author: PER CURIAM.

text:
    In re AMENDMENTS TO RULES REGULATING THE FLORIDA BAR RE CHAPTER 11 TASK FORCE.
    No. SC03-122.
    Supreme Court of Florida.
    July 5, 2007.
    Rehearing Denied Aug. 30, 2007.
    William P. White, III, Chair, Public Defender, Fourth Judicial Circuit, Jacksonville, Florida, John F. Harkness, Jr., Executive Director, Paul F. Hill, General Counsel, The Florida Bar, Tallahassee, Florida, and Robert A. Rush, The Florida Bar, Gainesville, Florida, for Petitioner.
    Thomas Arthur Pobjecky, General Counsel, Florida Board of Bar Examiners, Tallahassee, Florida; The Honorable Howard H. Babb, Jr., President, Florida Public Defender’s Association, Inc., Public Defender, Fifth Judicial Circuit, Tavares, Florida, R. Blaise Trettis, Executive Assistant Public Defender, Eighteenth Judicial Circuit, Viera, Florida, and Nancy Daniels, Public Defender, Second Judicial Circuit, Tallahassee, Florida; Michael J. Snure, President, Florida Association of Criminal Defense Lawyers, Winter Park, Florida, and Brian L. Tannebaum, President, and H. Scott Fingerhut, Florida Association of Criminal Defense Lawyers, Miami Chapter, Miami, Florida; Arthur I. Jacobs, General Counsel, Florida Prosecuting Attorneys Association, Inc., Fernandina Beach, Florida and Don L. Horn, Chief Assistant State Attorney, Eleventh Judicial Circuit, Miami, Florida, Rory S. Stein, General Counsel, on behalf of Bennett H. Brummer, Public Defender, Eleventh Judicial Circuit, Miami, Florida; Antonio G. Jimenez, Miami, Florida; Michael G. Fig-gins, Executive Director, Jacksonville Area Legal Aid, Inc., Jacksonville, Florida; Wayne Adams, Charlotte S. Anderson, Forrest Andrews, Sandra Miller-Batiste, Suzanne A. Bell, Shana Belyeu, Monique Botero, Leon Howard Botkin, Penny Her-shoff Brill, Gabrielle Raemy Charest, Susan Abrams Dannelly, Susan Leah Decho-vitz, J. Scott Dunn, Gabriel Ermine, Alicia Garcia, David I. Gilbert, Gina Girardot, Margaret Henghold, Chiaka Ihekwaba, Susan Breslaw Kashuk, Gail Levine, Randi Levin, Philip W. Maniatty, Hilton Napoleon, II, Sanitha Narayan, Janine L. Peress, Barbra Gershkoff Pineiro, Danise Ponton, Joseph D. Robinson, Deisy Rodriguez, Ju-lissa Rodriguez, Howard R. Rosen, Kristen Rosenthal, David Seltzer, Benjamin David Simon, Elyse Klein Targ, Breezye Telfair, Erinn Thompson, Marie Jo Toussaint, Dione Yvette Trawick, Andrea Ricker Wolfson, Christine E. Zahralban, Carolyn Margaret Zegeer, Miami, Florida; John W. Thornton, Jr., President, Dade County Bar Association, Miami, Florida; Peggy F. Schrieber, Jeffrey T. Grater, and Claudia Wright, Virgil Hawkins Civil Clinics, University of Florida Levin College of Law, Gainesville, Florida; C. Peter Goplerud, Dean and Professor of Law, Florida Coastal School of Law, Jacksonville, Florida; and Phyllis Williams Kotey, Clinical Associate Professor and Criminal Clinic Director, Florida International University College of Law, Miami, Florida, Responding with comments.
   PER CURIAM.

We have for consideration The Florida Bar’s Special Board Committee to Study the Law School Practice Program’s proposed amendments to the Rules Regulating the Florida Bar 11-1.3 (Requirements and Limitations), 11-1.5 (Approval of Legal Aid Organization), ll-1.9(b) (Graduates of Non-Florida Law Schools), and 11-1.9(c) (Termination of Certification). We have jurisdiction. See art. V, § 15, Fla. Const.

BACKGROUND

In September 2008, the Court asked The Florida Bar to review Chapter 11 of the Rules Regulating the Florida Bar for the purpose of suggesting possible amendments to the rules governing the Law School Practice Program to address certain perceived shortcomings in the program as it currently exists and to report back to the Court. The Florida Bar’s Special Board Committee to Study the Law School Practice Program (Committee) undertook the task. In June 2005, the Committee submitted three proposed amendments to Chapter 11 for consideration by this Court. In its letter accompanying the submission, the Committee noted that any proposed amendments “would still be subject to additional lawyer and public comment prior to their final adoption.” The Committee further noted that certain government offices, which rely heavily on interns to fulfill their staffing needs due to workload demands, are opposed to any change of Rule ll-1.9(c) (allowing post-graduate certified legal interns up to twelve months to pass the Florida bar exam before losing their certification).

After submission to the Court, the proposed amendments were published in The Florida Bar News, and comments on the proposed amendments were invited. After considering the comments and conducting oral argument, we adopt some of the Committee’s amendments as proposed and adopt others with modifications, as set out below. In one instance, the changes we adopted in one subdivision of a rule led us to sua sponte amend another subdivision to the same rule so that graduates of Florida and out-of-state law schools would be treated equally.

AMENDMENTS

Rule ll-I.3(a), Requirements and Limitations, and Rule ll-1.9(b), Graduates of Non-Florida Law Schools

The Committee proposes amending rules ll-1.3(a) and 11 — 1.9(b) to require law school students and graduates who wish to participate in a law school practice program or a post-graduate certified legal intern program to file an application for admission to The Florida Bar (Bar) with the Florida Board of Bar Examiners (Board) and to. obtain a letter of initial clearance as to character and fitness from the Board as a prerequisite to participation. The phrase proposed by the Committee uses the word “application,” which is the form currently completed by applicants for admission to The Florida Bar, the submission of which, along with the applicable fees, causes the Board to begin an initial investigation into the applicant’s character and fitness.

Under the current versions of rules 11-1.3(a) and ll-1.9(b), the analysis of an applicant’s character and fitness has been the responsibility of the applicant’s law school dean and the agency or office where the applicant applies to serve. In the past, this has led to a wide disparity in the quality and quantity of the background investigations conducted and very serious problems. Not surprisingly, this resulted in some persons being approved for participation who, because of disqualifying or other negative incidents in the past, should not have been accepted if the background information had been otherwise disclosed. Accordingly, we asked the Committee to propose an amendment which would provide a plan for a uniform and high-quality background investigation to be conducted on every person prior to certification by this Court of authorization to become a certified intern for acceptance into a law school practice program or as a post-graduate certified legal intern.

We first address the proposed amendment to rule 11-1.3 (Requirements and Limitations) to add a new subdivision (a). The proposed amendment would require all law students who seek to be authorized as certified interns to complete and submit to the Board an application for admission to the Bar and to obtain an initial clearance letter from the Board as a prerequisite to participation in the program. See generally Fla. Bar Admiss. R. 2-21, 2-21.2 & 2-23.

We agree that the Board should be the entity to conduct the fitness and character screening of law students for participation in the certified intern program. The Board possesses the most experience in conducting background investigations designed to determine issues of character and fitness for the practice of law. It is the entity responsible for screening applicants for admission to the Bar to ensure the continued quality and character of those admitted to the practice of law in this state. It has established an impressive track record of success in this area over many years and has the staff and expertise to perform this function.

While we realize that students who seek to become certified interns are not attorneys and have not taken or passed the bar examination, we nevertheless believe these students, who actually provide legal representation to others under the supervision of members of The Florida Bar, must have the requisite character and fitness for eventual admission, either to the Bar of this state or other state bar of their choice. We repose our trust for the accomplishment of this purpose in the Board. Those certified actually provide legal representation to others, albeit under the supervision of a member of the Bar.

However, we modify the wording of the new subdivision (a) proposed by the Committee and approve the following language instead:

In order to make an appearance pursuant to this chapter, the law student must:
(a) have registered with the Florida Board of Bar Examiners as a certified legal intern registrant; have paid the $75 fee for such registration if the registration is completed within the first 250 days of the registrant’s law school education or $150 if the registration is filed after the 250-day deadline; and have received a letter of clearance as to character and fitness from the Florida Board of Bar Examiners; any fee paid under this subdivision shall be deducted from the applicable application fee should the certified legal intern registrant subsequently decide to apply for admission to The Florida Bar;

Our language provides that the form to be used be designated as a “certified legal intern registration,” but it must clearly require disclosure of the same information required by the Board for applicants for admission. It further establishes a lower fee than that for admission applications. Finally, it allows the student to offset the fee paid under the rule from any subsequent application fee for admission to The Florida Bar.

We direct the Board to prepare a certified legal intern registration form for use for this purpose or to amend the Application for Admission to The Florida Bar to reflect this certified legal intern registration purpose in addition to its present purpose. See Fla. Bar Admiss. R. 2-21.2. We also direct the Board to prepare a standard letter of clearance which may be used for this purpose or as the letter of initial clearance which usually follows from an application for admission to the Bar.

The other requirements presently in the rule remain unchanged, although re-lettered, including the requirement that a certified legal intern registrant be certified by the dean of his or her law school to be of good character, competent legal ability, and adequately trained to perform as a certified legal intern. The letter of clearance from the Florida Board of Bar Examiners will be in addition to the existing requirements.

We next address the proposed amendment to rule 11 — 1.9(b). We agree with the Committee that the Board is the proper entity to certify that graduates of out-of-state law schools who seek designation and authorization in the certified legal intern program have the requisite character and fitness for it and possess the same clearance letter. We further agree that to qualify as a post-graduate certified legal intern, the participant must have actually applied for admission to the Bar. Accordingly, we approve the amendment proposed by the Committee, which provides:

A graduate of an American Bar Association approved non-Florida law school may qualify for . continuation if the graduate has made application for admission to The Florida Bar and received a letter of initial clearance as to character and fitness from the Florida Board of Bar Examiners, and has successfully completed a clinical program in law school that met the definition of a law school practice program under rule ll-1.2(a) and that awarded a minimum of 3 semester hours or the equivalent or required at least 200 hours of actual participation in the program.

The amendments we approve in rules ll-1.3(a) and l-1.9(b), however, would allow graduates of Florida law schools to serve as post-graduate certified legal interns without having made formal application for admission to the Bar, while graduates of out-of-state law schools will have to apply. To ensure that both groups are treated equally, we must also amend rule ll-1.9(a) as follows:

(a) Certification. A law student at an American Bar Association approved Florida law school who has filed an application .for admission to The Florida Bar, has received an initial clearance letter as to character and fitness from the Florida Board of Bar Examiners, has completed a law school practice program awarding a minimum of 3 semester credit hours or the equivalent or requiring- at least 200 hours of actual participation in the program, and has had certification withdrawn by the law school dean by reason of successful completion of the program or has- graduated from law school following successful completion of the program may make appearances for any of the same supervisory authorities under the same circumstances and restrictions that were applicable to students in law school programs pursuant to this chapter if the supervising attorney:
(1) files a certification in the same manner and subject to the same limitations as that required to be filed by the law school dean and files a separate certificate of the dean stating that the law student has successfully completed the law school practice program. This certification may be withdrawn in the same manner as provided for the law school dean’s withdrawal of certification. The maximum term of certification for graduates shall be 12 months from graduation; and
(2) further certifies that the attorney will assume the duties and responsibilities of the supervising attorney as provided by other provisions of this chapter.

This amendment makes it clear that graduates of both Florida and non-Florida law schools must have applied for admission to The Florida Bar and have received initial clearance letters from the Board to be eligible to participate as post-graduate certified legal interns.

Many comments concerning the amendments proposed to rules 11-1.3(a) and 11-1.9(b) centered on the time period required for the Board to conduct the character and fitness investigations of the students and the cost and time involved in completing and submitting the application forms. The Board has filed a comment assuring the Court that it will complete most of the required investigations within three to six months of the date of receipt of the application or registration form for certified legal intern authorization. We are cognizant that the discovery of negative, possibly disqualifying information in a student’s background could cause unavoidable delays. These matters, if they arise, must be fully investigated. Consequently, students with negative information in their backgrounds should file a registration application as early as possible in their law school careers-if they have a desire to participate in a law school practice program to allow adequate time for resolution of these issues. We believe our other adjustments to the rules, providing for a different form and reduced fees, address the other concerns expressed in the comments.

Of course, we recognize that our amendments must be prospective only to afford law students who may want to participate in a certified program adequate time to register with the Board and to receive a clearance letter prior to participation, which usually occurs in the third year of legal training. We certainly anticipate that the Florida law schools, as well as the agencies and organizations that use interns to fulfill their staffing needs, will do their best to inform all incoming law students of these new requirements for planning purposes. In consideration of all of this, these amendments are applicable to any law students entering a law school practice program beginning on August 1, 2008, or later.

Rule 11-1.5, Approval of Legal Aid Organization

We next consider the proposed amendment to rule 11-1.5 (Approval of Legal Aid Organization). The Committee was also asked to consider possible amendments to the rule because it was feared that some organizations seeking Legal Aid status to use certified interns have served paying clients as well as some indigent, but would use interns to gain an advantage over competitors who served only paying clients. Accordingly, the Committee proposed amending the rule to require that legal aid organizations seeking to use certified law school interns serve only indigent clients. While we agree with the Committee that legal aid organizations that seek to be qualified to use certified legal interns should serve the indigent, we cannot agree that such organizations must serve indigent clients exclusively; rather, a majority of the legal aid organization’s clients- must be indigent. We caution, however, that certified legal interns must be used exclusively for indigent representation as opposed to other uses. Accordingly, we amend the first sentence of rule 11-1.5 to read: “Legal aid organizations that provide a majority of their legal services to the indigent and use law student interns pursuant to this chapter must be approved by the supreme court.”

Rule ll-1.9(c), Termination of Certification

Finally, we consider the Committee’s proposed amendment to rule ll-1.9(c) (Termination of Certification). Under the present rule, post-graduate certified legal interns maintain their certification for up to twelve months. Presently, either of two occurrences operates to terminate certification prior to the expiration of the twelvemonth period: (1) if the certified legal intern failed to “take the next available Florida bar examination” or (2) if the intern is denied admission to the Bar. (Emphasis added.)

The Court is concerned that these requirements are insufficient to ensure that certified interns, particularly those representing criminal defendants, possess the requisite level of competence and skill needed to adequately represent clients, even under the supervision of a licensed attorney. Indeed, requiring an applicant for admission to pass the bar exam itself is our way of ensuring that practitioners possess the requisite skills and competence. Accordingly, we asked the Committee to consider amending the rule to address this concern. The Committee proposed amending the rule to require post-graduate certified legal interns to take and pass all parts of the next available Florida bar examination.

After consideration of the comments filed and the oral arguments presented, we will allow certified legal interns to take the exam a second time if they fail to pass the first time; they shall be immediately de-certified if they fail a second time. Accordingly, we adopt the following amendment to rule ll-1.9(c):

(c) Termination of Certification. Failure of a post-graduate certified legal intern to do any of the following shall result in the automatic termination of certification:
(1) Ffailure to take the next available Florida bar examination;
(2) failure to take the second available Florida bar examination, if unsuccessful on the first administration;
(3) failure to pass every portion of the Florida bar examination by at least the second administration, if unsuccessful on the first administration; or
(4) denial of admission to The Florida Bar shall-terminate certification hereun-

CONCLUSION

We hereby adopt the amendments to the Rules Regulating the Florida Bar as set forth in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments will become effective on August 1, 2007, at 12:01 a.m. However, rules ll-1.3(a), ll-1.9(a), and 11-1.9(b), as amended, will apply prospectively only to law school students entering a law school practice program on August 1, 2008, or later.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

CHAPTER 11. RULES GOVERNING THE LAW SCHOOL PRACTICE PROGRAM

11-1. GENERALLY

RULE 11-1.1. PURPOSE

[NO CHANGE]

RULE 11-1.2. ACTIVITIES

[NO CHANGE]

RULE 11-1.3. REQUIREMENTS AND LIMITATIONS

In order to make an appearance pursuant to this chapter, the law student must:

(a) have registered with the Florida Board of Bar Examiners as a certified legal intern registrant; have paid the $75 fee for such registration if the registration is completed within the first 250 days of the registrant’s law school education or $150 if the registration is filed after the 250-day deadline; and have received a letter of clearance as to character and fitness from the Florida Board of Bar Examiners; any fee paid under this subdivision shall be deducted from the applicable application fee should the certified legal intern registrant subsequently decide to apply for admission to The Florida Bar;

(b) be duly enrolled in the United States in, and appearing as part of a law school practice program of, a law school approved by the American Bar Association;

(be) have completed legal studies amounting to at least 4 semesters or 6 quarters for which the student has received not less than 48 semester hours or 72 quarter hours of academic credit or the equivalent if the school is on some other basis;

(ed) be certified by the dean of the student’s law school as being of good character and competent legal ability and as being adequately trained to perform as a legal intern in a law school practice program;

(de) be introduced to the court in which the student is appearing by an attorney admitted to practice in that court;

(ef) neither ask for nor receive any compensation or remuneration of any kind for the student’s services from the person on whose behalf the student renders services, but this shall not prevent a state attorney, public defender, legal aid organization, or state officer or governmental entity from paying compensation to the eligible law student (nor shall it prevent any of the foregoing from making such charge for its services as it may otherwise require); and

(%) certify in writing that the student has read and is familiar with the Rules of Professional Conduct as adopted by this court and will abide by the provisions thereof.

RULE 11-1.4. CERTIFICATION OF STUDENT

[NO CHANGE]

RULE 11-1.5. APPROVAL OF LEGAL AID ORGANIZATION

Legal aid organizations that provide a majority of their legal services to the indigent and use law student interns pursuant to this chapter must be approved by the supreme court. A legal aid organization seeking approval shall file a petition with the clerk of the court certifying that it is a nonprofit organization and reciting with specificity:

(a) the structure of the organization and whether it accepts funds from its clients;

(b) the major sources of funds used by the organization;

(c) the criteria used to determine potential clients’ eligibility for legal services performed by the organization;

(d) the types of legal and nonlegal services performed by the organization; and

(e) the names of all members of The Florida Bar who are employed by the organization or who regularly perform legal work for the organization.

Legal aid organizations approved on the effective date of this chapter need not reapply for approval, but all such organizations are under a continuing duty to notify the court promptly of any significant modification to their structure or sources of funds.

RULE 11-1.6. OTHER ACTIVITIES

[NO CHANGE]

RULE 11-1.7. SUPERVISION

[NO CHANGE]

RULE 11-1.8. MISCELLANEOUS

[NO CHANGE]

RULE 11-1.9. CONTINUATION OF PRACTICE PROGRAM AFTER COMPLETION OF LAW SCHOOL PROGRAM OR GRADUATION

(a)Certification. A law student at an American Bar Association approved Florida law school who has filed an application for admission to The Florida Bar, has received an initial clearance letter as to character and fitness from the Florida Board of Bar Examiners, has completed a law school practice program awarding a minimum of 3 semester credit hours or the equivalent or requiring at least 200 hours of actual participation in the program, and has had certification withdrawn by the law school dean by reason of successful completion of the program or has graduated from law school following successful completion of the program may make appearances for any of the same supervisory authorities under the same circumstances and restrictions that were applicable to students in law school programs pursuant to this chapter if the supervising attorney:

(1)files a certification in the same manner and subject to the same limitations as that required to be filed by the law school dean and files a separate certificate of the dean stating that the law student has successfully completed the law school practice program. This certification may be withdrawn in the same manner as provided for the law school dean’s withdrawal of certification. The maximum term of certification for graduates shall be 12 months from graduation; and

(2)further certifies that the attorney will assume the duties and responsibilities of the supervising attorney as provided by other provisions of this chapter.

(b) Graduates of Non-Florida Law Schools. A graduate of an American Bar Association approved non-Florida law school may qualify for continuation if the graduate has made application for admission to The Florida Bar and received a letter of initial clearance as to character and fitness from the Florida Board of Bar Examiners, and has successfully completed a clinical program in law school that met the definition of a law school practice program under rule 11 — 1.2(a) and that awarded a minimum of 3 semester hours or the equivalent or required at least 200 hours of actual participation in the program.

(c) Termination of Certification. Failure of a post-graduate certified legal intern to do any of the following shall result in the automatic termination of certification:

(1) Ffailure to take the next available Florida bar examination;
(2) failure to take the second available Florida bar examination, if unsuccessful on the first administration;
(3) failure to pass every portion of the Florida bar examination by at least the second administration, if unsuccessful on the first administration; or
(4) denial of admission to The Florida Bar shall terminate certification hereun-

RULE 11-1.10. CERTIFICATION OF MEMBERS OF OUT-OF-STATE BARS

[NO CHANGE]

      . The Committee was the second entity to review Chapter 11 and suggest changes. In January 2001, the Court created, by administrative order, a task force to review the rules and make recommendations of changes that would strengthen and improve the program. See In re: Task Force to Review Rules Governing the Law School Practice Program (Chapter 11 of the Rules Regulating the Florida Bar), Fla. Admin. Order No. AOSC01-1 (Jan. 5, 2001) (on file with Clerk, Fla. Sup.Ct.). The task force proposed significant changes. The Court rejected these recommendations because the proposed changes would not have corrected the perceived problems and would have also created additional concerns, including the transfer of judicial branch functions to other branches.


source: Caselaw Access Project

license: Public Domain

text:
    L.A.M.A. LAND MANAGEMENT, L.C., Appellant, v. Jose L. FERRO, and Martha Lopez, Appellees.
    No. 3D05-2869.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 2006.
    Rehearing and Rehearing En Banc Denied Oct. 11, 2007.
    James R. Keller, Marathon; Scott Black, Islamorada, for appellant.
    Greenman & Manz, and Franklin D. Greenman, Marathon, for appellees.
    Before RAMIREZ, and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

L.A.M.A. Land Management, L.C. appeals from an order finding that appellees Jose L. Ferro and Martha Lopez hold title pursuant to section 253.12(9), Florida Statutes (2006), and adverse possession. We reverse because Ferro failed to prove that they returned the property to the appraiser within one year after they entered into possession and that section 253.12(9) is inapplicable.

At issue is a portion of land and its improvements located in the City of Marathon, Monroe County, Florida. Ferro owns a 60' by 100' lot, Lot 22, Block 2, located in the Coco Plum Beach Subdivision. Ferro obtained title to Lot 22 in 2002. Ferro’s predecessor in title obtained the property from parts of Driftwood Estates and bay bottom lands conveyed to them by the Trustees of the Internal Improvement Fund.

L.A.M.A. owns two upland lots, Lots 2 and 3, also located in Driftwood Estates. Additionally, it owns 2.9 acres of bay bottom located directly south of the two upland lots and adjacent to Ferro’s Lot 22. In 1999, L.A.M.A. obtained title to the bay bottom property. L.A.M.A.’s predecessors, R.J. Paul and Christine Paul, obtained their property rights from the Trustees of the Internal Improvement Fund based upon a 1951 recorded deed. At the time during which the Pauls obtained title to the bay bottom property, the Coco Plum Beach property was submerged. In 1958, the developers of Coco Plum Subdivision filled a number of lots, including Ferro’s Lot 22. During the filling process, the same developer inadvertently filled portions of L.A.M.A.’s 2.9 acres of bay bottom property.

In 1983, Ferro’s predecessor built a seawall, fence, and dock over L.A.M.A.’s filled bay bottom property, which was afterward placed in the county tax roll beginning in 1984. In 2002, Ferro extended the seawall, erected davits, and built other structures in the same land and has paid taxes on these improvements.

The trial court ruled in Ferro’s favor, finding that he held title pursuant to section 253.12(9), Florida Statutes (2006), and pursuant to adverse possession. We do not agree, however, that Ferro is the record title holder.

As a preliminary matter, section 253.12(1), Florida Statutes (2006), vested title to submerged sovereignty tidal and bottom lands in the Trustees of the Internal Improvement Trust Fund, except for any land already conveyed by deed or statute. The Trustees of the Internal Improvement Trust Fund could sell and convey such islands and submerged lands if determined by the board to be in the public interest, upon such prices, terms, and conditions as it sees fit. See § 253.12(2)(a), Fla. Stat. (2006).

Section 253.12(9) reads as follows:

All of the state’s right, title, and interest to all tidally influenced land or tidally influenced islands bordering or being on sovereignty land, which have been permanently extended, filled, added to existing lands, or created before July 1, 1975, by fill, and might be owned by the state, is hereby granted to the landowner having record or other title to all or a portion thereof or to the lands immediately upland thereof and its successors in interest....

The effect of section 253.12(9) was to vest legal title on July 1, 1993, in parties who had only a colorable claim to filled lands by virtue of existing, but defective “record or other” titles. See River Place Condo. Ass’n at Ellenton, Inc. v. Benzing, 890 So.2d 386, 388 (Fla. 2nd DCA 2004). Section 253.12(9) applies only to parties who have colorable claims, or where the land might be owned by the state. Furthermore, were there to be a cloud on the title, section 253.12(9), gives priority to the landowner with record or other title, rather than the upland owner. Id. at 388 (stating that because that option is listed first in the statute, the record title holder has priority).

Ferro argues that section 253.12(9) vests legal title upon them as the upland owner. This argument, however, is based upon a misapplication of section 253.12(9). Section 253.12(9) is inapplicable in this case because title vested in the Pauls when they acquired the land from the Trustees of the Internal Improvement Trust Fund. We thus find that Ferro does not hold title pursuant to section 253.12(9).

L.A.M.A. contends that Ferro did not present clear and convincing evidence to establish adverse possession without color of title. We agree.

Section 95.18, Florida Statutes (2006), governs the ownership of property through adverse possession. Section 95.18(1) states:

When the occupant or those under whom the occupant claims have been in actual continued occupation of real property for seven years under a claim of title exclusive of any other right, but not founded on a written instrument, judgment, or decree, the property actually occupied shall be held adversely if the person claiming adverse possession made a return of the property by proper legal description to the property appraiser of the county where it is located within one year after entering into possession and has subsequently paid all taxes and matured installments of special improvements liens levied against the property by state, and municipality.

The language of section 95.18(1) makes it unequivocally clear that an adverse possession claim fails in the absence of a return of the property within one year of entering into possession. See Pasekoff v. Kaufman, 392 So.2d 971, 974 (Fla. 3d DCA 1981) (where this Court determined that the trial court correctly dismissed the adverse possessor’s claim because the adverse possessor failed to show a return of property for taxes, in accordance-with section 95.18(1), Florida Statutes (1975)). Here, there is no evidence of the return of the property. Furthermore, Lopez testified that she did not file a return with the county appraiser between January 21, 2002, and a period of one year thereafter. Ferro’s attempt at adverse possession thus fails.

Consequently, we conclude that section 253.12(9) does not vest title in Ferro and that Ferro failed to prove adverse possession without color of title. Accordingly, we reverse the trial court’s order in favor of Ferro and Lopez.

Reversed.


author: SUAREZ, J.

text:
    MIAMI-DADE COUNTY, Darcy Velasquez, Michael Ismael, and The Redland Citizens Association, Inc., Petitioners, v. REDLAND ESTATES, INC., and Francis DiRico, Respondents.
    No. 3D05-627.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 2006.
    Rehearing Denied Oct. 4, 2007.

      Murray A. Greenberg, Miami-Dade County Attorney, and Jay W. Williams, Assistant County Attorney; Shubin & Bass and Jeffrey S. Bass, for petitioners.
    Carlos, Williard & Flanagan and Jeffrey M. Flanagan; Weiss Serota Helfman Pas-toriza Cole & Boniske and Joseph H. Sero-ta and Stephen J. Helfman, Miami, for respondents.
    Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
   SUAREZ, J.

Miami-Dade County, Darcy Velasquez, Michael Ismael, and the Redland Citizens Association, Inc., petition this court for a writ of certiorari to review an order entered below by the circuit court acting in its appellate capacity quashing the decision of the Miami-Dade County Board of Commissioners. The decision of the Miami-Dade County Board of Commissioners overturned a May 8, 2003 decision by the Director of the Miami-Dade County Department of Planning and Zoning allowing rebuilding of the mobile home park in question located in the Redlands. We deny the petition for writ of certiorari.

In 1969, Miami-Dade County’s Zoning Appeals Board conducted a public hearing and approved an unusual use application for development of a mobile home park on the property in question in an area zoned for agricultural use (“AU”) in the Red-lands. Other public hearings took place thereafter, in 1970,1971, and 1974, to allow for expansion of the mobile home park. The mobile home park consisted of 349 mobile homes from approximately 1970, until Hurricane Andrew completely destroyed it in 1992.

After Hurricane Andrew, in order to help facilitate the rebuilding of Dade County, Miami-Dade County established an Amnesty Ordinance which allowed for the rebuilding of all non-conforming residential and legal existing uses in compliance with zoning plans approved and on record as of August 23,1992. The Amnesty Ordinance required applications for building permits to be'filed no later than August 30, 1993. Reconstruction after that date would require building compliance with the Code of Metropolitan Dade County.

Subsequent to Hurricane Andrew, five separate inquiries were made by various parties, none of whom owned the mobile home park property in question, as to whether the mobile home park could be reestablished. Four of the five responses from the Dade County Building and Zoning Department stated that, since the mobile home park was a non-conforming use, and since permits had not been applied for within the one-year requirement under the Amnesty Ordinance, public hearings would be required before any permits could be issued to allow the mobile home park to be rebuilt.

On May 8, 2003, the Director of the Miami-Dade County Department of Planning and Zoning issued an opinion responding to an inquiry stating that the mobile home park was never a non-conforming use. As such, it was her opinion that the owners of the mobile home park were not required to comply with the one-year mandate for the application for building permits pursuant to the Amnesty Ordinance, and could rebuild without a public hearing.

Two neighboring property owners appealed the May 8, 2003 decision- to the Dade County Commission. After a public hearing, the Dade County Commission, on a split vote, reversed the decision of the Director of Building and Zoning in her May 8, 2003 letter, and concluded that she erred in her interpretation which allowed the mobile home park to be redeveloped without a public hearing.

Redland Estates, Inc., and Francis DiR-ico filed a petition for certiorari with the appellate division of the circuit court. The circuit court granted the petition and quashed the order of the Dade County Commission holding that the Commission departed from the essential requirements of law when it reclassified the mobile home park as non-conforming based on the current zoning regulations. The present, petition for certiorari was then filed with this court.

The scope of our second-tier cer-tiorari review from a decision by the circuit court appellate division is very limited. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889-90 (Fla.2003); Haines City Community Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995). A second-tier certiorari may only be issued if procedural due process was not afforded or if the circuit court, in its appellate capacity, departed from the essential requirements of law. See Escobar v. United Auto. Ins. Co., 898 So.2d 952, 954 (Pla. 3d DCA 2005). It is not enough that the district court of appeal disagrees with the circuit court’s interpretation of the applicable law, but there must be an application of either incorrect law or a miscarriage of justice before the district court may issue a writ of second-tier cer-tiorari. See Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla.2000).

We find the circuit court, acting in its appellate capacity, applied the correct law and that no mistake in interpretation of that law occurred which would result in a miscarriage of justice. Both parties agreed the mobile home park was an unusual use approved by the County Zoning Appeals Board in 1969, and subsequently built.' The question presented below was whether alleged contraventions of current zoning regulations transformed the mobile home park into a non-conforming use under the Amnesty Ordinance as of the date of Hurricane Andrew.

The circuit court first examined whether the mobile home park became non-conforming due to changes in setback requirements under the AU classification. The circuit court correctly determined setback could not be used to establish the mobile home park as non-conforming. After Hurricane Andrew, no building existed on the property. The circuit court stated that the zoning ordinances defining setback had to be strictly construed. As such, setback requirements only applied if buildings were on the property. As Hurricane Andrew destroyed all of the buildings on the property, the circuit court properly held that the Commission incorrectly applied the law to the facts to conclude that, due to setback requirements, the mobile home park had become non-conforming as of the date of Hurricane Andrew. Whether or not that interpretation is correct, it is important to note that the setback requirements came into existence' five years after Hurricane Andrew. The conclusion that setback requirements cannot be used to determine, if the mobile home park was non-conforming on the date of Hurricane Andrew, was correct. Therefore, if the use of the property was not nonconforming due to setback regulations as of the date of Hurricane Andrew, the need for compliance with the one-year-permit period and a public hearing, as concluded by the Commission and argued on appeal by the County, was inapplicable to the respondent mobile home park. We uphold the granting of certiorari relief on this ground by the circuit court.

The County argues that, due to other violations of the Master Plan and other current zoning regulations including density, lot-size regulations and residential use in the AU-zoned site, the mobile home park should be considered a nonconforming use, and that the circuit court departed from the essential requirements of law when it overruled the Commission’s determination that the use was nonconforming. As correctly held by the circuit court, although County setback and other zoning regulations had changed since the park was originally built, “the Commission nevertheless departed from the essential requirements of law when it utilized the ... changes to [re]classify the use of the mobile home park as nonconforming rather than unusual” as of the material date of Hurricane Andrew. The material date and the zoning use approved and of record as of August 23, 1992, were determinative of whether or not a public hearing was required before a building permit could be issued. Pursuant to our scope of review, we find that there was neither a departure from the essential requirements of law nor a miscarriage of justice below.

Petition for writ of certiorari denied.

      . Section 33-35.1 of the Code of Metropolitan Dade County, Florida is hereby created to read as follows:
      Notwithstanding any other provision of chapter 33 to the contrary, including but not limited to sections 33-34 and 33-35, all legal non-conforming residential uses and legal existing residential uses (including but not limited to mobile homes and manufactured housing) which existed on August 23, 1992, shall be permitted to rebuild in compliance with all plans approved and of record as of August 23, 1992 or in accordance with any use and number of units permitted by a certificate of occupancy then in existence. It is provided however that no structure or portion thereof shall be rebuilt in a zoned road right-of-way except in a zoned right-of-way adjacent to a five-acre fractional line waived by the Director and the Director of the Public Works Department, prior to August 23, 1992. All rebuilding shall be in compliance, and conformity, with all other provisions of the Code of Miami-Dade County other than chapter 33. All building permits shall be applied for no later than August 30, 1993. The authorization provided in this section shall terminate on August 31, 1993. All building permits shall be applied for no later than August 30, 1993.

      . Non-conforming use. Use of any property or premises in any manner which does not comply with the regulations provided for - the district in which the properly or premises provided for the district in which the property or premises are situated, if such use was originally legally established.
      Miami-Dade County Code § 33-l(76)(2006).

      . Setback. The minimum horizontal distance between the street, rear or side lines of the lot, and the front, rear or side lines of the building. When two (2) or more lots under one (1) ownership are used, the exterior property line so grouped shall be used in determining offsets.
      Miami-Dade County Code § 33-l(96)(2006).


author: RAMIREZ, J.

text:
    NATIONWIDE TERMINALS, INC., a Florida Corporation, Appellant, v. MC CONSTRUCTION GROUP, INC., a Florida Corporation, Appellee.
    No. 3D06-586.
    District Court of Appeal of Florida, Third District.
    April 11, 2007.
    Raymond L. Robinson, Coral Gables, for appellant.
    Robert E. Morris, Tampa, and Robert A. Bauman, for appellee.
    Before RAMIREZ, SUAREZ, and LAGOA, JJ.
   RAMIREZ, J.

Nationwide Terminals, Inc., a Florida corporation, appeals the dismissal of its counterclaim against MC Construction Group, Inc., who was suing for the use and benefit of National Union Fire Insurance Company of Pittsburgh, PA, as assignee. Because Nationwide Terminals cannot file a counterclaim against the plaintiff here in its individual capacity when the plaintiff is pursuing the original claim solely in a representative capacity, we affirm the trial court.

MC Construction, the general contractor, filed an action for breach of contract and foreclosure of a construction hen against Nationwide Terminals, the owner, on a project called Nationwide Terminals Office Warehouse Facility. MC Construction sought to recover outstanding sums due for labor, services and materials furnished pursuant to a contract with Nationwide Terminals. Prior to suing Nationwide Terminals, MC Construction entered into an Agreement of Indemnity with National Union Fire Insurance Company of Pittsburgh, PA. Pursuant to this agreement, MC Construction assigned and transferred all of its rights to collect amounts due on any and all contracts of MC Construction, including the contract between MC Construction and Nationwide Terminals. After filing the original action, MC Construction filed an action for the benefit of creditors under chapter 727, Florida Statutes, styled “In Re: Assignment for the Benefit of Creditors of MC Construction Group, Inc., Assignor to Michael Phelan, Assignee,” case no. 02-04159 CA 32, in the Eleventh Judicial Circuit, Miami-Dade County, Florida. In that action, National Union filed a motion to compel the assignment of all of MC Construction’s contract rights to itself. The trial court granted the motion.

Nationwide Terminals thereafter filed its Motion to Determine Real Party in Interest because the original lawsuit was filed in the name of MC Construction. The trial court granted Nationwide Terminals’ motion, finding that National Union, as assignee of MC Construction, was the real party plaintiff. National Union was required to amend the Complaint. National Union then filed, for the use and benefit of MC Construction, its amendment of the complaint by interlineation. In response to the Amended Complaint, Nationwide Terminals asserted its Counterclaim against National Union in its individual capacity as surety for breach of contract, based on the terms of the payment and performance bonds issued on the project.

National Union responded by filing a Motion to Dismiss and/or Strike Defendant, Nationwide Terminals, Inc.’s Counterclaim. The trial court granted the motion on the basis that Nationwide Terminals is not permitted to file a counterclaim against National Union in its individual capacity as surety when National Union is maintaining the suit as plaintiff solely in its capacity as assignee of the original plaintiff, MC Construction. We agree, rejecting Nationwide Terminals argument that because the surety, National Union, became the plaintiff as the real party in interest in its capacity as assign-ee of the original plaintiff, MC Construction, National Union also took on the role of plaintiff in its capacity as surety.

A plaintiff who brings or maintains an action solely in its capacity as the representative of another is not an “opposing party” against whom a counterclaim might be filed. Hall v. McDonough, 216 So.2d 84, 85 (Fla. 2d DCA 1968). A counterclaim cannot properly be brought or maintained against that plaintiff in its individual capacity. Id. Accord, Fidelity-Philadelphia Trust Co. v. Ball, 208 So.2d 282 (Fla. 3d DCA 1968). Moreover, Florida Rule of Civil Procedure 1.170 states that a counterclaim may only be brought against an “opposing party.” Here, National Union is the plaintiff in the underlying case only because it is the assignee of the original plaintiff, MC Construction. National Union is not bringing the action in its individual capacity as the surety. Consequently, the trial court was correct in granting National Union’s motion to dismiss Nationwide Terminals’ counterclaim.

Affirmed.

      . We further note that in 2002, Nationwide Terminals filed a third-parly complaint against National Union, in its capacity as surety, for breach of the performance and payment bonds. Consequently, the trial court’s orders denying the motion for rehearing and granting National Union's motion to dismiss the counterclaim in no way prejudices Nationwide Terminals.


author: LAGOA, Judge. RAMIREZ, Judge,

text:
    Fred HADDAD, Appellant, v. Julia HESTER, Appellee.
    No. 3D06-901.
    District Court of Appeal of Florida, Third District.
    April 18, 2007.
    Rehearing and Rehearing En Banc Denied Oct. 16, 2007.
    Paul Morris, Miami, for appellant.
    Roger G. Stanway, Hollywood, for ap-pellee.

      Before RAMIREZ and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   LAGOA, Judge.

Appellant, Fred Haddad (“Haddad”), appeals from a final judgment granting his former wife, Julia Hester (“Hester”), summary judgment in his action to partition a condominium owned by the parties as joint tenants with a right of survivorship. We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

The parties were married in 1980 and divorced in 2002. In 2002, the parties entered into a Marital Settlement Agreement (“Settlement Agreement”), whereby the parties agreed to the distribution and ownership of the following seven pieces of property: the marital home in Ft. Lauder-dale ; a condominium in Islamorada, Florida; an oceanfront lot in Flagler County, Florida; a single family home in New Orleans; a townhome located in the Victoria Park area of Ft. Lauderdale, Florida ; and properties in Lee County, Florida, and in Wayne County, Pennsylvania. The property at issue in this appeal is the condominium in Islamorada (“Islamorada property”). Concerning ownership of the Islamorada property, the Settlement Agreement explicitly stated:

The parties both desire to keep this property, expecting it to pass to the children. The husband shall maintain this property and a quit claim deed shall be executed by the parties so that it is owned not as husband and wife but as joint tenants with right of survivorship.

The Settlement Agreement also contained a schedule for alternating use of the Islamorada property as well as the following modification provision: “[t]he modification or waiver of any provision of this Agreement shall be effective only if made in writing and executed with the same formality as this Agreement.”

On April 26, 2004, two years .after the final judgment of dissolution had been entered, the parties entered into a Mediation Settlement Agreement (“Mediation Agreement”). Among the many issues resolved in the Mediation Agreement was an elaborate provision entitled “TIME SHARING FOR ISLAMORADA PROPERTY.” In this provision, the parties agreed to a summer occupancy schedule and a schedule in which the parties split the use of the condominium each month, dependent upon whether it was an “odd year” or an “even year.” Simultaneous with the execution of the Mediation Agreement, and in accordance with the previously entered into Settlement Agreement, the parties also executed a quit claim deed conveying title to the Islamorada property to themselves as joint tenants with right of survivorship.

In 2005, Haddad filed an action for partition of the Islamorada property and also alleged a special equity in the property. Hester subsequently filed a motion for summary judgment asserting that Haddad waived any right to bring a partition action based upon the terms of the Settlement Agreement and the Mediation Agreement.

The trial court granted Hester’s motion for summary judgment on the ground that Haddad could not unilaterally modify the Settlement Agreement which “expresses the hope that — following the estate for their joint lives reserved by the parties— the survivor someday will convey it to the children born of their marriage.” Haddad moved for rehearing and the trial court denied the motion. Haddad appeals from the final summary judgment and the order denying rehearing.

II. STANDARD OF REVIEW

Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). We review a trial court’s ruling on a motion for summary judgment de novo. Id. Additionally, a trial court’s decision construing a contract presents an issue of law that is subject to the de novo standard of review. Florida Power Corp. v. City of Casselberry, 793 So.2d 1174, 1178 (Fla. 5th DCA 2001).

III. ANALYSIS

On appeal, Haddad argues that the trial court reversibly erred in finding that he waived his right to partition the Islamora-da property. Haddad argues that the Settlement Agreement and subsequent quit claim deed created a joint tenancy with a right of survivorship and that the trial court’s ruling in effect determined that the parties instead created a life estate with a remainder to the parties’ children. We find Haddad’s argument without merit and affirm the trial court’s final summary judgment in favor of Hester.

We begin our analysis by answering whether the right of a joint tenant with a right of survivorship may be waived. We answer that question in the affirmative. While a joint tenancy with a right of survivorship is an estate subject to an equitable partition action, the right of a joint tenant to partition the estate may be waived. Indeed, a joint tenant may be estopped to enforce the right to partition by either an express or implied agreement. See Condrey v. Condrey, 92 So.2d 423 (Fla.1957). As the Supreme Court held in Con-drey:

[W]hile partition is a matter of right to those holding undivided interests in lands, such right may be waived or the holder thereof estopped to assert the right by an express or implied agreement, otherwise enforceable, providing said agreement not to partition be for a reasonable and definite period of time and not otherwise unduly restrictive. An agreement not to partition during the life of any of the tenants does not appear to us to be for an unreasonable time. We find nothing in the statutes of this State contrary to this holding.

Id. at 426.

As the law provides for waiver of the right of partition, we must now look to whether the Settlement Agreement at issue expressly or implicitly contains such a waiver. The Settlement Agreement is an agreement interpreted by courts as any other contract. Berry v. Berry, 550 So.2d 1125, 1126 (Fla. 3d DCA 1989). Accordingly, in order to determine the intention of the parties, we look to the language of the contract and consider the contract as a whole, with each provision being construed with reference to the others. See Specialized Mach. Transp., Inc. v. Westphal, 872 So.2d 424, 426 (Fla. 5th DCA 2004); Jerry’s Inc. v. Miami, 591 So.2d 1000, 1001 (Fla. 3d DCA 1991)(“In determining the intention of the parties, individual terms of a contract are not to be considered in isolation, but as a whole and in relation to one another.”).

Applying these contractual principles to the parties’ Settlement Agreement, and the subsequent Mediation Agreement, we find an implied waiver of the right to partition. First, the Islamorada property is the only property in the Settlement Agreement that contained explicit language stating a desire for both parties to keep the property with the intention of passing it to the children. While inartfully drafted, the intent is nonetheless clear. Moreover, the parties never altered this intent by subsequently modifying the Settlement Agreement. A modification, however, was feasible under the explicit terms of the Settlement Agreement if “made in writing and executed with the same formality” as the Settlement Agreement. As this was not done, the parties’ intent remains — i.e., to keep the property with the expectation of passing it to the children. Accordingly, while inartfully drafted, the parties impliedly waived the right to partition by including this specific intent in the Islamorada property provision contained in the Settlement Agreement.

Additionally, the Islamorada provision is the only one in the Settlement Agreement that does not explicitly provide for the sale of the property or the distribution of proceeds if sold. This is in stark contrast to the other property provisions. Regarding the marital home, the Settlement Agreement provided that although, as with the Islamorada property, the parties would change the title from husband and wife to joint tenants with the right of survivorship, Haddad had the option of purchasing Hester’s interest or of placing the home for sale. Additionally, if the marital home was sold, the Settlement Agreement explicitly stated that the profits be split between the two.

The parties also agreed to own the Fla-gler property as joint tenants with right of survivorship, and made provisions for the sale and split of profits for that property as well. As to the New Orleans home, the parties agreed that upon the sale of the property the first $45,000 was for the adult daughter and the remainder would be divided equally between Haddad and Hester. In addressing the Lee County and Pennsylvania properties, which the parties own as husband and wife, the parties agreed to resolve the issues between themselves.

Moreover, the Settlement Agreement also contained a schedule for the use of the Islamorada property with no time limit on the use of the condominium. The parties continued to behave in a manner consistent with this agreement when, two years later, they entered into the Mediation Agreement which set forth yet another schedule for alternating use of the Islamo-rada property. See generally Oakwood Hills Co. v. Horacio Toledo, Inc., 599 So.2d 1374, 1376 (Fla. 3d DCA 1992)(court may consider the conduct of the parties through their course of dealings to determine the meaning of a written agreement).

We find that the marked contrast between the property provisions of the Settlement Agreement concerning the Islamo-rada property and those of the parties’ other properties, along with the specific language in the Settlement Agreement regarding the parties’ desire to keep the property for their children, and the parties’ course of dealings, lead to the conclusion that the parties waived their right to partition the Islamorada property. Accordingly, we affirm the trial court’s order granting summary judgment in favor of Hester.

Affirmed.

SCHWARTZ, Senior Judge, concurs.

RAMIREZ, Judge,

(dissenting).

Because I disagree with the majority’s conclusion that we can state, as a matter of law, that appellant, Fred Haddad, impliedly waived the right to partition, I dissent.

The following is the pertinent portion of the provision of the Marital Settlement Agreement concerning the condominium:

The- parties both desire to keep this property, expecting it to pass to the children. The husband shall maintain this property and a quit claim deed shall be executed by the parties so that it is owned not as husband and wife but as joint tenants with right of survivorship.

There is nothing in the agreement expressly waiving the right of partition, and I cannot imply from the quoted language that there was such a waiver. “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law”. Bucacci v. Boutin, 933 So.2d 580, 582 (Fla. 3d DCA 2006). The interpretation of a document generally involves a question of law rather than of fact. Id. at 583.

In reaching its decision, the majority not only examined how the parties dealt with other real property they owned, but also looked at the parties’ behavior with regard to the use of the Islamorada property, all while affirming a summary decision of the trial court. Respectfully, if our decision cannot be rendered without resorting to an examination of the conduct of the parties, then it is not one appropriately reached by summary judgment.

Additionally, I am not persuaded by the majority’s attempt to reconcile our recent opinion in Bucacci, where we refused to deny partition based on an inartfully drafted agreement. Id. at 585-86. In Bucacci, the parties held a property as joint tenants with the right of survivorship pursuant to a written joint venture agreement. Id. at 581. Boutin filed a complaint seeking partition. Id. at 582. Bucacci countered with a declaratory action, claiming that the agreement precluded an involuntary sale. Id. More specifically, Bucacci argued that she hád a life estate in the property and that the property could not be sold unless both parties agreed. Id. Bucacci based her argument upon- the language of the joint venture agreement that purported to limit the judicial relief available to a non-defaulting party to the [pursuit of] appropriate legal remedies in the event the defaulting party fails to carry through with her obligation to purchase the interest of the other. Id. at 583. We rejected Bucac-cis contention and in pertinent part stated:

If Bucacci had, in the blissful early days of her relationship with Boutin, consciously intended to secure for herself a . life estate in the property under all future circumstances, it is apparent from a perusal of the joint venture agreement as a whole that she neither indicated that intent in the document, nor definitively guaranteed herself that emolument.

Id. at 585.

The -same reasoning applies here, only with greater force, because each party in this case is an attorney and each was represented by counsel in connection with the agreement. The parties and their counsel certainly knew how to guarantee that the property would pass to the children and/or definitively provide for waiver of the right to partition. Rather, the parties merely expressed a hope that this property would pass to the children. Hester’s sole contention for seeking summary judgment is that this hope, or expectation, constitutes a waiver of the right to partition.

It is true that the right to partition can be waived. Condrey v. Condrey, 92 So.2d 423, 426 (Fla.1957). But as noted by both the Florida Supreme Court in Condrey and this Court in Bucacci, Condrey was an extreme situation. Id. at 427. In Con-drey, a husband and wife conveyed an undivided one-half interest in their home to their son and his wife as joint tenants with a right of survivorship. Id. at 425. It was agreed that the son and his wife could live on the property with the parents, receive income from rental units that were part of the property, and receive the property upon thé parents death. Id. It was also agreed that during the parents lifetimes, the son and his wife would care for the parents as they got older. Id. Five years later, the son and his wife moved out due to family differences and sought to partition the property. Id. The Florida Supreme Court affirmed the trial courts decision denying partition, concluding that this was one of those extreme cases ... where manifest injustice, fraud or oppression will result if partition is granted. Id. at 427. See also Rose v. Hansell, 929 So.2d 22, 23 (Fla. 3d DCA 2006) (characterizing Condrey as one of the rare exceptions to the general rule that partition is a matter of right). No such extreme case was presented in Bucacci or is presented here.

In Clear Channel Metroplex, Inc. v. Sunbeam Television Corp., 922 So.2d 229, 231 (Fla. 3d DCA 2006), we rejected the trial courts finding that a contractual provision restricted the use of a property to broadcast purposes: There is simply nothing which even refers to broadcasting, much less imposes a limitation upon the parties use of their own property to that endeavor. It is of course clear that any restriction on ones use of her property must be very strictly construed. Id. Similarly here, there is simply nothing in either of the parties two written agreements that even refers to partition, much less provides for the voluntary and intentional relinquishment of that right as would be required for a valid waiver. Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005). Moreover, waiver must be accompanied by conduct that warrants an inference of the relinquishment of a known right. Miracle Ctr. Assocs. v. Scandinavian Health Spa, Inc., 889 So.2d 877, 878 (Fla. 8d DCA 2004). The record is devoid of any such conduct, as well.

For these reasons, I would reverse the summary judgment denying partition.

      . In reference to this property, the Settlement Agreement provided:
      The husband shall continue to reside in the marital home due to the joint shared custody provisions.... After the minor child ... begins college the husband shall have the option of purchasing the wife’s interest at fair market value to be determined by an independent appraiser, one selected by each party, or of placing the property for sale. The parties will equally split the profits from such sale after the payment of outstanding mortgages, liens, debts, taxes and other encumbrances. The parties agree they shall execute a quit claim deed changing title from husband and wife to joint tenant with right of survivorship so that this property will be jointly owned and shall pass to the other in the event of the demise of either party.

      . In reference to this property, the Settlement Agreement provided:
      The parties own an oceanfront lot ready for building on Coquina Beach, Flagler County. The parties again shall execute a quit claim deed to cause this to be owned as joint tenants with right to survivorship. The parties already have the property listed for sale, and upon sale proceeds shall be used to satisfy 2001 Federal Income Tax Liability and debts of the marriage. Any remainder shall be equally divided by the parties. The property shall be maintained by the husband.

      . This home was purchased for the adult daughter to use while attending school. The home was titled in the name of the parties' daughter and Hester and the down payment used was from monies the adult daughter received from her paternal grandfather. Apart from the down payment, the home was purchased with marital assets. The Settlement Agreement provided that:
      Upon sale of the property the parties agree the first $45,000 shall be given, in trust as the parties concur, to [the daughter], with the remainder to be divided equally between the parties after payment of all mortgages, taxes, liens, encumbrances and the like.

      . The Settlement Agreement provided that the this property was “the sole property of the wife save that upon sale of the marital home the husband shall receive a credit of $50,000 that was used to purchase the above referenced townhome.’’

      . With regard to these properties, the Settlement Agreement provided that "[t]he parties will resolve these issues among themselves.’’

      . See §§ 64.011-091, Fla. Stat. (2005).

      . Although not necessary to reach our conclusion, we note that this Court’s recent decision in Bucacci v. Boutin, 933 So.2d 580 (Fla. 3d DCA 2006), is not controlling on this issue. In Bucacci, unlike in the instant case, there was no express language in the parties' joint venture agreement to indicate any intention or desire to retain the property, and thus no agreement to waive partition could be so implied. Here, the parties knowingly included language in a detailed Settlement Agreement evidencing their desire to keep the Islamora-da property with the intention of passing it to the children.

      . Again, this fact is in contrast to those in Bucacci. In that case, the joint venture agreement "contemplated the possibility of a future joint decision to sell the property and the mechanics for its implementation.” Bucacci, 933 So.2d at 585.


author: ROTHENBERG, Judge.

text:
    ROYAL CARIBBEAN CRUISES, LTD., Petitioner, v. Jane DOE & Jane Doe, as natural parent and guardian of Sara Doe, a minor, Respondents.
    No. 3D06-1885.
    District Court of Appeal of Florida, Third District.
    May 23, 2007.
    Rehearing and Rehearing En Banc Denied Oct. 11, 2007.

      Lauri Waldman Ross and Theresa L. Girten; Maltzman Foreman and Darren W. Friedman, Miami, for petitioner.
    Philip D. Parrish; Guilford & Rash, Miami, for respondents.
    Before WELLS, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, Judge.

Royal Caribbean Cruises, Ltd. (“RCCL”) petitions this court for a writ of certiorari, seeking to quash an order requiring it to provide certain discovery to Jane Doe, and Jane Doe as natural parent and guardian of Sara Doe, a minor; Jane Doe individually (“Jane”); and Sara Doe, a minor (“Sara”).

The Does filed an amended complaint against RCCL, asserting several causes of action, including negligence. The general allegations provide that while the Does were passengers on RCCL’s M/S Sovereign of the Seas, a crewmember forced his way into their cabin and assaulted and/or battered Jane. During the assault, Sara called RCCL’s security office, but security personnel did not immediately react to Sara’s plea for help. After “wrestling” the crewmember out of the cabin, Jane called security, and eventually, security responded.

The negligence count asserts, in part, that RCCL did not “exercise reasonable care” because it failed to properly control and/or supervise its employees; failed to provide proper security measures to protect its passengers; and failed to properly screen, train, and/or monitor its crewmem-bers. The Does also asserted that RCCL was negligent in hiring the particular crewmember involved in the alleged incident because RCCL failed to appropriately investigate this crewmember, and that if RCCL would have done so, it would have discovered that he was unsuitable as an “employee for the particular duty performed or for employment in general”; that the crewmember “had previously assaulted, harassed or battered a passenger or co-worker or engaged in other activities that would have indicated to [RCCL] that he would harm passengers”; and that the crewmember was “predisposed to commit” the alleged acts.

The Does submitted Interrogatories and a Request for Production to RCCL. Interrogatory # 18 provides as follows:

In the 5 years that predate the date of this incident, how many reports have [sic] Royal Caribbean International received concerning a crewmember either battering or assaulting a passenger. The information sought here concerns Royal Caribbean International’s entire fleet, including vessels owned[,] operated or managed by its subsidiaries and affiliates.

Request for Production # 10 provides as follows:

A copy of all incident/accident reports regarding prior accidents or incidents involving claims of crew members [sic] assaults occurring on vessels owned, operated, or managed by Royal Caribbean International or any of its subsidiaries for the 5 year period predating the incident described in the Complaint.

RCCL objected to Interrogatory # 18 and Request for Production # 10, arguing that the discovery was irrelevant, immaterial, overbroad, burdensome, harassing, oppressive, and would not likely lead to admissible evidence. The Does filed a motion to compel RCCL to respond. The trial court overruled RCCL’s objections and ordered RCCL to respond within sixty days.

RCCL filed a motion for reconsideration, asserting that the incident/accident reports were protected by the work-product privilege. In support of its motion for reconsideration, RCCL submitted an affidavit by Pamela Powell, RCCL’s Supervisor of the Guest Claims Department. Powell averred that after any incident is alleged on a RCCL vessel, RCCL creates an incident report, and thereafter, the report is automatically sent to the “Risk Management Department for further handling and use in connection with the anticipated defense of any claim which arises from said incident.” Powell also explained that:

RCCL has never been ordered to produce a listing of reports where someone felt that they were going to be battered, but were not actually battered. RCCL maintains a database of incidents, but the categorization of those incidents does not include assaults as such. This Court’s order would require Defendant to inspect every incident report ever written over a 5 year period to determine if somewhere in that report a passenger indicated that while they were never touched, they feared they might be.

Powell additionally claimed that the discovery order would require RCCL to search its documents for twenty-nine vessels.

While its motion for reconsideration was pending, RCCL filed a petition for writ of certiorari in this court seeking to quash the trial court’s discovery order. This court deferred ruling on RCCL’s petition to allow the trial court to rule on RCCL’s motion for reconsideration.

At the hearing on RCCL’s motion for reconsideration, RCCL argued that it could not obtain the information the Does were seeking by searching its computer databases. RCCL’s counsel explained, “[W]hen you are dealing with an assault where someone fears they are going to be raped, there is not a categorization for that.” Regarding RCCL’s asserted work-product privilege, counsel for the Does claimed that RCCL had waived the privilege due to RCCL’s failure to prepare a privilege log. The trial court ruled that RCCL’s work-product objection was timely, and while narrowing the scope of discovery, the trial court ordered RCCL to provide the requested discovery as follows:

2. The scope of Interrogatory # 18 requiring the number of reports RCCL has received concerning a crew member [sic] battering or assaulting a passenger is hereby narrowed by the Court. Interrogatory # 18 is now more specific to define assault and battery as including any definitions under common law, including Florida statutes, deletes the requirement for any interrogatory answers to include “all vessels owned, operated or managed by RCCL’s subsidiaries and affiliates”. RCCL’s objection to the narrowed interrogatory is overruled and it is required to furnish the requested information for all RCI [Royal Caribbean International] ships.
3. Request for Production # 10 requires RCCL to produce all incideni/ac-cident reports for “crew member [sic] assaults” on all RCCL vessels. The scope of this request is hereby narrowed to three (3) years and deletes the requirements for such production to include “all vessels owned, operated or managed by RCCL’s subsidiaries or affiliates.[”] RCCL’s objection is sustained. The Court shall require RCCL to produce the names and addresses and all other contact information of all individuals who have knowledge of the incidents], including those from whom statements were taken[.] RCCL has the option of producing the incident reports themselves in lieu of listing such names and addresses and other contact information. This order does not require the production of the names and addresses of any victims covered by any rape shield statute.[]

In this amended petition for writ of certiorari, RCCL seeks to quash the trial court’s discovery order entered on RCCL’s motion for reconsideration. The party seeking to quash a pretrial discovery order by certiorari must establish that the discovery order is a departure from the essential requirements of law, which, if uncorrected, will result in material injury that cannot be remedied on direct appeal. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987)(“Orders granting discovery ... have traditionally been reviewed by certiorari. The rationale ... is that appeal after final judgment is unlikely to be an adequate remedy because once discovery is wrongfully granted, the complaining party is beyond relief.”) (citations omitted); Miami Heart Inst. v. Reis, 688 So.2d 530, 531 n. 1 (Fla. 3d DCA 1994)(“Certiorari is the appropriate method by which to review an order entered in connection with discovery proceedings.”); see also Allstate Ins. Co. v. Cambron, 936 So.2d 1210, 1212 (Fla. 5th DCA 2006)(“Un-der Florida law, certiorari is the appropriate remedy when a discovery order departs from the essential requirements of law, causing material injury throughout the remainder of the proceedings and effectively leaving no adequate remedy on appeal.”); McGarrah v. Bayfront Med. Ctr., Inc., 889 So.2d 923, 925 (Fla. 2d DCA 2004)(holding that certiorari is appropriate to quash an order granting discovery when the order (1) departs from the essential requirements of the law, (2) resulting in material injury that (3) cannot be corrected on direct appeal). However, the fact that the “ordered discovery is irrelevant is not, vnthout more, a basis for granting certiorari relief.” Young Circle Garage LLC v. Koppel, 916 So.2d 22, 23 (Fla. 4th DCA 2005)(emphasis added).

In the instant case, RCCL submits that certiorari relief is appropriate because the ordered discovery requires the production of privileged work-product documents; the ordered discovery is not relevant; and even if the requested discovery was found to be relevant, the trial court’s order requiring RCCL to provide the discovery requested is overbroad and unduly burdensome. We agree.

The general allegations contained in the amended complaint provide that a crew-member forced his way into the Does’ cabin; the crewmember assaulted and/or battered Jane; and that RCCL’s security personnel did not immediately react to Sara’s plea for help. The negligence count asserts that RCCL was negligent in hiring this particular crewmember; RCCL failed to appropriately investigate the crewmem-ber; and an appropriate investigation of the crewmember would have revealed that he was unsuitable as an “employee for the particular duty performed or for employment in general”; that the crewmember “had previously assaulted, harassed or battered a passenger or co-worker or engaged in other activities that would have indicated to [RCCL] that he would harm passengers”; and that the crewmember was “predisposed to commit” the alleged acts.

The trial court’s discovery order requires RCCL to produce all incident/accident reports dealing with assaults and/or batteries committed by crewmembers on approximately nineteen of RCCL’s vessels for the three-year period predating the alleged incident, or to research its files and produce the names and addresses and all other contact information of all individuals who have knowledge of any incident regarding an assault and/or a battery committed by a crewmember on these nineteen vessels during the three-year period predating the alleged incident. Thus, although the amended complaint focuses on RCCL’s hiring, supervision, and control of the particular crewmember involved in the alleged incident, the trial court’s order includes reported incidents of other crew-members. We, therefore, conclude that the ordered discovery is irrelevant to the claims made in the Does’ amended complaint.

We also find that these incident/accident reports are protected by the work-product doctrine, and that RCCL did not waive its objection on that ground. “Under the work-product doctrine, documents prepared by or on behalf of a party in anticipation of litigation are not discoverable.” Marshalls of MA, Inc. v. Minsal, 932 So.2d 444, 446 (Fla. 3d DCA 2006)(quoting Liberty Mut. Fire Ins. Co. v. Kaufman, 885 So.2d 905, 910 (Fla. 3d DCA 2004)); see also Fla. R. Civ. P. 1.280(b)(3)(specifying that materials prepared in anticipation of litigation or for trial by or for a party or its representative, including the party’s attorney, are discoverable only upon a showing of need of the materials and undue hardship in obtaining the substantial equivalent by other means).

In the instant case, it is undisputed that after any incident/accident allegedly occurs on any RCCL vessel, RCCL’s employees create an incident/accident report, and thereafter, the report is forwarded to RCCL’s “Risk Management Department for further handling and use in connection with the anticipated defense of any claim which arises from said incident.” As RCCL’s incident/accident reports were prepared in anticipation of litigation, they are protected by the work-product doctrine.

The Does argue that RCCL waived its work-product objection by failing to prepare a privilege log. We disagree. In Gasman v. Luzinski, 937 So.2d 293 (Fla. 4th DCA 2006), the Fourth District, in addressing whether the work-product objection had been waived, explained that:

A party is required to file a log only if the information is “otherwise discoverable.” Where a party claims that the
production of documents is burdensome and harassing, such as was done here, the scope of the discovery is at issue. Until the court rules on the request, the party responding to the discovery does not know what will fall into the category of discoverable documents. If the party is correct in her assertion that the documents requested are burdensome to produce, why should she still go through all the requested documents to determine which ones are privileged, even though none of them may be required to be produced because the request is burdensome?
Before a written objection to a request for production of documents is ruled upon, the documents are not “otherwise discoverable” and thus the obligation to file a privilege log does not arise. Once the objection is ruled upon and the court determines what information is “otherwise discoverable,” then the party must file a privilege log reciting which documents are privileged. If it is not done in that order, then the party faced with an unduly burdensome document request still has to obtain and review all the documents to determine which are privileged, even though the court may later limit the scope of the request if it was unduly burdensome.

Id. at 296 (footnote omitted).

Although, RCCL opposed the production of the incident/accident reports, arguing that the discovery was irrelevant, immaterial, overbroad, burdensome, harassing, and oppressive, after the trial court ruled that RCCL’s incideni/accident reports were discoverable, RCCL moved for reconsideration, and specifically asserted that the reports were protected by the work-product doctrine. We, therefore, find as the Fourth District found in Gosman, that RCCL did not waive its work-product argument. See also Consol. Res. Health Care Fund I, Ltd. v. Ruffini, 947 So.2d 1278, 1278 (Fla. 4th DCA 2007)(“We grant the petition and quash the order compelling the discovery which determined the petitioner had waived its privilege objections by failing to timely respond. The lower court should have first made a determination of the breadth of discovery prior to ruling on the waiver issue, as the petitioner had correctly and timely placed overbreadth before the court.”).

Lastly, we address RCCL s argument that the discovery ordered is overly broad and unduly burdensome. The discovery order requires the disclosure of information regarding reports of all assaults and/or batteries by all crewmem-bers on nineteen of RCCL’s vessels for a three-year period, even though the allegations of the amended complaint focus on the particular crewmember involved in the alleged incident. We, therefore, find that the discovery order is overbroad and should have been limited to producing information regarding incidents involving this particular crewmember. We also find that the production of the requested information would be unduly burdensome on RCCL. The record demonstrates that although RCCL maintains a database of in-cideni/accidents occurring on its vessels, RCCL’s database does not contain a category covering the type of incident alleged by the Does. Thus, to produce the information ordered by the trial court, RCCL would be required to manually search every incident/accident report involving approximately nineteen of RCCL’s vessels for a three-year period. We find such a task unduly burdensome.

Accordingly, we quash the discovery order under review, and remand for the entry of a discovery order limiting the scope of discovery to incidents involving the particular crewmember.

Petition granted; remanded.

      . The alleged “assault and/or battery” does not involve a sexual battery. When the M/S Sovereign of the Seas docked at Port Canaveral, the Brevard County Sheriffs Office investigated the alleged incident. The Sheriff Office’s report indicates that the crewmember involved in the alleged incident was extremely intoxicated, and within a short period of time, he forced and/or attempted to force his way into several cabins, including the Does’ cabin, and that the occupants of each cabin forced the crewmember out. Moreover, the report indicates that each of the parties involved in the incidents executed "Decline to Prosecute” affidavits.

      . The trial court’s ruling narrowed the trial court’s ruling from twenly-nine vessels to approximately nineteen vessels,

      . In response to RCCL’s amended petition, the Does argue that this court should not focus on whether the incident/accident reports are work-product, as the trial court gave RCCL the option of producing the names, addresses, and contact information of all individuals having knowledge of the incidents involved in the reports. We are unpersuaded by this argument as the information was compiled internally by RCCL in the event any of the reported incidents resulted in litigation.


text:
    Kevin JOHNSON, Appellant, v. Candance L. YOUNG, Appellee.
    No. 3D06-2628.
    District Court of Appeal of Florida, Third District.
    July 11, 2007.
    Rehearing and Rehearing En Banc Denied Oct. 8, 2007.

      Miguel F. Parladé, for appellant.
    Jorge E. Otero & Associates and Jorge E. Otero, Miami, for appellee.
    Before FLETCHER, SUAREZ, and CORTIÑAS, JJ.
   SUAREZ, J.

Kevin Johnson (“Johnson”) appeals a final order dismissing with prejudice an action to quiet title for eviction on grounds of res judicata. We affirm.

This factually tortured case arises first as an eviction filed by Hampton Property Management in county court. Hampton had served a three-day notice dated December 20, 2005, on Candance Young stating that it was the property manager for the owner of the premises in question, Kevin Johnson, and demanding possession of the premises from Young. Hampton, then alleging that it was the owner of the property, filed a Complaint for Eviction against Young in county court on February 8, 2006. Attached to the complaint was the eviction notice stating that Johnson owned the property and the lease between lessor Hampton Property and lessee Young... Young filed an answer and affirmative defense stating that the issue was which party, Johnson or Young, owned the property. Young attached to her answer an Affidavit of Interest which she had recorded on November 17, 2005, stating that she was the owner of the property. She also attached an unrecorded quitclaim deed dated June 1, 2005, transferring the property from Johnson to Young. Young moved to dismiss the complaint or, in the alternative, to transfer to circuit court. The court dismissed the complaint. Hampton then filed an Emergency Motion for Reconsideration which was denied.

Johnson then filed the present action in circuit court to quiet title under section 65.061, Florida Statutes (2006), and for eviction. Johnson alleged that, in Decern-ber 2004, he entered into an agreement with Young to purchase the property from her. He alleged that she was to enter into a lease with Hampton Property to rent the property and at the end of the year she would re-finance the property and repurchase it from him at the then market value. He alleged that, “as an incentive,” he executed the quitclaim deed to Young. Young moved to dismiss the circuit court complaint on the grounds of issue preclusion. The trial court heard oral argument, reviewed the file and dismissed the complaint with prejudice on the grounds of res judicata. We affirm.

On appeal, Johnson contends that the trial court erred in dismissing the complaint because there was no prior adjudication on the merits and that the doctrine of preclusion does not apply. Young relies on the doctrine of res judicata.

The doctrine of res judicata bars re-litigation of a cause of action for claims that were raised and could have been raised in a prior action. The elements under the doctrine are: (1) identity of the things sued for; (2) identity of the cause of action; (3) identity of the parties and (4) identity of the quality in the person for or against whom the claims are made. See Gomez-Ortega v. Dorten, Inc., 670 So.2d 1107 (Fla. 3d DCA 1996). Young alleges that Hampton and Johnson are in privity with each other and that the identities of the parties and causes of action are the same both in the county court action and in the circuit court action.

From the record, it is clear that there was a prior adjudication by the county court on the merits of ownership of the property. The county court dismissed the action based on record evidence in support of Young’s claim that she owned the property, which included a quitclaim deed from Johnson to her and a copy of paid property taxes and insurance on the property, both naming her as the owner and relevant to the issue of who owned the property and who was entitled to possession. The causes of action were identical in both courts although titled differently. The cause of action in the circuit court was identical to that in the county court because, although the county action was titled “eviction,” and the circuit court action was titled “eviction and action to quiet title,” both involved the possession of and the title to the property. Both the eviction and the suit to quiet title involved the allegation that Young owed money to Johnson and that Johnson was therefore entitled to possession. The parties were the same in both actions because, admittedly, Johnson originally owned the property and Hampton Property Management was his company. The identity of the things sued for, title and possession of the property, was the same as raised in the pleadings. As Johnson was given a full and fair opportunity to litigate these issues in the county court proceeding, the trial court was correct in dismissing the circuit court action with prejudice based on res judicata.

Affirmed.


text:
    Ernest FLOWERS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1419.
    District Court of Appeal of Florida, Third District.
    July 18, 2007.
    Rehearing and Rehearing En Banc Denied Oct. 11, 2007.

      Ernest Flowers, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and FLETCHER, and SUAREZ, JJ.
   PER CURIAM.

Ernest Flowers (“Flowers”), seeks cer-tiorari review of the trial court’s order summarily denying his Rule 3.850 Motion for Post-conviction relief. We treat Flowers’ petition as a notice of appeal and affirm. Fla. R.App. P. 9.040(c).

Affirmed.