author: WALLACE, Judge.

text:
    Jose LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2146.
    District Court of Appeal of Florida, Second District.
    Dec. 31, 2003.
   WALLACE, Judge.

Jose Lopez appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without discussion as to two of Lopez’ claims. As to the remaining two claims, we reverse the trial court’s order denying Lopez’ motion and remand for further proceedings.

On March 6, 2001, a jury convicted Lopez of solicitation to commit first-degree murder. The trial court sentenced Lopez as a prison releasee reoffender (PRR) to thirty years in prison. In his rule 3.850 motion, Lopez alleged that his counsel was ineffective for failing to object to the PRR sentence. Lopez claimed that he did not qualify as a PRR because solicitation to commit murder is not an enumerated offense under section 775.082(8), Florida Statutes (1997), the PRR statute. Although Lopez framed his motion as an ineffective assistance of counsel claim, he more properly alleges a claim of an illegal sentence. Such a claim is also cognizable pursuant to rule 3.850. See Brinson v. State, 851 So.2d 815, 815-16 (Fla. 2d DCA 2003); Summers v. State, 747 So.2d 987, 989 (Fla. 5th DCA 1999).

Section 775.082(8)(a)(l) defines the term “prison releasee reoffender” as:

“Prison releasee reoffender” means any defendant who commits, or attempts to commit:
a. Treason;
b. Murder;
c. Manslaughter;
d. Sexual battery;
e. Carjacking;
f. Home-invasion robbery;
g. Robbery;
h. Arson;
i. Kidnapping;
j. Aggravated assault;
k. Aggravated battery;
l. Aggravated stalking;
m. Aircraft piracy;
n. Unlawful throwing, placing, or discharging of a destructive device or bomb;
o. Any felony that involves the use or threat of physical force or violence against an individual;
p. Armed burglary;
q. Burglary of an occupied structure or dwelling; or
r. Any felony violation of s. 790.07, s. 800.04, s. 827.03, or s. 827.071;
within 3 years of being released from a state correctional facility operated by the Department of Corrections or a private vendor.

Solicitation to commit murder is not an offense that is specifically enumerated under the statute. Nevertheless, the trial court ruled that Lopez qualified for sentencing under the PRR statute because solicitation to commit murder was encompassed within the catch-all provision of section 775.082(8)(a)(l)(o) as a “felony that involved the use or threat of physical force or violence against an individual.”

Our research has not disclosed any reported cases which address the question of whether solicitation to commit murder is a qualifying offense under the PRR statute. Two cases, however, provide some guidance. In Elam v. State, 636 So.2d 1312 (Fla.1994), the Supreme Court of Florida considered whether a defendant’s convictions for two counts of solicitation to commit murder constituted convictions for pri- or violent felonies in the context of an analysis of aggravating circumstances to support the imposition of the death penalty. The court found that the solicitation convictions were not prior violent felonies because, according to the statutory definition of solicitation, “violence is not an inherent element of this offense.” Id. at 1314.

In Duque v. State, 526 So.2d 1079 (Fla. 2d DCA 1988), this court considered whether solicitation to commit murder involved the use of intentional violence within the meaning of section 947.16(3), Florida Statutes (1981). This statute authorized the trial judge to retain jurisdiction over the first one-third of a defendant’s sentence for certain enumerated felonies and for any felony involving the use of a firearm or other deadly weapon or the use of intentional violence. In Duque, we held that the trial court erred in retaining jurisdiction over the defendant’s sentence because “the crime of solicitation is not one of the enumerated felonies and the appellant’s actions in committing the offense of solicitation did not involve the use of a firearm, deadly weapon, or intentional violence.” Id. Thus the case law indicates that solicitation to commit murder is not a felony that involves the use or threat of violence.

“The gist of criminal solicitation is enticement” of another to commit a crime. Hutchinson v. State, 315 So.2d 546, 548 (Fla. 2d DCA 1975) (distinguishing solicitation from attempt). No agreement is needed, and criminal solicitation is committed even though the person solicited would never have acquiesced to the scheme set forth by the defendant. State v. Waskin, 481 So.2d 492, 493-94 & n. 2 (Fla. 3d DCA 1985) (discussing a charge of solicitation to commit murder); see also Florida Bar v. Marable, 645 So.2d 438, 442 (Fla.1994). Thus, the general nature of the crime of solicitation lends support to the conclusion that solicitation, by itself, does not involve the threat of violence even if the crime solicited is a violent crime.

The provisions of the PRR statute shed additional light on this issue. Although attempts to commit the enumerated crimes are qualifying offenses, solicitations are not mentioned in the PRR statute. Therefore, one may infer from this omission that the legislature did not intend to make solicitations qualifying offenses under the PRR statute.

Finally, we note that where, as in this case, “the language of the statute is susceptible of differing constructions, section 775.021(1) requires that we adopt the construction most favorable to the defendant.” Thomas v. State, 741 So.2d 1246 (Fla. 2d DCA 1999). Accordingly, we hold that solicitation to commit first-degree murder is not a qualifying offense under the PRR statute, and a conviction for that offense does not qualify Lopez for PRR status. We therefore reverse the trial court’s order denying Lopez’s rule 3.850 motion on this ground and remand for resentencing.

Lopez also argued that his counsel was ineffective for failing to object to an incorrect scoresheet. The trial court denied this claim because Lopez’ scoresheet was irrelevant to his PRR sentence. However, the PRR sentence is illegal, and Lopez is entitled to have a correct scoresheet used upon resentencing. See, e.g., Fortner v. State, 830 So.2d 174 (Fla. 2d DCA 2002). Therefore, we reverse the trial court’s order as to this claim and remand for reconsideration.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and CANADY, JJ„ Concur.

      . We note that in Elam, 636 So.2d at 1314, the aggravating circumstances provision to which the supreme court most likely referred was section 921.141 (5)(b), Florida Statutes (1991), which provided the following as an aggravating circumstance for imposition of the death penalty: "The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.” This language is substantially similar to the language in the provision of the PRR statute at issue here. § 775.082(8)(a)(l)(o), Fla. Stat. (1997).


source: Caselaw Access Project

author: DAVIS, Judge.

license: Public Domain

text:
    George I. WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3165.
    District Court of Appeal of Florida, Second District.
    Dec. 31, 2003.
   DAVIS, Judge.

George I. Wright appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the trial court’s order of denial, recede from our opinion in King v. State, 835 So.2d 1224 (Fla. 2d DCA 2003), and certify conflict with the First, Third, and Fourth Districts.

In 1979, Wright pleaded guilty to armed robbery in two separate cases. In both cases, the trial court sentenced him to concurrent sentences of seventy-five years in prison but retained jurisdiction over one-third of both sentences. In his motion, Wright alleged that both sentences are illegal because the trial court could only retain jurisdiction over one-third of one sentence and because the trial court did not set forth its reasons for retaining jurisdiction. The trial court denied Wright’s second claim but granted relief on the first claim by relinquishing jurisdiction as to one of the sentences. We affirm the trial court’s granting of Wright’s first claim without discussion. We write to address Wright’s second claim.

In King, 835 So.2d at 1225, this court held that a rule 3.800(a) motion is a proper vehicle to challenge the trial court’s reservation of jurisdiction over a sentence. However, we now recede from our holding in King because it is inconsistent with the Florida Supreme Court’s definition of an illegal sentence.

In Davis v. State, 661 So.2d 1193, 1196 (Fla.1995), receded from in part on other grounds, Mack v. State, 823 So.2d 746, 748 (Fla.2002), the supreme court held that an illegal sentence is one that exceeds the maximum period set forth by law for a particular offense without regard to the guidelines. Pursuant to this definition, the court held that failure to file written findings for a departure sentence does not constitute an illegal sentence and thus is not subject to challenge under rule 3.800(a). Davis, 661 So.2d at 1196-97. In State v. Mancino, 714 So.2d 429, 433 (Fla.1998), the supreme, court expanded ■ the definition of illegal sentence to include a sentence that patently fails to comport with statutory or constitutional limitations. After Mancino issued, this court continued to hold that a challenge to departure reasons is not cognizable in a rule 3.800(a) motion. See Williams v. State, 734 So.2d 1113 (Fla. 2d DCA 1999). In Maddox v. State, 760 So.2d 89, 107-08 (Fla.2000), the Florida Supreme Court again addressed the issue and held that the failure to file written departure reasons is a fundamental error for purposes of direct appeal; however, the court did not recede from its holding in Davis that failure to file written reasons for a departure sentence does not constitute an illegal sentence.

We believe that a challenge to the sufficiency of the reasons for a trial court’s retention of jurisdiction over a sentence is analogous to a challenge to a trial court’s failure to provide departure reasons for a sentence. Based on the supreme court’s holdings in Davis and Maddox, we conclude that Wright’s challenge to the trial court’s failure to provide reasons for retaining jurisdiction is not cognizable in a rule 3.800(a) motion to correct illegal sentence. Therefore, we affirm the trial court’s order of denial, recede from our opinion in King, 835 So.2d 1224, and certify conflict with the First District’s opinions in Kirtsey v. State, 855 So.2d 177 (Fla. 1st DCA 2003), Bingham v. State, 813 So.2d 1021 (Fla. 1st DCA 2002), Thames v. State, 769 So.2d 448 (Fla. 1st DCA 2000), and Hampton v. State, 764 So.2d 829 (Fla. 1st DCA 2000); the Third District’s opinion in Macias v. State, 614 So.2d 1216 (Fla. 3d DCA 1993); and the Fourth District’s opinion in Hernandez v. State, 825 So.2d 513 (Fla. 4th DCA 2002).

Affirmed; conflict certified.

ALTENBERND, C.J., and FULMER, WHATLEY, NORTHCUTT, CASANUEVA, SALCINES, STRINGER, COVINGTON, KELLY, CANADY, VILLANTI, WALLACE, JJ„ Concur.


author: GUNTHER, J.

text:
    Douglas B. MANOLAKOS, Appellant, v. Amy S. MANOLAKOS, Gold Coast Chiropractic Center, P.A. and Orange Blossom Chiropractic Center, P.A., Appellees.
    No. 4D02-2071.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.

      Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, and Stuart R. Manoff of Manoff & Schütz, P.A., West Palm Beach, for appellant.
    Martin H. Colin of the Law Offices of Martin H. Colin, Lake Worth, for appellee Amy S. Manolakos.
   GUNTHER, J.

Doug Manolakos (“Former Husband”) timely appeals the Final Judgment of Dissolution of Marriage and the trial court’s Order Denying his Motion for Rehearing. Because the judgment lacks the necessary findings, we reverse and remand.

The Former Husband and Amy Manola-kos (“Former Wife”), who are both chiropractors, were married in 1991. A short while later, the couple started Gold Coast Chiropractic Center, in which they were equal partners. The couple also took a fifty percent interest in Orange Blossom Chiropractic Center.

In 2001, the Former Wife instituted a dissolution of marriage action. The Former Wife sought permanent alimony, arguing that during the marriage the parties agreed she should stay at home with their two children. During the trial, the court suggested that the Former Wife and the Former Husband remain co-owners of the chiropractic businesses and work together after three years. However, both the Former Wife and the Former Husband rejected this suggestion.

The court orally announced its ruling and asked the parties to agree on the form of the final judgment. However, the parties could not agree. Thus, the Former Husband moved for entry of a final judgment. After a hearing on this motion, the trial court entered its Final Judgment of Dissolution of Marriage. After the final judgment was issued, the Former Husband filed a Motion for Rehearing which was denied. The Former Husband now appeals.

Under section 61.075(1), Florida Statutes (2002), assets should be distributed equally “unless there is a justification for an unequal distribution of marital assets and liabilities based on all relevant factors.” The statute then lists a number of relevant factors. § 61.075(l)(a)-(j). “[A]ny distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment ... with reference to the factors enumerated in subsection (1).” § 61.075(3).

In the final judgment, although the trial court states that “[t]he court makes an equal distribution of marital assets and liabilities, specifically finding that there is no reason for an unequal distribution based upon the factors set forth in ... [the statute],” upon an examination of the record, there was in fact an unequal distribution of assets. The Former Wife could elect not to pay the balancing payment and would then receive $29,307.25 more in assets than the Former Husband.

Furthermore, the trial court failed to make the appropriate factual findings to justify an alimony award. Section 61.08(1), Florida Statutes (2002), states that “[i]n all dissolution actions the court shall include findings of fact relative to the factors enumerated in subsection (2) supporting an award or denial of alimony.” It is well established that a trial court errs when it awards alimony without making findings of fact according to these statutory factors. See Ondrejack v. Ondrejack, 839 So.2d 867, 870 (Fla. 4th DCA 2003); Allison v. Allison, 692 So.2d 1013, 1013 (Fla. 4th DCA 1997); Vitalis v. Vitalis, 799 So.2d 1127, 1131 (Fla. 5th DCA 2001) (citations omitted).

In addition to ordering the Former Husband to pay alimony, the trial court also ordered him to pay $2,971 per month in child support. The trial court’s child support award, like the equitable distribution of the parties’ property and the alimony award, lacked sufficient factual findings as required under section 61.30, Florida Statutes (2002). While a child support determination is within the discretion of the trial court, section 61.30 “provides the statutory formula which must be used to determine each parent’s actual dollar share.” Ondrejack, 839 So.2d at 871 (citing Stanton v. Stanton, 648 So.2d 1233, 1234 (Fla. 4th DCA 1995) (emphasis in original)). This court has previously stated that “in the absence of explicit factual findings concerning the actual incomes attributable to the Husband and the Wife, the amount and source of any imputed income, the probable and potential earnings level, and the adjustments to income, the trial court’s final judgment was deficient.” Segall v. Segall, 708 So.2d 983, 988 (Fla. 4th DCA 1998) (citations omitted). Here, the final judgment lacked these findings, and thus, the final judgment is deficient.

In the final judgment, the trial court also ordered that the Former Husband and the Former Wife remain equal owners in the chiropractic businesses. According to the judgment, the Former Husband would manage and operate these businesses for three years. During this time, he would be entitled to all the profits from the businesses. After three years, the Former Wife was to return to working with the Former Husband and when she returned, she was to begin receiving fifty percent of the net revenues. Dissolution of marriage being what it is, it is clearly an abuse of discretion for the trial court to order two parties who have stated they do not want to continue to work together after their divorce to do just that.

As the trial court abused its discretion in ordering the parties to continue to work together and in failing to make the required findings regarding the equitable distribution of the parties’ property, the alimony award, and the child support award, this court cannot properly review this case. Accordingly, we reverse and remand for the trial court to reconsider this case in its entirety and make the appropriate findings. See Carr v. Carr, 569 So.2d 903, 904 (Fla. 4th DCA 1990) (when reversing and remanding the trial court’s erroneous equitable distribution of the parties’ property, the court stated that on remand the trial court could also reconsider the other issues in that case, such as alimony, as they were all interrelated).

REVERSED and REMANDED.

FARMER, C.J., and KRATHEN, DAVID H., Associate Judge, concur.


author: PER CURIAM.

text:
    Kenneth BACKUS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2803.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.
    Rehearing Denied Feb. 19, 2004.
    Glenn H. Mitchell, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Kenneth Backus was charged with trafficking in cocaine, 400 or more grams, after law enforcement officers, including United States Customs agents, discovered cocaine on his boat after it had returned to land. Backus filed a motion to suppress the cocaine as the fruit of an illegal search and seizure, and the State asserted the border search exception of 19 U.S.C. § 482(a) in response. In denying the motion to suppress, the trial court found that Backus navigated his boat more than three but less than twelve nautical miles from the shore of Boynton Beach and that for purposes of the border search exception the United States sea border is three nautical miles. Backus then pled guilty, reserving his right to appeal the dispositive motion to suppress. We affirm.

The standard of review applicable to a motion to suppress evidence requires that this Court defer to the trial court’s factual findings but review legal conclusions de novo. Batson v. State, 847 So.2d 1149, 1150 (Fla. 4th DCA 2003). A border search conducted by a United States Customs officer is not governed by state law. People v. Mitchell, 275 Cal.App.2d 351, 79 Cal.Rptr. 764, 767 (1969) (citations omitted), cert. denied, 397 U.S. 1053, 90 S.Ct. 1394, 25 L.Ed.2d 669 (1970), 405 U.S. 991, 92 S.Ct. 1258, 31 L.Ed.2d 457 (1972). Therefore, federal law, including the border search exception to the Fourth Amendment, applies. The border search exception provides:

Any of the officers or persons authorized to board or search vessels may stop, search, and examine, as well without as within their respective districts, any vehicle, beast, or person, on which or whom he or they shall suspect there is merchandise which is subject to duty, or shall have been introduced into the United States in any manner contrary to law, whether by the person in possession or charge, or by, in, or upon such vehicle or beast, or otherwise, and to search any trunk or envelope, wherever found, in which he may have a reasonable cause to suspect there is merchandise which was imported contrary to law; and if any such officer or other person so authorized shall find any merchandise on or about any such vehicle, beast, or person, or in any such trunk or envelope, which he shall have reasonable cause to believe is subject to duty, or to have been unlawfully introduced into the United States, whether by the person in possession or charge, or by, in, or upon such vehicle, beast, or otherwise, he shall seize and secure the same for trial.

19 U.S.C. § 482(a). For the exception to apply, “[tjhere must at least be some artic-ulable facts from which it is reasonable to infer that there was a recent border crossing.” United States v. Garcia, 598 F.Supp. 533, 535-536 (S.D.Fla.1984); see also Chi v. State, 421 So.2d 670, 670 (Fla. 3d DCA 1982).

In the case at bar, the evidence supports the trial court’s factual finding that Backus navigated his boat more than three but less than twelve nautical miles from shore. Whether this finding establishes that Backus crossed the border is a matter of whether the trial court correctly set the United States sea border at three nautical miles.

Prior to 1988, the uncontested United States territorial sea border was three nautical miles:

A traveler crosses the international border of the United States by vessel at sea when he crosses from the high seas into the United States territorial sea at a point three nautical miles from the U.S. coast; stated differently, the three mile limit, as thus defined represents the international border of the United States for border search purposes.

Morales v. State, 407 So.2d 321, 327 (Fla. 3d DCA 1981); see also United States v. Garcia, 672 F.2d 1349, 1357 n. 10 (11th Cir.1982) (stating that the three-mile limit separating territorial waters from the contiguous zone is the border of the United States). However, in 1988, President Ronald Reagan issued Presidential Proclamation No. 5928 on the Territorial Sea of the United States. The proclamation extends the territorial sea to twelve nautical miles, based on the international legal trend established by the United Nations Convention on the Law of the Sea, to which the United States is not a party. However, the proclamation also states that the extension of the territorial sea was not intended to extend or alter existing federal or state law.

The impact of the extension and apparent limitation has been the subject of debate by both courts and scholars ever since. Some scholars maintain that the proclamation affected the definition of the territorial sea only for international purposes and not for domestic matters. See, e.g., Robert M. Jarvis, Territorial Waters: Florida’s Eastern Coastal Boundary is the Greater of the Edge of the Gulf Stream or Three Geographic Miles, 34 J. Mar. Law & Commerce 351, 357 (2003) (citations omitted). Others contend that the extension of the territorial sea to twelve nautical miles created United States sovereignty to that distance, and question whether the limitation can have the inconsistent effect of declaring United States ownership and control without applying current federal law. See, e.g., John A. Saurenman, The Effects of a Twelve-Mile Territorial Sea on Coastal State Jurisdiction: Where Do Matters Stand?, 1 Territorial Sea J. 39 (1990) (citations omitted). Both federal and state courts have had similar difficulty addressing the impact of the proclamation, where the subject has even been addressed posN1988.

We can locate no post-1988 case that has expressly explored the effect of the proclamation on the border search exception or Fourth Amendment jurisprudence. Because existing federal case law does indicate that the border is at three nautical miles for border search purposes, and controversy surrounds the operation of Presidential Proclamation 5928, we decline, on a matter of federal law, to conclude that the trial court erred by setting the United States sea border at three nautical miles for purposes of the border search exception. As a result, the denial of Backus’s motion to suppress the cocaine is affirmed.

AFFIRMED.

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

      . We are aware of the Third District’s opinion in Benson v. Norwegian Cruise Line Ltd., 859 So.2d 1213 (Fla. 3d DCA Nov.5, 2003). However, because Benson addresses a matter of state law, a tort suit, its discussion of Florida’s state borders is not controlling on the Fourth Amendment issue raised in the case at bar.


author: SHAHOOD, J.

text:
    Erie Mae STANLEY, Appellant, v. STATE OF FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Ann Storck Center, Inc., Appellees.
    No. 4D03-60.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.
    Rehearing Denied Feb. 23, 2004.

      Donald R. McCoy of Donald R. McCoy, P.A., Fort Lauderdale, for appellant.
    John D. Maher, Tallahassee, for appellee State of Florida Unemployment Appeals Commission.
   SHAHOOD, J.

Based on the authority of Reynolds v. SV Central Dania Properties, Inc., 849 So.2d 1181 (Fla. 4th DCA 2003), and Ebersol v. Unemployment Appeals Commission, 845 So.2d 945 (Fla. 5th DCA 2003), we hold that appellant’s appeal was timely filed where it was filed by facsimile transmission on the appeals deadline expiration date.

Appellant, Erie Mae Stanley, applied for and was denied unemployment compensation benefits by a claims adjudicator on July 19, 2002, on the ground that she was discharged for misconduct connected with work. Appellant attempted to appeal this determination by faxing her handwritten appeal request to Tallahassee on August 8, 2002, the last date to file a timely appeal.

In concluding that appellant filed an untimely appeal, the appeals referee made the following findings of fact:

The claims adjudicator issued a determination dated July 19, 2002, holding the claimant disqualified for unemployment benefits. The determination states that it “will become final unless you request a hearing within 20 days from the mailing date of this notice.” The determination further states that the postmark shall be the date of filing by mail and the “fax stamped received date shall be the date of filing” by fax. The last date to file a timely appeal was August 8, 2002. The claimant faxed a letter of appeal to the agency on August 8, 2002, from a Kin-ko’s store; however, when she followed it up with a phone call to the agency a couple of days later, she was told that the fax was not received. It was suggested that the claimant file the appeal by mail. The claimant sent her letter of appeal, by mail, on August 12, 2002 and again on August 23, 2002. She refaxed her letter to the agency on August 21, 2002.

In its conclusions of law, the appeals referee stated in part as follows:

The evidence in this case shows that the agency received three copies of the claimant’s letter of appeal, two by mail postmarked August 12 and August 23, 2002, and one by fax received on August 21, 2002. All three of those letters are untimely as they were filed past the August 8, 2002 deadline. The letter that was faxed on August 8, 2002 was not received by the agency. As noted in Unemployment Appeals Commission Order No. [01]—05112, “An appeal sent by facsimile is filed when it is received, not when it is sent or attempted to be sent.” Consequently, it is concluded that the claimant’s appeal is untimely and the referee is without jurisdiction to consider the merits of the case.

Appellant appealed that decision to the Unemployment Appeals Commission (UAC), which, after review, affirmed the appeals referee’s decision. The UAC concluded that the record adequately supported the referee’s findings and that its conclusion was a reasonable application of the law to the facts of the case.

We reverse the order affirming the appeals referee’s determination that the appeal was untimely based on Reynolds and Ebersol. The appeals referee erred in denying appellant’s appeal as untimely without reviewing the evidence which supported her claim that she timely filed her appeal by facsimile transmission on the deadline date.

Recently, in Reynolds, 849 So.2d at 1182, the UAC affirmed an appeals referee’s determination that appellant had not timely filed her notice of appeal filed by fax transmission. The referee found that while the UAC rule requires receipt of the notice, appellant’s notice of appeal was not docketed in the UAC office within the time allowed for appeal. See id. However, the record contained a fax transmission report indicating that a four-page fax was successfully sent to the Office of Appeals within the time for filing an appeal. In reversing the appeals referee’s untimely determination, this court adopted the reasoning of Ebsersol which states:

[T]he Commission rules expressly permit a party to file a request for an appeal by facsimile. While as a general proposition, a party such as Ebersol is deemed to assume the risk of transmission difficulties associated with faxes, the record here contains a fax history report reflecting that Ebersol did indeed fax a document to the agency on June 28, 2002, or well within 20 days of the date of the appeals referee’s decision. While the Commission did not docket any request for appeal within this 20 day period, the record is completely silent as to whether this was because the fax was not received by the Commission or because the Commission received the fax but was remiss in not docketing the request. To simply accept the Commission’s position that Ebersol bears the risk in either circumstance would excuse the agency from developing careful procedures for docketing faxed requests for appeals which it receives. We are more inclined to embrace a salutary rule that where a claimant makes an evidentiary showing that he did, in fact, timely and correctly direct a fax of a request to appeal to the Commission, an issue of fact is created as to whether the Commission received the request for timely docketing.

845 So.2d at 947 (footnote omitted). See also Espanioly v. Fla. Unemployment Appeals Comm’n, 768 So.2d 1230 (Fla. 3d DCA 2000) (facsimile confirmation of request to reopen case provided sufficient evidence to establish timeliness of appeal to Unemployment Appeals Commission).

Here, the deadline for filing a timely appeal was August 8, 2002. According to the documentary evidence submitted by appellant, she faxed a letter of appeal to the agency on August 8, 2002, from a Kinko’s store. The transmission report submitted by appellant indicated that the facsimile was successfully transmitted to the agency. According to the appeals referee, when appellant followed up with a phone call a couple of days later, she was told that the fax was not received. As such, she filed an appeal by mail on August 12, 2002, and again on August 23, 2002, and refaxed her letter on August 21, 2002. The appeals referee concluded that all three subsequent letters and re-fax were untimely filed since they were filed past the August 8, 2002 deadline. At no time did the appeals referee make mention of the documentary evidence submitted indicating that her facsimile letter of appeal was successfully transmitted to the agency on the August 8, 2002, deadline date.

While the appeals referee made reference to the fact that appellant was told that her fax was not received by the agency, her documentary evidence supports her claim that the transmission was successful. In light of Reynolds, Ebersol and Espanioly, such evidence has been held sufficient to establish timeliness.

We accordingly reverse and remand with directions that appellant’s appeal be reinstated.

REVERSED AND REMANDED.

STONE and HAZOURI, JJ., concur.


text:
    LEISURE RESORTS, INC., a Delaware corporation, Appellant, v. The CITY OF WEST PALM BEACH, a Florida municipal corporation, Board of Trustees of the Internal Improvement Trust Fund and State of Florida Department of Environmental Protection, Appellees.
    No. 4D02-4222.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.
    Rehearing Denied Feb. 23, 2004.

      Bruce Rogow and Beverly A. Pohl of Bruce S. Rogow, P.A., Fort Lauderdale, for appellant.
    Jane Kreusler-Walsh of Jane Kreusler-Walsh, P.A., West Palm Beach, and Brian B. Joslyn and John R. Young of Boose, Casey, Ciklin, Lubitz, Martens, McBane & O’Connell, West Palm Beach, for appellee The City of West Palm Beach.
   GUNTHER, J.

Leisure Resorts, Inc. appeals a directed verdict awarded to the City of West Palm Beach on the issues- of causation and damages arising in a breach of lease and quiet title action. We affirm.

In 1968, the City entered into a 99-year lease with West Palm Beach Marina, Inc. for the 19.5-acre Palm Harbor Marina. Of those 19.5 acres, fourteen acres were submerged property and 5.5 acres were waterfront property referred to as the “uplands.” The uplands was the site of condos, parking, and recreational facilities, and the submerged property was the site of a marina including 160 boat spaces and a fuel station. In 1979, the City entered into a Consolidated and Amended Lease with West Palm Beach Marina, which was subsequently assigned to Leisure.

Upon taking control of the leasehold premises, Leisure did secure the City Commission’s unanimous approval of its plan for renovating the existing docks and boating facilities. After Leisure made the renovations, beginning in the late 1980s, Leisure determined that further repair was no longer a prudent investment, and that replacement of the marina was required due to the effects of aging and the advent of “mega yachts.” Leisure then developed a plan to alter the marina from four to five docks, create larger boat spaces (the exact number of boat spaces being uncertain), move the fuel station, make technological improvements, and expand the marina onto an additional eight acres of state-owned submerged property. Leisure has never sought unanimous City Commission approval of this plan, contending that none is required.

While Leisure was planning and obtaining permits, a title dispute as to the submerged portion of the leasehold premises emerged. This Court concluded, and the Florida Supreme Court agreed, that the state owned the majority of the submerged property, and that the city owned only the footprints of the docks. See City of W. Palm Beach v. Bd. of Trs. of the Internal Improvement Trust Fund, 714 So.2d 1060 (Fla. 4th DCA 1998), approved by, 746 So.2d 1085 (Fla.1999). Ultimately, based on this Florida Supreme Court decision, the trial court granted a partial summary judgment for breach of lease against the City because the City did not own the submerged land leased to Leisure, except for the footprints of the docks.

Concerning the remaining issues of the breach of contract claim, Leisure and the City disagree as to whether Leisure’s expansion project required unanimous City Commission approval.

The City argues that because Leisure failed to obtain the necessary unanimous city commission approval of its expansion plan, it is Leisure that breached the contract in dispute. At the heart of this dispute are two provisions of the Consolidated and Amended Lease.

The City relies on Article XXX, Section 5 of the lease to assert the necessity of unanimous City Commission approval:

Lessee agrees that it will use good site ' planning and architectural design so that the buildings will fit into the character of the downtown area of West Palm Beach or enhance the same, and retain the waterfront characteristics of the area. There are presently 1,573.35 feet of waterfront view, measured on a north-south line, presently existing, of which Lessee agrees to retain open and free from building obstructions as viewed from Flagler Drive sixty-two and 82/100 (62.82%) percent. All development of the Leasehold Premises herein shall be pursuant to a site plan to be approved by resolution or motion of the City Commission unanimously passed, and any modification, change or amendment thereto shall require a unanimous vote of approval of same by City Commission of the City of West Palm Beach.

On the other hand, Leisure relies on Article XIX, Section 4 to support its belief that unanimous City Commission approval is not required to alter the location, size, and configuration of the boat spaces in order to expand the marina:

It is understood and agreed that Leisure will maintain eighty (80%) percent of the one hundred sixty (160) boat spaces that are presently available, unless it can show a need to reduce the same. Lessor, however, shall have the right and sole discretion to deny the reduction in said request. However, Lessee shall have the right to change locations of said spaces, size of spaces and general configuration, and that during certain periods of construction reduce the number of boat spaces available, there being presently one hundred (160) dock spaces available.

At trial, Leisure presented evidence on causation and damages, and the City sought a directed verdict on the issues. The trial court granted a directed verdict to the City precluding damages because of the lack of a binding expansion agreement between Leisure and the City. The trial court interpreted Article XXX, Section 5 to “clearly and unambiguously require[ ] the plaintiff, as a condition precedent of any reconfiguration or expansion of the marina, [to] present a site plan to the City Commission and obtain unanimous approval from the Commission.” The trial court also ruled that expansion was not contemplated at the time the Amended and Consolidated Lease was executed, and thus, damages were not legally foreseeable. Presumably as a result of this conclusion, the trial court did not interpret Article XIX, Section 4.

The standard of review applicable to contract interpretation is de novo. Avatar Dev. Corp. v. De Pani Constr., Inc., 834 So.2d 873, 876 n. 2 (Fla. 4th DCA 2002) (citing DEC Elec., Inc. v. Raphael Constr. Corp., 558 So.2d 427, 428 (Fla.1990)). In undertaking review of a lease, the appellate court is permitted to reassess the contract and reach a different interpretation from that of the trial court. Sugar Cane Growers Coop. of Fla. v. Pinnock, 735 So.2d 530, 534 (Fla. 4th DCA 1999). The contract should be reviewed as a whole and all language given effect, and where the language is clear and unambiguous, the contract should be enforced as it reads. Id. If ambiguous, the words of the contract should be given their plain and ordinary meaning. Beans v. Chohonis, 740 So.2d 65, 67 (Fla. 3d DCA 1999) (citing Rupp Hotel Operating Co. v. Donn, 158 Fla. 541, 29 So.2d 441 (1947)).

We first consider Article XXX, Section 5 and conclude that the trial court erred in ruling that the provision requires unanimous City Commission approval of any expansion of the docks and facilities. For three reasons, we conclude that the provision applies only to the modification of development plans regarding the uplands, and not the submerged area of the leasehold premises. First, the provision, by its plain language, refers to buildings, architecture, and the waterfront, indicating that the provision was intended to address only the development of the uplands. Second, the approval portion of the provision addresses only the “Leasehold Premises herein.” That phrase was not used anywhere else in the lease, and therefore the inclusion of that phrase must be deemed purposeful and given the effect of indicating that the appx-oval requirement applies only to the poi'tion of the leasehold premises discussed in the provision, that being the uplands. Third, this interpretation is bolstered by the fact that within the very same article of the lease, Article XXX, Section 3 includes the phrase “entire Leasehold Premises,” to designate both the uplands and submerged lands. This indicates that the contract drafter knew how to l-efer to the full leasehold premises as defined in the contract to include both the uplands and submerged lands. See Int’l Fidelity Ins. Co. v. County of Rockland, 98 F.Supp.2d 400, 412 (S.D.N.Y.2000) (“[Sophisticated lawyers ... must be presumed to know how to use parallel construction and identical wording to impart identical meaning when they intend to do so.”).

We now turn to Article XIX, Section 4. The plain language of this provision allows Leisure to change the spaces, size of spaces, and general configuration of the marina, so long as Leisure retains at least 128 boat spaces (80% of 160). However, we conclude that this provision cannot be read so broadly as to encompass Leisure’s expansion plan. While there is no provision in the Amended and Consolidated Lease preventing the expansion of the marina onto submerged land adjacent to the leasehold premises, this fact does not alter the meaning of Article XIX, Section 4. A drastic overhaul of the existing marina, by moving piers, altering docks, relocating boat spaces, changing the number of boat spaces, and repositioning the fuel station is not contemplated by the provision. Undertaking a massive renovation is not as simple as changing the general configuration of the marina. This is especially the case where Leisure has failed to establish that it has complied with Article XIX, Section 4 by providing a plan including not less than 80% of the 160 original boat spaces. The percentage requirement of Article XIX, Section 4 remains of importance even though the City owns only the submerged lands constituting the footprints of the docks. That submerged land remains subject to the lease and under the control of the City because it would necessarily be used in some way or form for the newly designed marina.

In sum, we disagree with the trial court’s interpretation that Article XXX, Section 5 was applicable to the proposed expansion plan, and thus, required unanimous City Commission approval. However, we do agree with the City’s contention that Article XIX, Section 4 does not permit Leisure’s project without a clear declaration of the exact number of boat spaces to remain on the leasehold premises (no fewer than 80% of the 160 boat spaces). We also agree with the trial court’s ruling that expansion was not contemplated by the parties. Therefore, because one obstacle only gives way to another for Leisure, we conclude that the trial court did not err in granting a directed verdict to the City and affirm.

AFFIRMED.

FARMER, C.J., and KRATHEN, DAVID H., Associate Judge, concur.


author: TORPY, J.

text:
    Paul Henry HAJAL, Petitioner, v. STATE of Florida, Respondent.
    No. 5D03-2677.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2004.
    Rehearing Denied Jan. 23, 2004.

      Jack R. Maro and J. Melanie Slaughter, Ocala, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Respondent.
   TORPY, J.

Petitioner seeks a writ of prohibition on speedy trial grounds on three pending criminal cases in which Petitioner was charged with drug-related offenses. We grant the petition, issue the writ, and remand this cause with instructions that Petitioner be discharged.

On June 27, 2003, Petitioner, who is facing several felony drug related charges, filed a notice of expiration of speedy trial after the 175-day speedy trial period had expired. See Fla. R.Crim. P. 3.191(h). On July 1, 2003, during the 15-day recapture period, the trial court conducted a hearing on the notice. See Fla. R.Crim. P. 3.191(p). The court found that, based on custom in Marion County, defense counsel’s notations on status reports were tantamount to defense continuance requests, which in effect waived Petitioner’s speedy trial right. Alternatively, the court found that because a material witness, a federal drug agent who was on vacation, would not be available during the recapture period, exceptional circumstances justified the extension of the speedy trial period.

Petitioner filed a motion for discharge after the expiration of the 15-day recapture period, and a hearing was held on July 31, 2003. At that hearing, the court reiterated its prior findings and scheduled Petitioner’s cases for trial the week of August 18, 2003. The instant petition for writ of prohibition was subsequently filed, and the lower court proceedings were stayed.

The court’s determination that the defense had previously requested continuances was based on written status reports of defense counsel that had been faxed to the clerk in lieu of making personal appearances at status conferences. Defense counsel’s practice was to fax these status reports, and then to send an associate to appear at the status conference. The first status report was faxed on February 7, 2003, referred to Petitioner’s three cases by number and name, and stated: “first time up; awaiting discovery” or “first time up; discovery just received.” The next status report was faxed on March 21, 2003. Again the notations read: “discovery ongoing” or “awaiting discovery.” The next status report was faxed on May 2, 2003. Again the notation for each case read: “awaiting additional discovery from state.” One final status report was faxed on June 16, 2003. This one again listed Petitioner’s three cases, and noted that discovery was ongoing.

Other than these status reports, nothing in the record refutes Petitioner’s representation (contained in an affidavit filed in the lower court) that defense counsel never sought a continuance. Likewise, nothing controverts Petitioner’s representation that there was no discussion about Petitioner’s cases at the status conferences. Moreover, the court reporters found no mention of Petitioner’s cases in the official record of the status conferences.

The trial judge concluded that the status reports sufficed to manifest a defense request for continuance under the “custom and practice” in Marion County. Specifically, that county’s “custom and practice” at status conferences is that defense counsel has three options: (1) set the case for trial, (2) schedule a date for change of plea, or (3) request a continuance. Because counsel’s status. report did not announce that Petitioner was ready for trial or to change his plea, the court inferred the last remaining option, a continuance with waiver of speedy trial right. We do not agree that the court can infer a request for continuance and waiver of Petitioner’s speedy trial right on this record, even given the “custom.”

Florida Rule of Criminal Procedure 3.190(g)(2) states that the court may grant a continuance on motion of the state or a defendant or on its own motion, in its discretion for good cause shown. If a motion for continuance is sought by the state or a defendant, the motion for continuance shall be accompanied by a certificate of the movant’s counsel that the motion is made in good faith. See Fla. R.Crim. P. 3.190(g)(4). Further, Florida Rule of Judicial Administration 2.085(d) states that all motions for continuance shall be in writing, unless made at trial, and shall be heard and resolved by a judge. Given the formal requirements of the rules governing continuances, an inference that a continuance had been requested based simply on the failure of counsel to expressly choose between three options is not permitted.

Even if a continuance request may be properly inferred on this record, it does not necessarily follow that petitioner’s right to a speedy trial was waived. A continuance can be charged to the state, without resulting in a waiver of speedy trial, if the state has committed a discovery violation that requires the postponement of trial. See e.g. Vega v. State, 778 So.2d 505 (Fla. 3d DCA 2001). Therefore, to find a waiver of the right to a speedy trial on this record, the court would have had to conclude that the continuance should be charged to the Petitioner or that Petitioner’s counsel waived Petitioner’s speedy trial right, but there is nothing in this record to support either conclusion. See Fla. R.Crim. P. 3.191(f) (waiver of speedy trial period must be in writing, signed by counsel, or be “upon stipulation announced to the court”); Dorsey v. State, 847 So.2d 587 (Fla. 5th DCA 2003) (defendant did not request a continuance or waive speedy trial by asking for additional time to attack the sufficiency of the information); Underwood v. Johnson, 651 So.2d 760 (Fla. 1st DCA 1995) (waiver must be in writing or announced in open court); Lasker v. Parker, 513 So.2d 1374 (Fla. 2d DCA 1987) (some record must exist to support a finding that counsel did intend a waiver of speedy trial or that he acquiesced in a trial date beyond the speedy trial limit); Black v. State, 468 So.2d 457 (Fla. 3d DCA 1985) (a state attorney’s “understanding” that a defense continuance was requested is insufficient evidence of a waiver of speedy trial); State v. Swint, 464 So.2d 242 (Fla. 2d DCA 1985) (waiver of speedy trial cannot be inferred from defense silence or off-the-record agreement).

We conclude, therefore, that the court erred in its determination that Petitioner had waived his right to a speedy trial. We must next consider the court’s determination that exceptional circumstances existed upon which to base an extension of the speedy trial deadline.

At the hearing on the notice of expiration of speedy trial, the court determined that a material witness would not be available during the recapture period. The court’s determination was based upon representations by the prosecutor that the witness, Special Agent Gary Sams, a federal drug enforcement agent, was on vacation. The court asked the prosecutor whether Agent Sams was necessary to the case, and the assistant state attorney answered, “I asked Detective Gold is Agent Sams necessary to this case? And Detective — Agent Gold advised me that he was. And that is all I can represent to the court.” It was further represented that Agent Sams would be unavailable for trial until July 23, but there was no indication as to where he went on vacation, or whether he could be contacted and brought back for trial. The prosecutor thereafter informed the court that Agent Sams was not a material witness as to one of Petitioner’s cases, Case No. 02-4341, charging him with possession of cannabis with intent to sell. Based upon these representations, the trial court concluded that Agent Sams was a material witness whose absence was unforeseeable and unavoidable.

At the second hearing on the motion for discharge, which occurred after the expiration of the 15-day recapture period, Agent Sams, back from vacation, testified that he had been part of the surveillance team investigating petitioner. Agent Sams stated that if the case were called for trial he would be able to testify that he participated in almost all of the surveillance in regards to the wiretap, and would testify as to investigations he conducted involving telephone toll records involving Petitioner and others over a two-year period of time. Agent Sams would also be able to provide testimony about the identification of the south Florida source of supply for Petitioner, which was identified by the drug enforcement administration prior to any involvement by the sheriffs department. Agent Sams further testified that he went to Franklin, Texas, on vacation, leaving on June 21 and returning to work on July 24. When asked whether anyone ever contacted him in Texas and asked if he could fly back for the trial, Agent Sams answered, “No.”

Unavailability of a material witness is a basis for extending the speedy trial deadline provided that the absence of the witness was both unforeseeable and unavoidable. Fla. R.Crim. P. 3.191©. However, the burden is on the state to establish these grounds no later than the conclusion of the recapture period. See Brown v. State, 715 So.2d 241 (Fla.1998). Here, the state made an insufficient showing on each of the three elements at the first hearing. Furthermore, even assuming that it was not too late to make the showing at the second hearing, the state still failed to show that Agent Sam’s absence, due to vacation, was unavoidable and unforeseeable. Cf Valle v. State, 444 So.2d 534 (Fla. 3d DCA 1984) (witness early departure for vacation prior to the beginning of trial was unforeseeable, and therefore constituted an exceptional circumstance). Because nothing in this record established that the state was unaware of Agent Sams’ vacation plans, or that he changed his vacation plans at the last moment without giving the state adequate notice, the state failed to establish that his absence was good grounds for extending the speedy trial deadline.

PETITION GRANTED; REMANDED.

SAWAYA, C.J., and MONACO, J., concur.

      . Prohibition is available as a remedy. Mercer v. Musleh, 682 So.2d 570 (Fla. 5th DCA 1996); Underwood v. Johnson, 651 So.2d 760 (Fla. 1st DCA 1995); Lasker v. Parker, 513 So.2d 1374 (Fla. 2d DCA 1987).

      . In Marion County Case No. 02-4340, Petitioner is charged with a continuing criminal enterprise. In Case No. 02-4341, Petitioner is charged with possession of cannabis with intent to sell. In Case No. 02-4342, Petitioner is charged with conspiracy to traffic in MDMA.


text:
    Gregory A. BARBER, Brandon L. Rodammer and Matthew G. Woods, Appellants, v. STATE of Florida, Appellee.
    Nos. 5D03-1291, 5D03-1344, 5D03-1568.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2004.
    Rehearing Denied Feb. 9, 2004.
    Wm. J. Sheppard, D. Gray Thomas and Matthew R. Kachergus of Sheppard, White & Thomas, P.A., Jacksonville, for Appellants, Gregory A. Barber and Brandon L. Rodammer.
    0. David Barksdale, Donald B. Mairs and Jane A. Lester, of Bedell, Dittmar, DeVault, Pillans & Coxe, P.A., for Appellant, Matthew G. Woods.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the defendants’ convictions for trafficking and conspiracy to traffic in GHB based upon our agreement with the analysis contained in Urruchurtu v. State, 858 So.2d 387 (Fla. 3d DCA 2003), which refutes the arguments raised herein.

AFFIRMED.

GRIFFIN, PLEUS and ORFINGER, JJ., concur.

      . The mandate in Urruchurtu issued on November 21, 2003.


author: KLEIN, J.

text:
    Robert TABOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1972.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2004.
    Rehearing Denied Feb. 18, 2004.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant was found to be a sexually violent predator under the Jimmy Ryce Act; however, his current incarceration is not for a sexually violent crime. Because he had completed his sentence for the sexually violent crime, he contends that the Ryce Act does not apply. We affirm, but certify the question as one of great public importance.

Appellant was convicted of armed sexual battery in Florida in 1984, and completed his sentence on October 3, 1991. In 1993 appellant was convicted and incarcerated for cruelty to animals, escape, battery on a law enforcement officer, and tampering with a witness. Prior to his release, the state filed the Ryce Act petition in September 2000.

The following facts, which are relevant to appellant’s secondary argument that there was insufficient evidence that he is a sexually violent predator, are from appellant’s brief.

In 1979 appellant was charged with the rape of a college student in West Virginia. He acknowledged having relations with the student, but asserted that it was consensual. This charge was ultimately dropped. During that same time period he was convicted of malicious wounding, following an altercation with a police officer, and incarcerated in West Virginia. After he completed that sentence, he was brought to Fort Lauderdale by the state attorney to testify, under a grant of immunity, in the prosecution of a 1976 murder.

As to the 1984 conviction for armed sexual battery resulting in this Ryce Act proceeding, the victim testified that appellant sexually assaulted her three times within a period of two hours after cutting her throat with a knife. Appellant did not deny it, but testified that he had been forced to commit these acts by a third person who was pointing a gun at him. On another occasion he claimed that he had been forced to do it by police officers from West Virginia, who were waiting outside the victim’s window, and had threatened to kill appellant. Appellant completed his sentence for this crime on October 3, 1991.

Appellant was then charged in 1992 with animal cruelty as a result of breaking a puppy’s neck with his foot. Appellant gave conflicting accounts of how the puppy had been injured in an accident and he was putting it out of its misery. He received probation for the animal cruelty, but in 1993 pled guilty to witness tampering, escape, resisting arrest with violence and battery on a law enforcement officer. He was incarcerated and conditionally released in 1995, but violated the conditional release resulting in his final incarceration.

Appellant concedes that he has an antisocial personality disorder, which one of the psychologists defined as resulting in impaired functioning or personal distress and characterized by a pervasive disregard for social norms and the rights of others. Tests also reflected that appellant had a high risk of committing offenses of a sexually violent nature, and there was expert testimony which was consistent with those test results. There was accordingly sufficient evidence to support the verdict.

Appellant also argues that the court erred in not instructing the jury that lack of volitional control is an element of proof. We affirm based on Gray v. State, 854 So.2d 287 (Fla. 4th DCA 2003) and Lee v. State, 854 So.2d 709 (Fla. 2d DCA 2003), and certify the same question of great public importance that we certified in Gray.

We now address the primary issue, a question of first impression, which is whether, in order for the Ryce Act to apply, the current incarceration must be for a sexually violent crime. This issue was not raised in the trial court, but we conclude that the error is fundamental, and can therefore be raised for the first time on appeal. Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970) (“fundamental error is error which goes to the foundation of the case”). Because the act does not link current incarceration to the sexually violent crime, and expressly includes convictions for such crimes from jurisdictions other than Florida, we hold that the act does apply to appellant.

Section 394.925, Florida Statutes (2000) provides:

Applicability of act. This part applies to all persons currently in custody who have been convicted of a sexually violent offense, as that term is defined in section 394.912(9), as well as to all persons convicted of a sexually violent offense and sentenced to total confinement in the future.

Section 394.912(9)(g) defines “sexually violent offense” as including “any federal conviction or conviction in another state for a felony offense that in this state would be a sexually violent offense.”

Section 394.912(11) defines “total confinement” as, among other things, “being held in any other secure facility for any reason.”

Section 394.913(1) provides:

The agency with jurisdiction over a person who has been convicted of a sexually violent offense shall give written notice to the multidisciplinary team, and a copy to the state attorney of the circuit where that person was last convicted of a sexually violent offense. If the person has never been convicted of a sexually violent offense in this state but has been convicted of a sexually violent offense in another state or in federal court, the agency with jurisdiction shall give written notice to the multidisciplinary team and a copy to the state attorney of the circuit where the person was last convicted of any offense in this state.

Appellant argues that section 394.925, which makes the • act applicable to those “currently in custody who have been convicted of a sexually violent offense” is unclear. We do not agree. Even if we did agree that this provision, standing alone, was ambiguous, we would be bound to give effect to all provisions of the Ryce Act and construe related provisions in harmony with one another. Young v. Progressive Southeastern Ins. Co., 753 So.2d 80 (Fla.2000); Palm Beach Cty. Canvassing Bd. v. Harris, 772 So.2d 1273 (Fla.2000) (all parts of a statute should be read together in order to achieve a consistent whole); M.W. v. Davis, 756 So.2d 90 (Fla.2000).

Appellant’s argument that his current incarceration must be as a result of a sexually violent offense is refuted by the two other provisions of the Ryce Act, quoted above, which provide that a “sexually violent offense” includes federal convictions or convictions in other states. §§ 394.913(1) and 394.912(9)(g). A person in custody in Florida, whose only conviction for a sexually violent offense is from another jurisdiction, would not be in custody for a sexually violent offense. The non-Florida sentence for the sexually violent offense could be running concurrently, could have been completed, or could be consecutive to the Florida sentence. Under none of those scenarios would the current incarceration be as a result of the sexually violent offense.

Appellant’s reliance on In re Detention of Gonzales, 658 N.W.2d 102 (Iowa 2003), is misplaced, because the Iowa statute is different. The Iowa statute applies to two classes of sexually violent offenders, those who are currently confined, and those who have been released but have committed a recent overt act. The Iowa Supreme Court concluded that requiring a recent overt act for one class, those who were not confined, but not requiring a recent overt act for those who are confined, “would raise serious [state and federal] constitutional issues.” Id. at 105. The Iowa Supreme Court resolved this problem by finding the statute ambiguous and construing the statute to mean that the current confinement was for a sexually violent offense.

Appellant also relies on Commonwealth v. McLeod, 437 Mass. 286, 771 N.E.2d 142 (2002), which construed the Massachusetts statute to require that the current incarceration be for the sexual offense. Under that statute, however, sexual offense was only defined as a Massachusetts conviction. M.G.L.A., 123A, § 1 (1999). Accordingly, McLeod is also distinguishable.

We therefore affirm but certify this question as one of great public importance:

DOES THE RYCE ACT REQUIRE THAT THE CURRENT INCARCERATION BE FOR A SEXUALLY VIOLENT OFFENSE?

STONE and TAYLOR, JJ., concur.

      . The Iowa statute did define "sexually violent offense" as including offenses committed in other jurisdictions, section 229A.2 IA ST; however, the court’s analysis made it unnecessary to address it.

      . That definition, was amended, effective April 1, 2003, to include non-Massachusetts convictions. St.2002, c. 492.


text:
    CITY OF HOLLYWOOD, Appellant, v. Lou PETROSINO, Appellee.
    No. 4D03-387.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2004.
    Rehearing Denied Feb. 19, 2004.

      Daniel Abbott, City Attorney, and Robert M. Oldershaw, Hollywood, and James W. Linn and John W. Forehand of Lewis, Longman & Walker, P.A., Tallahassee, for appellant.
    Deborah Poore Knight of Walton, Lan-taff, Schroeder & Carson, LLP, Fort Lauderdale, for appellee.
   PER CURIAM.

On April 4, 2001, Lou Petrosino filed a complaint for declaratory relief seeking a determination that he should be included in the City of Hollywood’s General Employees’ Retirement System Plan. The City answered, asserting affirmative defenses including the statute of limitations and waiver. The trial court granted Pe-trosino partial summary judgment, holding that Petrosino was entitled to participate in the City’s pension plan. The City filed a motion for summary judgment on its statute of limitations defense, which the trial court denied. Both parties agree that the applicable statute of limitations is five years. See § 95.11(2)(b), Fla. Stat. (2001); Williams v. Cordis Corp., 30 F.3d 1429, 1432 (11th Cir.1994) (stating that a pension plan is a unilateral contract) (citations omitted). After a bench trial, the trial court determined that Petrosino’s claim was not time-barred because it did not accrue until he turned fifty-five in 2001, the time he became eligible for benefits. We reverse and remand.

Petrosino worked for the City from November 16, 1987 to March 12, 1999, as a housing inspector for the Community Development Division. His position was funded by a federal grant. At the time Petrosino was hired, the City deemed that such employees were not qualified to participate in the City’s pension plan under Article X of the City Charter covering pensions and retirement. The City excluded Petrosino and like employees on the ground that grant-funded employees did not meet the definition of “employee” set forth in Article X.

In 1994, the City changed its position on the status of Community Development employees and gave them the option to join the pension plan, without credit for service prior to that year. Petrosino rejected the option and signed a document stating that he elected not to join. Although Petrosino felt at the time that it was unfair for the City to exclude his prior service from the pension opportunity, he did not seek any redress with the City or seek any legal advice on the issue. In March 1999, Pe-trosino resigned from his position as an inspector.

Petrosino alleged in his declaratory relief complaint that since he began his employment with the City, he has met the definition of the term “employee” set forth in Article X of the City Charter for the purposes of inclusion in the pension plan. During the course of the litigation, Petrosi-no moved for and was granted a partial summary judgment wherein the trial court ruled that Petrosino was entitled to participate in the city’s pension plan. That ruling has not been appealed.

After denying the City’s motion for summary judgment on the issue of whether the statute of limitations barred Petrosi-no’s claim, this case proceeded to a bench trial. The trial court ruled that Petrosi-no’s claim, filed on April 4, 2001, was not time barred because the claim did not accrue until Petrosino’s fifty-fifth birthday in 2001. Under the terms of the pension plan, age fifty-five is the first time Petrosi-no became eligible to apply for benefits.

On appeal, the city argues that Pe-trosino’s claim was time barred because his cause of action arose in 1987 when he was hired by the City and was informed that his position did not entitle him to pension benefits. Alternatively, the city argues that he waived his right to pursue his claim for benefits when he chose not to participate in the City’s pension plan when offered the opportunity in 1994. Petrosino counters that the trial court did not err in ruling that the statute of limitations did not begin to run until 2001 when he applied for and was denied benefits following his fifty-fifth birthday.

The standard of review is de novo because there are no disputed facts and the trial court’s conclusions were purely legal. See Bush v. Ayer, 728 So.2d 799, 801 (Fla. 4th DCA 1999). Petrosino relies on a number of federal cases to support the proposition that his cause of action did not begin to accrue until after he was denied benefits under the plan in 2001. See Grosz-Salomon v. Paul Revere Life Ins., 237 F.3d 1154, 1159 (9th Cir.2001); Grzyb v. New River Co., 793 F.2d 590, 592 (4th Cir.1986); Gray v. Greyhound Ret. & Disability Trust, 730 F.Supp. 415, 417 (M.D.Fla.1990).

However, federal courts have clarified that a plaintiffs cause of action also accrues upon a clear repudiation of the plaintiffs entitlement to benefits that is known or should be known to the plaintiff regardless of whether there has been a formal application and denial of benefits. See Union Pac. R.R. v. Beckham, 138 F.3d 325, 330-31 (8th Cir.1998); Daill v. Sheet Metal Workers’ Local 73 Pension Fund, 100 F.3d 62, 66 & n. 5 (7th Cir.1996); Martin v. Constr. Laborer’s Pension Trust for S. California, 947 F.2d 1381, 1384-86 (9th Cir.1991). Because the city made it clear to Petrosino in 1987 that he was not going to be included in the pension plan, this was when Petrosino’s cause of action began to accrue under federal law.

Our analysis under Florida law begins with the general law regarding the application of statutes of limitation. In Margolis v. Andromides, 732 So.2d 507 (Fla. 4th DCA 1999), the court said:

The statute of limitations on a particular cause of action does not begin to run until the cause of action accrues. A cause of action “accrues” when the last element necessary to constitute the cause of action occurs.

Id. at 509 (citations omitted).

For Petrosino to prevail in a declaratory judgment action, the following elements had to be present:

[1] ... a bona fide, actual, present practical need for the declaration;
[2] ... the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts;
[3] ... some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts;
[4] ... there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law;
[5] ■ ... the antagonistic and adverse interests are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity.

City of Hollywood v. Fla. Power & Light Co., 624 So.2d 285, 286-87 (Fla. 4th DCA 1993) (citing May v. Holley, 59 So.2d 636, 639 (Fla.1952); Robinson v. Town of Palm Beach Shores, 388 So.2d 314 (Fla. 4th DCA 1980)).

Because these five elements existed at the time Petrosino was hired and was informed he could not participate in the City’s pension plan, Petrosino’s cause of action accrued in 1987. See id.; Margolis, 732 So.2d at 509. This places Petrosino’s claim well outside of the five-year statute of limitation. See § 95.11(2)(b), Fla. Stat. (2001). Because we find that the statute of limitations bars Petrosino’s cause of action, we do not reach the City of Hollywood’s waiver argument. Accordingly, we reverse and remand for proceedings consistent with this opinion.

REVERSED and REMANDED.

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


author: WEBSTER, J.

text:
    Jeffrey W. WELKER, Appellant, v. SOUTHERN BAPTIST HOSPITAL OF FLORIDA, INC., a corporation, Appellee.
    No. 1D02-4894.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2004.
    Rehearing Denied Feb. 6, 2004.

      Lawrence C. Datz and Albert Datz of Datz & Datz, P.A., Jacksonville, for Appellant.
    Harvey L. Jay, III, Jacksonville, for Ap-pellee.
   WEBSTER, J.

Appellant seeks review of a final order dismissing with prejudice his three-count amended complaint naming appellee as the defendant. He asserts that the first and third counts state causes of action, which should have been permitted to proceed. Because we conclude that (1) the third count of the amended complaint states a cause of action against appellee for negligent interference with appellant’s parental rights; (2) such a claim is not one for medical malpractice, requiring compliance with the presuit screening requirements of section 766.106, Florida Statutes (1999); and (3) the impact rule does not preclude the recovery of damages for emotional distress incident to such a claim; we reverse the trial court’s order to the extent it dismissed that count, and remand for further proceedings. We affirm the trial court’s dismissal with prejudice of the other two counts. We also certify to the supreme court a question regarding the applicability of the impact rule to such claims, which we believe to be of great public importance.

I.

Appellant’s amended complaint had three counts. To the extent pertinent, he alleged the following:

[Appellee] operated a business held out to the public under the name of “Psychological Associates” and represented to the public as a provider of mental health services....
... Valerie Brink ... was an agent or employee of the [appellee], held herself out to be a licensed mental health counselor, and worked at Psychological Associates. Further, ... Brink acted within the scope and course of her employment. ...
[Appellant] is an individual who was formerly married to Penelope Don-ham. ... They had two minor children ....
Pursuant to a final judgment dissolving the marriage between [appellant] and Donham, [appellant] had custody of their minor children. From the time that [appellant] and Donham dissolved their marriage until the events described below, [appellant] and the children maintained their primary physical residence in Arizona.
The children came to visit Donham in Jacksonville during the summer of 1999. While the children were visiting her, Donham engaged the services of Brink.
On or about July 20,1999, Brink made a written statement in the form of a letter addressed “To Whom It May Concern” and gave the opinion that [appellant’s] and Donham’s minor children suffered from a mental disorder as a direct result of [appellant’s] misconduct. [Appellant’s] purported misconduct included, but was not limited to, child abuse committed by [appellant] against his children. A copy of the letter is attached.
... Donham used Brink’s letter to obtain an injunction against domestic violence against [appellant], without advance notice to him. Because [appellant] did not have advance notice of the injunction, he did not have an opportunity to defend against the allegations. The injunction denied [appellant] legal custody of, visitation with, and access to his children and effectively denied him the parental rights designated in the final judgment of dissolution of marriage ....
... [Appellant] sought restoration of his parental rights by consolidating the injunction case with an enforcement proceeding related to the final judgment of dissolution of marriage which awarded him child custody. Those proceedings were successful resulting in court-ordered return of the children and dissolution of the aforementioned injunction.

As indicated, a copy of Brink’s letter was attached to the complaint as an exhibit. Among other things, it stated that appellant’s children met “all ... criteria for Post Traumatic Stress Disorder,” and that “[t]he traumas which the children have experienced [we]re all directly caused by [appellant].” It also asserted Brink’s opinion that “contact with [appellant] [wa]s psychologically harmful, and pose[d] a serious threat of bodily harm.”

Count I alleged that Brink violated a statutory duty imposed by section 39.201, Florida Statutes (1999), by failing to report known or suspected child abuse to the Department of Children and Family Services. According to the allegations, had Brink made the required report, the Department of Children and Family Services would have been obliged to conduct an investigation. Allegedly because no such investigation was conducted, appellant “lost his parental rights for approximately one (1) year.” Appellant claimed that he had been “injured and damaged by interference with parental rights, incurring expenses for attorney’s fees, court costs, and suit money, and by suffering mental anguish, humiliation, embarrassment, and the loss of companionship and society of his children.” Count II sought damages for the same injuries, alleging that Brink’s letter contained “false and defamatory statements” about him. Count III also sought damages for the same injuries, alleging that it was reasonably foreseeable that Donham would publish the contents of Brink’s letter to others; that Brink had a duty to exercise reasonable care to investigate “whether the purported factual basis of her opinion was true ... that “Brink breached her duty of reasonable care by not investigating or validating her statements”; and that, as a result, appellant had sustained the damages alleged.

Appellee moved to dismiss each count of the amended complaint with prejudice. As to count I, it contended that, as a matter of law, section 39.201, Florida Statutes (1999), did not create a civil cause of action for damages. As to count II, it contended (among other things) that, on its face, the amended complaint demonstrated that any claim for libel or defamation was barred by the applicable two-year statute of limitations. Finally, as to count III, it contended (among other things) that any negligence claim was barred because it was a claim for medical malpractice, and appellant had failed to comply with the presuit screening requirements of section 766.106, Florida Statutes (1999); and because the impact rule precluded recovery, as appellant could not claim that he sustained any physical injury as the result of an impact. Following a hearing, the trial court entered its order dismissing with prejudice (but without discussion) all three counts of the amended complaint. This appeal follows.

II.

Concluding that the three counts of the amended complaint failed to state causes of action, the trial court dismissed them all, with prejudice. Because the sufficiency of allegations of a complaint to state a cause of action is a question of law, our standard of review is de novo. E.g., Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 734 (Fla.2002). Moreover, we “must assume that all material factual allegations are true and must draw all reasonable inferences in favor of the pleader.” Clark v. Gumby’s Pizza Sys., Inc., 674 So.2d 902, 904 (Fla. 1st DCA 1996). Appellant does not challenge the dismissal of his defamation claim (count II). Accordingly, we affirm the dismissal of that count without further discussion.

In count I of the amended complaint, appellant alleged that appellee was vicariously liable for Brink’s breach of a statutory duty, created by section 39.201, Florida Statutes (1999), to report known or suspected child abuse to the Department of Children and Family Services. Appellee argued in its motion to dismiss that section 39.201did not create a statutory cause of action for damages.

Section 39.201 does not expressly create a cause of action for violation of its terms. A cause of action may, in appropriate circumstances, be implied from the language of a statute. Because section 39.201does not expressly create a cause of action for violation of its terms, we must determine whether the legislature intended to create one notwithstanding its failure expressly to do so. See Murthy v. N. Sinha Corp., 644 So.2d 983, 985 (Fla.1994) (“legislative intent ... should be the primary factor considered by a court in determining whether a cause of action exists when a statute does not expressly provide for one”). We find nothing in section 39.201or related provisions that suggests such an intent. On the contrary, we note that section 39.205, which appears to address the subject of penalties for failure to report known or suspected child abuse makes such nonfeasance a first-degree misdemeanor. § 39.205(1), Fla. Stat. (1999). It says nothing about the availability of a cause of action for damages. Moreover, those courts which have been presented with the same question regarding predecessor versions of section 39.201 have all concluded that no cause of action was created. Freehaufv. Sch. Bd. of Seminole County, 623 So.2d 761 (Fla. 5th DCA 1993) (holding that section 415.504, Florida Statutes (1987), does not create an implied cause of action for failure to report known or suspected child abuse as required by the statute); J.B. v. Dep’t of Health & Rehab. Servs., 591 So.2d 317 (Fla. 4th DCA 1991) (same); Fischer v. Metcalf, 543 So.2d 785 (Fla. 3d DCA 1989) (en banc) (holding that section 827.07, Florida Statutes (1979), does not create an implied cause of action for failure to report known or suspected child abuse as required by statute). Accordingly, we hold that section 39.201, Florida Statutes (1999), does not create an implied cause of action for damages, and affirm the trial court’s dismissal with prejudice of count I of the amended complaint.

III.

Count III of the amended complaint sought damages based on a theory of negligent interference with parental rights. Appellee argues that the trial court correctly dismissed that count with prejudice because (1) it was a claim for medical malpractice, and appellant had failed to comply with the presuit screening requirements of section 766.106, Florida Statutes (1999); and (2) the impact rule precluded recovery, as appellant could not claim that he sustained any physical injury as the result of an impact. We disagree with both arguments.

A.

Appellee contends that, because it is a “health care provider” as defined in chapter 766, Florida Statutes (1999), appellant was required to comply with the presuit screening requirements of section 766.106 before filing the claim alleged in count III. Although failure to comply with the presuit screening requirements before filing an action is not necessarily fatal, it is if compliance does not occur within the two-year statutory limitations period, requiring dismissal with prejudice. Kukral v. Mekras, 679 So.2d 278 (Fla.1996). According to appellee, because it is undisputed that appellant did not comply with the presuit screening requirements, and it is clear from the face of the complaint that the applicable two-year medical malpractice statute of limitations had run, the trial court correctly dismissed count III with prejudice. The flaw in appellee’s argument is that it overlooks the fact that the section 766.106 presuit screening requirements apply only to a “ ‘[cjlaim for medical malpractice,’ ” which is defined as “a claim arising out of the rendering of, or the failure to render, medical care or services.” § 766.106(l)(a), Fla. Stat. (1999).

In the first place, a claim is one for medical negligence for purposes of section 766.106 only if it is one as to which, to recover, the plaintiff must establish that the defendant failed to meet the “medical negligence standard of care as set forth in section 766.102(1).” Integrated Health Care Servs., Inc. v. Lang-Redway, 840 So.2d 974, 980 (Fla.2002). Accord Broadway v. Bay Hosp., Inc., 638 So.2d 176 (Fla. 1st DCA 1994). According to section 766.102(1), a plaintiff must carry such a burden to recover only if “death or injury resulted from the negligence of,a health care provider as defined in s. 768.50(2)(b).” § 766.102(1), Fla. Stat. (1999). Although section 768.50(2)(b) was repealed in 1986, our supreme court has held that we must look to the language of that statute at the time of its original enactment in 1977 to determine what “health care providers” are entitled to rely on the provisions of chapter 766, including section 766.106. Integrated Health Care Servs., 840 So.2d at 978-79. In Integrated Health Care Services, the court said that such “health care providers” included only:

hospitals, physicians, podiatrists, dentists, chiropractors, naturopaths, nurses, clinical laboratories, physicians’ assistants, physical therapists and physical therapist assistants, health maintenance organizations, and associations for professional activity by health care providers, as well as certain ambulatory surgical centers, blood banks, plasma centers, industrial clinics, and renal dialysis facilities.

Id. at 979. Mental health counselors, such as Brink, are not included. Therefore, logic dictates that a claim for negligence based on actions or inactions by Brink is not a “ ‘[c]laim for medical malpractice,’ ” as that term is used in section 766.106. Because such a claim is not one for medical malpractice, by the express language of section 766.106, it is not subject to that section’s presuit screening requirements. See generally Weinstock v. Groth, 629 So.2d 835 (Fla.1993) (holding that, because psychologists were not included in the list of health care providers set forth in section 768.50(2)(b), the plaintiff did not have to comply with the presuit screening requirements of section 766.106 before filing an action against a psychologist).

In addition, the claim asserted in count III is not one for medical malpractice because it does not arise “out of the rendering of, or the failure to render, medical care or services” to appellant. In J.B. v. Sacred Heart Hospital of Pensacola, 635 So.2d 945 (Fla.1994), the plaintiff had filed an action against the defendant hospital in federal court, alleging that the hospital had been negligent in arranging for the plaintiff to transport his brother (who the hospital knew had AIDS) to another treatment facility without warning the plaintiff (who did not know his brother had AIDS) of the level of care that would be required during the trip and the risk involved to the plaintiff. Id. at 946-47. The complaint further alleged that, as a result of the hospital’s negligence, the plaintiff had contracted the AIDS virus when he came into contact with fluid around the site of a heparin lock in his brother’s arm. Id. The hospital argued that the complaint stated a claim for medical malpractice and that, because the plaintiff had failed to comply with the presuit screening requirements of chapter 766, it must be dismissed. Id. at 947. The federal district court agreed, and dismissed the complaint. Id.

On appeal, the federal court of appeals certified two questions to our supreme court. Id. at 946. • The first asked whether the complaint was subject to the two-year medical malpractice statute of limitations, and the second asked whether chapter 766 applied to the claim. Id. In other words, the gist of both questions was whether the claim stated in the complaint was one for medical malpractice. The court answered both questions in the negative. Id. The hospital argued that, because the action “arose from the medical diagnosis, treatment, or care” of the plaintiffs brother, the claim was one alleging medical malpractice. Id. at 948 n. 3. The court disagreed. It held that (1) because the injuries alleged by the plaintiff did not arise “from the [h]ospital’s medical diagnosis, treatment, or care of [the plaintiff],” the action was “not a medical malpractice action” and, therefore, the two-year medical malpractice statute of limitations was inapplicable (id. at 948); and (2) because “[t]he complaint d[id] not allege that the [h]ospital was negligent in any way in the rendering of, or the failure to render, medical care or services to [the plaintiff],” it “d[id] not state a medical malpractice claim for chapter 766 purposes, and the notice and presuit screening requirements [we]re inapplicable.” Id. at 949. Applying the holdings in J.B. to this case, we conclude that, because count III does not allege that either Brink or appellee was negligent in “the rendering of, or the failure to render, medical care or services” to appellant, that count does not state a claim for medical malpractice, and the presuit screening requirements of section 766.106 do not apply.

B.

We can find no language in chapter 766 to suggest that appellee should be entitled to the benefit of the section 766.106 presuit screening requirements when it is alleged to be only vicariously liable for the negligence of an agent, and the negligence alleged does not constitute medical malpractice. On the contrary, section 766.106(2) would appear to require compliance with the presuit screening requirements only “prior to filing a claim for medical malpractice.” Moreover, because the claim asserted by appellant in count III is not one for medical malpractice, logically the fact that appellee is alleged to be vicariously liable for Brink’s negligence should have no impact on whether it is entitled to the benefit of the provisions of section 766.106. It would make little sense to require a plaintiff to comply with the presuit screening requirements as to a defendant alleged to be only vicariously liable in a situation where the active tortfeasor would not be entitled to the benefit of those provisions. Accordingly, we hold that appellant was not obliged to comply with the presuit screening requirements of section 766.106. Although arguably distinguishable on its facts, we note conflict with Goldman v. Halifax Medical Center, Inc., 662 So.2d 367 (Fla. 5th DCA 1995), which appears to reach the opposite conclusion, holding that hospitals are entitled to the benefit of section 766.106 whenever a claim is made that they are vicariously hable for negligent acts of their agents committed in the course of their employment, regardless of the nature of the negligence.

IV.

Appellee next argues that, even if the trial court was incorrect in concluding that count III must be dismissed for failure to comply with the presuit screening requirements of section 766.106, it correctly dismissed that count because it is barred by the impact rule. Again, we disagree.

Recently, our supreme court explained the impact rule as follows:

The rule requires that “before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress suffered must flow from physical injuries sustained in an impact.”... The impact rule has been traditionally applied primarily as a limitation to assure a tangible validity of claims for emotional or psychological harm.... Florida jurisprudence has generally reasoned that such assurance is necessary because, unlike physical injury, emotional harm may not readily align with traditional tort law damage principles. Our courts have explained that the existence of emotional harm is difficult to prove, resultant damages are not easily quantified, and the precise cause of such injury can be elusive.... This Court has also theorized that without the impact rule, Florida courts may be inundated with litigation based solely on psychological injury.

Rowell v. Holt, 850 So.2d 474, 477-78 (Fla.2003). The court has also recognized “that ‘the underlying basis for the [impact] rule is that allowing recovery for injuries resulting from purely emotional distress would open the floodgates for fictitious or speculative claims.’ ” Gracey v. Baker, 837 So.2d 348, 355 (Fla.2002) (quoting from R.J. v. Humana of Fla., Inc., 652 So.2d 360, 362 (Fla.1995)).

A.

The impact rule precludes recovery of damages for emotional distress, mental anguish and the like absent physical injury resulting from an impact. It has no bearing on a plaintiffs right to recover for items of damages other than emotional distress when those damages are the proximate result of a defendant’s negligence. In count III of his amended complaint, appellant sought to recover as damages the attorney’s fees and court costs he was required to expend in litigation with his former wife to secure the return of his children, in addition to damages attributable to the emotional distress and mental anguish allegedly caused by the loss of custody and all other parental rights for a one-year period. The impact rule has no bearing on appellant’s right to recover such items of damages, provided that appellant is able to prove his case. As we explained in Baxter’s Asphalt & Concrete, Inc. v. Liberty County, 406 So.2d 461, 467 (Fla. 1st DCA 1981) (on petition for rehearing), quashed on other grounds, 421 So.2d 505 (Fla.1982):

Where the wrongful act of the defendant has involved the claimant in litigation with others, and has placed the claimant in such relation with others as makes it necessary to incur expenses to protect its interests, such costs and expenses, including reasonable attorney’s fees upon appropriate proof, may be recovered as an element of damages.

Accord Winselmann v. Reynolds, 690 So.2d 1325, 1328 (Fla. 3d DCA 1997); De Pantosa Saenz v. Rigau & Rigau, P.A., 549 So.2d 682, 685 (Fla. 2d DCA 1989). Accordingly, even if the impact rule precludes appellant from seeking damages attributable to emotional distress or mental anguish, he is entitled to proceed with count III to the extent it seeks attorney’s fees and court costs he was required to expend to secure the return of his children. Therefore, the trial court erred when it dismissed the count with prejudice.

B.

Our supreme court has acknowledged that “[t]he impact rule is not ... an inflexible, unyielding rule of law, so sacred that it must be blindly followed without regard to context.” Rowell, 850 So.2d at 478. It has also expressed doubt “that the impact doctrine ever was intended to be applied to a tort ... where emotional damages are an additional ‘parasitic’ consequence of conduct that itself is a freestanding tort apart from any emotional injury.” Kush v. Lloyd, 616 So.2d 415, 422 (Fla.1992) (citing W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 54, at 361-65 (5th ed.1984)). A convincing argument might be made that, if proved to be true, the conduct of Brink constituted “a freestanding tort,” as to which damages for emotional distress or mental anguish are merely “an additional ‘parasitic’ consequence.” See generally Stone v. Wall, 734 So.2d 1038, 1044 (Fla.1999) (where, in the course of concluding that Florida should recognize a common law tort of intentional interference with a custodial parent-child relationship, the court noted that it “ha[d] consistently recognized that the parent-child relationship has fundamental constitutional significance” and that “[tjort law has long protected ‘relational’ interests, such as those between family members, from interference”); United States v. Dempsey, 635 So.2d 961, 964-65 (Fla.1994) (where the court stated that “it is the policy of this state that familial relationships be protected and that recovery be had for losses occasioned because of wrongful injuries that adversely affect those relationships”).

Our supreme court has also recognized that, while narrowly drawn, “[ejxceptions to the rule have been ... created ... in a ... class of cases in which the foreseeability and gravity of the emotional injury involved, and lack of countervailing policy concerns, have surmounted the policy rationale undergirding application of the impact rule.” Rowell, 850 So.2d at 478. Thus, in Kush v. Lloyd, 616 So.2d 415 (Fla.1992), the court held that the impact rule should not be applied to preclude damages for emotional distress in wrongful birth cases. Id. at 423. In doing so, it noted that the rule did not apply to torts for “which damages often are predominately emotional, such as defamation or invasion of privacy.” Id. at 422. It then gave the following rationale for its conclusion: “There can be little doubt that emotional injury is more likely to occur when negligent medical advice leads parents to give birth to a severely impaired child than if someone wrongfully calls them bars, accuses them of unchastity, or subjects them to any other similar defamation.” Id. at 422-23.

In Tanner v. Hartog, 696 So.2d 705 (Fla.1997), relying on its decision in Kush, the court held that the impact rule should not be applied to preclude damages for emotional distress in an action brought by parents of a stillborn child alleging that the stillbirth was the result of the defendant’s negligence. Id. at 708. In doing so, it acknowledged “that the law does not provide a remedy for every wrong,” but concluded that “it is difficult to justify the outright denial of a claim for the mental pain and anguish which is so likely to be experienced by parents as a result of the birth of a stillborn child caused by the negligence of another.” Id.

Next, in Gracey v. Eaker, 837 So.2d 348 (Fla.2002), the court held that the impact rule should not be applied to preclude damages for emotional distress in a case where the plaintiffs claimed that their psychotherapist breached fiduciary and statutory duties of confidentiality to patients by divulging to each “ ‘sensitive and personal information’ ” disclosed by the other to him. Id. at 357. It again based its holding on the analysis set out in Kush, saying:

The emotional distress that the [plaintiffs] allege they have suffered is at least equal to that typically suffered by the victim of a defamation or an invasion of privacy. Indeed, we can envision few occurrences more likely to result in emotional distress than having one’s psychotherapist reveal without authorization or justification the most confidential details of one’s life.

Id. at 356.

Most recently, in Rowell v. Holt, 850 So.2d 474 (Fla.2003), the court held that the impact rule should not be applied to preclude damages for emotional distress in an action where legal malpractice on the part of the defendant resulted in the plaintiff wrongfully having to spend a protracted period in pretrial confinement. Id. at 475-76. The court based its holding on the analyses in Kush and Tanner. Id. at 478-79.

There exist common threads in all of the foregoing cases in which the court established exceptions to the impact rule. In all, the likelihood of emotional injury was clearly foreseeable; the emotional injury was likely to be significant; the issue of causation was relatively straightforward; and it was unlikely that creating an exception to the rule would result in a flood of fictitious or speculative claims. We believe that count III of appellant’s amended complaint likewise meets all of these criteria.

There can be little question about the proposition that one should be able to foresee that actions that result in depriving a parent of custody of his or her children and all other parental rights for a period of one year is likely to cause the parent mental anguish and emotional distress. Likewise, there can be little question about the proposition that the mental anguish and emotional distress are likely to be significant. To paraphrase Gracey, the emotional injury one is likely to suffer when he or she is deprived of custody of his or her children and all other parental rights for a substantial period must be “at least equal to that typically suffered by the victim of a defamation or an invasion of privacy.” 837 So.2d at 356. Based on the allegations contained in count III, causation would appear to be relatively straightforward. Finally, it is no more likely that excepting claims such as appellant’s from the impact rule will result in a flood of fictitious or speculative claims than it was that creating the exceptions in Kush, Tanner, Gracey or Rowell would lead to such a result. Accordingly, reasoning by analogy from the decisions in those cases, we hold that the impact rule does not bar appellant’s request, made in count III of his amended complaint, for damages resulting from mental anguish and emotional distress. We also certify to the supreme court the following question, which we believe to be of great public importance:

DOES FLORIDA’S IMPACT RULE PRECLUDE THE RECOVERY OF DAMAGES FOR EMOTIONAL INJURIES IN A NEGLIGENCE CASE ALLEGING THAT THE DEFENDANT’S ACTIONS WRONGFULLY CAUSED THE PLAINTIFF TO LOSE CUSTODY OF HIS CHILDREN AND ALL OTHER PARENTAL RIGHTS FOR A SIGNIFICANT PERIOD?

V.

We affirm the trial court’s dismissal with prejudice of counts I and II of appellant’s amended complaint. We reverse the dismissal of count III, and remand for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

KAHN and VAN NORTWICK, JJ„ concur.