litigate the issue of adverse possession under color of title, we reverse the order on appeal and remand for a new trial of that issue alone. On remand, it may be helpful for the trial court to require Mr. Dunbar to amend his complaint to allege this theory in greater detail.

Affirmed in part, reversed in part, and remanded for further proceeding consistent with this ruling.

BLUE, C.J., and WHATLEY, J„ Concur.

      . Ralph S. Woodring is also an appellant in ' this Case but has not been actively involved in this appeal.

      . See

      Ch. 74-382, § 11, Laws of Fla.
      Ch. 77-174, Laws of Fla.
      Ch. 87-194, § 1, Laws of Fla.
      Ch. 95-147, § 522, Laws of Fla.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Interest of N.C., a child. S.C., Appellant, v. Department of Children and Family Services, Appellee. R.C., Appellant, v. Department of Children and Family Services, Appellee.
    Nos. 2D01-3803, 2D01-3989.
    District Court of Appeal of Florida, Second District.
    Aug. 2, 2002.
    Shea T. Moxon, Tampa, for Appellants.
    Robert A. Butterworth, Attorney General, Tallahassee, and Tanya E. DiFilippo, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

This is a consolidated appeal by S.C. and R.C. from the trial court’s order adjudicating their child, N.C., dependent and placing her in the custody of the Department of Children and Family Services (the Department). We find merit in only one of three issues raised in this appeal. The Department concedes that it was error for a successor judge to sign the order of dependency adjudication and disposition. This error requires reversal and remand for further proceedings.

The record reveals that one judge presided over the dependency proceedings, but another judge signed the final order of adjudication and disposition. The Department concedes it was error for the successor judge to sign the order, because he did not hear the testimony and argument presented at the hearings. Under these circumstances, we are compelled to reverse. See Umscheid v. Umscheid, 724 So.2d 1267 (Fla. 5th DCA 1999); Carr v. Byers, 578 So.2d 347 (Fla. 1st DCA 1991); Beattie v. Beattie, 586 So.2d 1078 (Fla. 4th DCA 1988); Broward County v. Mitten, 421 So.2d 814 (Fla. 4th DCA 1982); Silvern v. Silvern, 252 So.2d 865 (Fla. 3d DCA 1971).

The record does not reveal why a successor judge signed the dependency order being challenged in this appeal, although we suspect it was because the predecessor judge rotated to another division in the circuit court. If so, it is unfortunate that the parties have expended the time and money to appeal this case without first seeking to obtain an order signed by the trial judge, who retains jurisdiction to enter such orders notwithstanding rotation to another circuit court division. Upon remand, if the same findings are set forth in a properly rendered order, we observe that the record before us supports those findings.

Reversed and remanded with directions that, if possible, the trial judge who presided over the dependency hearings should enter such order as she considers appropriate. If the trial judge is not available to render an order, this cause is remanded for de novo hearings unless the parties stipulate that the successor judge may render a new order after review of the record of the prior proceedings. See Tompkins Land & Hous., Inc. v. White, 431 So.2d 259 (Fla. 2d DCA 1983).

Reversed and remanded with directions.

FULMER, WHATLEY, and COVINGTON, JJ., Concur.


author: CASANUEVA, Judge.

text:
    Richard GARDEN, Appellant, v. Penny GARDEN, Appellee.
    No. 2D01-2736.
    District Court of Appeal of Florida, Second District.
    Aug. 2, 2002.

      Virginia R. Vetter of Vetter & Hunter, Tampa, for Appellant.
    John A. Colton of Burgess, Harrell, Mancuso, Olson & Colton, P.A., Sarasota, for Appellee.
   CASANUEVA, Judge.

In this appeal from a final judgment of dissolution of marriage, Richard Garden asserts the trial court erred by denying his request for a continuance, by permitting his counsel to withdraw immediately prior to the trial’s commencement, and by assigning an inflated value to an asset acquired during the term of the marriage. Because we conclude that the trial court improperly permitted Mr. Garden’s counsel to withdraw at the moment of trial, we reverse.

Penny Garden filed a petition for dissolution on November 8, 1999, after the parties had been married ten years. The case was first set for trial on February 20, 2001, but counsel for Mr. Garden filed a motion to withdraw from his representation on January 16, 2001, asserting that his client was no longer compensating him. That motion, however, was not noticed or set for hearing and counsel continued .to represent Mr. Garden.

Following a stipulation the trial was continued and rescheduled for the week of April 23, 2001. However, on April 23, Mr. Garden’s counsel filed a motion to continue, the trial, asserting that he had received a fax from his client that morning indicating that business conflicts in Texas prevented Mr. Garden from attending the trial and that his absence had prevented his counsel from preparing for trial. The court denied Mr. Garden’s motion to continue on April 24, 2001.

On that samé date Mr. Garden’s counsel noticed his motion to withdraw and scheduled it for hearing on April 26, 2001, at 9 a.m., but the notice did not specifically refer to the January motion to withdraw. The certificate of service stated that the motion to withdraw was mailed to Mr. Garden’s Sarasota address.

The-motion- to withdraw was considered by the trial court immediately after the motion to continue had been denied. The transcript reflects the following:

The Court: And the second motion-was?
Mr. Garden’s Counsel: A Motion to Withdraw as counsel of record.
The Court: I assume that’s based on a failure of communication?
Mr. Garden’s Counsel: Failure of communication with my client, your Honor.
Wife’s Counsel: Judge, our most important concern is to proceed to trial today. We don’t want the husband to, by his own actions, dictate a continuance with the Court....
The Court: I think that what [Mr. Garden’s counsel] is telling us is he doesn’t want to be here representing a recalcitrant client.
Mr. Garden’s Counsel: Your Honor, that’s exactly right. I happen to know how the judge is going to rule on that motion, so I would like to amend the pleadings, though, your Honor.
The Court: Okay.

After denying the motion to amend, the trial court granted the motion to withdraw.

First, we conclude that the trial court properly denied the motion for continuance and affirm on that ground. The second issue is whether the trial court erred by granting the motion to withdraw, which is a matter within the trial court’s discretion.

Mr. Garden’s counsel asserted different grounds for withdrawal in his written and oral motions. In writing counsel cited his client’s alleged failure to compensate him for services rendered; orally, however, counsel alleged that his client failed to communicate with him and thus frustrated trial preparation. Neither ground is of consequence to our analysis, however, because specific rules of judicial administration govern the resolution of this appeal.

Florida Rule of Judicial Administration 2.060(i) establishes several requirements for obtaining court approval of a motion to withdraw:

An attorney shall not be permitted to withdraw from an action unless the withdrawal is approved by the court. The attorney shall file a motion for that purpose stating the reasons for withdrawal and the client’s address. A copy of the motion shall be served on the client and adverse parties. The motion shall be set for hearing and notice of hearing shall be served on the client and adverse parties.

It is apparent that this rule imposes on counsel an obligation to set the motion for hearing, to provide proper notice, and to inform the client, opposing counsel, and the court of the reason for withdrawal. The notice requirement implicates due process concerns of notice and opportunity to be heard; obviously, then, the notice and motion must be timely and must afford the client an opportunity to respond.

The record in this case establishes that counsel failed to give Mr. Garden proper notice of his request to terminate representation. The notice of hearing reflects that notice was sent to Mr. Garden at a Sarasota business address at a time when counsel was moving the court to continue the pending trial because Mr. Garden was in Texas. Although the notice of hearing contained additional language indicating that a “correct copy of the foregoing has been furnished by U.S. Mail/Via Fax” to Mr. Garden, neither the notice itself nor the hearing record establishes the telephone number to which the notice of hearing was faxed, and there is no supporting assertion suggesting that the telephone number was one that could reasonably be expected to provide contact with Mr. Garden. In a somewhat analogous case, Harreld v. Harreld, 682 So.2d 635, 636 (Fla. 2d DCA 1996), this court held that “two working days’ notice of a contested final hearing in a dissolution action where the husband resides outside the state and is not represented is insufficient.” See also Conner v. Conner, 800 So.2d 724 (Fla. 2d DCA 2001). On these facts, we conclude that sufficient notice was not afforded Mr. Garden and that he was denied due process.

Next, on the record before us we conclude that counsel failed to establish by competent proof the alleged basis for withdrawal. Where, as here, the motion is being heard simultaneously with the trial’s commencement, more is required than counsel’s statement. Particulars setting forth the duration and specifics of efforts to communicate with an alleged recalcitrant client should appear in the record supporting a court’s determination to permit counsel’s withdrawal. The information can be presented without violating attorney-client privilege. We conclude that counsel presented the court with an insufficient factual basis to support his request to withdraw.

We also note that Florida Rule of Judicial Administration 2.071 might have afforded all concerned an opportunity to hear Mr. Garden’s response to the motion. This rule permits a party to appear tele-phonieally and provides the manner in which such a hearing-is arranged with the court.

When these situations occur, as they frequently do, the trial court is often faced with what it regards as a Hobson’s choice. It may permit counsel to withdraw and, due to a party’s lack of representation, continue the case. This choice detrimentally affects the opposing party, who is prepared for trial and has incurred costs and attorney’s fees in doing so. The court’s other option is to grant the withdrawal motion and to deny the continuance request, thereby facing the potential that the ruling may cause the moving party to suffer a denial of due process.

There is, we believe, a third choice. Rule 4-1.16(b) of the Rules Regulating the-Florida Bar governs an attorney’s ethical termination of representation. In those situations where withdrawal is optional, as here, the rule 4-1.6(b) provides that withdrawal should be “accomplished without material adverse effect on the interest of the client.” Withdrawal at the moment a trial is to commence can seldom be accomplished without material adverse effect on the client. Thus, rule 4-1.16(e) authorizes the court to require continued representation of the client by counsel, even in those instances where good cause to withdraw exists. In those circumstances the court is not required to grant a motion to withdraw and may properly require a lawyer who has tardily moved to withdraw to continue representing the client.

We conclude that the trial court abused its discretion by granting the motion to withdraw and failing to require counsel to continue representing Mr. Garden. We acknowledge that this may be burdensome to the moving attorney, but the risk should be borne by counsel who is most familiar with the client and events and not by the court or by the opposing party, who is financially and perhaps emotionally affected by counsel’s last-minute withdrawal. On remand, the trial court may, within its discretion, assess fees and costs of Mrs. Garden’s counsel’s duplicate trial preparation against Mr. Garden and may consider encumbering marital assets or assets awarded to Mr. Garden to insure payment.

Accordingly, the final judgment of dissolution of marriage, except for the granting of the dissolution, is reversed, and this cause is remanded for further proceedings.

SALCINES and STRINGER, JJ., concur.


text:
    Jorge Eliecer GARCES, Petitioner, v. Eduardo MONTANO, Respondent.
    No. 3D01-2599.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 2002.
    Robei"t M. Hoffman, for petitioner.
    Podhhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin and Joel Eaton, Miami, for respondent.
    Before COPE, GREEN and RAMIREZ, JJ.
   PER CURIAM.

The probate division of the circuit court appointed Jorge Eliecer Garces to serve as the personal representative of the late Sil-vana Lorena Lopez. Subsequently the court appointed Eduardo Montano to serve as co-personal representative. Mr. Garces has appealed.

We agree with Mr. Montano that this is not an appealable order. As amended in 1996, the Florida Probate Rule 5.100 states, “All orders and judgments of the court that finally determine a right or obligation of an interested person may be appealed as provided by Florida Rule of Appellate Procedure 9.110(a)(2).” (Emphasis added). Rule 9.110(a)(2) contains comparable language. See In re Estate of Nolan, 712 So.2d 421, 422 (Fla. 2d DCA 1998); In re Estate of Walters, 700 So.2d 434, 435 n. 1 (Fla. 4th DCA 1997). We do not think that the appointment of a co-personal representative can properly be viewed as finally determining any right or obligation of Mr. Garces.

Since the order is not appealable, we treat the instant appeal as a petition for writ of certiorari. See Johnson v. Citizens State Bank, 537 So.2d 96, 98 (Fla.1989). Under the circumstances present here, the trial court acted well within permissible discretion in appointing the co-personal representative. There is no departure from the essential requirements of law.

Certiorari denied.


author: FULMER, Judge.

text:
    Elhanon and Sandra S. COMBS, James K. Kessler and the Poinciana Village Civic Association, Inc., Appellants, v. CITY OF NAPLES, a municipal corporation of the State of Florida, and the Royal Poinciana Golf Club, Inc., Appellees.
    No. 2D01-2727.
    District Court of Appeal of Florida, Second District.
    Aug. 30, 2002.

      David W. Rynders, Naples, for Appellants.
    George Vega, Jr. of Vega, Brown, Stanley & Burke, P.A., Naples, for Appellee, Royal Poinciana Golf Club, Inc.
   FULMER, Judge.

Elhanon and Sandra Combs, James Kes-sler, and Poinciana Village Civic Association (Association) appeal the trial court’s final judgment dismissing with prejudice counts 1, 2, and 4 of their amended complaint filed against the City of Naples and the Royal Poinciana Golf Club, Inc. (Club). The Combs, Kessler, and the Association raise several issues for review. We affirm in part and reverse in part.

The Combs, Kessler, and the Association filed a four-count complaint against the City and the Club seeking to invalidate a development agreement the City entered into with the Club pursuant to the Florida Local Government Development Agreement Act, sections 163.3220 to 163.3243, Florida Statutes (1999) (Development Agreement Act). Count 3 was severed and is not a part of this appeal.

Count 1 is an action filed pursuant to the Development Agreement Act challenging compliance of the agreement with the City’s comprehensive plan. Count 2 is an action for declaratory judgment and injunctive relief, which alleges that the agreement violates article VIII, section 2 of the Florida Constitution. Count 4 is a taxpayer’s action, brought solely by Kes-sler, challenging the City’s obligation in the agreement to expend City funds as an unconstitutional exercise of the City’s taxing and spending powers.

The trial court dismissed count 1 for failure to comply with the condition precedent provision in section 163.3215(4) of the Local Government Comprehensive Planning and Land Development Regulation Act (Comprehensive Planning Act), which applies to actions challenging the consistency of a development order with a local government’s comprehensive plan. However, count 1 of the complaint before us is not an action filed pursuant to section 163.3215. Rather, count 1 is an action filed pursuant to section 163.3243 of the Development Agreement Act challenging a development agreement, not a development order. We reject the argument advanced by the City and the Club that the development agreement implicitly comprises a development order. A plain reading of the Comprehensive Planning Act and the Development Agreement Act reveals that a “development agreement” and a “development order” are not interchangeable terms. Moreover, the Development Agreement Act expressly incorporates the definition of “aggrieved or adversely affected person” as set forth in the standing provision of the Comprehensive Planning Act, but we find no provision in the Development Agreement Act that also incorporates the condition precedent provision of the Comprehensive Planning Act. Thus, we conclude the trial court erred by applying the condition precedent provision of section 163.3215 to a section 168.3243 action.

In its order dismissing count 1, the trial court also found that Kessler lacked standing because he was not an “aggrieved or adversely affected person” as defined in section 163.3215(2). We agree, and Kes-sler makes no challenge to this ruling by the trial court in this appeal.

Counts 2 and 4 were dismissed by separate order based on a determination that all plaintiffs lacked standing “because they have not established any special injury and because the Development Agreement does not violate the U.S. or Florida Constitutions.” We will address each count separately. Count 2 is a declaratory judgment action, which is governed by the provisions of chapter 86, Florida Statutes (1999). Section 86.021, which addresses standing to seek a declaratory judgment, contains no requirement that a special injury be established. It provides:

Any person claiming to be interested or who may be

in doubt about his or her rights under a ... contract, or other article, memorandum, or instrument in writing or whose rights, status, or other equitable or legal relations are affected by a ... municipal ordinance, contract ... or other article, memorandum, or instrument in writing may have determined any question of construction or validity arising under such ... municipal ordinance, contract ... or other article, memorandum, or instrument in writing, or any part thereof, and obtain a declaration of rights, status, or other equitable or legal relations thereunder.

Florida courts have repeatedly stated that the declaratory judgment statute should be liberally construed. See Olive v. Maas, 811 So.2d 644 (Fla.2002). The Combses own property adjacent to the Club and are within the class of property owners the City determined should be provided notice of the public hearings pertaining to approval of the development agreement. They also qualify as an “aggrieved or adversely affected party” as defined in section 163.3215(2). Thus, we conclude that their interests are sufficient to confer standing to seek a declaratory judgment on the constitutionality of the development agreement. The Association is in a similar position as the Combses. The Association is a not-for-profit organization formed to protect the interests of homeowners in a subdivision that is adjacent to the Club and is also in the vicinity in which notices of the public hearing were sent. Given the liberal construction to be afforded chapter 86, we conclude the Association has standing to maintain count 2. Kessler, on the other hand, is not an owner of property in the vicinity of the Club but alleges an interest, as a City resident and taxpayer, in the proper procedural approval by the City of development agreements. We agree with the trial court’s conclusion that he lacks standing to maintain count 2 and affirm that ruling without further discussion.

Kessler’s status as a City resident does, however, provide him standing to maintain count 4, which is a taxpayer suit challenging on constitutional grounds the City’s exercise of its taxing and spending authority. Such actions do not require a showing of special injury. See Dep’t of Admin. v. Horne, 269 So.2d 659 (Fla.1972); Paul v. Blake, 376 So.2d 256 (Fla. 3d DCA 1979). Therefore, we reverse the trial court’s determination that Kessler lacks standing to pursue count 4.

In its order dismissing counts 2 and 4, the trial court not only dismissed the complaint but also made findings that addressed the merits of the relief sought. When passing on a motion to dismiss for failure to state a cause of action, the trial court is confined to the allegations in the complaint. Consuegra v. Lloyd’s Underwriters at London, 801 So.2d 111, 112 (Fla. 2d DCA 2001). A motion to dismiss is not a substitute for a summary judgment. Id. And, “[t]he test for sufficiency of a complaint for declaratory judgment is not whether the plaintiff will succeed in obtaining the decree he seeks favoring his position, but whether he is entitled to a declaration of rights at all.” “X” Corp. v. “Y” Person, 622 So.2d 1098, 1101 (Fla. 2d DCA 1993). Accordingly, we express no opinion on the trial court’s unauthorized findings.

Reversed in part, affirmed in part, and remanded for further proceedings consistent with this opinion.

ALTENBERND and SILBERMAN, JJ., concur.

      . §§ 163.3161 to 163.3217, Fla. Stat. (1999).

      . Section 163.3243 of the Development Agreement Act provides:
      Any party, any aggrieved or adversely affected person as defined in s. 163.3215(2), or the state land planning agency may file an action for injunctive relief in the circuit court where the local government is located to enforce the terms of a development agreement or to challenge compliance of the agreement with the provisions of ss. 163.3220-163.3243.


author: DANAHY, PAUL W., Senior Judge.

text:
    Neil E. PAUKER, M.D., Petitioner, v. Lynne OLSON, Respondent.
    No. 2D01-4588.
    District Court of Appeal of Florida, Second District.
    Aug. 30, 2002.

      David R. Cassetty of O’Connor, Chim-poulis, Restani, Marrero & McAllister, P.A., Coral Gables, for Petitioner.
    Ronald P. Weil of Aragon, Burlington, Weil & Crockett, P.A., Miami, for Respondent.
   DANAHY, PAUL W., Senior Judge.

Petitioner, Neil E. Pauker, M.D., seeks certiorari review of an order of the trial court compelling him to produce certain documents. We grant the petition as to respondent’s requests 2, 10, 11, 12, and 13, and we quash the order as to these particular requests for documents. Otherwise, we deny the petition.

Respondent, Lynne Olson, sued petitioner for medical malpractice, alleging medical negligence for engaging in a sexual relationship with respondent while she was a patient. The complaint also alleged a breach of fiduciary duty in that petitioner disclosed to others respondent’s confidential psychiatric information. Respondent served petitioner with a first request for production of documents that contained fifteen specific requests. Petitioner objected to the requests, and the trial court, in the order on review, overruled petitioner’s objections and ordered petitioner to produce all responsive documents. The requests sought information regarding either petitioner or his patients, current and former, including respondent.

“[Rjeview by certiorari is appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.” Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). Certio-rari review is also appropriate where the discovery material “could be used to injure another person or party outside the context of the litigation,” and where it is protected by privilege. Id. In the present case, requests 2, 10, 11, 12, and 13 sought medical or patient records of either petitioner himself or his patients. Regarding patient records, this court has held that “[djiscovery should be denied when it has been established that the information requested is neither relevant to any pending claim or defense nor will it lead to the discovery of admissible evidence.” Pusateri v. Fernandez, 707 So.2d 892, 893 (Fla. 2d DCA 1998).

Respondent’s second request sought “[a]ll documents which evidence, relate, or pertain to any prescription drug which you [petitioner] consume or have taken or consumed.” Petitioner objected that “the information sought is irrelevant, immaterial, and not calculated to lead to the discovery of admissible evidence.” We agree and, on the rationale of Pusateri, quash that portion of the trial court’s order which mandates compliance with this request. This request is so broad that it would require disclosure of every childhood medication that petitioner had ever taken. We noted in Pusateri that “respondents may be able to justify access to the documents later in the litigation” even though the record did not support it at that time. Id. at 893. It appears unlikely in this case that respondent could ever justify such a broad request.

The tenth request sought “[a]ll documents which evidence, relate, or pertain to [petitioner’s] treatment by any mental health counselor, psychologist, or psychiatrist for any mental or emotional condition.” The request included, but was not limited to, communications with such professionals, their evaluations or diagnoses, and any related insurance claims. Petitioner filed written objections to requests 10, 11, 12, and 13 on the grounds that “the information sought is irrelevant, immaterial, and [not] calculated to lead to the discovery of admissible evidence. Further, the information sought is privileged.” In his motion for rehearing, petitioner cited to section 90.503, Florida Statutes (2001), the psychotherapist-patient privilege. That section states that a patient has a privilege to refuse to disclose confidential communications or records made for the purpose of diagnosis or treatment. The privilege may be claimed by the patient and by the psychologist on the patient’s behalf. Tn regard to the tenth request, petitioner is asserting the privilege as the patient.

In Weinstock v. Groth, 659 So.2d 713 (Fla. 5th DCA 1995), Groth, the former patient, sued Weinstock, the psychologist, for intentional infliction of emotional distress for Weinstock’s alleged affair with Groth’s husband. In an interrogatory, Groth sought the names and addresses of any psychotherapists who had treated Weinstock in the past five years. Wein-stock objected on the basis that the question was irrelevant, immaterial, and' not reasonably calculated to lead to the discovery of admissible evidence. Weinstock also claimed the psychotherapist-patient privilege. Additionally, Weinstock later filed a separate suit alleging defamation against Groth. The court held that because Weinstock had not placed her mental condition at issue in the defamation lawsuit, she was entitled to assert the psychotherapist-patient privilege. Accordingly, the court quashed the interrogatory. In the present case, because petitioner has not placed his mental condition at issue in the lawsuit, we grant certiorari review and quash that portion of the trial court’s order that compels petitioner to comply with the tenth request.

Respondent argued in her response to the petition that petitioner’s challenge to the tenth request is moot because, after the petition was filed, the trial court indicated in a subsequent order that petitioner was to produce in camera the items requested in 10, 11, 12, and 13. However, in a criminal case the Third District has held that in order to obtain in camera review of privileged items under section 90.503, a defendant must first, by sworn motion, establish a reasonable probability that the privileged matters contain material information necessary to his defense. State v. Famiglietti, 817 So.2d 915, 26 Fla. L. Weekly D1601 (Fla. 3d DCA June 27, 2001) (citing to State v. Pinder, 678 So.2d 410 (Fla. 4th DCA 1996)). Thus, based on Famiglietti, in the present case, to obtain an in camera review of petitioner’s mental health records, respondent, at the very least, would have to show that the records are relevant to a pending claim or defense. However, under Weinstock, the material is only discoverable if petitioner places his mental condition at issue. Therefore, we conclude that in order to obtain in camera review of petitioner’s mental health records, respondent must first establish that, petitioner has placed his mental condition at issue.

In request 11, respondent sought “[a]ll documents which evidence, relate, or pertain to the identity of all patients to whom you have provided professional services and their corresponding addresses.” The supreme- court has held that privileged records of a nonparty are discoverable where they may lead to admissible evidence and the nonparties’ names are stricken. See Amente v. Newman, 653 So.2d 1030 (Fla.1995). In the present case, the purpose of respondent’s request is to obtain the names of petitioner’s patients; thus, it would be impossible to comply with the request and strike the names. We therefore quash that portion of the trial court’s order compelling petitioner to comply with this request. Furthermore, since the names of petitioner’s patients are not discoverable under Amente, an in camera review would serve no purpose in this case.

In request 12, respondent sought “[a]ll documents which evidence, relate[,] or pertain to the identity of any patient or former patient with whom you have had or now have a sexual or romantic relationship.” Respondent here seeks the individual names of a particular class of petitioner’s patients. We quash that , portion of the trial court’s order compelling petitioner to comply with this request. Although the details of the relationships, if any, may not be privileged under section 90.503, the names of the patients clearly are, since they were disclosed for the . purpose of diagnosis or treatment. Again, because the names of the patients are not discoverable, the trial court may not conduct an in camera review in regard to this request.

In request 13, respondent demanded “[a]ll documents which evidence, relate[,] or pertain to correspondence authored by you or received from any former or current patient.” The names of the current or former patients are privileged under section 90.503, and any correspondence relating to diagnosis or treatment would also be privileged. § 90.503(2). We cannot consider such a broad-based and onerous request to be relevant to a pending claim or defense. We therefore quash that portion of the trial court’s order compelling petitioner to comply with this request. Because we conclude that the information sought is not relevant to a pending claim or defense, respondent is not entitled to an in camera review of the materials.

Accordingly, we grant certiorari in part and quash those portions of the order of the trial court compelling petitioner to comply with requests 2, 10, 11, 12, and 13. In all other respects, we deny certiorari.

Certiorari granted in part; otherwise, denied.

WHATLEY and COVINGTON, JJ., Concur.

      . Apparently, petitioner’s attorney was ten minutes late for the hearing on his objections to the request for documents, and the trial court had ruled already and would not hear petitioner's arguments.


author: COVINGTON, Judge.

text:
    VANDERBILT INN ON THE GULF d/b/a Vanderbilt-Beach Associates Limited Partnership, Timemed Labeling Systems, Jerry Nerad and Van-Dev, Inc., Appellants, v. Sherri PFENNINGER, Appellee.
    No. 2D01-1097.
    District Court of Appeal of Florida, Second District.
    Aug. 30, 2002.
    Angela C. Flowers of Kubieki Draper, Miami, for Appellants.
    Michael R.N. McDonnell of McDonnell Trial Lawyers, Naples, for Appellee.
   COVINGTON, Judge.

This court issued an opinion in Vanderbilt Inn on the Gulf v. Pfenninger, 27 Fla. L. Weekly D356, 2002 WL 459252 (Fla. 2d DCA Feb. 8, 2002), reversing the decision of the trial court. The trial court had granted Pfenninger’s motion for new trial based on the fact that one juror had failed to disclose his past involvement in litigation. Our reversal was premised on the notion that Pfenninger failed to meet the due diligence requirement of De La Rosa v. Zequeira, 659 So.2d 239 (Fla.1995). That is, a records check as to the juror’s litigation history was not completed until after the verdict was rendered. However, shortly after our opinion was issued, the Florida Supreme Court issued its decision in Roberts v. Tejada, 814 So.2d 334 (Fla.2002). In its opinion, the court specifically disapproved of our holding in Vanderbilt. The court concluded that the due diligence prong of Be La Rosa does not require a lawsuit index search prior to the conclusion of jury selection. Tejada, 814 So.2d at 343.

Thus, we must now review the trial court’s order granting a new trial in light of the supreme court’s ruling in Tejada. The standard of review of a trial court’s order granting a new trial because of juror concealment of information is abuse of discretion. Garnett v. McClellan, 767 So.2d 1229, 1231 (Fla. 5th DCA 2000). If reasonable people could differ as to the propriety of the court’s ruling, then the abuse of discretion standard has not been met. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

As articulated by the court in Teja-da, due deference is to be granted to the trial judge because it is at the trial level “that the dynamics and context of the entire trial process can best be evaluated.” Tejada, 814 So.2d at 345. Under all of the circumstances and the applicable law, we conclude that the trial court did not abuse its discretion in granting a new trial. Thus, the order granting the new trial is affirmed and our previously issued opinion is withdrawn.

WHATLEY and SILBERMAN, JJ., Concur.


author: WHATLEY, Judge.

text:
    Phillip PENALVER, Appellant, v. Kelly COLOMBO, Appellee.
    No. 2D01-4799.
    District Court of Appeal of Florida, Second District.
    Sept. 4, 2002.
    Virginia R. Vetter of Vetter & Hunter, Tampa, for Appellant.
    Michael C. Tice, Fort Myers, for Appel-lee.
   WHATLEY, Judge.

Phillip Penalver appeals the order directing him to pay 90% of Kelly Colombo’s attorney’s fees and 60% of her accountant’s fees in her action for child support. He contends that the trial court erred in failing to find that the accountant’s fees were reasonable and necessary and in failing to find that he had the ability to pay the total amount of fees awarded Colombo.

We reverse because appropriate appellate review is not possible in the absence of these findings by the trial court. See Miller v. Miller, 589 So.2d 317 (Fla. 1st DCA 1991); Hornsby v. Newman, 444 So.2d 90 (Fla. 4th DCA 1984).

Reversed and remanded for further proceedings consistent with this opinion.

BLUE, C.J., and SILBERMAN, J., Concur.


text:
    Michael Allen HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2855.
    District Court of Appeal of Florida, Second District.
    Sept. 4, 2002.
   PER CURIAM.

Affirmed. See Toney v. State, 817 So.2d 924 (Fla. 2d DCA 2002).

GREEN, DAVIS, and KELLY, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    Jesse TOCA, Petitioner, v. STATE of Florida, Respondent.
    Nos. 2D01-1424, 2D01-5510, 2D02-131.
    District Court of Appeal of Florida, Second District.
    Sept. 6, 2002.

      Jesse Toca, pro se.
    Robert A. Butterworth, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Respondent.
   ORDER ON MOTION TO ACCOMMODATE RELIGIOUS BELIEFS

NORTHCUTT, Judge.

Jesse Toca, a pro se litigant who has filed numerous proceedings in this court, persists in refusing to sign his filings. On March 7, 2002, we directed Mr. Toca to sign his filings and warned that unsigned documents filed after that date would be stricken. In response, Mr. Toca has filed a motion in which he asserts that we must forgo the signature requirement as an accommodation of his religious beliefs. He is mistaken.

BACKGROUND

Mr. Toca alleges that his religious beliefs prohibit his taking any sort of oath. Further, he maintains that “[r]equiring or forcing [him] to sign any documents he files ... amounts to forcing [him] to take an oath or to pledge allegiance to this Court, which amounts to forcing this Court’s religion upon [him].” Therefore, he argues, we are compelled to excuse him from the signature requirement by the Free Exercise Clauses of the Florida and Federal Constitutions, the federal Religious Freedom Restoration Act of 1993, Florida’s Religious Freedom Restoration Act of 1998, and a United Nations treaty known as the Intel-national Covenant on Civil and Political Rights.

We asked the State to respond to Mr. Toca’s motion and, in particular, to address the question whether Florida’s Religious Freedom Restoration Act of 1998 (RFRA), § 761.01-.05, Fla. Stat. (2002), is applicable to rules of court. Instead, the State has asserted that Mr. Toca’s alleged religious belief is not protected by the RFRA because it is not sincere. The State points to several 1998 documents filed by Mr. Toca or on his behalf in proceedings before the County Court for Pinellas County, the Circuit Court for the Sixth Judicial Circuit, and the Florida Judicial Qualifications Commission, all of which were signed by him and most of which were signed under oath or verified under penalty of perjury. The State charges that Mr. Toca actually is motivated by his belief that refusing to sign his filings permits him to lie in court proceedings without fear of prosecution for perjury.

DISCUSSION

Florida Rule of Judicial Administration 2.060 sets forth the requirements for the signing of pleadings and other filings. Subsection (c) describes the signature requirements for filings of attorneys. Subsection (d), entitled “Party Not Represented by Attorney to Sign,” requires that “[a] party who is not represented by an attorney shall sign any pleading or other paper and state the party’s address and telephone number, including area code.” Subsection (e) describes the forms of signatures deemed acceptable for purposes of the rule. It provides:

(1) The signatures required on pleadings and papers by subdivisions (c) and (d) of this rule may be:
(A) original signatures;
(B) original signatures that have been reproduced by electronic means, such as on electronically transmitted documents or photocopied documents; or
(C) any other signature format authorized by general law, so long as the clerk where the proceeding is pending has the capability of receiving and has obtained approval from the Supreme Court of Florida to accept pleadings and papers with that signature format.

Mr. Toca has not signed his filings in any manner that complies with this rule.

As a preliminary matter, we resist the temptation to simply end the discussion by pointing out that the signature required of Mr. Toca is not an oath. This can be seen by comparing the rule governing filings by unrepresented litigants to the requirement imposed on attorneys. The latter provides that “[t]he signature of an attorney shall constitute a certificate by the attorney that the attorney has read the pleading or other paper; that to the best of the attorney’s knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.” Fla. R. Jud. Admin. 2.060(c). In contrast, rule 2.060(d) states that an unrepresented person merely must affix his signature along with his address and telephone number.

Whether the certification contemplated in the attorney’s signature requirement qualifies as an oath may be debatable. See Metcalf v. Langston, 296 So.2d 81 (Fla. 1st DCA 1974) (observing that an attorney’s signature on a pleading is a certification that there are good grounds to support it, but does not attest to its truthfulness). If that is so, there can be no question that the bare signature required of an unrepresented person is not an oath. Rather, the purpose of this requirement is simply, but importantly, one of authentication. See Schaefer v. Riegelman, 250 Wis.2d 494, 639 N.W.2d 715 (2002); Coker v. Weatheread, 852 S.W.2d 764 (Tex.App.1993). Requiring signatures reduces the possibility that a court will act in reliance on allegations, representations, arguments, stipulations, or admissions of a party who has not actually made them. See, e.g., J.L.S. v. R.J.L., 708 So.2d 293 (Fla. 2d DCA 1998) (reversing order transferring venue based on alleged unsigned stipulation that was disavowed by appellant).

The fact that Mr. Toca’s signature would not constitute an oath does not resolve the issue before us, however. To the contrary, this fact might be wholly irrelevant, depending on which body of law we apply. This would be the case under a purely constitutional analysis.

Both the Federal and the Florida Constitutions guarantee an individual’s right to freely exercise his religion. When considering assertions that these provisions exempt a person from regulatory mandates when compliance would contravene his religious beliefs, courts avoid questioning the rationality of those beliefs. In Employment Division, Department of Human Resources v. Smith, 494 U.S. 872, 887, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), the Court observed that “[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds” (quoting Hernandez v. Comm’r, 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989)).

Therefore, although we have pointed out that Mr. Toca’s signature would not constitute an oath in a secular sense, we do not presume to question whether his interpretation of the religious proscription is valid or rational. Further, although Mr. Toca has not yet proved that he sincerely abides by a religious proscription against taking oaths and that this prohibition includes the signing of documents filed in this court, we will assume the truth of these allegations for purposes of analyzing Mr. Toca’s constitutional assertions.

Nevertheless, the Federal Constitution does not require us to excuse Mr. Toca from the signature rule. In Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876, the United States Supreme Court held that the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes conduct that his religion prescribes, or vice versa. The Smith Court rejected a claim by Native Americans that the Free Exercise Clause permitted them to ingest peyote for religious purposes notwithstanding the Oregon controlled substances law. In a majority opinion by Justice Scalia, the Court held that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.

Applying Smith, we can easily see that rule 2.060(d) is a neutral, generally applicable regulation that only incidentally burdens Mr. Toca’s exercise of religion. Therefore, the Free Exercise Clause of the Federal Constitution does not exempt Mr. Toca from the signature requirement contained in rule 2.060(d).

We have found no authority holding that Florida’s Free Exercise Clause requires a different analysis or result. For the most part, the courts have treated the protection afforded under the state constitutional provision as coequal to the federal one, and have measured government regulations against it accordingly. See, e.g., Yasir v. Singletary, 766 So.2d 1197 (Fla. 5th DCA 2000). See also Commentary to Art. I, § 3, 1968 Revision of the Florida Constitution (observing that Florida’s Free Exercise Clause parallels the First Amendment and that cases under the First Amendment are “of great value in evaluating the status of religious freedoms”). In some instances, Florida courts have applied a compelling interest test in cases involving an “overlap” of the right to free exercise and a fundamental right, such as the Florida constitutional right of privacy. See In re Dubreuil, 629 So.2d 819, 822 (Fla.1993). The matter before us involves no such overlap. Accordingly, we apply Smith and conclude that requiring Mr. Toca to comply with rule 2.060(d) does not violate his rights under article I, section 3 of the Florida Constitution.

In addition to his constitutional argument, Mr. Toca relies on the so-called Religious Freedom Restoration Acts (RFRA) enacted by the United States Congress and the Florida Legislature. Congress passed the federal law in 1993 in direct response to the Smith decision. 42 U.S.C. § 2000bb-l to -4. However, the United States Supreme Court invalidated the law as applied to state and local regulations. City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Therefore, Mr. Toca’s reliance on it is for naught.

In response to Flores, the Florida Legislature passed Florida’s own Religious Freedom Restoration Act of 1998, modeled after its federal predecessor. The avowed purpose of the legislation is to require application of the compelling interest test in free exercise cases notwithstanding its rejection by the United States Supreme Court in Smith. § 761.01, Fla. Stat. (Supp. 1998).

Section 761.03 of the Act provides:

761.03. Free exercise of religion protected
(1) The government shall not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability, except that government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person:
(a) Is in furtherance of a compelling governmental interest; and
(b) Is the least restrictive means of furthering that compelling governmental interest.
(2) A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief.

The statute defines government as “any branch, department, agency, instrumentality, or official or other person acting under color of law of the state, a county, special district, municipality, or any other subdivision of the state.” § 761.02(1), Fla. Stat. (2002). Section 761.02(3), defines an exercise of religion as “an act or refusal to act that is substantially motivated by a religious belief, whether or not the religious exercise is compulsory or central to a larger system of religious belief.”

Determining whether a person’s act or refusal to act is substantially motivated by a religious belief and whether his exercise of religion is substantially burdened by a government regulation would require determinations of fact — hence, the State’s assertion that Mr. Toca is not burdened at all because he is not, in truth, motivated by religious belief. Were we to decide this matter under the RFRA, we likely would appoint a commissioner to take evidence and determine these essential facts, as to which Mr. Toca would bear the burden of proof. See Diaz v. Collins, 114 F.3d 69 (5th Cir.1997) (interpreting federal RFRA). If these facts were found in Mr. Toca’s favor, our inquiry would turn to whether the government has a compelling interest in imposing the signature requirement on him and whether doing so is the least restrictive means of furthering that interest. Pursuant to section 761.03(1), the burden to demonstrate these things would be on the government. Section 761.02(2) defines demonstrates as “to meet the burden of going forward with the evidence and of persuasion.”

As can be seen, by imposing the compelling interest test, the RFRA may well restrict the government’s ability to burden an individual’s religious freedom to a narrower range of circumstances than is permitted under the constitutional analysis in Smith. This difference has no bearing here, though, because the RFRA cannot control when the regulation under consideration is a rule of practice or procedure in the courts. The Florida Constitution grants to the Florida Supreme Court exclusive power to prescribe such rules. Art. V, § 2, Fla. Const. Under the separation of powers doctrine, codified in our constitution at article II, section 3, the legislature may not exercise that power.

The RFRA does not violate these constitutional principles by devising any particular rule of practice or procedure. By its terms, however, it proscribes any government regulation that substantially burdens a person’s exercise of religion unless the government demonstrates that applying the regulation to the person serves a compelling government interest by the least restrictive means. If this legislation were to be applied to rules of practice and procedure in the courts, it would, in effect, append a statutory proviso onto each such rule. The Florida Constitution does not permit this. Therefore, we reject Mr. Toca’s assertion that the RFRA entitles him to file documents in this court without signing them as required by rule 2.060(d).

Mr. Toca’s citation to articles 14 and 18 of the International Covenant on Civil and Political Rights (ICCPR) likewise is unavailing. The ICCPR was opened for ratification by resolution of the United Nations General Assembly in 1966. Having obtained a sufficient number of ratifications, it went into force as planned in 1976. The United States Senate ratified the ICCPR in 1992, with a number of reservations, understandings, and declarations. Of course, a properly ratified treaty is binding on the states. U.S. Const., art. IV, § 2, cl. 2.

Article 14 of the ICCPR provides that “[a]ll persons shall be equal before the courts and tribunals” and then sets forth a number of due process protections applicable to criminal prosecutions. Obviously, it does not assist Mr. Toca’s attempt to secure an individual exemption from a court rule of general applicability.

Article 18 states:

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

1976 U.N.T.S. No. 14668, vol. 999, p. 171.

There is scant case law nationally, and none we could find in Florida, interpreting this provision. Probably, this is due in large part to the fact that when ratifying the ICCPR, the Senate declared that “the provisions of Articles 1 through 26 of the Covenant are not self-executing.” 138 Cong. Rec. S4781-84 (1992). The Senate stated that the declaration was meant to “clarify that the Covenant will not create a private cause of action in U.S. Courts.” S. Exec. Rep., No. 102-23, at 15 (1992). Indeed, the United States Court of Appeals for the Eleventh Circuit has observed that a treaty must be self-executing in order for an individual citizen to have standing to protest a violation of the treaty. United States v. Thompson, 928 F.2d 1060, 1066 (11th Cir.1991). See also United States v. Bent-Santana, 774 F.2d 1545, 1550 (11th Cir.1985); United States, v. Conroy, 589 F.2d 1258 (5th Cir.1979). For this reason, it is doubtful that Mr. Toca has standing to complain that requiring him to sign his filings would violate the ICCPR.

In any event, prior to the ICCPR’s ratification by the United States, at least one court interpreted article 18 as furnishing no greater rights or protections than those provided in the First Amendment. Crow v. Gullet, 706 F.2d 856 (8th Cir.1983). Therefore, even if Mr. Toca had standing to enforce the ICCPR, his assertions under article 18 would fare no better than his constitutional claims.

CONCLUSION

For the reasons described, we deny Mr. Toca’s motion to accommodate religious beliefs, and we reaffirm our order of March 7, 2002.

ALTENBERND and CASANUEVA, JJ., concur.

      . For administrative simplicity, we enter this published order only in pending cases to which the State is a party, because only the State responded to Mr. Toca’s motion. These cases are consolidated only for purposes of this order. In case number 2D02-35, Mr. Toca's motion is denied as moot, since that appeal is no longer pending before this court.

      . For this proposition he cites the following biblical scriptures: Exodus 20:3 (King James) ("Thou shalt have no other gods before me."); Matthew 5:33-37 (King James) ("Again, ye have heard that it hath been said by them of old time, Thou shalt not forswear thyself, but shalt perform unto the Lord thine oaths: /But I say unto you, Swear not at all; neither by heaven; for it is God's throne: /Nor by the earth; for it is his footstool: neither by Jerusalem; for it is the city of the great King. /Neither shalt thou swear by thy head, because thou canst not malte one hair white or black. /But let your communication be, Yea, yea; Nay, nay: for whatsoever is more than these cometh of evil."); James 5:12 (King James) (“But above all things, my brethren, swear not, neither by heaven, neither by the earth, neither by any other oath: but let your yea be yea; and your nay, nay; lest ye fall into condemnation.”).

      . Mr. Toca cites a host of other rules, statutes, and constitutional provisions, none of which are pertinent.

      . In seeming contradiction of his claim that his religious beliefs prohibit him from signing his filings, Mr. Toca "signs" them by typing the following: "/s/Jesse Toca [ ] (intended as original signature)." He contends he is entitled to do so under the Florida Electronic Signature Act of 1996. § 668.001-.004, Fla. Stat. (2002). Section 668.004 provides that "[u]nless otherwise provided by law, an electronic signature may be used to sign a writing and shall have the same force and effect as a written signature.” Because electronic signatures are authorized by general law, Florida Rule of Judicial Administration 2.060(e)(1)(C) would permit their use "so long as the clerk where the proceeding is pending has the capability of receiving and has obtained approval from the Supreme Court of Florida to accept pleadings and papers with that signature format.” But our clerk has neither the capability nor the required approval. Regardless, Mr. Toca's typewritten entry is not an "electronic signature,” which the statute defines as "any letters, characters, or symbols, manifested by electronic or similar means, executed or adopted by a party with an intent to authenticate a writing.” § 668.003(4), Fla. Stat. (2002) (emphasis added).

      . The First Amendment to the United States Constitution provides, in pertinent part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...The Florida Constitution contains the following relevant language in article I, section 3: “There shall be no law respecting the establishment of religion or prohibiting or penalizing the free exercise thereof. Religious freedom shall not justify practices inconsistent with public morals, peace or safety.”

      . One court has suggested that the language of the Florida constitutional provision furnishes less protection of an individual’s religious freedom than that guaranteed in the First Amendment. Warner v. City of Boca Raton, 267 F.3d 1223, 1226 n. 3 (11th Cir. 2001).

      . Recall that Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876, upheld the constitutionality of Oregon’s controlled substance laws as against a claimed right to ingest peyote for religious purposes. It is interesting to note that when enacting Florida's Religious Freedom Restoration Act the legislature apparently intended to repudiate Smith in all realms other than the state’s controlled substance laws. Section 761.05(4), Florida Statutes (2002), provides that "[n]othing in this act shall be construed to circumvent the provisions of chapter 893.” The legislature apparently agreed with the result in Smith but was not confident that the controlled substance laws would withstand the compelling interest test if challenged on religious grounds.

      . In fact, however, this may not be the case, as discussed in Warner v. City of Boca Raton, 267 F.3d 1223 (11th Cir.2001). In that case, the United States Court of Appeals for the Eleventh Circuit certified to the Florida Supreme Court the question whether Florida’s RFRA broadens the definition of what constitutes religiously motivated conduct protected by law “beyond the conduct considered protected by the decisions of the United States Supreme Court.” 267 F.3d at 1227.


text:
    John MOLINA, Appellant, v. STATE of Florida, Appellee.
    No. 2D00-2768.
    District Court of Appeal of Florida, Second District.
    Sept. 6, 2002.
   PER CURIAM.

Affirmed. See State v. Cotton, 769 So.2d 345 (Fla.2000).

SALCINES, DAVIS, and COVINGTON, JJ., Concur.


text:
    Jeb BUSH, Governor of the State of Florida, Appellant, v. INTERNATIONAL FIDELITY INS. CO., and Kenneth Craig, Appellees.
    No. 4D01-4421.
    District Court of Appeal of Florida, Fourth District.
    Oct. 2, 2002.
    Rehearing Denied Jan. 24, 2003.

      Edward A. Dion, County Attorney, Beth Ann E. Herschaft, Assistant County Attorney, Fort Lauderdale, for appellant.
    Pamela Beckham of Beckham & Beck-ham, P.A., North Miami Beach for Appel-lee International Fidelity Ins. Co.
   PER CURIAM.

Broward County (“County”) timely appeals an order vacating the estreatures and forfeitures of seven appearance bonds, written by International Fidelity Insurance Company (“Surety”), for a criminal defendant. We reverse.

When the defendant failed to appear for a scheduled court date, the criminal division judge entered an order estreating the bonds. Shortly thereafter, the Surety’s agent paid the $85,000 bond amount to satisfy the estreatures. The bonds were discharged and returned to the Surety.

The Surety filed a motion to vacate the bond estreatures and for remission of the bonds. The criminal division judge found that the notice requirements of section 903.26, Florida Statutes, had not been satisfied, and granted the Surety’s motion in an order (“the April 28th order”), stating:

ORDERED AND ADJUDGED that the Surety’s Motion is GRANTED. This Court finds that the mandates of Florida Statute 903.26 were not properly met by this Court’s order of December 3, 1999. FURTHER ORDERED AND ADJUDGED that the moneys paid by the Begel Bail Bonds, the surety, be REMITTED. The sum of eighty-five thousand ($85,000.00) currently being held in the registry of the Clerk shall be returned to the surety within ten (10) days of this order on or before May 9, 2002. It is
FURTHER ORDERED AND ADJUDGED that the capias issued by this Court for the immediate arrest of the defendant, Kenneth Craig, is in full force and effect. The surety shall have until July 12, 2000 at 9:00 a.m., to produce the defendant before this Court or the bond will be estreated. It is
FURTHER ORDERED AND ADJUDGED that all parties are to appear before this Court, in courtroom 4810, at 9:00 a.m., on Wednesday, July 12, 2000 unless otherwise ordered by this Court.

On July 12, 2000, the judge entered a stipulated order for extension of time to produce the defendant, resetting the hearing until November 15, 2000. On that same date, the surety presented a certified copy of the April 28th order to the County’s account clerk, who remitted the $85,000.

Both parties agree that the November 15, 2000 hearing was reset to November 16, 2000. Upon the defendant’s failure to appear at the second scheduled date, the criminal judge again entered an order es-treating the bonds on November 16, 2000 (second order of estreature). The Surety failed to pay the bond estreatures, and a Clerk’s Judgment was entered against it on March 28, 2001. On May 2, 2001, the Surety filed a Verified Motion to Vacate Judgement and Bond Estreatures in the circuit civil court.

In its motion, the Surety argued that the bonds had been discharged upon its payment of the $85,000. Because the bonds had been discharged, the Surety contended, there was no longer an enforceable contract and it was released from any legal obligation to produce the defendant. The Surety reasoned that once the bonds were discharged, all monetary obligations to the Clerk were discharged as well. Accordingly, there were no bonds in existence to estreat.

The County responded that the Surety was not discharged from its obligation because the criminal judge had specifically ordered it to produce the defendant. Further, it argued, that even if the criminal judge had erred, the Surety waived any objection by acquiescing to the April 28th order.

The circuit civil judge concluded that the Surety had no obligation to produce the defendant. As a result, he vacated the second order of estreatures and forfeitures.

A bond is a three-party contract made by the state, the accused, and the surety, guaranteeing the accused’s presence before the court. See Wiley v. State, 451 So.2d 916, 922 (Fla. 1st DCA 1984). “[Applicable statutory provisions must be given a reasonable and logical construction to accomplish the ends intended by the bail bond process.” Id. “Ordinarily, a bail bond is cancelled when it no longer appears necessary to look to the surety to guarantee the appearance of the accused at subsequent court proceedings on the particular charges covered by the bond.” Id. “The theory underlying the appearance bond process is that the release of an accused on bond commits him to the exclusive custody of the surety, and any interference by the state with the surety’s right to control of the accused, such as the accused’s rearrest on the same charges, constitutes a substantial breach of the surety contract which discharges the surety.” Id.

Section 903.26 provides:

(1) A bail bond shall not be forfeited unless:
(a) The information, indictment, or affidavit was filed within 6 months from the date of arrest, and
(b) The clerk of court gave the surety at least 72 hours’ notice, exclusive of Saturdays, Sundays, and holidays, before the time of the required appearance of the defendant. Notice shall not be necessary if the time for appearance is within 72 hours from the time of arrest, or if the time is stated on the bond.

“This section has been interpreted to require ‘express actual notice’ to the surety companies, and not merely constructive notice. The notice requirement also applies to each subsequent appearance necessitated by court continuances. The notice requirements are a strict prerequisite to the forfeiture of the bond.” Amer. Bankers Ins. Co. v. Camacho, 727 So.2d 336, 337 (Fla. 4th DCA 1999) (citations omitted). If the notice requirements are not met, the order of estreature and forfeiture is invalid. Id.

The state’s failure to comply with section 903.26(l)(b) need not necessarily invalidate the bonding agreement between the state and the surety. While that section precludes the state from obtaining a forfeiture of the bond if the surety is not given notice of when the defendant is required to appear, the state’s failure to comply with this condition precedent does not interfere with the surety’s custody of the accused and does not necessarily affect the surety’s ability to produce the defendant at subsequent proceedings pursuant to reasonable notice to do so. An order vacating or setting aside a forfeiture entered in violation of section 903.26(l)(b) is usually intended to restore the parties to the same position they were in before the forfeiture was improvidently entered and subjects the surety to no higher duty or undertaking than that contemplated in the original agreement.
The provisions of section 903.31 stating that the bond shall be can-celled when the forfeiture is discharged or remitted becomes applicable only when, by reason of a court order or the conduct of the state, it is clearly intended that the defendant be relieved of further obligation to appear in court or that the surety be relieved of any further responsibility for guaranteeing the defendant’s appearance. We do not construe the phrase “forfeiture discharged or remitted” in section 903.31 to encompass an order vacating and setting aside a forfeiture for noncompliance with section 903.26(l)(b) unless the trial court specifically determines to relieve the surety or the defendant of further liability on the bond.

Wiley, 451 So.2d at 922-23 (emphasis supplied).

Here, the defendant’s failure to appear on December 3, 1999 prompted the criminal division judge’s estreature of the bonds. Because the Surety had not received proper notice, the judge properly vacated the bond estreatures and forfeitures in the April 28th order. That order specifically states that “[t]he surety shall have until July 12, 2000 at 9:00 a.m., to produce the defendant before this Court or the bond will be estreated.” Thus, the language of the order, when placed in the context of the appearance bond process, intended to restore the parties to the same position they were in before the forfeiture was entered. It is clear from the criminal division judge’s order that the Surety was to appear at the July 12, 2000 hearing and produce the defendant. The Surety was subjected to no higher duty or liability than that contemplated in the original bond agreement. This unequivocal order evinces that the court did not intend to relieve the Surety of its obligation. Accordingly, the judge properly estreated the bonds after the defendant’s failure to appear at the November hearing. Consequently, the civil court erred in vacating the estreatures and forfeitures.

REVERSED.

FARMER, TAYLOR, JJ, and GRIMES, HUBERT L., Associate Judge, concur.


text:
    Richard H. RING, Appellant, v. Cynthia L. RING, Appellee.
    No. 2D01-4229.
    District Court of Appeal of Florida, Second District.
    Oct. 4, 2002.
    Vanda Y. Bayliss, Sarasota, and Stanley M. Krawetz, Sarasota, for Appellant.
    Sarah E. Warren, Sarasota, for Appel-lee.
   WHATLEY, Judge.

The father, Richard H. Ring, appeals an order modifying child custody. We reverse.

A party seeking a postdissolution change of custody bears an extraordinary burden. Blosser v. Blosser, 707 So.2d 778, 780 (Fla. 2d DCA 1998). As this court stated in Gibbs v. Gibbs, 686 So.2d 639, 644 (Fla. 2d DCA 1996), the movant has an extraordinary burden to prove (1) that a material and substantial change of circumstances has occurred since the final judgment, which is detrimental to the children, and (2) that a change in custody is in the children’s best interest. In the present case, the parties’ final judgment of dissolution of marriage had incorporated a marital settlement agreement which provided for rotating custody of the parties’ four minor children. Seventeen months after the entry of the final judgment of dissolution of marriage, the mother, Cynthia L. Ring, filed a petition to modify child custody.

After a hearing, the trial court entered an order modifying custody, finding that the parties had been unable to confer and that there had been continuing conflict between the parties that had contributed to the emotional problems of one minor child, A.R. The trial court further found that such conflict places the other three children at risk of emotional harm. On appeal, the father does not challenge the modification order as it pertains to A.R.

We conclude that the trial court erred in modifying child custody. There is no evidence in the record indicating that there has been a material and substantial change of circumstances as to the other three children or that a change in custody was in their best interest. The record does show that the parties in this case sadly failed to communicate between themselves and had continuing hostility. However, in Newsom v. Newsom, 759 So.2d 718, 720 (Fla. 2d DCA 2000), this court stated that the “fact that the parents cannot communicate and get along does not constitute a material change in circumstances to warrant modification of custody.”

As the father has conceded that A.R. is excluded from this court’s decision, we reverse the order modifying child custody as to the remaining three children and remand for entry of an order reinstating the child custody arrangement as contained in the parties’ marital settlement agreement.

Reversed and remanded with directions.

DAVIS and KELLY, JJ„ Concur.


author: WOLF, J.

text:
    Cynthia NICHOLS and the Estate of Lila Nichols, Appellants/Cross-Appellees, v. The HARTFORD INSURANCE COMPANY OF THE MIDWEST, for itself and on behalf of Willie Bradham, Lillie Bradham and Cedrick Frasier, Appellees/Cross-Appellants.
    Nos. 1D01-4222, 1D01-5126.
    District Court of Appeal of Florida, First District.
    Oct. 9, 2002.
    Rehearing Denied Jan. 10, 2003.

      Michael T. Callahan and Jennifer C. Worden, Tallahassee, for Appellants/Cross-Appellees.
    Kathy J. Maus and Anthony J. Russo of Butler Burnette Pappas LLP, Tallahassee, for Appellees/Cross-Appellants.
   WOLF, J.

Appellants/Cross-Appellees, Lila and Cynthia Nichols, were injured when their motor vehicle was struck by a vehicle insured by The Hartford Insurance Company of the Midwest (“The Hartford”). The Nichols’ attorney submitted demand letters on their behalf to The Hartford which stated in relevant part,

We will accept the policy limits should our law firm receive those funds by 5:00 p.m. on Friday, August 25, 2000, unless accepted prior thereto in writing. This offer is subject to written verification that the available policy limits are in fact $10,000. Should our law firm not receive those funds by 5:00 p.m. on Friday, August 25, 2000, our offer to resolve this case for the policy limits will be withdrawn and we shall proceed accordingly-

(Emphasis in original.)

The Hartford responded by letter, agreeing to send checks for the policy limits with written releases by the dates specified in the demand letters. Accordingly, The Hartford sent the settlement checks and releases within the specified time frame. Upon receipt, however, Appellants’ attorney objected to indemnification language in the releases which required his clients to indemnify The Hartford for any future litigation arising out of the accident or their claims. Appellants returned the settlement checks to The Hartford with a letter rejecting the indemnification language in the releases:

We could never agree on behalf of our client, nor advise our client, “to release and hold harmless” an insurance company, such as The Hartford Insurance Company, from any liens of any nature. Nor could we ever agree on behalf of our client, nor advise our client, to indemnify an insurance company such as The Hartford Insurance Company (and all of its employees and others) from all further claims and demands of any kind.

The Hartford responded by submitting releases without the objectionable language.

When the Appellants did not respond to the new releases, The Hartford filed a declaratory action to enforce the settlement agreements between the parties. The trial court entered an order granting summary judgment in favor of The Hartford. Thereafter, The Hartford moved for an award of attorney’s fees pursuant to section 57.105, Florida Statutes (1999), which the trial court denied. On direct appeal, the Nichols argue that there was no meeting of the minds and, therefore, no settlement agreement; on cross-appeal, The Hartford argues that the trial court erred in denying its motion for attorney’s fees.

In Florida, settlement agreements are governed by the law of contracts. See Williams v. Ingram, 605 So.2d 890, 893 (Fla. 1st DCA 1992). Pursuant to contract law, the acceptance 'of an offer which results in an enforceable agreement must be (1) absolute and unconditional; (2) identical with the terms of the offer; and (3) in the mode, at the place, and within the time expressly or impliedly stated within the offer. Cheverie v. Geisser, 783 So.2d 1115, 1119 (Fla. 4th DCA 2001). Thus, an acceptance must contain an assent — or meeting of the minds — to the essential terms contained in the offer. Id. Here, the parties agree that the material facts are undisputed, and they conceded at oral argument that although it was implicit in the settlement agreement that the Appellants would execute releases, there was no meeting of the minds as to whether indemnification language would be included in those releases. The issue before us is whether this disagreement between the parties as to the indemnification language was an essential term of the settlement. We agree with the Appellants and find that it was.

. The definition of “essential term” varies widely according to the nature and complexity of each transaction and is evaluated on a case-by-case basis. See Dimase v. Aquamar 176, Inc., 835 So.2d 1150 (Fla. 3d DCA 2002); see also Giovo v. McDonald, 791 So.2d 38, 39 (Fla. 2d DCA 2001) (“Certainly, what is an ‘essential term’ of a contract differs according to circumstances.”). Although all the details of a release do not need to be absolutely decided as long as the parties agree on the essential terms, see Robbie v. City of Miami, 469 So.2d 1384 (Fla.1985) (noting settlement agreement is enforceable even though the agreement fails to anticipate every contingency), the indemnification clause in this case was an essential term.

In Cheverie, the claimant’s husband was killed in an automobile accident, and claimant had filed a wrongful death action. The trial court dismissed the complaint, finding the parties had reached a settlement agreement despite the fact that the parties had not agreed on the indemnification language in the release. The appellate court reversed, finding there was no meeting of the minds, and therefore, no settlement agreement:

Here, there was no evidence of acceptance on [ ] crucial terms. [P]laintiff did not agree to the indemnification language in the release defendant presented for her execution. Plaintiff immediately raised an objection to the proposed release after receiving it and demanded its removal. However, this issue was not resolved before suit was filed. Where the language of a release is disputed and the parties fail to reach an agreement as to the character, nature, or type of release to be used, an essential element of the agreement is not established.

Id. at 1119. See also Long Term Management, Inc. v. University Nursing Care Center, 704 So.2d 669, 675 (Fla. 1st DCA 1998) (“UNCC’s counsel called with objections to an indemnification clause.... These circumstances do not show the requisite meeting of the minds.... ”). Therefore, the trial court should have denied The Hartford’s motion for summary judgment on their settlement enforcement claims and should have granted the Nichols’ motion for summary judgment on the defense that there was no meeting of the minds.

The Hartford argues that the “tender” of the check within the time limits constituted completion of the settlement agreement despite the fact that the parties were in disagreement about the indemnification language. Appellees conceded at oral argument, however, that appellants’ attorney was not free to cash the check until the terms of the release had been agreed to. Therefore, no settlement could have existed at that time.

The Hartford also argues that Appellants’ failure to respond after the objectionable language was removed from the releases indicated acceptance. However, The Hartford’s removal of the indemnification language evinced a new settlement offer which the Nichols were not obliged to accept. See Ribich v. Evergreen Sales & Service, Inc., 784 So.2d 1201 (Fla. 2d DCA 2001) (reversing summary judgment based on holding that there was no meeting of the minds and, therefore, no settlement agreement where insured had returned insurer’s tendered check and thereby rejected any counteroffer by insurer); see also, Mazzoni Farms, Inc. v. E.I. DuPont De Nemours and Co., 761 So.2d 306 (Fla.2000) (analyzing specific language in release to determine the ultimate rights and potential liabilities of the parties).

We reverse the trial court’s granting of The Hartford’s motion for summary judgment for proceedings consistent with this opinion. Accordingly, the trial court’s denial of The Hartford’s motion for attorneys’ fees pursuant to section 57.105, Florida Statutes (1999), is affirmed.

REVERSED IN PART, AFFIRMED IN PART.

VAN NORTWICK and POLSTON, JJ„ concur.

      . The letter sent on behalf of Lila Nichols demanded the policy limits be received no later than 5:00 p.m. on September 15, 2000.


author: STRINGER, Judge.

text:
    Christine M. SCOTT, individually, d/b/a Ricky’s Coast to Coast Nets, Inc., a dissolved Florida corporation; Roger E. Douberly, individually, d/b/a Ricky’s Coast to Coast Nets, Inc., a dissolved Florida corporation; and Alton Clark Rogers, Jr., jointly and severally, Petitioners, v. Nancy HIGGINBOTHAM, as Personal Representative of the Estate of Roy Higginbotham, deceased, Respondent.
    No. 2D02-993.
    District Court of Appeal of Florida, Second District.
    Oct. 11, 2002.
    Valeria Hendricks of Davis & Harmon, P.A., Tampa; Sidney M. Crawford of Sidney M. Crawford, P.A., Lakeland; and Benjamin H. Hill, IV, of Akerman, Senter-fitt & Edison, P.A., Tampa, for Petitioners.
    George A. Vaka of Vaka, Larson & Johnson, P.L., Tampa, for Respondent.
   STRINGER, Judge.

Christine M. Scott, Roger E. Douberly, and Alton Clark Rogers, Jr., (collectively “Scott”) seek certiorari review of the trial court’s order denying their motion to disqualify co-counsel for Nancy Higginbotham. Because the trial court’s order did not depart from the essential requirements of the law, we deny the petition.

Higginbotham hired Vaka, Larson & Johnson, P.L. (“the Vaka firm”) for post-trial work on a personal injury case in which Higginbotham was the plaintiff and Scott was the defendant. Thereafter, Scott filed and served a motion to disqualify the Vaka firm as Higginbotham’s co-counsel, alleging that the Vaka firm had recently hired attorney Amdrew Klymenko as an associate. Scott maintained that they would be prejudiced because Scott had an attorney-client relationship with Klymenko when he was an associate with Akerman, Senterfitt & Edison, P.A. (“the Akerman firm”) in the underlying personal injury action.

In support of the motion to disqualify, Scott filed an affidavit from attorney Benjamin H. Hill, IV, of the Akerman firm in which Hill stated that Klymenko participated in the defense of Scott. According to Hill, Klymenko’s participation in the litigation included attending the depositions of two witnesses. Attached to Hill’s affidavit were redacted copies of the Aker-man firm’s billing records reflecting the time and services Klymenko performed in Scott’s case.

In response, the Vaka firm filed the affidavit of Klymenko, which stated, in pertinent part:

(6)I do not have any information relating to the representation of [Scott] that could be used to their disadvantage during litigation of the above-styled case or that has not become generally known as a matter of public record.
(7) I do not have any confidential information that would assist my current employer, [the Vaka firm], in acting as co-counsel for [Higginbotham] for the limited purpose of litigating the post-trial motions and/or an appeal, if filed.
(8) I did not develop and/or control any legal strategy in the above-styled case, nor review the strategy of others.

In his affidavit, Klymenko explained that his involvement in the case was limited to 11.6 billable hours. During that time, Klymenko traveled to conduct depositions of two police officers, performed legal research on the dangerous instrumentality doctrine, and answered basic insurance coverage questions regarding Scott’s policy.

At the hearing on the motion, Hill testified that client confidences were disclosed during the course of office discussions among the attorneys about Scott’s case. When asked whether he had any recollections of a specific client confidence Klym-enko “knows,” Hill replied that Klymenko had been included in conversations around the office about the case, but he could not specifically recall what conversations may have been shared when Klymenko was present.

The trial court subsequently denied Scott’s motion to disqualify the Vaka firm. The trial court ruled that there was no evidence that Klymenko had knowledge of any confidential information from the underlying litigation at the Akerman firm. Scott filed a timely petition for certiorari with this court seeking review of the trial court’s order. We have jurisdiction. See Pinebrook Towne House Ass’n, Inc. v. C.E. O’Dell & Assocs., Inc., 725 So.2d 431 (Fla. 2d DCA 1999).

The disqualification of a party’s attorney is “an extreme remedy and should be employed sparingly.” Id. at 433. In order to merit certiorari, the order must depart from the essential requirements of the law causing material injury to the petitioner for the remainder of the proceedings and leaving no adequate appellate remedy. Id.

Cases involving imputed disqualification of a law firm based on the prior representation of a newly associated attorney are governed by rule 4 — 1.10(b) of the Rules Regulating the Florida Bar. Gaton v. Health Coalition, Inc., 745 So.2d 510, 511 (Fla. 3d DCA 1999); Koulisis v. Rivers, 730 So.2d 289, 293 (Fla. 4th DCA 1999); see also Graham v. Wyeth Labs. Div. of Am. Home Prods. Corp., 906 F.2d 1419, 1421-22 (10th Cir.1990) (applying the Kansas Supreme Court version of Model Rule 1.10(b), which mirrors rule 4-1.10(b)).

Rule 4-1.10(b) provides

(b) Former Clients of Newly Associated Lawyer.
When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by rules 4-1.6 and 4-1.9(b) that is material to the matter.

Rule 44.6(a) states that “[a] lawyer shall not reveal information relating to representation of a client,” subject to some stated exceptions. Rule 4 — 1.9(b) provides that a lawyer who formerly represented a client shall not thereafter “use information relating to the representation to the disadvantage of the former client except as rule 4-1.6 would permit with respect to a client or when the information has become generally known.”

The comment to rule 4-1.10 explains in part:

Application of subdivisions (b) and (c) depends on a situation’s particular facts. In any such inquiry, the burden of proof should rest upon the firm whose disqualification is sought.
Subdivisions (b) and (c) operate to disqualify the firm only when the lawyer involved has actual knowledge of information protected by rules 4-1.6 and 4-1.9(b). Thus, if d lawyer while with 1 firm acquired no knowledge or information relating to a particular client of the firm and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the 2 clients conflict.

R. Reg. Fla. Bar 4-1.10 comment (emphasis added). Thus, under rule 4-1.10(b), in order to establish a prima facie case for disqualification, the moving party must show that the newly associated attorney acquired confidential information in the course of the attorney’s prior representation. Gaton, 745 So.2d at 511; Koulisis, 730 So.2d at 292. After the moving party meets this burden, the burden shifts to the firm whose disqualification is sought to show that the newly associated attorney has no knowledge of any material confidential information. Id.

In this case, Scott presented the testimony of attorney Hill from the Akerman firm to support its motion to disqualify the Vaka firm. Hill testified that Klymenko had been included in conversations about the case at the Akerman firm during which client confidences were disclosed. Although Hill could not recall any specific confidences that were disclosed to Klymen-ko, the fact that Klymenko was present during conversations about the case at which confidences were disclosed should be sufficient to establish a prima facie case for disqualification under rule 4-1.10(b). However, Klymenko effectively rebutted this testimony by affirmatively stating that he did not acquire any confidential information about the case. Thus, the trial court’s finding that Klymenko had not acquired any confidential information is supported by the record, and the trial court’s order denying Scott’s motion to disqualify the Vaka firm did not depart from the essential requirements of the law.

We reject Scott’s argument that State Farm Mutual Automobile Insurance Co. v. K.A.W., 575 So.2d 630 (Fla.1991), requires the application of an “irrefutable presumption that confidences were disclosed.” The irrefutable presumption only applies in the case of a direct attorney-client relationship as governed by rule 4-1.9, not in the case of an imputed disqualification as governed by rule 4 — 1.10(b). Gaton, 745 So.2d at 511; Koulisis, 730 So.2d at 293. Unlike K.A.W., this case does not involve a direct attorney-client relationship governed by rule 4-1.9, but involves imputed disqualification based on former clients of a newly associated lawyer governed by rule 4-1.10(b). Thus, the irrefutable presumption that confidences were disclosed does not apply.

Petition for writ of certiorari denied.

NORTHCUTT and SILBERMAN, JJ., Concur.


text:
    Perry Dean MASON, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3839.
    District Court of Appeal of Florida, Second District.
    Oct. 18, 2002.
   PER CURIAM.

Perry Dean Mason challenges the trial court’s order summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.

In his motion, Mason alleged that his plea was involuntary because defense counsel affirmatively misadvised him regarding the future sentencing-enhancing effects of the plea in regard to an as yet uncommitted crime. In Stansel v. State, 825 So.2d 1007 (Fla. 2d DCA 2002), we held that this claim is not cognizable in a rule 3.850 motion. We certify the same question that we certified in Stansel. We affirm, without discussion, any other issues raised by Mason in his motion.

ALTENBERND, WHATLEY, and NORTHCUTT, JJ., Concur.


text:
    Robert L. ROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-4519.
    District Court of Appeal of Florida, Second District.
    Oct. 18, 2002.
   PER CURIAM.

Robert L. Rooks challenges the trial court’s order summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.

In his motion, Rooks alleged that his plea was involuntary because defense counsel affirmatively misadvised him regarding the future sentencing-enhancing effects of the plea in regard to an as yet uncommitted crime. In Stansel v. State, 825 So.2d 1007 (Fla. 2d DCA 2002), we held that this claim is not cognizable in a rule 3.850 motion. We certify the same question that we certified in Stansel. We affirm, without discussion, any other issues raised by Rooks in his motion.

ALTENBERND, WHATLEY, and NORTHCUTT, JJ., concur.


author: DAVIS, Judge.

text:
    Dathan GRAY, Appellant, v. STATE of Florida, Appellee.
    No. 2D00-5269.
    District Court of Appeal of Florida, Second District.
    Oct. 18, 2002.
    James Marion Moorman, Public Defender, Bartow, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Robert A. Butterworth, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Ap-pellee.
   DAVIS, Judge.

Affirmed. See Trotter v. State, 825 So.2d 362 (Fla.2002).

BLUE, C.J., and STRINGER, J., Concur.