author: WARNER, J.

text:
    John POULSEN, Appellant, v. June LENZI and Comfort Zone Air, Inc., a Florida corporation, Appellees.
    No. 4D03-1741.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2004.

      Keith H. Park of Keith H. Park, P.A., West Palm Beach, for appellant.
    Ronald E. Jones of Ronald E. Jones, P.A., West Palm Beach, for appellee June Lenzi.
   WARNER, J.

The trial court denied a motion for new trial as being untimely. Although appellee concedes that it was served timely, the original was not filed in the court file. Therefore, appellee maintains that the court had discretion to deny it. As there is no showing of prejudice for the failure to file the motion, we hold that the court erred in denying the motion.

Florida Rule of Civil Procedure 1.530(b) provides that motions for new trial and rehearing “shall be served not later than 10 days after the return of the verdict in a jury action or the date of filing of the judgment in a non-jury action.” It is only service of the motion, not filing with the court, that must take place within ten days of the filing of the final judgment. See Miami Transit Co. v. Ford, 155 So.2d 360, 362-63 (Fla.1963). The trial court’s final judgment was filed February 4, 2003, as indicated by the clerk’s stamp. Thus, by serving his motion on February 14, 2003, Poulsen satisfied the time requirements of rule 1.530.

The motion for new trial was never filed with the clerk, although appellant’s attorney filed an affidavit stating that he had personally presented it to the court for filing. Florida Rule of Civil Procedure 1.080(d) provides: “All original papers shall be filed with the court either before service or immediately thereafter.” The supreme court recognized in Miami Transit that although service of a motion for new trial is the critical act, the motion “should be filed with reasonable promptness.” 155 So.2d at 363. It reasoned that in situations where “undue delay in filing could result in harm or prejudice to the opposing party ... the trial judge has the power to invoke appropriate penalties even to the extent of refusing to consider the motion.” Id. This idea was reiterated in Behm v. Division of Administration, Department of Transportation, 288 So.2d 476, 479 (Fla. 1974), where the supreme court stated, “when the filing of a properly served motion is late (see Rule 1.080(d), F.R.C.P.) a trial judge may refuse to consider the motion if it has resulted in harm or prejudice to the opposing party. He may also refuse to consider a motion which has not been filed at all.”

Here, there was nothing in the record to show any procedural prejudice or harm to the opposing party. The motion for new trial was served on February 14, 2003. On February 18, 2003, appellee moved to strike the motion because it was untimely. The court denied the motion for new trial approximately six weeks later, citing rule 1.530 as authority. Because we have concluded that the motion was timely under rule 1.530, and there is no showing of any prejudice or harm to appellee in the late filing of the motion, we conclude that the trial court abused its discretion in denying the motion.

We reverse and remand for consideration of the motion for new trial on the merits.

POLEN and KLEIN, JJ., concur.


source: Caselaw Access Project

author: KLEIN, J.

license: Public Domain

text:
    Jorge CORPION, et al., Appellant, v. Ken JENNE, Sheriff and Broward Sheriffs Office, Appellees.
    No. 4D03-2695.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2004.
    Rehearing Denied April 29, 2004.
    Barbara R. Duffy, Fort Lauderdale, for appellant.
    Carmen Rodriguez of the Law Offices of Carmen Rodriguez, P.A., Miami, for appel-lee Ken Jenne, Sheriff.
   KLEIN, J.

After appellant was demoted by the sheriff, the Broward County Police Benevolent Association, pursuant to a collective bargaining agreement, filed a grievance on his behalf which was submitted to arbitration. The arbitrator found in favor of appellant; however, the circuit court vacated the arbitration award without explanation. We reverse.

Appellant was permanently demoted as a result of comments he had made at the workplace which violated department policy. Appellant’s position was that his remarks were harmless, and that other employees had done the same thing, or worse, without being disciplined.

The matter was then submitted to arbitration, and the arbitrator found that, although the sheriffs office acted in good faith in attempting to enforce its policy, the facts did not constitute just cause for permanent loss of rank. The arbitrator concluded that no more than a temporary demotion and training were warranted. The arbitrator ordered appellant restored to his rank, but out of deference to the sheriffs office’s good faith, denied back pay or benefits. The sheriff then filed a petition in circuit court to vacate the arbitrator’s award.

The parties agree that the court’s authority to vacate the award is governed by section 682.13, Florida Statutes (2000). The circuit court gave no reason for vacating the award, but the sheriff argues that the arbitrator exceeded his power. § 682.13(c). We are unable to comprehend this argument. The sheriff acknowledges that, under the collective bargaining agreement, the arbitrator was authorized to determine if there was “just cause” to demote appellant. Inherent in that authority is the ability to determine whether a violation of a policy was serious enough to justify demotion or should have resulted in a lesser penalty.

A similar situation was presented in Amalgamated Transit Union, Local 1593 v. Hillsborough Area Regional Transit Authority, 450 So.2d 590 (Fla. 2d DCA 1984), in which the contract language giving the employer the right to discipline for just cause was essentially the same as the language in this case. In that case the arbitrator found that the employee had committed an offense which warranted punishment, but that the punishment given by the employer had been too harsh. The circuit court vacated the award on the ground that the arbitrator had exceeded his authority, but the second district reversed, holding that the circuit court had gone beyond its authority under our arbitration statutes. The court’s reasoning was approved by the Florida Supreme Court in Schnurmacher Holding, Inc. v. Noriega, 542 So.2d 1327 (Fla.1989).

The other reasons advanced by the sheriff for affirmance do not merit discussion. Reversed.

WARNER and POLEN, JJ., concur.


author: TAYLOR, J.

text:
    Kevin J. DILLARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1165.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2004.
    Kevin J. Dillard, Punta Gorda, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Kevin J. Dillard appeals his upward departure sentence imposed by the trial court on re-sentencing following remand. We reverse and remand for re-sentencing.

Appellant was convicted of attempted trafficking in cocaine in an amount between 28 and 200 grams. He was initially sentenced as an habitual offender to twenty years in prison. In Dillard v. State, 820 So.2d 994 (Fla. 4th DCA 2002), we held that his habitual offender sentence was impermissible, because had he been convicted of a completed trafficking offense, rather than an attempt, he would have received a lesser guidelines sentence under the trafficking statute then in effect. Accordingly, we reversed his habitual offender sentence and remanded his case for re-sentencing.

At re-sentencing, the state and appellant agreed that the recommended sentencing guidelines range was 40.5 months to 70.5 months. The state, however, asked for an upward departure sentence. Among the several grounds urged as a basis for departure was that the “offense created a substantial risk of death or great bodily harm to many persons.” § 921.0016(3)(i), Fla. Stat. (1997). The state argued that appellant created a substantial risk of great bodily harm when he ran across two lanes of a busy interstate highway to hide contraband in his possession when the police stopped and tried to search him. In response, defense counsel argued that there was insufficient evidence to support the “substantial risk” aggravator. She asserted that the mere fact that appellant crossed a busy highway is not enough to meet that aggravating circumstance. In addition, she pointed out that appellant had been acquitted of the charges of resisting arrest by fleeing, and that the state could have, but did not, charge or convict appellant of tampering with evidence.

After considering the evidence presented at the previous sentencing and the argument of counsel, the trial court imposed an upward departure sentence of twelve years in prison. He found that appellant created a substantial risk of death or great bodily harm to many persons when he ran across high-speed lanes of traffic on 1-95 to bury the drugs in the woods to “continue trafficking in those drugs.” In departing from the presumptive range, the judge made it clear that he was not relying upon appellant’s fleeing conduct, but rather his conduct in attempting to conceal the drugs in the ground. See § 921.0016(3)®, Fla. Stat. (1997) (providing for departure from the guidelines if the “offense created a substantial risk of death or great bodily harm to many persons”). This appeal followed.

We reverse appellant’s upward departure sentence because the trial court’s stated reasons constitute an impermissible basis for imposing a departure sentence. In Barr v. State, 674 So.2d 628 (Fla.1996), the supreme court held that a departure sentence cannot be based on conduct which could have supported a separate charge and conviction. In that case, the defendant was convicted of armed robbery for stealing a car at gunpoint. Before his arrest, the defendant was spotted driving the stolen vehicle. He fled from the police when they attempted to pull him over, engaging them in a high speed chase. According to the police, the defendant almost caused several accidents. The trial court imposed an upward departure sentence from the defendant’s recommended guideline sentence, finding that the defendant displayed a flagrant disregard for the safety of others by recklessly driving during the chase and endangering the lives of numerous innocent citizens.

In holding that the departure sentence was invalid, the Barr court relied on its prior rulings prohibiting a departure sentence based on conduct that could have, but did not, result in criminal conviction. Id. at 630. The court noted that Barr could have been charged either with fleeing or attempting to elude a law enforcement officer or with reckless driving. Id.

Although Barr involved a pre-1994 guidelines offense, we followed Barr’s reasoning in a 1994 guidelines case, Rendon v. State, 690 So.2d 645, (Fla. 4th DCA 1997). There, we held that a departure sentence could not be based on cover-up activity following the primary offense, where the defendant’s cover-up efforts had not resulted in a criminal conviction. Rendon’s primary offense was leaving the scene of an accident involving injury or death. After he pled guilty to that offense, the trial court imposed an upward departure sentence based on the defendant’s attempted cover-up of the crime by “engaging in a course of lying to the police and letting his wife lie to the police, thus subjecting her to a possible perjury charge.” Rendon, 690 So.2d at 646.

In finding these reasons for departure invalid, we first observed that the guidelines do not permit departure based on “avoiding detection.” While finding this to be particularly so for the crime of leaving the scene of an accident, of which avoiding detection is an inherent feature, we noted that efforts to cover up a crime are generally common to all crimes. Id. at 647 (citing Smith v. State, 620 So.2d 187 (Fla.1993)(holding that efforts to cover up a crime do not justify a sentencing guidelines departure)).

Further, we reasoned that the defendant’s conduct in lying to the police and involving his wife in his deceitful scheme formed the factual basis for a separate misdemeanor obstruction charge, for which the defendant was convicted and sentenced. Finally, with respect to the defendant’s efforts to suborn perjury by involving his wife in his cover-up activity and lying under oath to the police, we pointed out that this conduct could have formed the basis of a separate charge of subornation of perjury. Thus, we determined that the supreme court’s Varner decision controlled, precluding this uncharged conduct as a basis for an upward departure sentence. See Varner, 616 So.2d at 988 (reversing an upward departure sentence for defendant’s alleged threats against a witness before trial because defendant was not charged and convicted of witness tampering).

In this case, the sole reason cited by the trial court for departure was that appellant’s conduct in crossing the highway to hide the drugs created a substantial risk of death or great bodily harm to many persons. The court explained that it was not basing departure on appellant’s resisting or fleeing conduct, for, as the state acknowledged, appellant was tried and acquitted of resisting arrest. Instead, the court stated that its decision to depart was based on appellant’s conduct in crossing the highway to conceal the drugs in the woods, “in order to be able to, if he was not caught or if they were not found, to continue trafficking in those drugs.” For this conduct, appellant could have been, but was not, charged or convicted of the separate crime of tampering with evidence. We thus conclude that such conduct could not form the basis for an upward departure.

Because we determine that the upward departure sentence is invalid since it is based upon an offense for which a conviction has not been obtained, we need not address whether the underlying facts are sufficient to justify departure on the ground of substantial risk of death or great bodily harm to many persons. See Green v. State, 662 So.2d 748 (Fla. 4th DCA 1995)(holding that facts that support a departure sentence must be proven by preponderance of evidence); Wray v. State, 639 So.2d 621, 623 (Fla. 4th DCA 1994)(“The proof necessary to support a departure sentence is the preponderance of the evidence. Fla. R.Crim. P. 3.701(b)(6)”).

We reverse appellant’s sentence and remand this cause to the trial court with directions to re-sentence appellant within the appropriate guidelines range.

REVERSED and REMANDED.

FARMER, C.J. and GUNTHER, J., concur.

      . Section 921.0016 has been repealed effective October 1, 1998, but remains in effect with respect to crimes committed before October 1, 1998. The crime in this case was committed in 1997.

      . State v. Varner, 616 So.2d 988 (Fla.1993); State v. Tyner, 506 So.2d 405 (Fla.1987); and Williams v. State, 500 So.2d 501 (Fla.1986).


author: GROSS, J.

text:
    In re ESTATE OF Norman O. SAUEY, Sr., Deceased. Donald Sauey and Norman O. Sauey, Jr., as Personal Representatives of the Estate of Norman O. Sauey, Sr., Petitioners, v. Beverly Sauey, Respondent.
    No. 4D03-4369.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2004.

      Michael L. Trop of Adorno & Yoss, P.A., Fort Lauderdale, for petitioners.
    Thomas K. Topor of The Kelley Law Firm, Chartered, Fort Lauderdale, and John Beranek of Ausley & McMullen, Tallahassee, for respondent.
   GROSS, J.

This petition for writ of certiorari arises from probate litigation. Petitioners, Donald Sauey and Norman 0. Sauey, Jr., are the personal representatives of the Estate of Norman 0. Sauey, Sr. Respondent, Beverly Sauey, is the surviving spouse. An antenuptial agreement provided that Beverly waived her spousal rights in her husband’s estate upon the occurrence of certain conditions, including the funding of a marital trust for Beverly’s benefit.

In the circuit court, Beverly obtained an extension of time for making an elective share. She contended that she did not have enough information about the assets of the estate to make an informed decision on whether to exercise her statutory right to the elective share. Also, Beverly petitioned for the removal of Donald and Norman, Jr. as co-personal representatives, claiming that they had financial interests that conflicted with their obligations as personal representatives.

Beverly sought discovery of financial information from the personal representatives in requests for production and for admission. The personal representatives objected to the discovery. The trial court overruled the objections in an order dated October 14, 2003.

Considering the two issues being litigated, the discovery sought was proper. “[WJhere materials sought by a party ‘would appear to be relevant to the subject matter of the pending action,’ the information is fully discoverable.” Friedman v. Heart Inst. of Port St Lucie, Inc., 863 So.2d 189, 194 (Fla.2003) (quoting Epstein v. Epstein, 519 So.2d 1042, 1043 (Fla. 3d DCA 1988)). The order compelling production of relevant financial information cannot be the object of a writ of certiorari because there is no irreparable harm. See Eberhardt v. Eberhardt, 666 So.2d 1024, 1025 (Fla. 4th DCA 1996); Gaché v. First Union Nat’l Bank of Fla., 625 So.2d 86, 87 (Fla. 4th DCA 1993).

Petitioners rely upon Picerne Development Corp. of Florida v. Tasca & Rotelli, 635 So.2d 149 (Fla. 4th DCA 1994), to argue that Beverly’s discovery was premature, in that it was “requested prior to the trial court entering an order establishing entitlement to the elective share.” Pi-ceme turns on the application of the rule that applies to discovery in an action for accounting. See Fla. Gaming Corp. of Del. v. Am. Jai-Alai, Inc., 673 So.2d 523, 524 (Fla. 4th DCA 1996). That rule should not be extended to this setting, where the discovery is relevant to the decision of whether or not to even seek an elective share. In accounting cases, there can often be a dispute as to the existence of the fiduciary relationship, such as a trust or partnership, that gives rise to the right to an accounting. Here, there is no dispute as to Beverly’s status as a surviving spouse, only as to her entitlement to the elective share in light of the antenuptial agreement.

The petition for writ of certiorari is denied.

FARMER, C.J., and POLEN, J., concur.


text:
    Enrique A. FINOL, Petitioner, v. Carmen FINOL, Respondent.
    No. 4D03-4909.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2004.
    H.T. Maloney of Patterson & Maloney, Ft. Lauderdale, for petitioner.
    Michael A. Hymowitz of the Law Offices of Braverman and Rossi, Ft. Lauderdale, for respondent.
   KLEIN, J.

Petitioner husband seeks certiorari review of a trial court order allowing discovery of his attorney’s fee retainer agreements and billing and payment records. He contends they are protected by the attorney/client privilege and apparently assumes, without citing any authority, that billing information in and of itself is not discoverable.

If this billing information contained descriptions of services rendered which would reveal the mental impressions and opinions of counsel, that information should be redacted as privileged, Old Holdings, Ltd. v. Taplin, Howard, Shaw & Miller, P.A., 584 So.2d 1128 (Fla. 4th DCA 1991); however, the remaining information is not privileged and therefore discoverable.

This court has recently allowed discovery of defense counsel’s billing records because they were relevant to plaintiffs claim for prevailing party attorney’s fees. Brown Distrib. Co. of West Palm Beach v. Marcel, 866 So.2d 160 (Fla. 4th DCA 2004). In this case it is relevant to the issue of alimony, child support, equitable distribution, and attorney’s fees. The petition for certiorari is therefore dismissed for lack of jurisdiction.

GUNTHER and WARNER, JJ., concur.


text:
    Gayle Appel GOSSELIN, Appellant, v. Robert GOSSELIN, Jr., Appellee.
    No. 4D03-2142.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2004.
    Nancy Little Hoffman of Nancy Little Hoffman, P.A., Pompano and Robert J. Moraitis of Robert J. Moraitis, P.A., Fort Lauderdale, for appellant.
    Jeffrey P. Wasserman of Shapiro, Blasi & Wasserman, P.A., Boca Raton, for ap-pellee.
   TAYLOR, J.

Gayle Appel Gosselin (Wife) appeals an order striking her motion for attorney’s fees pursuant to Florida Rule of Civil Procedure 1.525. We reverse, holding that Rule 1.525 does not apply to post-decretal orders in marital dissolution actions.

The parties to this marital dissolution action entered into a marital settlement agreement, which was incorporated into a final judgment of dissolution dated March 11, 1999. Neither document addressed attorney’s fees.

Five months later, on August 3, 1999, Robert Gosselin, Jr. (Husband) moved to modify the child support downward and change the visitation schedule.

Over a period of several months, the Wife filed numerous motions for contempt, for protective order, and to compel discovery. In all but one motion, she requested attorney’s fees.

On February 22, 2002, the Wife moved for an award of attorney’s fees and costs in connection with all activity since the final order of dissolution. Her motion chronicled the post-dissolution proceedings and the numerous orders which had been entered granting the Wife’s motions, some of which specifically reserved attorney’s fees awardable to the Wife.

Thereafter, on September 5, 2002, the parties entered into a settlement stipulation wherein the Husband dismissed his petition to modify child support and the parties agreed on the amount of child support arrearages. The stipulation did not address the Husband’s petition for modification of visitation. The court entered an order adopting the stipulation and specifically reserving the trial court’s jurisdiction to hear the Wife’s claims for attorney’s fees and costs and the Husband’s visitation issues.

On December 13, 2002, the' Wife filed an amended motion for attorney’s fees, essentially repeating the matters contained in her February 22 motion and including additional allegations for fees pursuant to Rosen v. Rosen, 696 So.2d 697 (Fla.1997).

The Husband moved to strike the amended motion for attorney’s fees and costs, alleging that it was barred by Florida Rule of Civil Procedure 1.525, because it was not filed within 30 days of the September 5, 2002 order approving the settlement stipulation.

The trial court concluded that the “conclusion of a case” is equivalent to a final judgment and that the order approving the settlement stipulation on child support was the conclusion of the case. Since the motion was not filed within 30 days of that order, the court struck the motion.

Because the trial court’s determination that the Wife’s amended motion for attorney’s fees was barred by Florida Rule of Civil Procedure 1.525 is a legal determination, we review it de novo. See Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582, 584 (Fla.2000).

Rule 1.525 was adopted, effective January 1, 2001. It provides:

Any party seeking a judgment taxing costs, attorney’s fees, or both shall serve a motion within 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.

This rule was adopted to establish a bright-line rule governing timeliness of post-trial motions for costs and attorney’s fees. Gulf Landings Ass’n, Inc. v. Hershberger, 845 So.2d 344, 346 (Fla. 2d DCA 2003).

Rule 1.525 applies to marital dissolution actions by virtue of Florida Family Law Rule 12.020, which makes the Rules of Civil Procedure applicable in family law cases except where the Family Law Rules conflict. Wentworth v. Johnson, 845 So.2d 296, 298 (Fla. 5th DCA 2003). In Went-worth, the fifth district affirmed the trial court’s order disallowing attorney’s fees for failure to comply with Rule 1.525. However, Wentworth dealt with a plenary final judgment of dissolution. It did not involve the sort of post-decretal orders which are at issue in this case.

Both parties have focused their attention on whether the order approving the stipulation was a “judgment” within the meaning of the rule. The Wife argues that, because the stipulation and order resolved only the child support issue and left the child visitation issue pending, the order was not a final judgment for purposes of starting the rule’s thirty-day clock. Citing to Grafman v. Grafman, 488 So.2d 115, 118 (Fla. 3d DCA 1986), she contends that all orders entered prior to a final order resolving a modification proceeding must be considered non-final orders.

Whether a post-decretal order is final or non-final is a source of confusion, even among experts in the field. See Remington v. Remington, 705 So.2d 920, 923 (Fla. 4th DCA 1997); Real Estate Corp. of Fla., N.V. v. Dawn Developers, Inc., 644 So.2d 145 (Fla. 5th DCA 1994); Phillip J. Padovano, Florida Appellate Practice § 22.14 (2003).

In Clearwater Federal Savings and Loan Ass’n v. Sampson, 336 So.2d 78, 79 (Fla.1976), the court stated:

An interlocutory order entered after judgment, post decretal, order, (sic) is not to be confused with one entered during the pendency of the proceedings before final judgment.... Post-decretal orders are not true interlocutory orders, and perhaps the term ‘interlocutory’ is a misnomer. Where an order after judgment is dispositive of any question, it becomes a final post decretal order. To the extent that it completes the judicial labor on that portion of the cause after judgment, it becomes final as to that portion and should be treated as a final judgment....

(citation omitted).

In this case, many of the orders addressed in the amended motion for fees and costs were final orders under Sampson for purposes of filing an appeal. However, it does not necessarily follow that each of these orders must be deemed a “judgment” within the meaning of Rule 1.525. That rule contemplates that a single motion for fees must be filed within thirty days of what is typically the single judgment in a case. The drafters of Rule 1.525 likely never contemplated that it would be applied to post-decretal orders in marital dissolution cases. In such cases, especially where minor children are involved, a final judgment of dissolution will, as here, typically result in several post-decretal orders accumulating in short order. It would seem both awkward and inconsistent with the general practice in this area to require separate attorney’s fee motions to be brought each time a post-decretal order issues.

In this regard, we look to the language of section 61.16, Florida Statutes, which governs attorney’s fees in dissolution actions. This section states that the court “may from time to time” award fees to a necessitous party. We note that the “bright-line” purpose of Rule 1.525 to “resolve the uncertainty surrounding the timing of these post trial motions” will grow dimmer if parties are routinely required to decide whether a particular post-decretal order is sufficiently final to constitute a separate judgment under the rule.

Instead, we adopt a bright-line construction consistent with both the simplifying purposes of Rule 1.525 and the practice under Fla. Stat. section 61.16, by holding that Rule 1.525 does not apply to post-decretal orders in marital dissolution actions. In such cases, so long as a party seeks fees within a reasonable time after the post-decretal work was performed, such a motion will be timely filed.

We reverse the order striking the Wife’s motion for attorney’s fees and costs and remand with directions that the court entertain the Wife’s motion.

REVERSED and REMANDED.

FARMER, C.J., and GUNTHER, J., concur.

      . Diaz v. Bowen, 832 So.2d 200, 201 (Fla. 2d DCA 2002).


author: GRIFFIN, J.

text:
    John KIRK, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1656.
    District Court of Appeal of Florida, Fifth District.
    April 2, 2004.
    James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

This is an appeal of an order of restitution. We affirm.

On October 17, 2002, defendant below, John Kirk [“Kirk”], was charged by information with aggravated battery, a second-degree felony. Kirk entered into a plea agreement, whereby he pled guilty, adjudication was withheld, he was sentenced to twenty-four months probation and was ordered to pay restitution.

At the hearing on restitution, the State informed the court that it was seeking repayment to the Division of Victim Services [“Division”] in the amount of $2,047.00. The State offered in evidence a sealed document from the Division listing the medical bills the Division had reimbursed. Counsel for Kirk objected: “I don’t think it by itself, without at least a custodian of record or something, can survive a hearsay objection, which we would make.” The State replied that, as a sealed document, it was self-authenticating. The court overruled Kirk’s objection and the document was admitted into evidence. The court then heard the issue of Kirk’s ability to pay, and ordered Kirk to pay $35.00 per month in restitution to the Division through the Clerk of the Court.

The document referred to above and admitted into evidence at the restitution hearing is an affidavit bearing the heading: “Office of the Attorney General Division of Victim Services and Criminal Justice Programs” and a seal of the Attorney General of the State of Florida. The affidavit is sworn and notarized, and provides:

I, Angela Buckhanan, Program Administrator for the Division of Victim Services and Criminal Justice Programs, Office of the Attorney General, do hereby certify and attest that the attached record is a true copy of the original Payment Information and Crime Information screens for claim number 2002-009656 for crime victim Christopher Blackley. The Payment Information and Crime Information screens are produced by the Victim Assistance Net which is operated and maintained by the Division of Victim Services and Criminal Justice Programs, Office of the Attorney General, Tallahassee, Florida. The Payment Information and Crime Information screens contain a compilation of data which reflects the activities of the Bureau of the Victim Compensation, Division of Victim Services and Criminal Justice Programs; namely, payment of victim compensation benefits to crime victims and providers on behalf of victims.

The Payment Information and Crime Information screens were attached to the affidavit, showing a total amount of $2,047.00 was paid on behalf of the victim for medical services to Brevard Emergency Services ($93.00), Radiology Associates of Brevard ($15.00), Space Coast Pathologists ($20.00), P.A., University of Florida-Jacksonville ($469.00) and Holmes Regional Medical Center ($1,450.00).

Kirk contends on appeal that the trial court erred in awarding restitution because the document alone was not sufficient to support the award. The State responds that no error has been shown because payment of restitution to the Bureau of Victim Compensation is specifically authorized by section 960.17(1), Florida Statutes (2003), and the documentation provided by the State to prove the amount of restitution was admissible as a self-authenticating public record under sections 90.803(8) and 90.902(1), Florida Statutes. The State contends that the document was sufficient to prove the amount of restitution by a preponderance of the evidence.

The public records exception to the hearsay rule provides for the admissibility of public records as follows:

Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness.

§ 90.803(8), Florida Statutes (2003). Professor Ehrhardt explains that “records showing the receipts and disbursements of a governmental department” are included within this section. ChaRles EhrhaRdt, Florida Evidence § 803.8 (2003 ed.). The payment forms attached to the affidavit in the present case include the victim and claim number; to whom the amount was paid; the amount of the payment; the date the payment was authorized; the date the payment was paid; and the check number. These documents are within the public records exception to the hearsay rule and contain the requisite trustworthiness.

The document was also self-authenticating and thus did not require extrinsic evidence of authenticity. Section 90.902, Florida Statutes (2003), states a self-authenticating document is:

(1) A document bearing:
(a) A seal purporting to be that of the United States or any state, district, commonwealth, territory, or insular possession thereof; ... or a court, political subdivision, department, officer or agency of any of them; and
(b) A signature by the custodian of the document attesting to the authenticity of the seal.

The trial court did not err in admitting the documents to determine the amount of restitution.

AFFIRMED.

THOMPSON and PLEUS, JJ., concur.

      . Kirk also argues that the Division is not entitled to restitution because it does not qualify as a "victim.” Section 960.17(1), Florida Statutes (2003), which governs victim assistance by the Department of Legal Affairs/Office of the Attorney General, provides: Any payment of benefits to, or on behalf of, a victim or other claimant under this chapter creates a debt due and owing to the state by any person found, in a civil, criminal, or juvenile court proceeding in which he or she is a party, to have committed such criminal act. Such payment shall create an obligation of restitution in accordance with s. 775.089.


author: THOMPSON, J.

text:
    David B. HACKETT, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2131.
    District Court of Appeal of Florida, Fifth District.
    April 2, 2004.

      James B. Gibson, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   THOMPSON, J.

David Hackett appeals his convictions for two counts of sexual battery and two counts of lewd or lascivious molestation. We affirm.

Hackett was convicted of sexually abusing his 11-year old son and contends that the court erred in admitting the testimony of Hackett’s 23-year old daughter, the victim’s half-sister, that Hackett similarly abused her. The victim, who lived with his mother, testified that shortly after he arrived at Hackett’s residence for a visitation, Hackett fondled the victim’s penis, put his penis into the victim’s mouth, and sexually battered him anally. About a month later, the victim told his mother. Hackett’s daughter testified that when she was eleven, Hackett regularly had oral, anal, and vaginal sex with her during the nine months she lived with him. She testified that she had reported the abuse, but that no one believed her. During a taped conversation with a police detective, Hack-ett admitted abusing the daughter. He initially denied abusing the son, but admitted it after being told that forensic evidence supported the son’s allegations. Hackett’s description of one act committed on the son matched the detail given by the son at trial.

Collateral crime evidence is admissible if both the charged offense and the collateral offense occur within a family setting, and there is some showing of similarity in addition to the fact that the crimes occurred in the family setting. Saffior v. State, 660 So.2d 668, 672 (Fla. 1995). The necessary additional showing of similarity will vary depending on the facts of the case and must be determined on a case-by-case basis. Id. The standard of review is abuse of discretion. Shipman v. State, 668 So.2d 313, 315 (Fla. 4th DCA 1996). In Freeman v. State, 818 So.2d 580 (Fla. 5th DCA 2002), we held that similar fact evidence was properly admitted:

Freeman argues that there was not a sufficient showing of similarity between incidents to warrant the admission of collateral crime evidence here. We disagree. Although the victims in the instant case were of different sex, sex played no part in Freeman’s selection of victims. He engaged in anal sex with both victims while he was babysitting them. His niece was approximately seven-years old while his nephew was five, and the acts against both took place in each of the victims’ homes. The trial court did not err in finding the existence of similarity between the incidents.

Id. at 583-584. In the instant case, as in Freeman, the victim and the collateral crime witness suffered the same acts of abuse at the same age in similar settings. An added similarity in the instant case is that both the victim and the collateral crime witness were the defendant’s biological children.

Finally, we conclude that the collateral crime evidence did not become a feature of the trial and that any abuse of discretion on the part of the trial court in admitting the evidence was harmless in light of Hackett’s confession.

AFFIRMED.

PALMER and MONACO, JJ., concur.

      . Effective July 1, 2001, after the date of the alleged crimes in this case, section 90.404, Florida Statutes, was amended, and, to the extent the amendment is procedural, it was adopted in In re Amendments to the Florida Evidence Code, 825 So.2d 339, 341 (Fla.2002). The amendment creates new paragraph (b) allowing for the admission of evidence of other crimes, wrongs, or acts of child molestation when a defendant is charged with a crime involving child molestation and provides that such evidence may be considered for its bearing on any matter to which it is relevant.


author: ORFINGER, J.

text:
    Michael ANGLIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-329.
    District Court of Appeal of Florida, Fifth District.
    April 2, 2004.

      James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Michael Anglin appeals his convictions and the sentences imposed for robbery with a firearm, two counts of aggravated assault on a law enforcement officer, and aggravated fleeing or attempting to elude a law enforcement officer at high speed or with wanton disregard. Pursuant to a plea agreement with the State, Anglin was sentenced to eighteen years in prison for robbery, two concurrent terms of fifteen years in prison with a three-year minimum mandatory for the two counts of aggravated assault on a law enforcement officer, and one concurrent term of fifteen years in prison for aggravated fleeing or attempting to elude a law enforcement officer. On appeal, Anglin argues that the trial court erred when it permitted his counsel to withdraw prior to sentencing and by imposing the three-year minimum mandatory sentences, required by section 784.07(2)(c), Florida Statutes (2001), based on the charges of aggravated assault on a law enforcement officer. For the reasons that follow, we affirm Anglin’s convictions and sentences, but strike the three-year minimum mandatory provisions.

Anglin asserts that the trial court erred in permitting his fourth attorney to withdraw from representation at sentencing, a critical stage in the proceedings. While Anglin had a right to appointed counsel, our review of the record reveals that although Anglin’s counsel was permitted to withdraw at the sentencing hearing, Anglin was not required to proceed pro se. Rather, the record reflects that the court appointed the same attorney to act as standby counsel for Anglin, and the attorney functioned as Anglin’s attorney in all material respects at sentencing. Accordingly, finding no prejudice, we find no merit in Anglin’s argument.

Next, Anglin argues that the trial court should not have imposed three-year minimum mandatory terms on the charges of aggravated assault on a law enforcement officer because Chapter 99-188, Laws of Flofida, which amended section 784.07(2)(c) to add the minimum mandatory term, was enacted in violation of the single subject rule, and that a later enactment, purportedly curing the constitutional defect, could not be applied retroactively without violating the ex post facto clauses of the state and federal constitutions. In Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), the Second District Court accepted that argument and held that retroactive application of Chapter 02-212 was a violation of the ex post facto clauses of the state and federal constitutions. In Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002), this Court rejected that view, and, relying on Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), held that Chapter 02-209 could be applied retroactively without violating constitutional principles. As he was required to do, the trial judge followed Hersey and rejected Green. However, we have since concluded that Hersey was wrongfully decided, and in an en banc opinion, receded from Hersey. See Jones v. State, 01-2775, 872 So.2d 938, 2004 WL 587635 (Fla. 5th DCA Mar. 26, 2004). In Jones, we adopted the Green rationale, and now hold that retroactive application of the legislative reenactments of the provisions of Chapter 99-188, which are included in Chapter 02-209, could not occur without violating the ex post facto clauses of the state and federal constitutions.

Given the length of Anglin’s sentences, the minimum mandatory provisions have no impact on the term of his incarceration. Accordingly, resentencing is unnecessary. However, on remand, the trial court shall enter, and furnish to the Department of Corrections, an order striking the minimum mandatory provisions.

AFFIRMED AND REMANDED FOR CORRECTION OF SENTENCE.

GRIFFIN and PLEUS, JJ., concur.

      . § 812.13(2)(a), Fla. Stat. (2001).

      . § 784.07(2)(c), Fla. Stat. (2001). The judgment lists count 7 as the crime of aggravated assault with a deadly weapon and refers to section 784.021(1)(A). This appears to be a scrivener’s error as count 7 in the indictment charges aggravated assault on a law enforcement officer under section 784.07(2)(c).

      . § 316.1935(3), Fla. Stat. (2001).

      . Anglin’s offenses were committed on June 18, 2001, before the effective date of Chapter 02-209, Laws of Florida, which provides for the imposition, of the mandatory minimum sentences imposed on Anglin.


text:
    SERETTA CONSTRUCTION, INC., Appellant, v. GREAT AMERICAN INSURANCE CO., et al., Appellee.
    No. 5D03-1562.
    District Court of Appeal of Florida, Fifth District.
    April 2, 2004.

      Rosemary Hanna Hayes, Hayes & Associates, Orlando, for Appellant.
    Donald E. Karraker of DeRenzo and Karraker, P. A., Altamonte Springs, for Appellees, Pertree Constructors, Inc. and Great American Ins. Co.
    H. Gregory McNeill and Kevin K. Ross of Lowndes, Drosdick, Doster, Kantor & Reed, P. A., Orlando, for Appellee, Five Arrows, Inc.
   ORFINGER, J.

Seretta Construction, Inc. appeals an order of the circuit court requiring its construction arbitration claim against Pertree Constructors, Inc. to be consolidated with a separate, but related, construction arbitration proceeding between Pertree and Five Arrows Inc. Seretta also appeals the court’s order requiring arbitration of Five Arrows’s indemnity claim against it despite the lack of any contractual agreement between Seretta and Five Arrows. For the reasons that follow, we reverse.

Pertree Constructors was the general contractor on the 1-4 Commerce Park Project. Pertree subcontracted with Seretta to erect concrete tilt-up walls. Pertree also subcontracted with Five Arrows to prepare and paint the surfaces of the tilt-up walls. After the work was completed, Seretta filed suit against Pertree for breach of contract, claiming that it had not been fully paid. The Pertree-Seretta and the Pertree-Five Arrows subcontracts included identical arbitration provisions:

XII. CLAIMS-DISP UTES
(d) Any claim, dispute or other matter in question between the Contractor and the Subcontractor relating to this Agreement shall be subject to arbitration upon the written demand of either party. Such arbitration shall be in accordance with the construction industry arbitration rules of the American Arbitration Association then obtaining. This Agreement so to arbitrate shall be specifically enforceable under the prevailing arbitration law, and the award rendered by the arbitrator shall be final, and judgment may be entered upon it in any court having jurisdiction thereof.

Subsequent to filing suit, Seretta filed a demand for arbitration, as required by its subcontract with Pertree. Pertree denied Seretta’s claim, raising various defenses, filed a counterclaim in the arbitration proceedings, and initiated a third party arbitration claim against Five Arrows, claiming that Seretta and/or Five Arrows performed defective construction work regarding the tilt-up walls, which resulted in damages to Pertree. Pertree then sought to consolidate the separate, but related, arbitration proceedings. While Seretta objected to Pertree’s effort to consolidate the arbitration proceedings, Five Arrows did not. The arbitrator, acting under the Construction Industry Arbitration Rules of the American Arbitration Association, granted Pertree’s motion for consolidation. Five Arrows then filed an indemnity cross-claim in the arbitration proceedings against Seretta. Seretta objected to Five Arrows’s indemnity claim being included in the arbitration proceedings, contending that as there was no contractual relationship between Seretta and Five Arrows, any dispute between them was not arbitrable. Seretta asked the trial court to order that the Pertree-Seretta dispute be arbitrated separately from the Pertree-Five Arrows dispute and that the Five Arrows indemnity claim against Seretta be excluded from arbitration. The trial court denied Seretta’s request and this appeal followed.

The authority of a trial court to consolidate arbitration proceedings must be based on a statute, judicial policy or contract. Higley South, Inc. v. Park Shore Dev. Co., Inc., 494 So.2d 227, 229 (Fla. 2d DCA 1986). We find no statutory support for consolidation. The Florida Arbitration Code, Chapter 682, Florida Statutes (2003), does not serve as a predicate for the consolidation of the arbitration proceedings as it contains no provision authorizing a trial court to consolidate pending arbitration cases. Nor are we able to find any Florida case law that would allow compulsory consolidation. See id. at 229.

Looking outside of Florida, the case law is confused. Some state courts adopt the view that the statutorily conferred power to enforce arbitration agreements includes the power to direct that the agreed arbitration be conducted in conjunction with a sufficiently related arbitration. These courts emphasize that such a procedure avoids the danger of inconsistent results which can arise if the common subject matter is arbitrated sequentially before different arbitrators. This line of cases relies heavily on the convenience and economy to parties and witnesses in resolving in one proceeding disputes, which arise out of common facts and circumstances. See e.g., Litton Bionetics, Inc. v. Glen Constr. Co., 292 Md. 34, 437 A.2d 208, 213 (Md. 1981); Exber, Inc. v. Sletten Constr. Co., 92 Nev. 721, 558 P.2d 517 (1976); William Blanchard Co. v. Beach Concrete Co., 150 N.J.Super. 277, 375 A.2d 675 (1977); Sullivan County v. Edward L. Nezelek, Inc., 42 N.Y.2d 123, 397 N.Y.S.2d 371, 366 N.E.2d 72 (1977); Vigo Steamship Corp. v. Marship Corp. of Monrovia, 26 N.Y.2d 157, 309 N.Y.S.2d 165, 257 N.E.2d 624 (1970); Sch. Dist. of Phila. v. Livingston-Rosenwinkel, P.C., 690 A.2d 1321 (Pa.Commw.Ct.1997); Children’s Hosp. of Phila. v. Am. Arbitration Ass’n, 231 Pa.Super. 230, 331 A.2d 848 (1974).

The federal courts and several other state courts have held there is no power under their arbitration codes to compel consolidation, and stress that a court cannot rewrite the agreement of the parties. These courts reason that because the agreement is silent on consolidation, a court can do no more than enforce what the parties have expressed, or necessarily implied, in their agreement. They also reason that “rewriting” the agreement as to allow consolidation procedurally may conflict with the rights of one or more of the parties under their contracts. Litton Bionetics, Inc., 437 A.2d at 213; see, e.g., Baesler v. Cont’l Grain Co., 900 F.2d 1193, 1195 (8th Cir.1990); Protective Life Ins. Corp. v. Lincoln Nat’l Life Ins. Corp., 873 F.2d 281, 282 (11th Cir.1989) (per curiam); Weyerhaeuser Co. v. Western Seas Shipping Co., 743 F.2d 635, 636-37 (9th Cir. 1984); Bateman Constr., Inc. v. Haitsuka Bros., Ltd., 77 Hawaii 481, 889 P.2d 58 (1995); Consol. Pac. Eng’g, Inc. v. Greater Anchorage, 563 P.2d 252 (Alaska 1977); La. Stadium & Exposition Dist. v. Huber, Hunt & Nichols, Inc., 349 So.2d 491 (La. Ct.App.1977); Bay County Bldg. Auth. v. Spence Bros., 140 Mich.App. 182, 362 N.W.2d 739 (1984); Pueblo of Laguna v. Cillessen & Son, Inc., 101 N.M. 341, 682 P.2d 197 (1984); Hjelle v. Sornsin Constr. Co., 173 N.W.2d 431 (N.D.1969); Bd. of Educ. of the City Sch. Dist. v. Midwest Elec. Co., 439 N.E.2d 425, 1 Ohio App.3d 37(1980); Balfour, Guthrie & Co. v. Commercial Metals Co., 93 Wash.2d 199, 607 P.2d 856 (1980).

While both approaches have appeal, we believe the better approach is to follow the federal courts and the states that have held that a court cannot order consolidation of arbitration proceedings arising from separate agreements to arbitrate, absent the parties agreement to allow such consolidation. See Gov’t of the U.K. of Gr. Brit. & N. Ir. Through U.K. Def. Procurement Office, Ministry of Def. v. Boeing Co., 998 F.2d 68, 69 (2d Cir. 1993). Indeed, the United States Supreme Court in numerous interpretations of the Federal Arbitration Act, on which Florida’s arbitration act is modeled, has concluded that the Federal Arbitration Act was intended only to assure the enforcement of privately negotiated arbitration agreements, despite possible inefficiencies created by such enforcement. See Volt Info. Scis., Inc. v. Bd. of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989); Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985); Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). In words applicable to the case at hand, the Supreme Court said: “Under the [Federal Arbitration Act] an arbitration agreement must be enforced notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement.” Moses H. Cone Mem’l Hosp., 460 U.S. at 20, 103 S.Ct. 927.

While we agree that a consolidated arbitration proceeding would be more expeditious and economical, “a court is not permitted to interfere with private arbitration arrangements in order to impose its own view of speed and economy ... even where the result would be the possibly inefficient maintenance of separate proceedings.” Am. Centennial Ins. Co. v. Nat’l Cas. Co., 951 F.2d 107, 108 (6th Cir.1991). The sole question for the circuit court is whether there is a written agreement among the parties providing for consolidated arbitration. Here, the answer is no.

Pertree argues that having separate arbitrations is inefficient and may lead to inconsistent determinations. While these are valid concerns, they do not provide us with the authority to reform the private contracts that underlie this dispute. “If contracting parties wish to have all disputes that arise from the same factual situation arbitrated in a single proceeding, they can simply provide for consolidated arbitration in the arbitration clauses to which they are a party.” Gov’t of the U.K. of Gr. Brit., 998 F.2d at 74. “Arbitration ... is a matter of consent, not coercion, and parties are generally free to structure them arbitration agreements as they see fit. Just as they may limit by contract the issues which they will arbitrate ... so too may they specify by contract the rules under which the arbitration will be conducted.” Volt Info. Scis., Inc., 489 U.S. at 479, 109 S.Ct. 1248.

Finally, we must determine whether Five Arrows’s indemnity claim against Seretta is an arbitrable dispute. The parties agree that there is no contractual relationship between Five Arrows and Seretta. Consequently, ordering that dispute to arbitration in the absence of an authorizing contractual provision was error.

We also conclude the trial court erred in denying fees to Seretta with regard to its construction lien claim against Pertree and its surety. On remand, Seretta may be entitled to an award of attorney’s fees depending on the outcome of its claim against Pertree.

REVERSED AND REMANDED.

GRIFFIN and PLEUS, JJ., concur.

      . Seretta also sued Great American Insurance Company based on its claimed construction liens that had been transferred to bond.

      . The only AAA rule which addresses consolidation provides:
      R-7. Consolidation or Joinder
      If the parties' agreement or the law provides for consolidation or joinder of related arbitra-tions, all involved parties will endeavor to agree on a process to effectuate the consolidation or joinder. If they are unable to agree, the Association shall directly appoint a single arbitrator for the limited purpose of deciding whether related arbitrations should be consolidated or joined and, if so, establishing a fair and appropriate process for consolidation or joinder. The AAA may take reasonable administrative action to accomplish the consolidation or joinder as directed by the arbitrator.

      . Florida Rule of Civil Procedure 1.270 does not reflect a judicial policy authorizing consolidation of separate arbitration proceedings. Rule 1.270 provides, in pertinent part, that "[wjhen actions involving a common question of law or fact are pending before the court ... it may order all the actions consolidated....” This rule does not offer anything upon which to sustain consolidation. Higley

        South, Inc., 494 So.2d at 229. It is only the judicial proceedings under the arbitration act that are subject to the rules. The civil rules of procedure do not govern the procedure in the hearings before the arbitrators. Although a circuit judge considering petitions to compel related arbitration proceedings can have all of the petitions heard at once pursuant to rule 1.270, the court could not use that rule to order that the underlying arbitrations, once compelled, be conducted together.


author: PLEUS, J.

text:
    Isaac BRYANT, Appellant, v. ADVENTIST HEALTH SYSTEMS SUNBELT, INC., et al., Appellees.
    No. 5D03-2450.
    District Court of Appeal of Florida, Fifth District.
    April 2, 2004.
    Mark V. Morsch, Mark V. Morsch and Associates, P.A., Winter Park, for Appellant.
    Michael A. Estes and Christopher C. Curry of Hannah, Estes & Ingram, P.A., Orlando, for Appellees.
   PLEUS, J.

Bryant appeals final orders dismissing three defendants from his second amended complaint for medical malpractice on statute of limitations grounds. He argues that the lower court erred in dismissing the defendants because he alleged that they concealed their negligence and intentionally misrepresented that no complications occurred during surgery. We agree that these allegations were sufficiently plead and, if proven, would toll the statute of limitations. Accordingly, we quash the dismissal orders.

While in the custody of the Department of Corrections (“DOC”), Bryant underwent surgery on September 11, 1996 to repair a torn rotator cuff in his left shoulder. On December 11, 1998, Bryant sued his surgeon, the surgeon’s professional association and DOC for medical malpractice. Bryant alleged that his surgeon negligently performed the surgery, injuring his bra-chial plexus, thereby causing permanent injury. He alleged vicarious liability against the other parties.

Bryant deposed the surgeon on July 28, 2000. The surgeon testified that during the surgery, Bryant’s head fell off its support at least once. Based on this new information, Bryant filed a motion to amend complaint on November 2, 2001. The first amended complaint was deemed filed on October 8, 2002. It added, among others, the defendants in this appeal-nurse D. Hayes, medical technician T. Lake and their employer Adventist Health Systems Sunbelt, Inc. d/b/a Florida Hospital East Orlando (referred to collectively as the instant defendants). It alleged that Hayes and Lake negligently allowed Bryant’s head to fall off its support during surgery causing his injuries. It further alleged that:

None of the medical records in this case from any of these Defendants contained an entry or mention of the fact that ISAAC BRYANT’s head fell off the table and/or out of the head frame on one or more occasions during the surgery on September 11, 1996. Plaintiff ISAAC BRYANT learned of these intraopera-tive events when his attorney took the deposition of [the surgeon] on July 28, 2000.

The hospital filed a motion to dismiss based on the statute of limitations and the lower court granted the motion without prejudice to refile a second amended complaint.

Bryant filed a second amended complaint, which is the subject of this appeal, on February 14, 2003. In addition to repeating the aforementioned allegations, the second amended complaint also alleged the following:

57.All of the defendants named in this medical malpractice complaint, ... owed a duty to the Plaintiffs to have written in, recorded and/or otherwise reported and documented in the medical records of ISAAC J. BRYANT in relation to the Plaintiffs rotator cuff repair surgery at Florida Hospital East on September 11, 1996 that during the aforementioned surgery, while ISAAC J. BRYANT was unconscious by effect of the anesthesia and paralyzed by other medication, that ISAAC J. BRYANT’s head fell off of the table and/or out of the head frame on one or more occasions during said surgery.
58. None of the Defendants in this medical malpractice complaint and itemized in paragraph 57 above wrote down, recorded, documented or otherwise reported in any of the medical records that ISAAC J. BRYANT’s head fell off of the table or out of the head frame on one or more occasions during this aforementioned surgery and violated their duty of documentation owed to the Plaintiffs.
59. Furthermore, the Defendants named in this medical malpractice complaint and itemized in paragraph 57 above affirmatively recorded in the medical records regarding and pertaining to the rotator cuff repair surgery the subject of this action that there were no complications or untoward events that occurred during the subject surgery, thereby affirmatively leading the Plaintiffs and their representatives to believe that there were no complications or other untoward events that occurred intra-operatively during the surgery the subject of this action.
60. As a direct consequence of the failure of this duty of disclosure by these Defendants, and as a direct consequence of the fact that the medical records prepared by these Defendants affirmatively documented the lack of intra-operative complications or other untoward events, these Defendants have concealed the actual events that occurred during the surgery the subject of this action, including the fact that ISAAC J. BRYANT’s head fell off of the table and/or out of the head frame on one or more occasions during the surgery the subject of this action, and have further intentionally misrepresented the true course of events that occurred during the surgery the subject of this action, including the fact that ISAAC J. BRYANT’s head fell off of the table and/or out of the frame on one or more occasions during the subject surgery and the Plaintiffs have been otherwise damaged thereby.

The instant defendants filed motions to dismiss based on the statute of limitations. Without a hearing, the lower court dismissed Bryant’s claims against each of these defendants for the following reason:

When the Plaintiff filed the original, complaint in this action, Plaintiff was obviously on notice of his injury as well as being on notice that the injury was the result of malpractice. That notice was sufficient to trigger the statute of limitations. Hazen v. Kaplan, M.D., 734 So.2d 441 (Fla. 5th DCA 1999).

Standard of Review

The standard of review of an order dismissing a complaint is de novo. Randles v. Moore, 780 So.2d 158, 159 (Fla. 2d DCA 2001). Examination must be limited to the four corners of the complaint. Id. The appellate court is “obligated to consider the allegations in the complaint as true and in the light most favorable to the pleader.” Florida Farm Bureau General Ins. Co. v. Ins. Co. of North America, 763 So.2d 429, 433 (Fla. 5th DCA 2000).

Merits

Bryant argues that the trial court erred in dismissing the claims against these defendants because it ignored the fact that the second amended complaint alleged that they concealed the incidents giving rise to the claims against them and affirmatively misrepresented that no complications occurred during surgery.

The medical malpractice statute of limitations, section 95.11(4)(b), Florida Statutes (1996) states, in pertinent part:

An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued.... In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury within the' four year period, the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred.

The supreme court has noted that, “[t]his statutory section prescribes (1) a statute of limitations of two years; (2) a statute of repose of four years absent fraud or intentional misconduct; and (3) a statute of repose of seven years where there is an allegation that fraud, concealment, or intentional misrepresentation of fact prevented discovery of the negligent conduct.” Carr v. Broward County, 541 So.2d 92, 94 (Fla.1989).

The terms “fraud, concealment and intentional misrepresentation” were recently defined in Nehme v. Smithkline Beacham Clinical Laboratories, Inc. 863 So.2d 201 (Fla.2003) as follows:

“Because the statute does not define the term [concealment], the Court must resort to canons of statutory construction in order to derive the proper meaning.” Seagrave v. State, 802 So.2d 281, 286 (Fla.2001). “One of the most fundamental tenets of statutory construction requires that we give statutory language its plain and ordinary meaning, unless words are defined in the statute or by the clear intent of the legislature.” Green v. State, 604 So.2d 471, 473 (Fla.1992). “When necessary, the plain and ordinary meaning of words can be ascertained by reference to a dictionary.” Seagrave, 802 So.2d at 286; see also L.B. v. State, 700 So.2d 370, 372 (Fla.1997) (stating that “a court may refer to a dictionary to ascertain the plain and ordinary meaning which the legislature intended to ascribe to the term”).
To extend the repose period, the statute requires that “concealment” prevent “the discovery of the injury.” “Conceal” is defined as (1) to prevent disclosure or recognition of; and (2) to place out of sight. Merriam Webster’s Collegiate Dictionary 238 (10th ed.1994). More specifically, “concealment” is defined as (1) the act of refraining from disclosure; esp. an act by which one prevents or hinders the discovery of something; and (2) the act of removing from sight or notice; hiding. Black’s Law Dictionary 282 (7th ed.1999). Under these definitions, concealment connotes knowledge.
Other tools of statutory construction also lead us to conclude that concealment implies knowledge. Under the doctrine of noscitur a sociis (a word is known by the company it keeps), one examines the other words used within a string of concepts to derive the legislature’s overall intent. See Cepcot Corp. v. Dept. of Bus. & Prof'l Reg., 658 So.2d 1092, 1095 (Fla. 2d DCA 1995); Carraway v. Armour & Co., 156 So.2d 494 (Fla.1963). Here, the string of concepts in the statute is “fraud, concealment, or intentional misrepresentation of fact.” “Fraud” is generally defined as (1) a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment; and (2) a misrepresentation made recklessly without belief in its truth to induce another person to act. Black’s Law Dictionary 670 (7th ed.1999). “Intentional misrepresentation of fact” is the intentional (done with the aim of carrying out the act) act of making a false or misleading statement about something. Id. at 814,1016.

Based upon these definitions, we conclude that the second amended complaint sufficiently alleged concealment and intentional misrepresentation of fact, which, if proven, would toll the statute of limitations.

The defendants argue that the allegations of concealment do not extend the limitations period because the concealment did not prevent Bryant from discovering his injury, as is required by the plain language of the statute. Section 95.11(4)(b) requires the plaintiff to prove that the concealment “prevented the discovery of the injury.” (Emphasis added). Obviously, the alleged concealment in this case did not prevent Bryant’s discovery of damage to his brachial plexus, as evidenced by his filing of the original complaint against other defendants.

However, the Second District Court of Appeal rejected this argument in Phillips v. Mease Hospital and Clinic, 445 So.2d 1058 (Fla. 2d DCA), rev. denied, 453 So.2d 44 (Fla.1984). In that case, a trial court dismissed a complaint on the ground that the alleged concealment did not prevent the plaintiff from discovering the injury, only the negligent causation of the injury. The Second District disagreed, stating,

We find that the trial court mistakenly restricted the word “injury” in part two of the statute to physical injury. A cause of action in a medical malpractice case necessarily includes a negligent act, omission, or breach of contract, and a resulting injury. Section 95.11(4)(b) defines an “action for medical malpractice” as a claim in tort or in contract for death, injury or monetary loss “arising out of ... diagnosis, treatment, or care.” The extension in part two of the statute is for an “injury” not discovered “within the 4-year period” provided in part one of the statute. “Injury” in part two, therefore, must refer also to the “incident” in part one. Reading the statute as a whole therefore requires, in our opinion, that both “incident” (or act) and “injury” must be known and that fraud, concealment or intentional misrepresentation of fact that conceals either will extend the limitations period as provided in section 95.11(4)(b).

Id. at 1061. Applying this interpretation, the court reversed the dismissal of a complaint because the plaintiff alleged that her medical providers’ intentional misrepresentations about their negligent treatment in 1976 caused her to not become aware of her claims against them until 1982. The court concluded, “These allegations were sufficient to invoke part two of section 95.11(4)(b) so that appellants’ cause of action was no longer, on the face of the complaint, barred by the limitations of part one of section 95.11(4)(b).” Id.

This broad interpretation of the concealment provision has-been consistently followed since the supreme court’s statement in Nardone v. Reynolds, 333 So.2d 25 (Fla. 1976), holding modified on other grounds, Tanner v. Hartog, 618 So.2d 177 (Fla.1993) that “fraudulent concealment by defendant so as to prevent plaintiffs from discovering their cause of action, where the physician has fraudulently concealed the facts showing negligence, will toll the statute of limitations until the facts of such fraudulent concealment can be discovered through reasonable diligence.” Id. at 37 (emphasis added). See, e.g., Menendez v. Public Health Trust of Dade County, 566 So.2d 279, 281 (Fla. 3d DCA 1990) (“when defendants actively misrepresent or conceal their negligence, or conceal known facts relating to the cause of the injury, the statute of limitations does not begin to run until plaintiff is able to discover the negligence. ”) (emphasis added).

The defendants also argue that the lower court correctly dismissed the counts against them in reliance on this court’s decision in Hazen v. Kaplan, 734 So.2d 441 (Fla. 5th DCA 1999). We disagree. In Hazen, the plaintiff became paralyzed from the waist down after undergoing a myelogram. His medical records indicated that he subsequently reported this fact to another doctor. The trial court granted summary judgment to the defendants because the plaintiff failed to file his complaint within two years of the date he acknowledged being on notice of the cause of his injury to another doctor. This court affirmed, finding the plaintiffs “paralysis following the myelogram was sufficient to ‘communicate ... the possibility of medical negligence.’ ” Id. at 443, quoting Tanner at 618 So.2d at 181. In Tanner, the supreme court stated:

We hold that the knowledge of the injury as referred to in the rule as triggering the statute of limitations means not only knowledge of the injury but also knowledge that there is a reasonable possibility that the injury was caused by medical malpractice. The nature of the injury, standing alone, may be such that it communicates the possibility of medical negligence, in which event the statute of limitations will immediately begin to run upon discovery of the injury itself.

Id. at 181-82 (footnote omitted).

The instant defendants argue that because Bryant’s injuries were similar to those in Hazen, they were serious enough to “communicate the possibility of medical negligence,” thereby triggering the statute of limitations the day after his surgery. The problem with this argument is that it fails to account for the Bryant’s allegations of concealment and intentional misrepresentation of fact. Neither Tanner nor Hazen addressed the issue of fraudulent concealment. Nardone made clear that if the plaintiff proves fraudulent concealment, the statute of limitations is tolled.

Application of this concept is demonstrated in Rogers v. Ruiz, 594 So.2d 756 (Fla. 2d DCA 1991). In that case, the plaintiffs husband died undergoing heart bypass surgery. Because the plaintiff filed her complaint more than two years after learning of her husband’s death, the trial court granted summary judgment to the defendants.

Consistent with but before the rule enunciated in Tanner, the Second District found that the statute of limitations was triggered when the plaintiff learned her husband died because she was on notice of the injury and the fact that it resulted from the surgery. However, the court also found that genuine issue of material fact existed regarding whether the surgeon and the hospital concealed the surgeon’s negligence, which, if true, would toll the running of the statute of limitations. The court held that “[fraudulent concealment of circumstances which would (a) put a plaintiff on the type of notice requisite to trigger the statute ... or (b) prevent plaintiffs investigation from ... ‘discovering] any additional facts needed to support a medical negligence action,’ ... tolls the running of the statute.” Id. at 765, quoting Goodlet v. Steckler, 586 So.2d 74, 75 (Fla. 2d DCA 1991).

Clearly, the injury in Rogers was sufficient to trigger the statute under Tanner and Hazen. Nevertheless, concealment or intentional misrepresentation of fact, if proven, would toll the running of the statute. Applying this rule to the instant case requires us to quash the dismissal orders because the second amended complaint clearly raised the issues of concealment and intentional misrepresentation. Bryant’s alternative argument, that the allegations against the instant defendants should relate back to the original complaint, lacks merit.

ORDERS QUASHED; REMANDED.

GRIFFIN and THOMPSON, JJ., concur.

      . Although the pre-suit notices are not contained in the record, both parties acknowledge in their briefs that Bryant instituted pre-suit procedures against the instant defendant pursuant to Chapter 766.


author: DAVIS, Judge.

text:
    FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, Appellant, v. Maria FERGUSON and Garry Ferguson, on behalf of and as parents and natural guardians of Casey Ferguson, a minor; and Lenore McCall, C.N.M., Appellees.
    No. 2D02-285.
    District Court of Appeal of Florida, Second District.
    April 2, 2004.

      Wilbur E. Brewton and Kelly B. Plante of Brewton, Plante & Plante, P.A., Tallahassee, for Appellant.
    Sylvia H. Walbolt, Robert E. Biasotti, and Hunter W. Carroll of Carlton Fields, P.A., St. Petersburg; and David H. Gold of Goldfarb, Gold, Gonzalez & Wald, P.A., Miami, for Appellees Maria and Garry Ferguson.
    No appearance for Appellee Lenore McCall, C.N.M.
   DAVIS, Judge.

The Florida Birth Related Neurological Injury Compensation Association (NICA) challenges the final order of the Division of Administrative Hearings (DOAH), which held that because certain of the health care providers failed to give sufficient notice of the applicability of the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), see § 766.301-.316, Fla. Stat. (1997), the health care providers are not entitled to the statutory immunity provided by the Plan. We conclude that the administrative law judge (ALJ) exceeded his authority in making such a finding, and we reverse.

Casey Ferguson, the minor child of Maria and Garry Ferguson, was born with serious neurological injuries on January 28, 1997, at Morton Plant Mease Health Care Hospital in Dunedin (the Hospital). Due to the injuries she received at birth, her parents filed a malpractice action against the Hospital and Lenore V. McCall, the certified nurse midwife involved in the delivery. In response to the complaint, the Hospital and McCall raised the statutory immunity of the Plan as an affirmative defense and requested that the suit be abated until the ALJ determined whether the birth-related injuries were covered by the Plan. Relying on the interpretation of section 766.301(l)(d), provided in O’Leary v. Florida Birth-Related Neurological Injury Compensation Ass’n, 757 So.2d 624 (Fla. 5th DCA 2000), the trial court abated the action until the “issues of applicability of and/or compensability” under the Plan were determined by the ALJ.

Accordingly, the Fergusons filed a petition against NICA with DOAH, arguing that because their malpractice claim was not barred by the immunity of the Plan, the matter should be remanded to the circuit court for a trial on the merits. In response to the petition, NICA acknowledged that the child’s injury was a birth-related neurological injury as defined by the statute and was compensable. However, acknowledging that the parents alleged that the Hospital and McCall failed to give proper notice of the applicability of the Plan, NICA requested an evidentiary hearing to allow the ALJ to determine notice issues.

After the hearing, the ALJ entered an order finding that the Hospital failed to give sufficient predelivery notice as required by the statute and that, as a result thereof, it was not entitled to statutory immunity from the malpractice complaint. The order stated that the parents could accept the compensation provided under the plan or pursue their malpractice action in the circuit court.

' NICA now challenges that order, arguing that the ALJ exceeded his jurisdiction in determining the legal impact of the Hospital’s failure to provide sufficient notice. Although NICA followed the directions of O’Leary and asked the ALJ to determine the factual issue of whether notice was given, it now maintains that the factual determination was the extent of the ALJ’s jurisdiction. The Fergusons, however, argue that NICA does not have standing to bring this appeal.

Since the ALJ entered his order, this court has issued two opinions that control the notice issue. First, in Bayfront Medical Center v. Division of Administrative Hearings, 841 So.2d 626 (Fla. 2d DCA 2003), this court determined that the ALJ was without jurisdiction to reach legal conclusions as to the impact of a provider’s failure to give sufficient notice. In that case, the parties had agreed to the ALJ making the factual determination as to whether notice was given; thus this court only responded to the issue of whether the ALJ had the authority to reach the legal conclusion that the failure of notice deprives the defending provider of his statutory immunity. Because that is the same issue raised in the instant case, Bayfront is directly on point here and we must reverse.

However, more recently, this court examined the entire jurisdiction issue and concluded that none of the issues of notice are within the province of the ALJ. See All Children’s Hosp., Inc. v. Dep’t of Admin. Hearings, 863 So.2d 450 (Fla. 2d DCA 2004). We concluded that the statute delegated to the ALJ only the authority to determine the issue of compensability, which includes (1) whether the child suffered a neurological injury as defined by the Plan; and (2) whether the child was delivered by a participating physician. See § 766.309. If these two questions are answered in the affirmative, the statute authorizes the ALJ to determine the amount of compensation to which the parents are entitled. Id. The issue of notice therefore is not involved in determining the com-pensability of the injury. All Children’s Hosp., 863 So.2d 450; see also Fla. Health Scis. Ctr., Inc. v. Div. of Admin. Hearings, 2004 WL 401203, 29 Fla. L. Weekly D556 (Fla. 2d DCA Mar. 5, 2004).

Although the parties here reasonably relied on the procedural suggestions of O’Leary in submitting the factual issue of notice to the ALJ, it is clear from these subsequent opinions that even the determination of the factual issues of notice was beyond the ALJ’s jurisdiction. Accordingly, we must reverse those portions of the ALJ’s opinion that address the notice issue.

However, we must also address the issue of standing. The Fergusons suggest that because NICA is not adversely affected by the ALJ’s ruling, it does not have standing to bring this appeal. We disagree. The legislature gave NICA the powers necessary to “effect any or all purposes for which the plan is created.” § 766.315(4)(g), Fla. Stat. (2000). In Humana of Florida, Inc. v. McKaughan ex rel. McKaughan, 652 So.2d 852 (Fla. 2d DCA 1995), this court held that section 766.315 gave NICA standing to challenge an ALJ’s order finding the alleged injury is not covered by the statute and returning the matter to the circuit court for malpractice litigation. This court reasoned that if the order was not challenged, the parents could avoid the exclusive remedy of the Plan and that would be contrary to the “manifest intent and purpose of the Plan.” Id. at 857.

Similarly, should the instant ruling of the ALJ stand, the availability of the immunity afforded to health care providers would be limited by the ALJ’s legal conclusions as to the legislative intent of the statute. Not only would this ruling encourage parents to challenge the notice requirements in an attempt to avoid the limited remedy, it would discourage physicians from participating in the Plan due to the technical requirements of the notice statute as defined by the ALJ. Both of these results are contrary to the intent and purpose of the Plan. Therefore, as in Hu-mana, we conclude that NICA is sufficiently adversely affected to confer on it standing to bring this challenge.

Accordingly, we determine that the ALJ not only exceeded his jurisdiction in reaching the legal conclusions regarding immunity, but also exceeded his jurisdiction in addressing the factual issues of notice. We therefore reverse the ALJ’s order as to the notice issues. In so doing, we certify conflict with the Fifth District’s opinion in O’Leary, 757 So.2d 624, the Third District’s opinion in University of Miami v. M.A, 793 So.2d 999 (Fla. 3d DCA 2001), and the Fourth District’s opinions in Gugelmin v. Division of Administrative Hearings, 815 So.2d 764 (Fla. 4th DCA 2002), and Behan v. Florida Birth-Related Neurological Injury Compensation Ass’n, 664 So.2d 1173 (Fla. 4th DCA 1995), to the extent that these opinions hold that the ALJ has the authority to determine issues related to notice in NICA proceedings.

Additionally, we affirm the ALJ’s order as to the finding of compensability of the injury, and we remand for the entry of an amended final order consistent with this opinion.

Affirmed in part; reversed in part; and remanded.

FULMER and STRINGER, JJ., concur.

      . Although this issue was not specifically reviewed, the "analysis and resolution” of the case by this court was approved by the Florida Supreme Court in Florida Birth-Related Neurological Injury Compensation Ass’n v. McKaughan, 668 So.2d 974 (Fla.1996).

      . During the pendency of this appeal, the Florida Legislature amended section 766.309 to add a new subsection which reads:
      (4) If it is in the interest of judicial economy or if requested to by the claimant, the administrative law judge may bifurcate the proceeding addressing compensability and notice pursuant to s. 766.316 first, and addressing an award pursuant to s. 766.31, if any, in a separate proceeding. The administrative law judge may issue a final order on compensability and notice which is subject to appeal under s. 766.311 prior to issuance of an award pursuant to s. 766.31.
      Ch.2003-416, § 77 at 89, Laws of Fla. Although it might be argued that this language, at least by inference, gives the ALJ the jurisdiction to address notice issues, this amendment does not apply to this case. Section 86 of chapter 2003-416, Laws of Florida, specifically states that the amendments to chapter 766, Florida Statutes, "shall apply only to any medical incident for which a notice of intent to initiate litigation is mailed on or after the effective date of the act.” The effective date of the act was September 15, 2003; thus, the amendment does not apply to this case. We offer no opinion as to whether this amendment does, in fact, confer on the ALJ the jurisdiction in question herein.


text:
    Janet MAGGIO, Appellant, v. DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, AGENCY FOR WORKFORCE INNOVATION, Appellee.
    No. 2D03-2046.
    District Court of Appeal of Florida, Second District.
    April 2, 2004.

      John W. Barkas, Jr., Tampa, for Appellant.
    Nancy A. Chad and Jay P. Lechner of Zinober & McCrea, P.A., Tampa, for Ap-pellee.
   DAVIS, Judge.

In this employment discrimination claim filed against a state agency, the employee, Janet Maggio, challenges the trial court’s dismissal of her action with prejudice and the final summary judgment entered against her. We affirm.

In its order, the trial court found that Maggio’s action, filed pursuant to the Florida Civil Rights Act of 1992 (“FCRA”), was a tort claim. By statute, the State waives sovereign immunity in a tort action if the claimant has complied with the presuit notice requirements of section 768.28(6)(a), Florida Statutes (2001). The trial court concluded that Maggio’s action should be dismissed due to her failure to comply with these statutory requirements. Although the trial court also entered final summary judgment against Maggio for her failure to file her action within the four-year general statute of limitations period, we need not reach the statute of limitations issue because Maggio’s failure to adhere to the presuit requirements is dispositive.

Maggio filed her action on December 19, 2001, pursuant to the FCRA, alleging that the Department of Labor and Employment Security (“DLES”) and its successor agency, the Agency for Workforce Innovation, had committed unlawful employment practices that discriminated against her on the basis of her handicap. Maggio, who is legally blind, had requested certain accommodations in order to fully perform her duties as a consumer services specialist.

The state agency, DLES, argued that Maggio’s employment discrimination claim under the FCRA was a tort claim, which required her to comply with the presuit notice requirements contained in section 768.28(6)(a). DLES also argued that Mag-gio’s failure to give such notice mandated dismissal of her claim. Further, DLES suggested that since the time allowed for complying with the notice requirement had passed as of the date of the trial court’s hearing, the claim should be dismissed with prejudice.

In response, Maggio contended that she was not required to give such presuit notice because the genesis of her claim was her employment, which was a contractual relationship that did not sound in tort. She argued that because notice was required only in tort actions, not breach of contract actions, she was not required to comply with the section 768.28(6)(a) pre-suit notice requirements.

We agree with the trial court that an action filed pursuant to the FCRA is a tort claim. Claims arising under the FCRA stem from personal rights that are granted and guaranteed by legislative act, not by contract. We are persuaded by the reasoning and analysis of Scott v. Otis Elevator Co., 572 So.2d 902 (Fla.1990) (Scott II). In Scott II, the Florida Supreme Court quoted with approval Cagle v. Burns & Roe, Inc., 106 Wash.2d 911, 726 P.2d 434, 436 (1986), for the following premise: “ ‘[Wrongful termination of employment in violation of public policy can be accurately characterized as an intentional tort.’ ” 572 So.2d at 903; see also City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999) (holding that federal cases filed under 42 U.S.C. § 1983 sound in tort); Scott v. Otis Elevator Co., 524 So.2d 642, 643 (Fla.1988) (Scott I) (holding that retaliatory discharge is tor-tious in nature).

Similarly, we find the reasoning in Bear-elly v. State, Department of Corrections, No. 63-2001-CA-046, 2002 WL 982429 (Fla. 8th Cir.Ct. Apr. 10, 2002), persuasive. In that case, the circuit court specifically found that a civil rights claim under the FCRA for wrongful discharge is a tort that is subject to the presuit notice requirements of section 768.28(6). On review, the trial court’s decision was per curiam affirmed. Bearelly v. State, Dep’t of Corr, 845 So.2d 186 (Fla. 1st DCA 2003) (table decision). Although the claim before us alleges discriminatory acts and not wrongful discharge, the reasoning of Bearelly applies because the basis of Maggio’s discrimination claim is that her employer violated her rights as granted by the FCRA.

We therefore conclude that Mag-gio’s claim, filed pursuant to the FCRA, was a tort claim that was subject to the section 768.28(6)(a) presuit notice requirements. Given Maggio’s failure to comply with those requirements, and due to the passage of time and her inability to now timely comply, the trial court correctly dismissed her claim with prejudice. However, because it appears that there is no appellate decision specifically finding that FCRA claims are tort actions, and because we believe this issue to be a matter of great public importance, we certify the following question to the Florida Supreme Court:

ARE CLAIMS FILED PURSUANT TO THE FLORIDA CIVIL RIGHTS ACT OF 1992 TORT CLAIMS AND THUS SUBJECT TO THE PRESUIT NOTICE REQUIREMENTS OF SECTION 768.28(6), FLORIDA STATUTES (2003)?

Affirmed; question certified.

CASANUEVA and SILBERMAN, JJ., Concur.

      . Section 768.28(6)(a) requires that notice be given within three years after the claim accrues. Maggio resigned her employment May 15, 1998, and the trial court dismissed the complaint on April 8, 2003.


author: MONACO, J.

text:
    Donald E. HANNAH, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-663.
    District Court of Appeal of Florida, Fifth District.
    April 2, 2004.

      James B. Gibson, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

The appellant, Donald E. Hannah, challenges his convictions and sentences for a number of counts for sexual crimes, including Counts 2, 6 and 7, charging sexual activity with a child in a familial relationship, in violation of section 794.011(8)(b), Florida Statutes (2000). We affirm the judgments on each count without comment, and affirm all of the sentences, except for the sentences for Counts 2, 6 arid 7. As to Counts 2, 6 and 7, however, we vacate the sentences and remand for re-sentencing.

Violations of section 794.011(8)(b) are first degree felonies, ordinarily punishable by up to thirty years in prison. Mr. Hannah’s Criminal Punishment Code score-sheet, however, showed 747.2 total sentence points, and a lowest permissible sentence of 539.4 months (about 44.95 years), in state prison. The trial court chose on these counts to sentence Mr. Hannah concurrently to a split sentence of 25 years in prison, followed by 25 years of sex offender probation. Mr. Hannah asserts that the sentence for these three counts is illegal. We agree.

In Butler v. State, 838 So.2d 554 (Fla.2003), the Florida Supreme Court held that when the statutory maximum sentence is exceeded by the lowest permissible sentence under the Criminal Punishment Code, the lowest permissible sentence under the Code becomes the maximum sentence that the trial judge can impose. See also Demar v. State, 840 So.2d 381 (Fla. 1st DCA 2003). Thus, the maximum sentence in this case for these crimes is 539.4 months. As the split sentence of 50 years for Counts 2, 6 and 7 exceeds the maximum permissible sentence, we remand this case to the trial court to resentence Mr. Hannah on those counts.

Mr. Hannah also attacks his sexual predator designation on due process grounds. We have addressed this issue in two earlier cases and have rejected the argument. See Martin v. State, 864 So.2d 589 (Fla. 5th DCA 2004); Miller v. State, 861 So.2d 1283 (Fla. 5th DCA 2004). As we did in Martin and Miller, we certify conflict with Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003).

AFFIRMED in part, REVERSED in part, and REMANDED.

PETERSON and THOMPSON, JJ, concur.


text:
    AMERICAN EXPRESS CO., Appellant, v. Scott HICKEY, Appellee.
    No. 5D02-3221.
    District Court of Appeal of Florida, Fifth District.
    April 2, 2004.
    Justin D. Jacobson of Jacobson, Sobo & Moselle, Plantation, for Appellant.
    Howard S. Marks and Jessica K. Hew of Graham, Builder, Jones, Pratt & Marks, LLP, Winter Park, for Appellee.
   ORFINGER, J.

American Express Co. appeals the trial court’s order dismissing its amended complaint with prejudice. Although we sympathize with the trial judge, who was understandably frustrated with the conduct of American Express’s attorney, Justin D. Jacobson, we reverse the order dismissing the amended complaint with prejudice.

Following a series of missed deadlines and the failure of American Express’s attorney to appear at a scheduled hearing, the trial court dismissed American Express’s amended complaint with prejudice. Nonetheless, while we recognize that the trial court has the discretionary power to dismiss a complaint if the plaintiff fails to timely file an amendment or a party fails to meet some other filing deadline, that power must be used cautiously because “to dismiss [a] case based solely on the attorney’s neglect unduly punishes the litigant_” Kozel v. Ostendorf 629 So.2d 817, 818 (Fla.1993).

To assist the trial court in determining whether dismissal with prejudice is warranted, the supreme court has mandated consideration of the following factors: 1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; (2) whether the attorney .has previously been sanctioned; (3) whether the client was personally involved in the act of disobedience; (4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; (5) whether the attorney offered reasonable justification for noncompliance; and (6) whether the delay created significant problems of judicial administration. “Upon consideration of these factors, if a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative.” Id. at 818.

Because dismissal is the ultimate sanction, it should be reserved for those aggravated cases in .which a lesser sanction would fail to achieve a just result. Our review of the record suggests that dismissal with prejudice was too severe a response to the transgressions of American Express’s attorney. The trial court has many options available to it in fashioning an appropriate sanction, including imposing fines, awarding attorney’s fees under section 57.105, Florida Statutes (2004), finding counsel in contempt, or referring the matter to the Florida Bar. While it is essential that attorneys adhere to filing deadlines and procedural requirements, sanctions other than dismissal are appropriate in those situations when the attorney, and not the client, is responsible for the error. For the foregoing reasons, the order of dismissal is reversed.

GRIFFIN and PLEUS, JJ., concur.

      . We too have experienced Mr. Jacobson’s lack of diligence, as is evidenced by our difficulty in obtaining the record on appeal, which was furnished to us in an untimely fashion only after several orders from this court.