author: PER CURIAM. COPE, J.

text:
    Ferman Carlos ESPINDOLA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1839.
    District Court of Appeal of Florida, Third District.
    Oct. 22, 2003.

      Bennett H. Brummer, Public Defender and John Eddy Morrison, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General and Richard L. Polin and Fredericka Sands, Assistant Attorneys General, for appellee.
    Before COPE, GREEN, and FLETCHER, JJ.
   ON MOTION FOR REHEARING AND/OR CERTIFIED QUESTION

PER CURIAM.

We deny the motion for rehearing, but in light of the recent Supreme Court decisions of Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), and Conn. Dep’t of Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003); we withdraw our prior opinion filed on January 15, 2003, and substitute the following in its place.

This is an appeal from a final order declaring the defendant a “sexual predator,” in accordance with section 775.21, Florida Statutes (1999), the Florida Sexual Predator Act (“FSPA”). Defendant, an individual who pled guilty to an offense which, pursuant to the FSPA requires that he be designated a “sexual predator,” claims that the statute is violative of procedural due process and therefore unconstitutional. As further explained below, we find FSPA to be unconstitutional because it fails to provide minimal procedural due process. Accordingly, we reverse.

I. Facts

The facts of this case are undisputed. The defendant was at a club on South Beach with the co-defendant (who is not a party to this appeal) and the victim. The co-defendant brought the victim a cocktail, of which she drank a little and the defendant finished. A couple of minutes after drinking the cocktail the defendant fell down unconscious. Soon after, the victim also became dizzy and disoriented. All three left the club, and the co-defendant took them to an unknown hotel and checked into a room. The victim then also lost consciousness. When she regained consciousness, the defendant and co-defendant were allegedly having sexual intercourse with her.

The state charged both men with sexual battery of a physically incapacitated victim by multiple perpetrators. The defendant pled guilty in exchange for a withhold of adjudication and one year community control followed by four years of probation. He has also agreed to assist in the prosecution’s case against the co-defendant, which is still pending trial.

Although she remains afraid of the co-defendant, the victim has testified that she does not fear the defendant, and even considers him a friend. Based on this testimony, the state did not seek the standard “stay-away” order in this case.

Since pleading guilty to multiple perpetrator sexual battery would automatically result in the defendant being declared a “sexual predator” under the Act, the defendant filed a motion to declare the Act unconstitutional as violative of procedural due process. The trial court denied the motion before completing the plea and later entered an order finding the defendant to be a sexual predator “subject to community and public notification.” The trial court denied a motion to quash that order on the same constitutional grounds, and this appeal ensued.

II. Structure of the Act

Like every other state in the nation, Florida has enacted its version of “Megan’s Law,” entitled The Florida Sexual Predator’s Act. The Florida legislature has specifically found that:

(a) Repeat sexual offenders, sexual offenders who use physical violence, and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Sexual offenders are extremely likely to use physical violence and to repeat their offenses, and most sexual offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. This makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant.
(b) The high level of threat that a sexual predator presents to the public safety, and the long-term effects suffered by victims of sex offenses, provide the state with sufficient justification to implement a strategy that includes:
1. Incarcerating sexual predators and maintaining adequate facilities to ensure that decisions to release sexual predators into the community are not made on the basis of inadequate space.
2. Providing for specialized supervision of sexual predators who are in the community by specially trained probation officers with low caseloads, as described in ss. 947.1405(7) and 948.03(5). The sexual predator is subject to specified terms and conditions implemented at sentencing or at the time of release from incarceration, with a requirement that those who are financially able must pay all or part of the costs of supervision.
3. Requiring the registration of sexual predators, with a requirement that complete and accurate information be maintained and accessible for use by law enforcement authorities, communities, and the public.
4. Providing for community and public notification concerning the presence of sexual predators.
5. Prohibiting sexual predators from working with children, either for compensation or as a volunteer.
(e) It is the intent of the Legislature to address the problem of sexual predators by:
1.Requiring sexual predators supervised in the community to have special conditions of supervision and to be supervised by probation officers with low caseloads;
2. Requiring sexual predators to register with the Florida Department of Law Enforcement, ...; and
3. Requiring community and public notification of the presence of a sexual predator,....

§ 775.21(3)(a)(b) & (e), Fla. Stat. (1999).

Under FSPA, the sole determination to be made by the trial court, before designating a person a “sexual predator,” is whether that person had the prerequisite criminal conviction. See § 775.21(5)(a)(l), Fla. Stat. See also State v. Curtin, 764 So.2d 645, 647 (Fla. 1st DCA 2000) (trial court required to enter finding of sexual predator status where defendant was convicted of crime enumerated in statute). The act of delineating an offender as a sexual predator is mandatory, and the trial court has no discretion. See Kelly v. State, 795 So.2d 135, 137 (Fla. 5th DCA 2001) (stating that “based on the unambiguous language of [FSPA] and the clearly stated legislative intent, ... the Act is mandatory and affords no discretion to the trial judge to designate an individual a sexual predator if the statutory criteria are established.”). Indeed, the granting of the state’s motion to have a defendant declared a sexual predator has been deemed merely “perfunctory” by the courts. See e.g., Thomas v. State, 716 So.2d 789, 790 (Fla. 4th DCA 1998).

Once an offender has been designated a “sexual predator,” the registration and public notification requirements of FSPA are automatically triggered. See § 775.21(6), Fla. Stat. An offender must, within forty-eight (48) hours, register with the Department of Law Enforcement (“FDLE”) or, alternatively, the sheriffs office, and with the Department of Highway Safety and Motor Vehicles (“DMV”). See § 775.21(6)(a), (e), & (f), Fla. Stat. Upon registration an offender must provide their name, age, race, sex, date of birth, height, weight, hair and eye color, a photograph, address of legal residence, address of any current temporary residence, “a brief description of the crime or crimes committed by the offender,” and genetic material.

FSPA authorizes the DMV to give the offender’s photograph to FDLE for purposes of public notification, and also requires FDLE to take the offender’s registration information and photograph and place it on the internet for worldwide distribution. See § 775.21(7)(c), Fla. Stat. County law enforcement also has a statutory duty to provide this same information to the public through other means. See § 775.32(7)(a), Fla. Stat. Broad immunity is afforded anyone acting in good faith in the implementation of FSPA’s notification requirements. See § 775.21(9), Fla. Stat.

An offender must appear in person at a DMV office to notify it of any change of residence, which is forwarded to FDLE and posted on its website. See § 775.21(6)(g), Fla. Stat. If an offender plans to move out-of-state, he or she must inform DMV at least forty-eight (48) hours before leaving. See § 775.21(6), Fla. Stat. All of this registration information must be updated by the offender for the “duration of his or her life.” See § 775.21(6)(Z), Fla. Stat. Failure to comply with these registration requirements is a third-degree felony. See § 775.21(10)(a), Fla. Stat.

Finally, FSPA also automatically prohibits specific offenders, from working “at any business, school, day care center, park, playground, or other place where children regularly congregate ....” § 775.21(10)(b), Fla. Stat.

III. Procedural Due Process

The defendant argues that the automatic registration and notification requirements of FSPA are violative of his protected right to procedural due process, guaranteed to him by the Fourteenth Amendment to the United States Constitution. Procedural due process questions are examined in two steps:

the first asks whether there exists a liberty or property interest which has been interfered with by the State, ... the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient....

Ky. Dep’t of Corrs. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (citations omitted).

The defendant claims that FSPA infringes on his liberty interest in reputation. See, e.g., Wis. v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971) (stating that “[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.”). However, the law is clear that to trigger procedural due process rights, the defendant must suffer a change in legal status in addition to the “stigma” that would result from the public notification and release of registry regulation. See Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (stating that “reputation alone, apart from some more tangible interests such as employment, is [not] either ‘liberty’ or ‘property’ by itself sufficient to invoke the procedural protection of the Due Process Clause.”). See also Cutshall v. Sundquist, 193 F.3d 466, 479 (6th Cir.1999) (holding that: “[o]nly where the stigma of damage to a reputation is coupled with another interest, such as employment, is procedural due process triggered.”). This has come to be commonly known as the “stigma-plus test.” Id.

A. Stigma Plus

The act of being publicly labeled, pursuant to FSPA, a “sexual predator” clearly results in a stigma. See, e.g., Doe v. Pataki, 3 F.Supp.2d 456, 467-68 (S.D.N.Y.1998) (stating that “First, [the offenders] have convincingly demonstrated that, when implemented, the community notification provisions of the Act will likely result in their being branded as convicted sex offenders who may strike again and who therefore pose a danger to the com-munity_ [S]uch widespread dissemination of the above information is likely to carry with it shame, humiliation, ostracism, loss of employment and decreased opportunities for employment, perhaps even physical violence, and a multitude of other adverse consequences. Thus, there is no genuine dispute that the dissemination of the information contemplated by the Act to the community at large is potentially harmful to the [offenders’] personal reputations.”).

The state, however, relying on the Supreme Court’s opinion in Smith v. Doe, 538 U.S. 84, -, 128 S.Ct. 1140, 1150, 155 L.Ed.2d 164 (2003), argues that the stigma, if any, attached to an offender deemed to be a “sexual predator” comes not from FSPA, but from the publication of the offender’s own prior criminal conduct. We disagree. Under FSPA, the information regarding an offender’s “sexual predator” status is not only a part of the public record and internet database (as it is in Alaska, Smith’s state of origin), but

the sheriff of the county or the chief of police of the municipality where the sexual predator ... maintains a permanent or temporary residence shall notify members of the community and the public....

§ 775.21(7)(a), Fla. Stat. These notification requirements, which mandate affirmative action on the part of law enforcement, go well beyond the mere posting of information in Smith which the Supreme Court found to be merely “passive.” Smith, 123 S.Ct. at 1153 (stating that “[t]he notification is a passive one: An individual must seek access to the information.”). Thus, the “stigma” here not only from an offender’s conviction but also comes from the active dissemination of this conviction and other information by law enforcement.

The defendant here also claims that there are several “plus factors” implicated by FSPA. He asserts, inter alia, that the lifelong registration requirements, employment prohibitions, and inability to seek tort remedies pursuant to the act satisfy the “plus” requirements of the stigma-plus test. We agree, noting that the Supreme Court specifically mentioned employment as a “plus” factor in Paul v. Davis, 424 U.S. at 701, 96 S.Ct. 1155. See also Collie v. State, 710 So.2d 1000, 1012 (Fla. 2d DCA 1998) (finding that employment restrictions infringe on a constitutionally-protected liberty interest).

With facts and statutes similar to those in this case, other courts have also found that these plus factors satisfy the stigma-plus test. See, e.g. Hawai'i v. Bani, 97 Hawai'i 285, 36 P.3d 1255 (2001); Noble v. Bd. of Parole, 327 Or. 485, 964 P.2d 990 (1998); Doe v. Attorney Gen., 426 Mass. 136, 686 N.E.2d 1007 (1997).

B. Due Process

Since we have determined that FSPA’s registration and public notification provisions implicate the defendant’s liberty interests, we must now decide whether the defendant was afforded the requisite procedural safeguards of due process. See Mathews v. Eldridge, 424 U.S. 319, 348, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (procedural due process requires that government act in a fair manner when there is a deprivation of a constitutionally protected property interest).

“The Supreme Court has explained that the central meaning of procedural due process” is that “ ‘[pjarties whose rights are to be affected are entitled to be heard; and in order to enjoy that right they must first be notified. It is equally fundamental [that these rights] must be granted at a meaningful time and in a meaningful manner.’ ”

Fullmer v. Mich. Dep’t of State Police, 207 F.Supp.2d 650, 661 (E.D.Mich.2002) (quoting Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972)) (alterations in original).

It is undisputed that the defendant here was provided no process as FSPA requires an automatic determination of “sexual predator status” if one of the enumerated crimes has been committed. See § 775.21(5)(a), Fla. Stat.

However, the state, relying on the Supreme Court’s recent opinion in Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98, (2003), claims that the defendant here is not entitled to a hearing at all. In that case the Court found that:

even assuming, arguendo, that respondent has been deprived of a liberty interest, due process does not entitle him to a hearing to establish a fact that is not material under the Connecticut statute. ...
[T]he fact that respondent seeks to prove — that he is not currently dangerous — is of no consequence under Connecticut’s Megan’s law.... Indeed, the disclaimer on the website explicitly states that respondent’s alleged nondan-gerousness simply does not matter.

Id. at 1164 (emphasis added). Unlike the Connecticut statute, which makes no determination that an offender is dangerous, FSPA specifically provides that sexual predators “present an extreme threat to the public safety.” § 775.21(3)(a), Fla. Stat. As a result of this “threat,” the legislature has justified its mandate that “sexual predators” follow its registration and notification requirements, as well as the employment restrictions contained in FSPA. See § 775.21(3)(b). Accordingly, we find that the determination of “dangerousness” is of import to FSPA, and that the State’s reliance on Conn. Dep’t of Pub. Safety v. Doe, infra, is misplaced.

Thus, as several courts of other jurisdictions have done before us, we find that this total failure to provide for a judicial hearing on the risk of the defendant’s committing future offenses, makes it violative of procedural due process, and therefore unconstitutional. Fullmer v. Mich. Dep’t of State Police, 207 F.Supp.2d 650 (E.D.Mich.2002); Doe v. Pryor, 61 F.Supp.2d 1224 (M.D.Ala.1999); Doe v. Pataki, 3 F.Supp.2d 456 (S.D.N.Y.1998); Hawai'i v. Bani, 97 Hawai'i 285, 36 P.3d 1255 (2001); Doe v. Attorney Gen., 426 Mass. 136, 686 N.E.2d 1007 (1997). But see, Milks v. State, 848 So.2d 1167 (Fla. 2d DCA 2003) reh’g denied (July 7, 2003) (relying on Conn. Dep’t of Pub. Safety v. Doe, and holding that FSPA does not violate procedural due process principles).

TV. Conclusion

For the foregoing reasons, we find that in the absence of a provision allowing for a hearing to determine whether the defendant presents a danger to the public sufficient to require registration and public notification, the Florida Sexual Predators Act violates procedural due process. Accordingly, the order on appeal is reversed.

Moreover, because the recent Supreme court decisions of Smith v. Doe, and Conn. Dep’t of Pub. Safety v. Doe, are factually and legally distinguishable from the case before us, rehearing is denied.

Finally, we note that the Second District recently decided, that FSPA did not violate an offender’s procedural due process rights. See Milks v. State, 848 So.2d 1167 (Fla. 2d DCA 2003). Accordingly, we certify conflict with that decision.

Reversed, rehearing denied and conflict certified.

GREEN and FLETCHER, JJ., concur.

COPE, J.

(concurring in part and dissenting in part).

I agree with the majority opinion that the use of the term “predator” renders the statute constitutionally infirm. In this respect, the Florida statute differs from the statutes construed by the United States Supreme Court in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), and Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003).

I disagree with the majority on the remedy. In my view, it is possible to sever the unconstitutional portion of the statute from the remainder.

The Florida Supreme Court has said:

In resolving the issue of severability, this Court has consistently applied the tests set forth in Cramp v. Board of Public Instruction of Orange County, 137 So.2d 828 (Fla.1962):
When a part of a statute is declared unconstitutional the remainder of the act will be permitted to stand provided: (1) the unconstitutional provisions can be separated from the remaining valid provisions, (2) the legislative purpose expressed in the valid provisions can be accomplished independently of those which are void, (3) the good and the bad features are not so inseparable in substance that it can be said that the Legislature would have passed the one without the other and, (4) an act complete in itself remains after the invalid provisions are stricken.

Smith v. Department of Insurance, 507 So.2d 1080, 1089-90 (Fla.1987) (citations omitted).

“The Cramp test is a well established component of Florida law. It has been applied repeatedly in countless Florida cases.... ” Schmitt v. State, 590 So.2d 404, 415 (Fla.1991) (citation and footnote omitted).

Further:

severability does not always depend on the inclusion of a severability clause in a legislative enactment. Such a clause only buttresses the case for severability. If the four parts of the Cramp test are met, severability can occur whether or not the enactment contains a severability clause.

Schmitt, 590 So.2d at 415 n. 12.

Looking at the statute as a whole, the statute accomplishes the following main objectives:

(a) Registration of offenders;

(b) Disclosure of an offender’s location and prior criminal record on the Florida Department of Law Enforcement website and through community notification; and

(c) Labeling certain offenders as “predators.”

Item (c) is constitutionally infirm, but items (a) and (b) are valid.

Under the Cramp test, the first question is whether the unconstitutional provisions can be separated from the remaining valid provisions. Cramp, 137 So.2d at 830. The answer is yes. The website contains a listing of sex offenders under Florida’s various statutes on the subject. See §§ 775.21, 943.0435, 944.607, Fla. Stat. All criminal history information is reported in the same format, with the exception that those who qualify as predators under section 775.21 carry the designation “predator” in red letters on the summary page listing the various offenders. The term appears again on the individual history page. The term “predator” can be excised while leaving the remaining information about the offender and his criminal record intact. The website and other public notification materials can substitute a neutral term, such as “sexual offender,” or “criminal history information,” in place of the stricken term.

Similarly, the statute contains regulations for the registration of offenders who meet the statutory criteria. See § 775.21(6), Fla. Stat. The registration requirements remain enforceable. In entering an adjudication under this statute, the court should simply adjudicate that the offender qualifies under section 775.21, Florida Statutes, rather than adjudicating the offender to be a “sexual predator.”

The second question under Cram/p is whether the legislative purpose expressed in the valid provisions can be accomplished independently of those which are void. 137 So.2d at 830. Again, the answer is yes. The thrust of the statute is to require offender registration and to make offender criminal record information available to the public through the internet and otherwise. These purposes can be accomplished even if the “predator” label is stricken.

The third question under Cramp is whether the good and bad features are not so inseparable in substance that it can be said the Legislature would have passed the one without the other. 137 So.2d at 830. There is no doubt that the Legislature would have passed this statute regardless of whether the term “predator” was included.

The fourth question under Cramp is whether an act complete in itself remains after the invalid provisions are stricken. Again, the answer is yes. The statute adequately defines who is covered, what registration procedures must be followed, and what mechanism is created for public disclosure. The only modification relates to the use of the term “predator.”

The State argues that the statute should be upheld in its entirety under Smith v. Doe and Connecticut Department of Public Safety v. Doe, but the State is incorrect. The Alaska and Connecticut statutes at issue in those cases did not use the term “predator” or any other terminology suggesting that the offender is a present danger to the public.

I would urge the Florida Legislature to revisit the statute at its earliest opportunity. By adjusting the terminology, the constitutional defect in this statute can be corrected and the statute brought into compliance with Smith v. Doe and Connecticut Department of Public Safety v. Doe.

It is clear that there must be uniform statewide procedures under section 775.21, and equally clear that the Florida Supreme Court must authoritatively resolve the constitutional issue. Accordingly, it is my view that we should stay our mandate pending review in the Florida Supreme Court.

      . We also deny the State's motion to certify on grounds of great public importance, but, as will be discussed forthcoming, certify on grounds of inter-district conflict.

      . The "Megan’s Law” was named in memory of Megan Kanka, a seven year old New Jersey girl who was sexually assaulted and murdered by a neighbor twice previously convicted of sexual offenses. See Doe v. Pataki, 120 F.3d 1263, 1265 n. 1 (2d Cir.1997). The New Jersey legislature enacted Megan's Law to “identify potential recidivists and alert the public when necessary for the public safety." See Doe v. Dep't of Pub. Safety, 271 F.3d 38, 42 n. 4 (2d Cir.2001) (quoting Paul P. v. Farmer, 227 F.3d 98, 99 (3d Cir.2000)), rev’d, Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003).

      . This section provides that:
      (5) Sexual predator designation. — ... an offender is designated as a sexual predator as follows:
      (a)l. An offender who meets the sexual predator criteria described in paragraph (4)(c) who is before the court for sentencing for a current offense committed on or after October 1, 1996, is a sexual predator, and the sentencing court must make a written finding at the time of sentencing that the offender is a sexual predator, and the clerk of the court shall transmit a copy of the order containing the written finding to the department within 48 hours after the entry of the order[.]

      . A defendant does not even have to be present for the trial court to impose the "sexual predator” designation. See Burkett v. State, 731 So.2d 695, 698 (Fla. 2d DCA 1998) (sexual predator designation is a "collateral consequence" of defendant's crime, and defendant need not be present at hearing where designation is imposed).

      . The offender must personally go to the offices of these departments to register.

      . This section provides in pertinent part:
      (6) Registration.—
      (a) A sexual predator must register with the department by providing the following information to the department:
      1. Name, social security number, age, race, sex, date of birth, height, weight, hair and eye color, photograph, address of legal residence and address of any current temporary residence, within the state or out of state, including a rural route address and a post office box, date and place of any employment, date and place of each conviction, fingerprints, and a brief description of the crime or crimes committed by the offender. ...
      2. Any other information determined necessary by the department, including criminal and corrections records; nonprivi-leged personnel, treatment, and abuse registry records; and evidentiary genetic markers when available.
      * * * *
      (e)If the sexual predator is not in the custody or control of, or under the supervision of, the Department of Corrections, or is not in the custody of a private correctional facility, and establishes or maintains a residence in the state, the sexual predator shall initially register in person at an office of the department, or at the sheriff’s office in the county in which the predator establishes or maintains a residence, within 48 hours after establishing permanent or temporary residence in this state. If a sexual predator registers with the sheriff's office, the sheriff shall take a photograph and a set of fingerprints of the predator and forward the photographs and fingerprints to the department, along with the information that the predator is required to provide pursuant to this section.
      (f) Within 48 hours after the initial registration required under paragraph (a) or paragraph (e), a sexual predator who is not incarcerated and who resides in the community, including a sexual predator under the supervision of the Department of Corrections, shall register in person at a driver’s license office of the Department of Highway Safety and Motor Vehicles and shall present proof of initial registration. ...

      .FSPA specifically provides in pertinent part that:
      (g) Each time a sexual predator's driver's license or identification card is subject to renewal, and within 48 hours after any change of the predator’s residence, the predator shall report in person to a driver’s license office, and shall be subject to the requirements specified in paragraph (f). The Department of Highway Safety and Motor Vehicles shall forward to the department and to the Department of Corrections all photographs and information provided by sexual predators. Notwithstanding the restrictions set forth in s. 322.142, the Department of Highway Safety and Motor Vehicles is authorized to release a reproduction of a color-photograph or digital-image license to the Department of Law Enforcement for purposes of public notification of sexual predators as provided in this section.

        § 775.21(6)(g), Fla. Stat.

      .Specifically, this section provides that:
      (7) Community and public notification.—
      (a) Law enforcement agencies must inform members of the community and the public of a sexual predator’s presence. Upon notification of the presence of a sexual predator, the sheriff of the county or the chief of police of the municipality where the sexual predator establishes or maintains a permanent or temporary residence shall notify members of the community and the public of the presence of the sexual predator in a manner deemed appropriate by the sheriff or the chief of police. Within 48 hours after receiving notification of the presence of a sexual predator, the sheriff of the county or the chief of police of the municipality where the sexual predator temporarily or permanently resides shall notify each licensed day care center, elementary school, middle school, and high school within a 1 mile radius of the temporary or permanent residence of the sexual predator of the presence of the sexual predator. Information provided to members of the community and the public regarding a sexual predator must include:
      1. The name of the sexual predator;
      2. A description of the sexual predator, including a photograph;
      3. The sexual predator’s current address, including the name of the county or municipality if known;
      4. The circumstances of the sexual predator's offense or offenses; and
      5.Whether the victim of the sexual predator’s offense or offenses was, at the time of the offense, a minor or an adult.

      . This section specifically provides that:
      (9) Immunity. — When the court has made a written finding that an offender is a sexual predator, an elected or appointed official, public employee, school administrator or employee, agency, or any individual or entity acting at the request or upon the direction of any law enforcement agency is immune from civil liability for damages resulting from the release of information under this section.

      . A person can, however, petition the court for relief if after twenty (20) years he or she has never been arrested for any subsequent felony or misdemeanor.

      . This section provides:
      (b) A sexual predator who has been convicted of or found to have committed, or has pled nolo contendere or guilty to, regardless of adjudication, any violation, or attempted violation, of s. 794.011(2), (3), (4), (5), or (8); s. 794.023; s. 800.04; s. 827.071; s. 847.0133; or s. 847.0145, or a violation of a similar law of another jurisdiction, when the victim of the offense was a minor, and who works, whether for compensation or as a volunteer, at any business, school, day care center, park, playground, or other place where children regularly congregate, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      . The Fourteenth Amendment provides that no person shall be deprived of life, liberty, or property without due process of law. U.S. Const, amend. XIV, § 1.

      . "A 'stigma' is [a] mark or token of infamy, disgrace, or reproach_” Doe v. Dep’t of Pub. Safety, 271 F.3d at 47 (quoting The American Heritage Dictionary of the English Language 1702 (4th ed.2000)) (alteration in original).

      . In Smith v. Doe, convicted sex offenders challenged the retroactive application of Alaska's Sex Offender Registration Act as a violation of the Ex Post Facto clause. The Court held that Alaska's act was non-punitive, and that its retroactive application was not constitutionally infirm. 123 S.Ct. at 1154.

      . Under Alaska law, information contained in the state’s central registry
      is confidential and not subject to public disclosure except as to the sex offender’s ... name, aliases, address, photograph, physical description, description of motor vehicles, license numbers of motor vehicles, and vehicle identification numbers of motor vehicles, place of employment, date of birth, crime for which convicted, date of conviction, place and court of conviction, length and conditions of sentence,....
      Alaska Stat. § 18.65.087(b) (2000).

      . See § 775.21(6), Fla. Stat.

      . See § 775.21(10)(b), Fla. Stat.

      . See § 775.21 (9), Fla. Stat.

      . The court provided as additional "plus” factors that:
      Potential employers and landlords will fore-seeably be reluctant to employ or rent to [the defendant] once they learn of his status as a "sex offender.” ... Indeed, the public disclosure provisions of [the act] can adversely affect an offender’s personal and professional life, employability, associations with neighbors, and choice of housing.... In addition, public disclosure may encourage vigilantism and may expose the offender to physical violence.

        Bani, 36 P.3d at 1265. (citations omitted).

      . Describing the liberty interest that is lost by a label of "predatory sex offender,” the court wrote:
      Finally, and perhaps most importantly, it is an interest in avoiding the social ostracism, loss of employment opportunities, and significant likelihood of verbal and perhaps, even physical harassment likely to follow from designation. In our view, that interest, when combined with the obvious repu-tational interest that is at stake, qualifies as a "liberty” interest within the meaning of the Due Process Clause.

        Noble, 964 P.2d at 995-96.

      . The court in Doe found that:
      The combination of the following circumstances persuades us that the plaintiff has a liberty and privacy interest protected by the Constitution ... that entitles him to procedural due process: (1) the requirement that he register with local police; (2) the disclosure of accumulated personal information on request; (3) the possible harm to his earning capacity; (4) the harm to his reputation; and, most important, (5) the statutory branding of him as a public danger, a sex offender.
      686 N.E.2d at 1013.

      . The defendant was charged with, and pled guilty to sexual battery on a physically incapacitated victim by multiple perpetrators. A single conviction for a multiple perpetrator sexual battery of a physically incapacitated victim automatically "classified” the defendant as a sexual predator. See § 775.21 (4)(a), Fla. Stat. (a single capital, life, or first-degree felony violation of chapter 794 automatically qualifies person as "sexual predator”); § 794.01 l(4)(a), Fla. Stat. (sexual battery on physically incapacitated victim is a first-degree felony); § 794.023(2)(b), Fla. Stat. (reclassifying all first degree sexual batteries as life felonies if committed by multiple perpetrators).

      . In that case, similar to the case here, the respondent claimed that he was "not a 'dangerous sexual offender,' and that the Connecticut law 'deprive[d) him of a liberty interest— reputation combined with the alteration of his status under state law — without notice or a meaningful opportunity to be heard.’ " Conn. Dep’t of Pub. Safety v. Doe, 123 S.Ct. at 1163-64.

      . New Jersey’s original "Megan's Law" did not provide for a judicial hearing on the risk of future offenses, but the state's Supreme Court read such a requirement into the statute. See Doe v. Poritz, 142 N.J. 1, 662 A.2d 367, 381-85 (1995). Without this judicial amendment to the statute it would have been unconstitutional. Id. at 421-22.
      We however, cannot judicially amend section 775.21, as that province in Florida is left solely to the legislature. See State v. Keaton, 371 So.2d 86, 89 (Fla.1979) (courts may not vary the intent of the legislature with respect to the meaning of a statute, in order to render it constitutional).

      . In Millcs the Second District declined to certify conflict with our original opinion because it was not final and "therefore may be subject to withdrawal or revision.”


source: Caselaw Access Project

license: Public Domain

text:
    Peggy TOBIN, Individually and as Tutrix and on Behalf of the Minor, Jessica Thompson and Leonard J. Thompson v. Jay THOMAS and Elmwood Fitness Center/Elmwood Gymnastics Academy.
    No. 2003-CC-2889.
    Supreme Court of Louisiana.
    Oct. 20, 2003.
   In re Elmwood Fitness Center; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 554-604; to the Court of Appeal, Fifth Circuit, No. OS-C-1188.

Denied.

TRAYLOR, J., would grant the application.


text:
    STATE of Louisiana v. Jason Manuel REEVES.
    No. 2003-KD-2872.
    Supreme Court of Louisiana.
    Oct. 23, 2003.
   In re Reeves, Jason Manuel; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. E, Nos. 20179-01, 20180-01; to the Court of Appeal, Third Circuit, No. 03-1411.

Denied.


author: PER CURIAM.

text:
    RAFAEL J. ROCA, P.A., a Florida professional association, Appellant, v. LYTAL & REITER, CLARK, ROCA, FOUNTAIN & WILLIAMS, a Florida general partnership, Lake Lytal, Jr., Joseph J. Reiter, Mark W. Clark, Donald R. Fountain, Jr., and William S. Williams, Individually, Appellees.
    No. 4D01-3795.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2003.
    Rehearing Denied Oct. 30, 2003.
    Philip M. Burlington of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, and Steven M. Katzman of Katz-man, Wasserman & Bennardini, P.A., Boca Raton, for appellant.
    Bruce Rogow and Beverly A. Pohl of Bruce S. Rogow, P.A., Fort Lauderdale, and Gerald Richman of Richman, Greer, Weil, Brumbaugh, Mirabito & Christensen, P.A., West Palm Beach, for appellees.
   PER CURIAM.

In this case, a jury was asked to determine whether Rafael J. Roca, P.A. (“Roca”), was a partner in the law firm of Lytal, Reiter, Clark, Roca, Fountain and Williams from January 1, 1997, through February 16, 1998. The jury found that Roca was a partner during the relevant time period. Thereafter, the trial judge granted the appellees’ motion for judgment notwithstanding the verdict and for entry of judgment in accordance with the motion for directed verdict, set aside the jury’s verdict, and entered judgment in favor of the defendants. We reverse and direct the trial court to reinstate the jury’s verdict.

I. The Evidence at Trial

It was undisputed that in September of 1995, the law firm of Lytal & Reiter announced that Rafael J. Roca, Donald Fountain and William Williams would be partners in the law firm and that the name of the firm would change to Lytal, Reiter, Clark, Sharpe, Roca, Fountain and Williams. This new partnership was formed pursuant to an oral agreement and, under the terms of that agreement, Lake Lytal, Jr., and Joseph J. Reiter were to retain sixty-five percent and the remaining partners were to share thirty-five percent. It was left to Clark, Sharpe, Roca, Fountain and Williams to reach an agreement on how to split the thirty-five percent. The five, however, were never able to form a consensus on this issue. At this point, the parties begin to disagree about what happened and the significance of events. Because we are reviewing a directed verdict, we must assess the evidence and all inferences of fact in a light most favorable to appellant, the nonmoving party. See Frenz Enters., Inc. v. Port Everglades, 746 So.2d 498 (Fla. 4th DCA 1999).

A. 1996 and the Events Leading up to the December 1996 Withdrawal Agreement

First, while Roca testified that the thirty-five percent that he and the others were to split represented a percentage of ownership in the firm, Lake Lytal, Jr., and Joseph Reiter maintained that the thirty-five percent was merely thirty-five percent of the firm’s income. Despite the lack of agreement regarding how to divvy up the thirty-five percent, Roca’s name and the names of the others were added to the door. Additionally, Roca testified that he and the others began to participate in partnership meetings. According to Roca, in 1996, he was paid a percentage of the 1996 profits, and not a salary and bonus, as had been the case in prior years.

During the efforts to reduce the oral partnership agreement to writing, conflict arose over whether the new partners would be required to buy into the partnership and whether the new partners would be subject to a vesting period. Roca testified that the new partners’ rejection of the vesting period caused conflict with Sharpe and Clark, who felt that since they had been there longer and had been subject to a vesting period, any new partners should also be subject to a vesting period. Eventually, due to the conflict, Sharpe was asked to leave the firm. After Sharpe was asked to leave, Lytal and Reiter announced that they would determine how much of the thirty-five percent each of the remaining partners would receive, assigning Clark ten percent, Fountain and Roca eight percent each, and Williams five percent, leaving sixty-nine percent for Lytal and Reiter to split between them.

Then, in December of 1996, all of the new partners were asked to sign a withdrawal agreement. Lytal testified that after Sharpe was asked to leave, they realized that he could force the dissolution of the partnership and that the purpose of the 1996 withdrawal agreement was to “get out of’ the oral partnership. According to Roca, when he went to Reiter’s office to collect his check for his share of the 1996 profits, Reiter pulled out the withdrawal agreement and told him not to worry because they were going to continue as before and his share of the profits would be eight percent. Lytal testified that it was promised that if Roca ánd the others signed the agreement, when things with Sharpe were resolved, a new written agreement would be reached. Clark, Roca, Fountain and Williams each signed a withdrawal agreement. Sharpe refused.

B. 1997

For his part, Roca testified that, following the December 1996 withdrawal agreement, there was a new oral partnership agreement whereby he would receive eight percent of the firm’s profits. According to Roca, the oral partnership, in 1997 and early 1998, was Lytal, Reiter, Clark, Roca, Fountain and Williams, i.e., a firm without Sharpe. And, at trial, Roca testified that, following the signing of the December 1996 withdrawal agreement, he had a conversation with Lytal, wherein Lytal indicated that they were forming a new partnership that .would not include Sharpe. Lytal and Reiter denied ever telling Roca that, in the face of the 1996 withdrawal agreement, they were forming a new oral partnership without Sharpe.

In any event, what both Roca and Lytal and Reiter agree upon is that, in 1997 and following the withdrawal agreement, anyone looking would have believed that Roca and the others were partners. As evidence of the new partnership, Roca cited (1) an August 1997 partnership meeting wherein Lytal encouraged the new partners, including Roca, to assign more of their cases to associates because all of the money was going into the same pot for the partners; (2) the firm’s phone book listing, “Lytal, Reiter, Clark, Roca, Fountain, and Williams”; (3) a July 1997 press release referring to Roca as a partner in the firm of Lytal, Reiter, Clark, Roca, Fountain and Williams; and (4) an October 1997 letter that Joseph Reiter wrote to Justice An-stead referring to Roca as a partner.

Roca also presented evidence that he, and the other individual appellees, signed the settlement papers for the litigation that resulted when Sharpe left the firm, personally guaranteeing a $1.2 million loan taken out by the firm. Additionally, Roca testified that, in 1997, he received a share of the firm’s profits and that a capital account was established in his name with a balance of approximately $70,000, representing the amount that the firm was unable to pay at the time. The firm’s accountant later testified that any designation of a capital account for Roca by the firm’s bookkeeper had been in error.

Lytal and Reiter explained away the significance of their treating Roca and the others as partners following the December 1996 withdrawal agreements as simply the fulfillment of a commitment on their part to save their colleagues any embarrassment or humiliation until a new, written partnership agreement could be reached.

C. 1998

In February of 1998, Roca resigned from the firm after reviewing financial documents that led him to believe that Lytal and Reiter were not splitting the firm’s profits fairly. In March of 1998, Lytal, Reiter, Clark, Fountain and Williams signed a new partnership agreement. That same month, Roca sued the partnership and each of the men individually.

II. The Jury’s Verdict and the Trial Judge’s Determination that the Verdict could not Stand

By its verdict, the jury necessarily concluded that subsequent to the signing of the withdrawal agreements, a new partnership was formed between Lytal, Reiter, Clark, Roca, Fountain and Williams in 1997 continuing to 1998. In setting aside the jury’s verdict, the judge found that, by its express terms, the December 1996 withdrawal agreement precluded the formation of a subsequent oral partnership among the parties. Further, the judge found that any attempt to form a partnership by oral agreement failed as a matter of law because there was no “meeting of the minds” and the agreement lacked essential terms. We conclude that the trial court erred in each of these determinations.

A. The Jury’s Findings

Florida’s Revised Uniform Partnership Act, which became effective January 1, 1996, defines a “partnership” as “the association of two or more persons to carry on as coowners a business for profit” and specifically provides that such an association results in a “partnership” “whether or not the persons intend to form a partnership.” § 620.8202(1), Fla. Stat. In other words, formation of a partnership does not require a showing that the parties subjectively intended to create a partnership, only that they intended to do the things that constitute a partnership. See 18 pt. 2, Fla. Stat. Ann. 287-88, emt. 1; Everett v. Ribicoff, 200 F.Supp. 103, 111 (N.D.Fla.1961). With these principles in mind, we find that there was competent substantial evidence in the record to sustain the jury’s finding that Roca was a partner in Lytal, Reiter, Clark, Roca, Fountain and Williams in 1997 and early 1998.

B. The Trial Judge’s Legal Rulings

Having found that the jury’s factual determination of partnership is sustainable, we next consider whether any of the legal reasons cited by the trial judge support his decision to set aside the verdict. First, the judge found that the express terms of the December 1996 withdrawal agreement provided that Roca was withdrawing from the partnership and that he would not thereafter be a partner absent a further written agreement. Here, we believe that the trial judge interpreted the agreement too broadly. On its face, the agreement provides only that Roca is withdrawing from the firm of Lytal, Reiter, Clark, Sharpe, Roca, Fountain and Williams and will not re-enter Lytal, Reiter, Clark, Sharpe, Roca, Fountain and Williams without a written agreement. The document says nothing about Roca entering into any other partnerships, i.e., a partnership without Sharpe.

At worst, the agreement is ambiguous as to the formation of any partnership without Sharpe. In the face of ambiguity on this issue, the jury was free to look to the subsequent conduct of the parties to ascertain the parties’ intent and the agreement’s meaning. Where an agreement is ambiguous, the meaning of the agreement may be ascertained by looking to the interpretation that the parties have given the agreement and the parties’ conduct throughout their course of dealings. See, e.g., Mayflower Corp. v. Davis, 655 So.2d 1134, 1137 (Fla. 1st DCA 1994). There was ample evidence that, following the December 1996 withdrawal agreement, while Clark, Roca, Fountain and Williams were treated as partners by Lytal and Reiter, Sharpe was not so treated. Thus, based on the parties’ own actions, the jury could have concluded that the December 1996 withdrawal agreement served only to preclude the reformation of a partnership including Lytal, Reiter, Clark, Sharpe, Roca, Fountain and Williams absent a written agreement. Accordingly, the parties’ subsequent conduct and course of dealings would not have been in conflict with the express terms of the 1996 withdrawal agreement.

Next, we turn to the judge’s findings that the alleged oral partnership agreement did not “rise to the level of a binding contract” because (1) there was no testimony that Roca had conversations concerning the oral partnership with Reiter, Clark, Fountain or Williams and (2) the terms of the oral partnership agreement were lacking in “definiteness and certainty.” As for the first of these grounds, Roca was not required to testify that he spoke.with each of the partners in order for there to be a partnership. Florida law provides that a partnership results from either an express or implied agreement to share profits and to carry on the business as co-owners. See In re Porton, 30 B.R. 374, 376 (Bankr.M.D.Fla.1983)(“It is a general principle of law that as between the parties to an alleged partnership, the existence of a true partnership relation depends on an agreement, whether implied or express, to operate as such.”)(eiting A.J. Richey Corp. v. Garvey, 132 Fla. 602, 182 So. 216 (1938)); Greiner v. Gen. Elec. Credit Corp., 215 So.2d 61, 63 (Fla. 4th DCA 1968).

We likewise reject the judge’s finding that any oral partnership agreement was not sufficiently definite to be enforceable. To support his finding on this issue, the trial judge relies upon Dreyfuss v. Dreyfuss, 701 So.2d 437 (Fla. 3d DCA 1997). Dreyfuss involved a dispute between a father and a son. The son was an attorney who occasionally did legal work for his father’s business, Brickell Earth Station, Inc., a company that obtained cable television contracts with condominium associations. When the son’s employment was terminated, the father invited the son to do a sales presentation for his company. According to the son, on the way home from the presentation, the father offered to pay him a percentage of the company’s future revenues if, in exchange, the son would give up his right to hourly compensation for legal services rendered to the company, forgive any outstanding debt for services rendered, and join his father as a salesman. At trial, however, the son also testified that he could not recall if any of the terms regarding the sharing of profits and losses were discussed.

The father testified that there never was an agreement to form a partnership and share equally in the profits. The father further stated that he had never split the business’s profits with his son, but, instead, had paid him a share of gross revenues for the time that the son spent obtaining contracts and providing legal services. On these facts, the Third District held that the essential terms of a partnership had not been established, citing the following deficiencies: (1) the son was unsure of whether his agreement was with his father as an individual or with the corporation; (2) the son was unsure of the duration of the agreement; (3) the son could not recall the financial specifics of the arrangement; and (4) there was no discussion regarding how to dissolve the partnership. See Dreyfuss, 701 So.2d at 439-40.

In contrast to Dreyfuss, here, there was evidence on the manner in which the profits would be divided. Additionally, unlike Dreyfuss, here, the' one claiming the existence of the partnership, Roca, testified that he also agreed to share partnership losses and be responsible for partnership debts. See § 620.8401(2), Fla. Stat. (providing that, absent an agreement to the contrary, losses will be shared in the same manner as profits). And, finally, the provisions of Florida’s Revised Uniform Partnership Act specifically allow for a “partnership at will,” i.e., one in which “the partners have not agreed to remain partners until the expiration of a definite term or the completion of a particular undertaking,” see § 620.8101(9), Fla. Stat., and provide default provisions for dissolution and winding up, see §§ 620.8801-.8807, Fla. Stat.

In sum, we find that none of the reasons cited by the trial court justified setting aside the jury’s verdict, and doing so was legal error as well as a clear abuse of discretion. Consequently, we reverse the order setting aside the verdict, direct the trial court to reinstate the jury’s verdict, and remand the case for further proceedings.

REVERSED and REMANDED.

KLEIN, STEVENSON, JJ., and BAILEY, JENNIFER D., Associate Judge, concur.

      . Mark Clark and Tracy Sharpe were already partners in the firm, although their names had not been on the door.

      . Roca’s December 1996 withdrawal agreement provided in relevant part:
      AGREEMENT made this 20 day of December, 1996, by and among RAFAEL J. ROCA, P.A. ("Roca”), LAKE LYTAL, JR., P.A. ("Lytal”), JOSEPH J. REITER, P.A. ("Reiter”) and LYTAL, REITER, CLARK, SHARPE, ROCA, FOUNTAIN, AND WILLIAMS (hVa Lytal and Reiter), a Florida general partnership ("Partnership”).
      WHEREAS, the parties hereto are now desirous of resolving the 1996 division of Partnership profits as well as uncertainties and any differences which have arisen as the result of such negotiations:
      NOW, THEREFORE, it is agreed as follows:
      4. Roca hereby withdraws as an Income Partner from the Partnership, effective as of the date hereof. Notwithstanding the foregoing, the parties shall continue to negotiate in good faith as to the terms of the revised Partnership Agreement, substantially in the form of the Restated Draft except that if such Restated Draft shall be ultimately agreed to and consummated, Roca’s entitlement to profits shall be Eight percent (8%). If such Restated Draft shall not ultimately be executed by the parties hereto, then Roca’s withdrawal as a Partner hereof shall remain effective as of the date hereof and he shall not thereafter reenter the Partnership as a Partner.

      . A capital account is defined as " ‘[a] term used in accounting to describe the equity in a business. In a partnership, each partner has a capital account which represents his contri-bulion or investment in the partnership.’ ” Cadle Co. v. G & G Assocs., 757 So.2d 1278, 1279 n. 2 (Fla. 4th DCA 2000)(quoting Black’s Law Dictionary 209 (6th ed.1990)).


author: BENTON, J.

text:
    Darrell OLGES, Petitioner, v. Michelle DOUGHERTY and Brett Steven Trask, Respondents.
    No. 1D02-5152.
    District Court of Appeal of Florida, First District.
    Aug. 29, 2003.
    Rehearing Denied Oct. 13, 2003.

      Brian J. Lee, Esquire and Carl Scott Schuler, Esquire of the Law Offices of Carl Scott Schuler, P.A., Jacksonville, for Petitioner.
    Kimberly M. Reid, Esquire and David R. Evelev, Esquire of Alvarez, Sambol, Winthrop & Madson, P.A., Orlando, for Respondents.
   BENTON, J.

By petition for writ of certiorari, Darrell Olges, the plaintiff in an automobile accident case, asks us to quash a trial court’s order (stayed pending review here), compelling him to “submit to an examination ... including a psychological clinical interview and ... psychological testing.” We grant the petition for writ of certiorari and quash the order.

I.

Mr. Olges brought suit seeking to recover damages for injuries allegedly sustained on March 28, 2001, when the car he was driving collided with Brett Steven Trask’s car, which Michelle Dougherty was driving. The original complaint sought damages for “bodily injury and resulting pain and suffering, disability, disfigurement, mental anguish, loss of capacity for the enjoyment of life, expense of hospitalization, medical and nursing care and treatment, loss of earnings, loss of ability to earn money, and aggravation of a previously existing condition.” Later, faced with the prospect of a mental examination, he withdrew all claims for damages for future lost wage-earning capacity, past or future mental anguish, and past or future emotional distress or other emotional damages.

On October 9, 2002, Ms. Dougherty and Mr. Trask filed a motion seeking an order requiring Mr. Olges to submit to a “vocational rehabilitation evaluation” conducted by one Michael Shahnasarian, Ph.D., who is, among other things, a licensed psychologist, licensed mental health counselor, diplómate of the American Board of Psychological Specialties, certified rehabilitation counselor, and certified life care planner. Mr. Olges objected and moved for a protective order, arguing that a “vocational rehabilitation evaluation” was not warranted because he had withdrawn his claim for future lost wage-earning capacity. Anticipating that Dr. Shahnasarian would conduct psychological testing, the motion for protective order also argued that Mr. Olg-es “should not be required to submit to psychological evaluations or other similar procedures under the guise of a Vocational rehabilitation evaluation.’ ”

II.

At the hearing on the motions on November 7, 2002, the defendants below shifted their ground somewhat, seeking to compel Mr. Olges to submit to an evaluation by Dr. Shahnasarian principally in his capacity as a life care planner. Dr. Shah-nasarian testified that in preparing Mr. Olges’s life care plan he would take into account the spinal column stimulator prescribed by Christopher Roberts, M.D., Mr. Olges’s treating physician and a pain management specialist. But Dr. Shahna-sarian also testified that he wanted to perform psychological testing. He told the trial judge that physicians who are pain management specialists typically “order a battery of psychological testing” before prescribing a spinal column stimulator, stating: “[I]t is standard practice among physicians to do some type of a testing, typically the MMPI, which is a test that I would like to administer to Mr. Olges, prior to recommending [an] implant....”

In response to Dr. Shahnasarian’s testimony — and defense counsel’s argument that Dr. Shahnasarian should be allowed “to comment on” the use of an implanted device for managing Mr. Olges’s pain — the trial judge asked (then answered) a rhetorical question: “What can he possibly comment on whether or not that is an effective modality for the treatment of pain? He’s not an MD.” The trial judge denied the motion for protective order nevertheless, and directed Mr. Olges to submit to examination by Dr. Shahnasarian, for the stated reason that pain management treatment involves “a very heavy emphasis on the psychological aspect of the party.”

The trial judge specifically ruled that the examination could consist of a “psychological clinical interview and any testing including an MMPI or other psychological testing referenced during the course of ... testimony at the hearing.... ” When Mr. Olges indicated his intention to seek review by filing a petition for writ of cer-tiorari, the trial judge stayed the order pending disposition of the petition. Before filing the petition, Mr. Olges again moved for a protective order, this time attaching to his motion an affidavit in which Dr. Roberts states that “there is no medical need or justification” for ordering “any psychological testing or evaluation.” After the trial court denied his renewed motion, Mr. Olges filed the instant petition for writ of certiorari.

III.

We review the merits of a non-final order on petition for writ of certiorari only where “[t]he order ... cause[s] material injury to the petitioner [that cannot be cured] throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal.” Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987); Naghtin v. Jones, 680 So.2d 573, 577 (Fla. 1st DCA 1996). “[I]t is ... necessary for an appellate court to conduct a jurisdictional analysis prior to testing whether the nonfinal order ... is a ‘departure from the essential requirements of law.’ Thus, ... a petitioner must [first] establish that an interlocutory order creates material harm irreparable by post-judgment appeal.... ” Parkway Bank v. Fort Myers Armature Works Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995). See also Jaye v. Royal Saxon, Inc., 720 So.2d 214, 215 (Fla.1998) (“[I]t is settled law that, as a condition precedent to invoking a district court’s certiorari jurisdiction, the petitioning party must establish that it has suffered an irreparable harm that cannot be remedied on direct appeal.”).

Interlocutory orders requiring mental examinations are held to cause harm of a kind that cannot be remedied on appeal from final judgment. “In the context of compelled [mental] examinations, the required element of irreparable harm may be found based on the notion that once the invasive harm of the examination occurs, it cannot be undone on appeal.” Taylor v. Columbia/HCA Doctors Hosp. of Sarasota, 746 So.2d 1244, 1245 (Fla. 1st DCA 1999). See also Martin-Johnson, Inc., 509 So.2d at 1100 (“We recognize that discovery of certain types of information may reasonably cause material injury of an irreparable nature. Illustrative is ‘cat out of the bag’ material that could be used by an unscrupulous litigant to injure another person or party outside the context of the litigation.”); Vo v. Bui, 680 So.2d 601, 601 (Fla. 2d DCA 1996) (treating ease as involving a petition for writ of certiorari because the alleged harm, a nonfinal order “requiring the wife to undergo a psychological evaluation .... will not be remediable on appeal” (citation omitted)); Gasparino v. Murphy, 352 So.2d 933, 935 (Fla. 2d DCA 1977) (“It goes without saying that petitioner could suffer irreparable injury by virtue of a compulsory psychiatric examination. Discovery of this type is of the most personal and private nature. The potentially negative effects of requiring petitioner to bare his inner self against his wishes are self-evident.”).

IV.

Safely across the initial, jurisdictional threshold, Mr. Olges also has the burden to demonstrate that the trial court departed from the essential requirements of law in ruling as it did. See Martin-Johnson, Inc., 509 So.2d at 1099; St. Paul Fire & Marine Ins. Co. v. Marina Bay Resort Condo. Ass’n, Inc., 794 So.2d 755, 756 (Fla. 1st DCA 2001). Central to this aspect of the case is Florida Rule of Civil Procedure 1.360’s (“Examination of Persons”) requirement that any party requesting that another party be subjected to a mental examination be able to show good cause for ordering the examination.

A.

At the motion hearing below, it was incumbent upon the defendants (respondents here) to establish good cause, beginning with proof of the facts on which they relied as proponents of the examination. If good cause had been shown, it would have been within the authority of “the court [to] establish protective rules governing such examination.” Fla. R. Civ. P. 1.360(a)(3). See also Fla. R. Civ. P. 1.280(c) (“Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires .... ”); Medina v. Yoder Auto Sales, Inc., 743 So.2d 621, 623 (Fla. 2d DCA 1999) (“The party moving for the protective order has the burden to show good cause”). But the question of protective rules or protective orders never arises and the burden never shifts unless the proponent of the examination shows good cause for an examination in the first place. See Fla. R. Civ. P. 1.360(a)(2) (“An examination under this rule is authorized only when the party submitting the request has good cause for the examination. At any hearing the party submitting the request shall have the burden of showing good cause.”).

B.

By the time of the hearing, the complaint’s prayer for “medical and nursing care and treatment,” in conjunction with Mr. Olges’s possible need for a spinal column stimulator (which, although not specifically pleaded, had already been the subject of discovery), was the only basis remaining for respondents’ asserted entitlement to the mental examination. Respondents’ counsel stated as much at oral argument. Any hope the defendants had of proving good cause for requiring Mr. Olges to undergo a mental examination rode on the testimony of their only witness at the hearing, Dr. Shahnasarian.

Defense counsel described Dr. Shahnasarian as a “life care expert,” and he testified he was “licensed as a psychologist, licensed as a mental health counselor, certified as a rehabilitation counselor, [and] certified as a life care planner.” As for good cause for ordering a mental examination, Dr. Shahnasarian testified that referral for a psychological examination was the “standard practice among physicians.” But Dr. Shahnasarian’s testimony was not competent on this point. He is not a physician, and he was not offered as an expert on standard medical practice.

Neither as a psychologist nor as the wearer of his many other hats was Dr. Shahnasarian shown to possess the “knowledge, skill, experience, training, or education” necessary to qualify as an expert on the standard of care required of a medical doctor who recommends that a spinal column stimulator be implanted. § 90.702, Fla. Stat. (2002). See Fabianke v. Weaver, 527 So.2d 1253, 1257 (Ala.1988) (noting, “Of course, the testimony of the psychologist was not offered to prove the standard of care required of a medical doctor,” while not “find[ing] that the trial court abused its discretion in allowing [other] testimony of the psychologist”); Bell v. Hart, 516 So.2d 562, 570 (Ala.1987) (affirming determination in a medical malpractice action that a pharmacist and a psychologist were not qualified to “testify whether a medical doctor followed the proper standard of care in prescribing the drug Elavil. Neither was shown to be authorized to prescribe the drug. While their knowledge of the drug and its effect on the human body may or may not be greater than that of a medical doctor authorized by law to prescribe the drug, we cannot permit a nonphysician, who cannot legally prescribe a drug, to testify concerning the standard of care that should be exercised in the prescription of the drug.”); Lundgren v. Eustermann, 370 N.W.2d 877, 880-81 (Minn.1985) (reversing determination in a medical malpractice action that a psychologist was qualified to give opinions on the standard of care required of a medical doctor because a psychologist lacks “practical experience or knowledge of what physicians do” and therefore “does not have the practical knowledge and experience contemplated”).

V.

Not every automobile accident case gives rise to good cause to require the plaintiff to undergo a mental examination. See Byxbee v. Reyes, 850 So.2d 595 (Fla. 4th DCA 2003). Here, once Mr. Olges abandoned his original efforts to recover damages for mental anguish, emotional distress and other emotional damages, his mental condition ceased to be “in controversy” as contemplated by the rule. See Partner-Brown v. Bornstein, 734 So.2d 555, 556 (Fla. 5th DCA 1999). Dr. Shahnasarian’s testimony did not establish otherwise. See Fla. R. Civ. P. 1.360(a)(1) (“A party may request any other party to submit to ... [a mental] examination ... when the condition that is the subject of the requested examination is in controversy.”); Bjerke v. Nash Finch Co., 2000 WL 33339658, at *1 (D.N.D. Feb.1, 2000) (holding a mental examination unwarranted where plaintiff withdrew claims of intentional and negligent infliction of emotional distress in response to defendant’s motion to compel a mental examination, yet still prayed for “compensatory damages, including mental anguish and humiliation,” because “plaintiffs claim [w]as a ‘garden variety’ claim of emotional distress that does not place her mental condition genuinely in controversy” and the plaintiff did “not intend to offer expert testimony”); Smith v. J.I. Case Corp., 163 F.R.D. 229, 230-31 (E.D.Pa.1995) (denying motion to compel mental examination where plaintiff withdrew separate claim for emotional distress yet retained claims for embarrassment and myofascial pain syndrome, where plaintiff had no expert to testify about embarrassment and did not allege that the embarrassment was severe or amounted to a psychotic disorder).

The petition for writ of certiorari is granted, and the order under review is quashed.

WOLF, C.J. and ERVIN, J„ CONCUR.

      . Life care planners prepare comprehensive projections of future medical care and treatment needs to aid economists in calculating the present value of future medical care and treatment. In doing so, they necessarily rely on physicians' recommendations. See Diamond R. Fertilizer v. Davis, 567 So.2d 451, 455 (Fla. 1st DCA 1990) (finding that trial court erred in adopting a life care plan which gave the planner “discretion to oversee and supervise [a workers' compensation] claimant’s medical and nursing care” because "[t]he responsibility for establishing a treatment plan rests with a claimant's authorized physicians.”).
      Counsel for Mr. Olges stated that he had no objection to the life care plan evaluation proposed at the hearing or to "Dr. Shahnasari-an's examinations, if you will, ... excluding an examination for the purpose of determining psychological factors.”

      . A physician, such as a neurologist, neurosurgeon, orthopedic surgeon, psychiatrist, or anesthesiologist, "may obtain a certificate of ‘Added Qualification' in Pain Management from The American Board of Anesthesiology (recognized by the A.M.A. Board of Medical Specialities).” 1 Dan J. Tennenhouse, Att’ys Med. Deskbook § 6:13, at 6-86 (3d ed.1993). Pain management specialists "explore multi-pie dimensions of the control of chronic pain, from the psychiatric to the neurosurgical.” Id. '

      . The MMPI, or Minnesota Multiphasic Personality Inventory, is a so-called personality inventory that consists of statements expressing '
      a wide range of attitudes and fe[e]lings, and the' subject is asked to indicate whether these are True, False, or whether he is unable to say, in regard to their applicability to himself.

      ... [S]uch questions are asked not for the purpose of obtaining factual information about the subject's experiences and beliefs, but rather to measure the subject’s psychological traits.

        Haynes v. Anderson, 304 Minn. 185, 232 N.W.2d 196, 199-200 (1975).

      . Cf. Grenitz v. Tomlian, 858 So.2d 999, 1002-03, 2003 WL 21290887, at *3 (Fla. June 5, 2003) ("[A] neuropsychologist is competent to testify regarding the results of psychological testing reflecting the presence of organic impairment.... [However], the trial court ... did not err in disallowing the opinion testimony of someone other than a qualified physician as to the medical causation of ... brain damage.” (citations and footnotes omitted)); Cross v. Lakeview Ctr., Inc., 529 So.2d 307, 310 (Fla. 1st DCA 1988) (explaining that the plaintiff in a medical malpractice action must establish a breach of the prevailing professional standard of care and that a psychologist does not "possessD sufficient training, experience, and knowledge as a result of practice or teaching ... in a related field of medicine, so as to be able to provide such expert testimony as to” whether a psychiatrist deviated from the "psychiatric standard of care by not performing ... psychological tests”).
      Although a psychologist’s testimony is not competent evidence of the standard of care required of a medical doctor, a physician may be qualified to testify as to the standard of care required of a psychologist. See generally Alford v. G. Pierce Woods Mem’l Hosp., 621 So.2d 1380, 1383 (Fla. 1st DCA 1993) (affirming trial court's denial of a request for chiropractic treatment since an orthopedic surgeon’s testimony that "chiropractic manipulation [of the spine] would be inappropriate given the claimant’s arthritic condition” sufficiently supported denial of the request); Van Sickle v. Allstate Ins. Co., 503 So.2d 1288, 1288 (Fla. 5th DCA 1987) (holding that an orthopedic physician is not "unqualified from also being sufficiently knowledgeable of chiropractic healing as to render an expert opinion on the reasonableness of chiropractic care and treatment in a particular case.”).


author: POLEN, J. FARMER, C.J.,

text:
    MEDIPLEX CONSTRUCTION OF FLORIDA, INC., Appellant, v. Jerome SCHAUB and Jacqueline Schaub, Appellees.
    No. 4D98-4382.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 2003.
    William G. Edwards of Marlow, Connell, Valerius, Abrams, Adler & Newman, Miami, for appellant.
    Marsha L. Lyons of Lyons and Farrar, P.A., Tallahassee, for appellees.
   POLEN, J.

After having stayed this action pending the resolution of bankruptcy proceedings, we now address the issues raised on appeal and affirm the result reached by the trial court. Mediplex Construction of Florida, Inc. (“Mediplex”) timely appeals the trial court’s decision to apply a risk multiplier to the attorney’s fee award given to plaintiffs, Jerome and Jacqueline Schaub. The Schaubs cross-appeal on two issues — whether the trial court erred in not allowing attorney’s fees for the time expended in determining the amount of fees; and whether it abused its discretion in refusing to award fees for time counsel spent on related matters.

We find no abuse of discretion in the court’s decision to apply the risk multiplier. Although we ultimately affirm the decision of the trial court, we write to address one of the issues raised on cross-appeal.

After the parties settled the substantive portions of the claims, they spent over a year litigating the amount of attorney’s fees. Eventually the court intervened and awarded the Schaubs $113,797 in attorney’s fees pursuant to a provision in the contract and section 57.105, Florida Statutes. The Schaubs contend that the court erred in not awarding them attorney’s fees for time spent litigating the amount of fees to which they were entitled.

Mediplex argues that under State Farm Fire & Casualty Co., 629 So.2d 830 (Fla.1993), the Schaubs are not entitled to “fees for fees.” We agree. In Palma, the claim for attorney fees was brought under section 627.428(1), Florida Statutes (1991). That section provided that an insured who prevailed against an insurer in a given suit would be entitled to reasonable fees. Pal-ma held that only the time spent establishing the entitlement to a fee was compensa-ble. It explained that because the time spent litigating the amount of fees under this section inured solely to the attorney’s benefit, they could not be considered services rendered in procuring full payment of the judgment. Id. at 833.

In reaching its conclusion, Palma differentiated section 627.428(1) from other statutes whose purposes were to encourage attorneys to represent indigent clients. Palma recognized that, under those statutes, federal courts often awarded fees for litigating the amount of fees. Id. (citing Prandini v. National Tea Co., 585 F.2d 47, 53 (3d Cir.1978)) (awarding fees in a Title VII class action). In contrast, Palma explained that the purpose and language of section 627.428(1) reflected the legislature’s intent to discourage insurance companies from contesting valid claims. Pal-ma concluded that “[i]f the scope of section 627.428 is to be expanded to include fees for time spent litigating the amount of attorney’s fees, then the Legislature, rather than this Court, is the proper party to do so.” Id.

We recognize that in a footnote, and in a concurring opinion by Judge Farmer, this court has previously commented on and called in to question the underlying rationale in Palma. See Citibank Fed. Sav. Bank v. Sandel, 766 So.2d 302 (Fla. 4th DCA 2000). However that discussion did not effect the outcome in Sandel as the case was decided on federal legal principles, not state law. Thus, Palma was not applicable. More importantly, Palma is still good law and is controlling. As noted in Judge Farmer’s concurring opinion in Sandel, Palma “appears as a matter of Florida law generally to deny such fees for litigating the amount of the fees to be awarded.” Id. at 304.

Since Palma was decided, other courts have expanded its holding to bar fees awarded under other statutes for time spent litigating the amount of fees. For example, in Eisman v. Ross, 664 So.2d 1128 (Fla. 3d DCA 1995), the third district specifically refused to award such fees under 57.105 because they concluded there was no statutory authority to do so. See also Oruga Corp., Inc. v. AT & T Wireless of Fla., Inc., 712 So.2d 1141, 1145 (Fla. 3d DCA 1998)(barring fees for fees under section 768.79(6)(a), Florida Statutes (1995)); Dep’t of Transp., State of Fla. v. Robbins and Robbins, Inc., 700 So.2d 782, 785 (Fla. 5th DCA 1997) (barring fees for fees under sections 73.091 and 73.092, Florida Statutes (1993), in eminent domain proceeding).

The Schaubs rely on Diaz v. SantaFe Healthcare, Inc., 642 So.2d 765 (Fla. 1st DCA 1994), in an attempt to limit Palma’s holding to section 627.428(1). In Diaz, the first district expressly chose to limit Pal-ma and held that in an action for unpaid wages under Florida Statutes, section 448.08 (1993), the trial court has discretion to award attorney’s fees for time spent establishing the amount of fees. Id. at 765. The court reconciled Palma by explaining that, unlike section 627.428(1), one purpose of section 448.08 is to encourage attorneys to represent indigent persons in disputes for unpaid wages. Id. Accordingly, it concluded that awarding fees for time spent litigating the amount of fees, assuming that the time benefitted the client, comported with the purpose behind section 448.08. Id.

The Second District disagreed with Diaz in Nat’l Portland Cement Co. v. Goudie, 718 So.2d 274 (Fla. 2d DCA 1998). There the court held that under section 448.08, the trial court may not award fees for time spent establishing the amount of fees according to Palma.

The Schaubs contend that because a different statute was involved in their case, Palma is inapplicable. They also attempt to differentiate Palma on the basis that they, unlike the client in Palma, directly benefitted from the time their counsel spent litigating the amount of attorney’s fees. In support of this latter argument, they apparently rely on that portion of their contingency fee agreement that states they shall “recover 60% of the fee awarded to the attorneys, until they are made whole with respect to any fees paid, under their settlement.” Although a client may recover a portion of the fees, we do not believe this is the type of case contemplated by the court in Diaz. Certainly we recognize that fees for fees may not always inure to the exclusive benefit of the lawyer, but Palma still applies.

We disagree with the Schaubs’ assertion that Palma is limited to section 627.428(1). As demonstrated above, other courts have broadened Palma in barring “fees for fees” based on other statutes. More specifically, in Eisman, the Third District refused to award such fees in the context of section 57.105.

Perhaps, based on dicta in Palma, “fees for fees” may be awarded if authorized by a statute whose purpose was designed to encourage attorneys to represent indigent clients. Section 57.105(7) is not that statute. Rather, as this court has held, the purpose behind section 57.105(7) is to provide mutuality of attorney’s fees as a remedy in contract cases. Lanahan Lumber Co. v. McDevitt & Street Co., 611 So.2d 591 (Fla. 4th DCA 1998).

We also disagree that the Schaubs’ contingency fee agreement with their attorney somehow avoids Palma’s application. Mangel v. Bob Dance Dodge, Inc., 739 So.2d 720 (Fla. 5th DCA 1999), is instructive. In that case, the plaintiff prevailed in a lawsuit arising from wrongful acts by the defendant in the sale of a used car. He was awarded, pursuant to his contract with the defendant, prevailing party attorney’s fees. He argued that he was also entitled to fees for the time his counsel spent litigating the amount of his fees. He relied on that portion of his fee agreement with his attorney which required him to pay his attorney for any time spent litigating the amount of prevailing party fees. The fifth district, rejecting this argument, held that Palma governed:

Mangel’s own fee arrangement with Blau is not determinative of the fees he is entitled to recover as reasonable attorney’s fees. The trial court did not err in denying additional fees for the time spent establishing the amount of Mangel’s costs and fees.

Id.

Although the Schaubs’ contract with their attorney does not clearly attempt to avoid Palma as did the contract in Mangel, their contract is not determinative of their right to recover “fees for fees.” Rather, because their basis for fees in the first place lies in their contract with Medi-plex, they must look to specific provisions either in that contract or in section 57.105 that authorize such fees. As such provisions do not exist, the Schaubs cannot avoid Palma under the instant facts.

In conclusion, to paraphrase the supreme court in Palma, if section 57.105 should be broadened to include fees for time spent litigating the amount of attorney’s fees, then the legislature, and not this court, should do so.

AFFIRMED.

ANDREWS, ROBERT LANCE, Associate Judge, concurs.

FARMER, C.J., dissents with opinion.

FARMER, C.J.,

dissenting.

I cannot agree that section 57.105(7) merely turns unilateral attorney’s fee provisions into bilateral agreements without authorizing fees-for-fees. Such a holding overlooks the heart, the very purpose, of this “mutuality” statute.

To discover the purpose one need only ask why the Legislature would care whether contractual attorney’s fee provisions should be bilateral when the contract of competent parties has explicitly made them unilateral. See Pierce v. Isaac, 134 Fla. 666, 184 So. 509, 512-13 (1938) (“The general rule is that competent parties shall have the utmost liberty of contracting and their agreements voluntarily and fairly made will be upheld and sustained by the courts. All parties sui juris are free to make whatever contract they may choose so long as no fraud or deception is practiced and there is no infraction of law. The fact that one of the parties to a contract made a hard bargain will not alone avoid a contract.”). If competent parties are free to make bad bargains, of what concern to the Legislature is a unilateral attorney’s fee provision?

The answer is that some bad bargains pervade frequently occurring transactions and have adverse consequences for society. Unilateral fee provisions are usually seen in form contracts prepared by commercial entities. Many of these forms govern consumer transactions. The unilateral fee provision tucked away in the legal text of a form contract effectually deprives many consumers of access to the courts to redress contractual breaches. But typically consumers lack sufficient bargaining power to coax business entities into recasting such fee provisions. And commercial parties need no leveling in negotiating contract terms. Thus the purpose behind section 57.105(7) is obviously that the Legislature found bilateral provisions necessary to enable consumers to have representation and, thereby, meaningful access to the machinery of justice in contractual disputes affecting important consumer and family interests.

I explained in Citibank Federal Savings Bank v. Sandel, 766 So.2d 302, 303-04 (Fla. 4th DCA 2000) (Farmer, J., concurring), why I think fees-for-fees is consistent with the purpose of many attorney’s fee provisions. As I also noted there, the holding in State Farm Fire & Casualty Co. v. Palma, 629 So.2d 830 (Fla.1993), is thought to be narrow and restricted essentially to the meaning of section 627.428. Palma held that the statute is not capable of being understood to allow fees-for-fees. To reach this holding the Palma court applied the underlying principle that the text of the statute or contract creating an entitlement to fees in the first place controls the issue whether fees-for-fees are also authorized.

Truth be told, section 627.428 does not say anything about fees-for-fees — for or against — and so the court necessarily deduced the lack of authorization for fees-for-fees not from explicit text but instead from the entire language, structure, and purpose of the statute. Therefore the real meat of the Palma holding is that the full text, structure, and purpose of an attorney’s fee statute may implicitly lean against allowing fees-for-fees and that the court must examine each statute to ascertain whether such authority exists. I proceed to make that examination and demonstrate that the mutuality provision of section 57.105(7), properly interpreted, does allow for fees-for-fees and has especial support for this particular claim of fees-for-fees.

I begin with the facts and circumstances of the claim in suit. In his final judgment for attorney’s fees, the trial judge made, among others, the following findings:

“Jerry Schaub was the primary breadwinner for his household. [He] developed a blood clot in his brain and was hospitalized at St. Mary’s Hospital. At the time he was hospitalized, he had a million dollar medical insurance policy with Megalife providing full payment of hospital bills and related expenses. He was transferred to Pinecrest Hospital for rehabilitation. During the combined hospitalizations at St. Mary’s and Pine-crest, $930,000 of the insurance was exhausted, and $70,000 left remaining.
“Jackie Schaub, Jerry’s wife, in light of the rapid exhaustion of insurance coverage, negotiated a contract with Medi-plex [appellant] to receive care at the rate of $500 a day. When she was advised that her remaining policy limits of $70,000 had been exhausted, she found out that in fact she had been charged $1300 a day. She approached several law firms to represent her in an action against [appellant] for overcharging, including, among others, Searcy Denney Scarola Barnhart & Shipley, Montgomery & Larmoyeux, and Stewart Tilgh-man Fox & Bianchi, none of whom would accept her case.
“St. Mary’s filed suit against the Schaubs for $1700 in outstanding medical bills incurred at that facility, for a subsequent hospitalization after the Me-galife policy limits had been exhausted. It was at that point that she approached the firm of Lyons & Farrar to represent her in defense of the action by St. Mary’s and to recover the excess charges from Mediplex. By this time she and her husband had exhausted all funds and were borrowing money from friends, neighbors and relatives. She could not afford to pay an hourly rate. She could only have the case handled on a contingency basis. The fee contract provided that the firm would receive the greater of the contingency amount or fee awarded by the Court.
“The law firm of Lyons & Farrar then filed suit against Mediplex to recover the excessive charges. Mediplex had several law firms involved in representing them....
“Mediplex in response to the complaint for breach of contract filed an interpleader action bringing in [various other providers rendering health care services to Mr. Schaub]. There followed excessive pleadings, answers, counterclaims, third-party complaints, motions for continuance, and numerous hearings on the various issues raised. Ultimately St. Mary’s determined that it would not pursue its claim to [any sums recovered from Mediplex by the Schaubs], at which point Mediplex sought to bring the Agency for Health Care Administration [AHCA] into the interpleader action. Plaintiffs entered into negotiations with [AHCA] and arrived at an agreement to compensate [AHCA] for its Medicare lien.”

With this history as background, I turn to the two agreements affecting attorney’s fees and thence to the mutuality fee provision in section 57.105(7) itself.

It is significant that when the Schaubs were finally able to retain counsel, it was under (what I would call) an alternative contingency agreement only. Such an agreement has mutually exclusive alternative formulae for fees. Looking first at the contingency provision for a moment, we see that it is based on the prospect of plaintiffs recovering all or some of the overcharges from Mediplex. This contingency alternative thus fixes the amount of fees due from the Schaubs on the percentage of the actual amount recovered. After a recovery, if the contingency alternative became operative, no litigation would be necessary to ascertain the amount of the fee due.

The alternative to the contingency calculation, however, contemplates and even requires litigation over the amount of the fee. If the court should find that the reasonable fee due under the contractual fee provision exceeds the amount yielded by the contingency, the actual fee due is the amount determined by the court. It is thus obvious under this fee agreement that the client has a direct interest in litigating the amount of fees due. If the amount fixed by the court is less than the amount set by the contingency, then the client will end up paying some of the fees.

Under Palma, I would find fees-for-fees barred by implication under the whole structure and purpose of section 57.105(7) only where it is clear that under no set of facts would the client bear any burden for litigating the amount of fees. Here that is manifestly not the case.

There is an inherent bond between section 57.105(7) and the contractual provision authorizing attorney’s fees. Section 57.105(7) explicitly depends on an attorney’s fee provision in a contract between the parties to the suit. The statute makes that attorney’s fee provision bilateral and thus a contractual right of both. To understand the force and effect of section 57.105(7) in this case, therefore, one must first understand whatever attorney’s fee authorizing provision is in the agreement of the parties.

The text of the contractual fee provision between Mediplex and the Schaubs states as follows:

“In the event that charges for services rendered by MR-PB require collection, the cost of collection and any attorney’s fees, whether or not a lawsuit is brought, must be borne by the client and his designee, if any.”

In drafting this unilateral provision for itself, Mediplex obviously understood that its essential right under the contract was to be paid for its services. In fact, payment is the very reason for which it was in business. Thus, for Mediplex, collection was a shorthand for enforcing this essential contract right.

To interpret the mutuality statute to mean only that the Schaubs had a right of “collection” would be to read the statute literally and thereby make it meaningless. The Schaubs’ contractual rights with Medi-plex have nothing to do with “collection.” Their essential contractual right was for Mediplex to provide them with rehabilitation services at the agreed rate of $500 a day. Thus the only sensible meaning to give to the mutuality provision for this agreement is that the introductory adverbial clause (“In the event that charges for services rendered by MR-PB require collection ... ”) must now be understood to mean: “In the event that it becomes necessary for either party to seek enforcement of this contract....” If the Schaubs were forced to sue Mediplex to enforce their right to the provision of the rehabilitation services — or if they had to sue to enforce the price agreed upon — then the statute gives them a contractual right to fees. Because their suit against Mediplex was to enforce the price provision, they were entitled to fees.

Precisely what fees would be due under their contract is then determined by the text of the now bilateral contractual fee provision. The bilateral contract provides that “any attorney fees, whether or not a lawsuit is brought, must be borne by the [other party].” [e.s.] Surely the contractual term, any fees, is broad enough to include fees-for-fees, for such fees are indisputably a right being enforced under the contract. And the fact that such fees must be borne (in the words of the contract) means there is no discretion. See Federal Auto Ins. Inc. v. Business Acquisitions Brokerage Inc., 839 So.2d 767 (Fla. 4th DCA 2003) (prevailing party fee contract providing for “all reasonable attorney’s fees and costs” creates entitlement in prevailing party to all of its fees, thus establishing right to such fees as matter of law). Any reasonable fees incurred must be borne by the party against whom enforcement was granted. Any doubts about reasonable fees-for-fees, therefore, would have to be resolved in favor of fees-for-fees, for only then would the contractual provision — that any fees must be borne by Mediplex — be enforced.

Like most contractual fee provisions, the purpose of the provision is to make the party successful in suing to vindicate contract rights financially whole when the furor ends. But if the losing party is free to litigate the amount of the fee due without having to pay for the time fighting the amount, then the party who won enforcement of the contract will often not be made whole. The prevailing party in the enforcement action will not have all of their reasonable fees borne by the other. Thus unlike section 627.428 in Palma, here section 57.105(7), together with the fee provision made mutual by that statute, clearly combine to encompass and allow fees-for-fees.

As Judge Fine’s thoughtful and comprehensive order shows, Mediplex went to the wall over a contingency risk multiplier. Because AHCA was entitled to part of any recovery from Mediplex, the claim for such a multiplier of the lodestar (a hours times b rates, where both a and b is a reasonable number) was significant litigation for the client. It could well mean the difference between the client paying part of the fees or, as contemplated by the fee agreement, Mediplex.

It is certainly apt to say that this bilateral statute opened the courthouse doors for the Schaubs. Victims of the health care system, brought to the end of their health care coverage by the conduct of Mediplex, found their representation only through an alternative contingency fee agreement and this mutuality statute. I am confident that without this statute no decent law firm (and few lawyers) would have been willing to take on Mediplex and St. Mary’s. If judges were to read the statute to make fees-for-fees categorically unavailable under section 57.105(7), the excessive litigation of the fee issue recounted by Judge Fine in the final judgment would eliminate an essential reason for having this statute and discourage any future willingness by lawyers to do what these lawyers did.

To allow Mediplex to use Palma to defeat a recovery of reasonable fees for fending off the attempts of Mediplex to avoid a multiplier is not only contrary to a true appreciation of the overall language, structure and purpose of section 57.105(7), it is a rank injustice to these consumers and their lawyers. Under the interpretation argued by Mediplex, the statute would force both the client and their lawyer to bear the cost of the losing adversary’s tactics in litigating the amount of a fee clearly due. Consumers cannot long bear “mutuality” of this kind.

I dissent.

      . See § 57.105(7), Fla. Stat. (2003) ("If a contract contains a provision allowing attorney's fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.”).

      . But see Robert J. Hauser, Raymond E. Kramer III, and Patricia A. Leonard, Is Expert Testimony Really Needed in Attorneys’ Fee Litigation, 77 Fla. Bar J. 38, 41 (Jan.2003) ("Further compounding the burden of fees hearings is the law in Florida that attorneys’ fees expended in litigating the amount of ... attorneys' fees to be awarded generally are not recoverable, denying a successful litigant the 'make whole’ remedy to which he is obviously entitled.”). Although the authors read Palma more broadly than I do, we all agree on the pernicious effects of a broad interpretation:
      "The amount of attorneys’ fees awarded in a fee-shifting hearing obviously benefits the client, because often it determines how much the client will be responsible for paying his or her attorney. In many instances, the fees hearings themselves, because of their complex requirements, can cost close to the amount of attorneys' fees at issue in the underlying matter.”

        Id.

      . In all candor, I think the Palma court misread the statute. Although the statute does not explicitly refer to fees-for-fees, compensating the insured for having to fight the issue of the amount of fees is well within the statutory purpose of making the insured whole for having to sue the carrier for policy benefits. It is naive to think that lawyers agree to represent clients without ensuring that their agreed fees adequately compensate them for having to litigate the amount of the fee due. Thus even if their fee agreement is silent on fees-for-fees, judges can be sure that the amount of the agreed fee in some way pays the lawyers for having to litigate fees-for-fees.

      . The general entitlement to fees is almost always clear from the text of the statute or agreement on which the claim for fees is based. The only real dispute is the amount of the fee due. Most of the time, the lawyer representing the successful party will have to be paid by someone, and that may frequently be the client. Litigating the amount of the fee therefore becomes the focus of the parties. Judges should rethink any reticence they may have in allowing fees-for-fees. The amount of what is reasonable is already well within judicial control, so it is not essential that judges hold such strict rein on entitlement to fees-for-fees.

      . If ever a case was meant for such a multiplier under the logic of Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985) and Standard Guaranty Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla.1990), it must surely be this one.