author: ROTHENBERG, Judge.

text:
    AMERICAN ENGINEERING & DEVELOPMENT CORP., Appellant, v. Lorena SANCHEZ, as duly appointed Personal Representative of the Estate of Guillermo Izaguirre, deceased, Appellee.
    No. 3D05-2927.
    District Court of Appeal of Florida, Third District.
    July 12, 2006.

      Adorno & Yoss and Alan B. Whitaker and Alain E. Boileau, Fort Lauderdale, for appellant.
    Lidsky, Vaccaro & Montes and Juan C. Montes, Hialeah, for appellee.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, American Engineering & Development Corporation (“American Engineering”), appeals a non-final order granting summary judgment in favor of the plaintiff, Lorena Sanchez, as duly appointed Personal Representative of the estate of Guillermo Izaguirre, deceased (“Estate”), finding that American Engineering is not entitled to workers’ compensation immunity. We reverse.

Guillermo Izaguirre (“Izaguirre”) was employed by Workers Temporary Staffing (“WTS”), a help supply services company. In August 2002, upon American Engineering’s request for a temporary worker, WTS sent Izaguirre to a construction site where Sunbelt General Contractors, Inc. (“Sunbelt”) was the general contractor and American Engineering was a subcontractor. Although Izaguirre was instructed, supervised, and controlled by American Engineering’s personnel while on the job site, Izaguirre was paid directly by WTS. While working on the job site, Izaguirre was crushed to death when a grader ran over him.

Prior to the accident, WTS executed a Hold Harmless and Indemnification Agreement, and Employment and Insurance Agreement (“Hold Harmless Agreement”). As required by the Hold Harmless Agreement, on the date of the fatal accident, WTS maintained workers’ compensation insurance.

WTS’ workers’ compensation carrier, CNA Claims Plus, settled with the Estate for $18,000. However, prior to entering into the settlement, the Estate filed a wrongful death action against American Engineering and Sunbelt. American Engineering and Sunbelt filed motions for summary judgment, seeking workers’ compensation immunity. American Engineering argued that it was entitled to statutory workers’ compensation immunity under section 440.11(2), Florida Statutes (2002). At the summary judgment hearing, the Estate acknowledged that “under normal circumstances,” American Engineering “would be covered under workmen’s comp immunity,” but that, based on the language contained in the Hold Harmless Agreement, American Engineering was not entitled to the immunity provided in section 440.11(2).

At the hearing, the trial court ruled that it was granting Sunbelt’s motion for summary judgment; denying American Engineering’s motion for summary judgment; and based upon the Hold Harmless Agreement, entering summary judgment in favor of the Estate and against American Engineering. After denying American Engineering’s motion for rehearing, the trial court entered its written order, denying American Engineering’s motion for summary judgment and entering summary judgment in favor of the Estate. This non-final appeal follows.

American Engineering contends that, as a matter of law, it is entitled to workers’ compensation immunity pursuant to section 440.11(2), Florida Statutes (2002). We agree.

A trial court’s ruling on a motion for summary judgment regarding a pure question of law is reviewed by appellate courts de novo. See Roberts v. Sarros, 920 So.2d 193 (Fla. 2d DCA 2006); Barnier v. Rainey, 890 So.2d 357 (Fla. 1st DCA 2004) (“ ‘The standard of review governing a trial court’s ruling on a motion for summary judgment posing a pure question of law is de novo.’ ”)(quoting Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001)).

“Section 440.11(2), Florida Statutes (2002), extends an employer’s immunity from tort liability to work related injuries of employees obtained through a help supply services company and also applies to companies that hire workers through temporary employment agencies.” Watson v. Job Corp., 840 So.2d 367 (Fla. 3d DCA 2003). In the instant case, it is undisputed that WTS supplied American Engineering with Izaguirre, a temporary worker, and that while on the job site, Izaguirre was instructed, supervised, and controlled by American Engineering’s personnel. As such, Izaguirre was American' Engineering’s borrowed employee, and American Engineering was entitled to workers’ compensation immunity. See Caramico v. Artcraft Indus., Inc., 727 So.2d 348, 349 (Fla. 5th DCA 1999)(holding that a company, which leased employee from employee leasing company, “is immune from suit because of its use of the services of a help supply services company and the provision of worker’s compensation benefits by” the help supply services company); Fleming Cos., Inc. v. Moreira, 690 So.2d 1367 (Fla. 3d DCA 1997)(holding that “a temporary employee covered by his general employer’s workers’ compensation, but acting under the special employer’s exclusive authority and control, is a borrowed servant of the special employer and thereby precluded by the Workers’ Compensation Act from maintaining a tort action against the special employer”).

The Estate argues that, although American Engineering would normally be entitled to workers’ compensation immunity pursuant to section 440.11(2), based on the Hold Harmless Agreement, American Engineering has waived its statutory entitlement to immunity. We disagree.

When an agreement is unambiguous, as is the Hold Harmless Agreement, the interpretation of the contract presents a question of law. See Jaar v. Univ. of Miami, 474 So.2d 239 (Fla. 3d DCA 1985); see also Leisure Resorts, Inc. v. City of West Palm Beach, 864 So.2d 1163, 1166 (Fla. 4th DCA 2003)(“The standard of review applicable to contract interpretation is de novo.”). Upon review of the Hold Harmless Agreement, which was executed only by WTS, we conclude that there is nothing in that agreement indicating that American Engineering waived its statutory right to immunity. Therefore, we conclude that the trial court reversibly erred by granting summary judgment in favor of the Estate, and in denying American Engineering’s motion for summary judgment.

Reversed and remanded.

      . Section 440.11, Florida Statutes (2002), provides in pertinent part as follows:
      (1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, ... except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or the legal representative thereof in case death results from the injury, may elect to claim compensation under this chapter or to maintain an action at law or in admiralty for damages on account of such injury or death....
      (2) The immunity from liability described in subsection (1) shall extend to an employer and to each employee of the employer which utilizes the services of the employees of a help supply services company, as set forth in Standard Industry Code Industry Number 7363 when such employees, whether management or staff, are acting in furtherance of the employer's business. An employee so engaged by the employer shall be considered a borrowed employee of the employer, and, for the purposes of this section, shall be treated as any other employee of the employer. The employer shall be liable for and shall secure the payment of compensation to all such borrowed employees as required in section 440.10, except when such payment has been secured by the help supply services company.
      "Standard Industry Code Industry Number 7363 defines 'Help Supply Services’ to include, inter alia, employee leasing services, temporary help services, and labor pools.” Caramico v. Artcraft Indus., Inc., 727 So.2d 348, 349 (Fla. 5th DCA 1999).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jack PRICE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-85.
    District Court of Appeal of Florida, Third District.
    July 12, 2006.
    Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

In this direct appeal, Jack Price challenges his judgment and sentence for aggravated battery with a deadly weapon. We affirm.

Price argues that the trial court erred when it denied his motion for a judgment of acquittal because the State failed to produce any evidence as to what the alleged weapon was, or any evidence that the manner in which the instrument had been used made it likely to cause serious bodily harm. We hold that whether the instrument used to stab the victim was a knife, a screwdriver, or an ice pick is inconsequential where an eyewitness testified that Price used a sharp metallic object to stab the victim repeatedly in the victim’s hand and stomach causing the victim to bleed. See A.L.M. v. State, 853 So.2d 433 (Fla. 3d DCA 2003)(affirming an adjudication of delinquency for aggravated battery for intentionally striking the victim with a three-foot long broomstick where the juvenile hit the victim twice with the broomstick giving the victim various bumps and substantial bruising on his head and body). Accordingly, the learned trial judge’s denial of the motion for acquittal was eminently correct.

Affirmed.


author: COPE, C.J.

text:
    Dominique AMBROISE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-27.
    District Court of Appeal of Florida, Third District.
    July 12, 2006.
    Dominique Ambroise, in proper person.
    Charles J. Crist, Jr., Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.

      Before COPE, C.J., and GREEN and CORTINAS, JJ.
   COPE, C.J.

Dominique Ambroise appeals an order denying his motions for extension of time to file a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm.

Defendant-appellant Ambroise filed two motions for extension of time in which to file his motion for postconviction relief. The first motion was filed before the Rule 3.850 time limit expired, while the second motion (the one now before us) was filed after the Rule 3.850 time limit had expired. The defendant stated that he believed the files of the State Attorney contained exculpatory evidence not previously disclosed. He said that his family had made efforts to obtain the files which had been unsuccessful. He attached to one of the motions a public records request he had made for those documents. He argued that additional time was needed to receive the requested documents and file his motion. The trial court denied both motions. The defendant’s appeal of the second motion is timely.

The Florida Supreme Court has held that the time for filing a Rule 3.850 motion may be extended. State v. Boyd, 846 So.2d 458, 460 (Fla.2003); see also Parker v. State, 907 So.2d 694 (Fla. 4th DCA 2005). Denial of such a motion has been treated as an appealable order. See Giles v. State, 773 So.2d 1167 (Fla. 2d DCA 2000), disapproved on other grounds, State v. Boyd, 846 So.2d at 459; Ramos v. State, 727 So.2d 1110 (Fla. 3d DCA 1999).

The trial court denied the motion for extension of time, reasoning that the extension was unnecessary. The trial court’s order states, in part, “If exculpatory evidence exists which could not have been obtained with due diligence by Defendant or Counsel, time doesn’t matter.”

In this case, the defendant requested more time in order to determine whether the State Attorney’s file contains exculpatory evidence not previously disclosed to the defendant. Under Rule 3.850, the two-year time limit does not apply if “the facts on which the claim is predicated were unknown to the movant or the movant’s attorney and could not have been ascertained by the exercise of due diligence .... ” Fla. R.Crim. P. 3.850(b)(1).

We conclude that the trial court’s ruling was within its discretion.

Affirmed.

       The State argues that since the defendant did not appeal the judgment, it follows that he had two years to file his Rule 3.850 motion. However, where a judgment is not appealed, the time limit is two years and thirty days. See Ayo v. State, 708 So.2d 692 (Fla. 5th DCA 1998). So calculated, it appears that the first motion for extension of time was filed prior to the expiration of the Rule 3.850 time limit.


author: GREEN, J.

text:
    The STATE of Florida, Appellant, v. Darious DAVIS, Appellee.
    No. 3D03-3191.
    District Court of Appeal of Florida, Third District.
    July 12, 2006.

      Charles J. Crist, Jr., Attorney General, and Linda S. Katz, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellee.
    Before GREEN, RAMIREZ, and SUAREZ, JJ.
   ON MOTION FOR REHEARING

GREEN, J.

We grant appellee’s motion for rehearing, withdraw our opinion of August 3, 2005, and substitute the following opinion in its stead.

This is an appeal from an order granting a Rule 3.850 motion for post-conviction relief after an evidentiary hearing, wherein the trial court found appellant’s trial counsel to have been ineffective for failing to communicate its proposed plea offer to the appellant. Because we find that the court’s proposed plea offer included a sentence which could not have been lawfully imposed, even if accepted, we conclude that counsel’s failure to communicate said offer cannot form a basis for relief under Rule 3.850.

Appellant, Davis, was charged as a youthful offender in case numbers: 93-24124B, 93-24746, and 93-39346. He pled guilty and was sentenced to four years in prison followed by two years of community control. Soon after his release from prison, Davis violated the terms of his community control by failing to remain confined at his home as ordered. He was also arrested and charged with armed robbery and armed burglary with a firearm in case number 98-1417B.

Affidavits, and subsequent amended affidavits, were filed in the three youthful offender cases asserting that Davis violated community control by failing to remain at home on three separate occasions, and by committing the new criminal offense. At the hearing on the violation cases, the State represented that Davis’s sentencing guidelines score was 9½ to twelve years, and twelve to seventeen years with the enhancement for violating community control. The court asked if Davis had been offered a plea. The State claimed that it had offered the top of the guidelines, seventeen years. The court countered with an offer of 9½ years, for that day only, “to clear the cases from the docket.” There is conflicting evidence as to whether the plea was ever actually communicated to Davis, but his trial counsel represented to the trial judge in open court and in Davis’s presence that Davis refused the plea. Thereafter, Davis admitted to the community control violations, and was sentenced to a fifteen year prison sentence.

Davis was found guilty of the armed robbery and armed burglary charges (i.e., case number 98-1417B) and received concurrent life sentences, with a minimum mandatory as a habitual violent offender and a prison releasee reoffender [“PRR”]. On direct appeal, this court reversed Davis’s sentence and held that he could not be sentenced both as a habitual violent offender and a PRR. Davis v. State, 760 So.2d 977 (Fla. 3d DCA 2000). The Supreme Court of Florida quashed that decision, and held that a defendant could, in fact, be sentenced under both designations. State v. Davis, 791 So.2d 1085 (Fla.2001).

Thereafter, Davis filed a pro se Rule 3.850 motion that sought to vacate his convictions on the grounds of ineffective assistance of trial counsel. Following an evidentiary hearing, the court denied Davis’s motion, and appointed counsel to file an appeal of the denial. Upon reviewing the materials, appellate counsel moved to file, with the court below, a new and substantively different 3.850 motion (which counsel entitled an “Amended Motion”), on the grounds that there were “glaring errors in the preparation and trial of this case.” The court granted the motion, and agreed to conduct a second evidentiary hearing.

This second motion asserted that Davis’s trial counsel was ineffective when he rejected the court’s plea offer of 9½ years without properly discussing the offer with Davis. Following the evidentiary hearing, the court below granted this second motion based upon its finding that Davis’s trial counsel had been ineffective in failing to discuss the trial court’s plea offer with Davis and in failing to inform Davis of the consequences of being sentenced as a PRR. The court also found that the state had waived its right to complain about the illegality of the proposed 9½ year sentence because the state voiced no objection when the trial court made the offer. The state now appeals.

In order to prevail on a post-conviction claim of ineffective assistance of counsel, a defendant must essentially prove two things under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must prove that counsel’s performance was deficient. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Secondly, the defendant must show that the deficient performance prejudiced the defendant. Id. More specifically, if the alleged ineffectiveness arises out of the rejection of a plea offer, the defendant must establish that: “(1) counsel failed to communicate a plea offer or misinformed defendant concerning the penalty faced; (2) defendant would have accepted the plea offer but for the inadequate notice, and (3) acceptance of the [sjtate’s plea offer would have resulted in a lesser sentence.” Cottle v. State, 733 So.2d 963, 965 (Fla.1999). Giving deference, as we must, to the trial court’s factual findings below on this record, the first two elements of the Cottle test have been met. The third element of the Cottle test, however, has not. That is because even if Davis had accepted the court’s proposed plea offer, he would not have incurred a lesser sentence because the sentence as proposed by the trial court, was unlawful.

At the second evidentiary hearing below, the defense argued that the court’s 9½ years plea offer encompassed the three community control violation cases and the charges in case number 98-1417B. Assuming this to be true, this sentence falls short of minimum sentence required by the PRR statute. Accordingly, the trial court’s plea offer was illegal. See State v. Cotton, 769 So.2d 345 (Fla.2000). See also State v. Thomas Davis, 834 So.2d 898 (Fla. 3d DCA 2002), rev. denied, 845 So.2d 888 (Fla.2003) (court cannot offer plea for guideline sentence if state is seeking a PRR sentence). Simply put, the trial court lacked the discretion to offer Davis a non-PRR sentence as a matter of law. See State v. Thomas Davis, 834 So.2d at 899 (trial court lacked discretion to offer defendant plea to non-PRR sentence where state sought sentencing pursuant to PRR act and provided proof that defendant qualified as such). See also State v. Baker, 874 So.2d 643 (Fla. 2d DCA 2004)(impo-sition of PRR sentence mandatory where defendant qualifies as such), rev. denied, Baker v. State, 894 So.2d 969 (Fla.2005); Parker v. State, 874 So.2d 683 (Fla. 4th DCA 2004)(defendant’s classification as PRR rendered him ineligible for sentencing under guidelines; defendant required to be sentenced exclusively under PRR Act). As the trial court’s proposed plea offer was illegal, Davis was not entitled to the court’s lower sentence.

Davis, nevertheless contends that the state waived any complaint regarding the illegality of the court’s plea offer by failing to object at the time the plea was offered. We disagree. In State v. Thomas Davis, 834 So.2d 898, the trial court offered the defendant a plea bargain which did not include an enhanced sentence on the grounds that the state had waived imposition of a PRR sentence by offering the defendant a non-PRR sentence. We disagreed and found that when the defendant rejected the state’s initial offer, the parties stood in the same position as before the offer. Thus, we found that the state had not waived its request for PRR sentencing. Similarly, in this case, although the court below found that the plea had not been communicated to Davis, defense counsel’s refusal of the trial court’s 9½ year offer in open court, in Davis’s presence, terminated the plea negotiations. Thus, as we held in State v. Thomas Davis, the state never had the opportunity or need to object to (or even raise) the PRR issue. Defense counsel’s rejection of the trial court’s plea offer obviated any possible issue of waiver by the state.

Hence, in this case, Davis cannot demonstrate that he was “prejudiced” by his counsel’s failure to discuss the court’s proposed plea offer with him. He, therefore, cannot prevail on the merits of his 3.850 motion. See Strickland, supra. We therefore reverse the trial court’s order and remand for reinstatement of the original sentence.

Reversed and remanded.

      . “This requires a showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. 2052.

      . "The state’s failure to present evidence that Davis qualified as a prison releasee reoffender is of no moment as the trial court had ruled on the waiver issue[.] ... It is well settled that the law does not require a useless or futile act. See Plaza v. State, 699 So.2d 289 (Fla. 3d DCA 1997); Young v. State, 664 So.2d 1144 (Fla. 4th DCA 1995); Howard v. State, 616 So.2d 484 (Fla. 1st DCA 1993).” State v. Davis, 834 So.2d at 899 n. 1.


text:
    Ignacio Perez NEGRON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-978.
    District Court of Appeal of Florida, Third District.
    July 12, 2006.
    Ignacio Perez Negron, in proper person.
    Charles J. Crist, Jr., Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.
    Before RAMIREZ, WELLS, JJ., and LEVY, Senior Judge.
   PER CURIAM.

Ignacio Perez Negron appeals the denial of his motion for post-conviction relief. We affirm because the trial court properly sentenced Negron to life without parole in accordance with the law in effect at the time during which Negron committed the charged offense.

Negron filed his motion to correct illegal sentence on October 29, 2005. He alleged that he was charged by indictment on March 5, 1997 with having committed the offense of first-degree premeditated murder on July 17, 1994, and that he was found guilty of the same offense after a trial by jury on December 15, 1997. The judgment and sentence reflect that the court sentenced Negron to a term of “natural life” for the offense of first-degree murder. The sentence does not specify “without the possibility of parole.”

In the motion to correct illegal sentence, Negron alleged that the portion of the sentence to “a term of natural life without the possibility of parole” is illegal. He claimed that under the law in effect at the time of his offense, a life sentence for a capital offense required an entitlement to parole after serving twenty-five years of the sentence. We find that the life sentence in question is a true life sentence without the possibility of parole.

Negron committed the offense of first-degree murder on July 17, 1994. At that time, the offense carried a sentence in accordance with section 775.082, Florida Statutes (1993), and a life sentence for a capital felony carried an entitlement to the possibility of parole after twenty-five years. Effective May 25, 1994, however, the legislature amended section 775.082(1) by Chapter 94-228, section 1, Laws of Florida. As a result of that amendment, section 775.082(1), read as follows:

(1) A person who has been convicted of a capital felony shall be punished by death if the proceeding held to determine sentence according to the procedure set forth in s. 921.141 results in findings by the court that such person shall be punished by death, otherwise such person shall be punished by life imprisonment and:
(a) If convicted of murder in the first degree or of a capital felony under s. 790.161, shall he ineligible for parole, or
(b) If convicted of any other capital felony, shall be required to serve no less than 25 years before becoming eligible for parole.

Pursuant to section 3 of Chapter 94-228, the act was to “take effect upon becoming law.”

When an act provides that it shall become effective “on becoming a law,” it becomes effective immediately upon the Governor’s approval. See Parker v. The Evening News Pub. Co., 54 Fla. 482, 44 So. 718 (1907). In Parker, the act in question stated that “[t]his act shall take effect immediately on becoming a law.” Id. The Florida Supreme Court held that this meant that the act became effective upon approval by the executive. Id.

With respect to the case before us, the Governor approved the subject act on May 25, 1994, and filed the act with the Secretary of State on the same day. Accordingly, the above provisions became effective on May 25, 1994, two months prior to Negron’s commission of the murder.

Consequently, the motion to correct illegal sentence is thus facially and legally insufficient because the motion and its attachments establish that a sentence of life without parole is proper. We therefore affirm the order denying the motion to correct illegal sentence.

Affirmed.


author: HAZOURI, J.

text:
    Jeffrey VANDERPOL, Appellant, v. Renee FRENGUT, John Bellantoni, John Burdick, Roy MacNaughton, Ted Landau for Francis S. Landau Trust, James & Judith Carpenter, William & Angelija Rendina, Psychological Insights, Inc., a Florida corporation, Gregory A. Martin, Gregory A. Martin & Associates, P.A., Adorno & Zeder, P.A., Ralph Guertin, Henry N. Adorno, Jon W. Zeder, George T. Yoss, and John Doe, Appellees.
    No. 4D05-3459.
    District Court of Appeal of Florida, Fourth District.
    July 12, 2006.
    Rehearing Denied Aug. 3, 2006.

      Dawn M. McMahon and Roderick F. Coleman of Coleman & Associates, P.A., Boca Raton, for appellant.
    Donna M. Greenspan of Edwards Angelí Palmer & Dodge, LLP, West Palm Beach, for appellees Renee Frengut, John Bellan-toni, and Psychological Insights, Inc., a Florida corporation.
   HAZOURI, J.

Appellant, Jeffrey Vanderpol, appeals the trial court’s order entitling appellees, Renee Frengut, John Bellantoni and Psychological Insights, Inc., to attorney’s fees and the judgment entered thereafter awarding appellees attorney’s fees. We reverse.

In Frengut v. Vanderpol, 927 So.2d 148 (Fla. 4th DCA 2006), this court affirmed the dismissal of appellees’ action against appellant relying on the two-dismissal rule. Upon remand, the trial court entered an order of dismissal.

Appellant filed a motion for attorney’s fees pursuant to Florida Rule of Civil Procedure 1.442 alleging that he was the prevailing party who had filed a proposal for settlement in favor of the appellees. Because appellant’s proposal for settlement was invalid under section 768.79 and rule 1.442, appellees served a motion for attorney’s fees requesting sanctions under section 57.105(1), Florida Statutes (2003), asserting that appellant and his attorney knew or should have known that appellant’s motion for fees was not supported by the then-existing law as applied to the facts. Upon service of such a motion, section 57.105(4) provides:

(4) A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

Within twenty-one days after appellant was served with appellees’ motion, appellant filed a motion to amend his motion for attorney’s fees to claim entitlement to attorney’s fees under section 57.105 based upon appellees’ forum shopping and the subsequent dismissal of appellees’ claim based upon the two-dismissal rule. In his motion, appellant conceded that his proposal for settlement was invalid and specifically withdrew his claim for attorney’s fees on that ground.

After appellant withdrew his motion and contrary to section 57.105(4), appellees filed their motion with the court. The trial court held a hearing upon various motions including appellees’ motion for fees and appellant’s original motion. Even though appellant had withdrawn his motion, the trial court inexplicably ruled that appellees were entitled to attorney’s fees pursuant to their motion. The trial court also denied the motion appellant had withdrawn.

In this appeal, appellant argues that he timely withdrew his request for fees as permitted by section 57.105(4) and on that basis appellees were not permitted to file with or present to the court their motion for fees. We agree.

In Maxwell Building Corp. v. Euro Concepts, LLC, 874 So.2d 709 (Fla. 4th DCA 2004), this court held:

The primary purpose of section 57.105(4) is not to spring a procedural trap on the unwary so that valid claims are lost. Rather, its function is to give a pleader a last clear chance to withdraw a frivolous claim or defense within the scope of subsection (1) or to reconsider a tactic taken primarily for the purpose of unreasonable delay under subsection (3). Having the parties police themselves, instead of requiring judicial intervention on section 57.105 issues, promotes judicial economy and minimizes litigation costs.

Id. at 711.

Appellant withdrew his motion well within the twenty-one day period provided for in section 57.105(4). Therefore, we find that appellees were not permitted to file their motion and that the trial court erroneously considered it. We reverse the trial court’s award of attorney’s fees to appellees.

Reversed.

GUNTHER and MAY, JJ., concur.


author: PLEUS, C.J.

text:
    PENNINGTON & ASSOCIATES, INC., Appellant/Cross-Appellee, v. Ora EVANS, Appellee/Cross-Appellant.
    No. 5D05-3533.
    District Court of Appeal of Florida, Fifth District.
    July 14, 2006.

      Michael C. Sasso and Brian D. Solomon, of Michael C. Sasso, P.A., Winter Park, for Appellant/Cross-Appellee.
    John Moxley of John Moxley, P.A., Oca-la, for Appellee/Cross-Appellant.
   PLEUS, C.J.

Pennington & Associates, Inc., a general contractor, appeals the final judgment rendered in favor of Ora Evans in a construction lien foreclosure suit brought by Pennington. 360Networks was the lessee on a portion of a larger parcel owned by Evans and engaged Pennington to construct a building on the leased property. Shortly after construction began, 360Networks defaulted and went into bankruptcy.

We affirm the final judgment in Evans’ favor, but reverse the denial to Evans of attorney’s fees and costs. In making our ruling we have carefully reviewed all the numerous issues raised by Pennington and find them to be without merit.

On cross-appeal, Evans raised the denial by the trial judge of his attorney’s fees and costs. The parties agree that the prevailing party is entitled to an award of its attorney’s fees pursuant to section 713.29, which provides:

In any action brought to enforce a lien or to enforce a claim against a bond under this part, the prevailing party is entitled to recover a reasonable fee for the services of her or his attorney for trial and appeal or for arbitration, in an amount to be determined by the court, which fee must be taxed as part of the prevailing party’s costs, as allowed in equitable actions.

This section authorizes the award of attorney’s fees to a party who successfully defends a suit arising out of an attempt to foreclose a construction lien. In Cloutier v. Central Contracting, Inc., 418 So.2d 1233, 1234 (Fla. 5th DCA 1982), this Court stated: “Since the court found appellee’s lien was unenforceable, appellants successfully resisted the claim and prevailed below. They were entitled to recover attorney’s fees under the statute.” In fact, in a construction lien suit, the award of fees to the prevailing party is mandatory. Heidle v. S & S Drywall & Tile, Inc., 639 So.2d 1105 (Fla. 5th DCA 1994).

In addition to attorney’s fees, the prevailing party is also entitled to recovery of its costs pursuant to section 57.041, which provides: “The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment....” In Michael David Ivey, Inc. v. Salazar, 903 So.2d 329 (Fla. 5th DCA 2005), this Court held that the trial court lacked discretion to deny prevailing party costs.

We grant Evans’ amended motion for attorney’s fees on his cross-appeal. Accordingly, we reverse the final judgment only insofar as it denied attorney’s fees and costs to Evans both at trial and on appeal and remand for calculation of the amount of fees and costs to be awarded to Evans. In its determination of fees, the court should consider the customary hourly rate charged by attorneys doing similar work in that locality and the number of reasonable hours spent in the defense of the foreclosure action. In all other respects, the final judgment is affirmed.

ORFINGER and TORPY, JJ., concur.


author: PALMER, J.

text:
    SC. READ, INC., and Jennifer R. Finch, Tuscawilla Homeowners’ Association, Inc., Appellants, v. SEMINOLE COUNTY SCHOOL BOARD, Appellee.
    No. 5D05-3959.
    District Court of Appeal of Florida, Fifth District.
    July 14, 2006.

      Alex Finch and Dennis Wells, Long-wood, for Appellants Jennifer R. Finch and SC. Read, Inc.
    Damon A. Chase, Winter Springs, for Appellant Tuscawilla Homeowners’ Association, Inc.
    Marcia K. Lippincott of Marcia K. Lip-pincott, P.A., Lake Mary and Ned N. Julian, Jr., and Serita D. Beamon, Sanford, for Appellee.
   ON MOTION TO DISMISS

PALMER, J.

Seminole County School Board moves this court to dismiss the instant appeal as untimely. Concluding that the appeal is in fact untimely as to all appellants, we grant the motion.

Appellants, SC. Read, Inc., Jennifer Finch, and Tuscawilla Homeowners’ Association, Inc. filed a four count complaint in the trial court. Count I sought to enjoin the School Board from adopting and implementing a school rezoning plan for failure to comply with the Sunshine Law. Count II requested a writ of mandamus requiring the School Board to redo the rezoning in compliance with a School Board Rule. Count III requested a writ of mandamus requiring the School Board to submit its rezoning plan to the Board’s Core Committee for review and analysis and to conduct a work seminar between the Committee and the Board. Count IV requested a declaration finding that the School Board failed to follow Florida law in approving the rezoning plan.

On September 8, 2005, the trial court denied the appellants’ request for injunc-tive relief in Count I. On September 21, Attorney Alex Finch, who represented SC. Read and Jennifer Finch, filed a motion for rehearing. A hearing on that motion was held on October 11, 2005. On that date, Finch filed a notice of appearance as additional counsel for Tuscawilla Homeowners’ Association, Inc. Following that hearing, the trial court denied the motion for rehearing. On November 8, 2005, a notice of appeal was filed by Jennifer Finch, SC. Read, Inc., and Tuscawilla Homeowners’ Association, Inc. Said notice was signed by Attorney Damon A. Chase on behalf of Tuscawilla Homeowners’ Association, Inc., and Attorney Alex Finch on behalf of Finch and SC. Read.

Seminole County School Board has moved to dismiss this appeal as untimely. As to Read and Finch, the School Board contends that the order is not a final ap-pealable order because it did not dispose of the other counts brought by them. We agree. The order is not a final order as to Read and Finch because it does not dispose of their entire action and the counts that are still pending are factually related to Count I. See Hallock v. Holiday Isle Resort & Marina, Inc., 885 So.2d 459 (Fla. 3d DCA 2004); Shephard v. Ouellete, 854 So.2d 251 (Fla. 5th DCA 2003).

We recognize that, since the order appealed was an order denying injunctive relief it could have been appealed by Read and Finch pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B) as an appealable, non-final order. However, rather than filing an appeal of that order within 30 days, Read and Finch filed a motion for rehearing and waited until that motion was ruled upon before filing their notice of appeal. Such filing was 60 days after the trial court’s non-final order was entered. A motion for rehearing is not authorized regarding a non-final order and thus does not toll the time for filing an appeal. Jake and the Fat Man Bike Week USA, Inc. v. Biker Design, Inc., 919 So.2d 476 (Fla. 5th DCA 2005); Deal v. Deal, 783 So.2d 319 (Fla. 5th DCA 2001). As such, this appeal is untimely as to Read and Finch.

As to Tuscawilla Homeowners’ Association, Inc., the association was only a party to Count I of the complaint and, accordingly, the trial court’s order denying injunctive relief was a final, appealable order as to the association. However, the association failed to file a notice of appeal within 30 days of the date the trial court entered its order, having waited until a ruling was made upon the motion for rehearing filed by Read and Finch. Although a motion for rehearing filed on behalf on Tuscawilla Homeowners’ Association would have tolled the time for filing another appeal until it was ruled on by the trial court, a motion for rehearing filed by the other parties did not toll the time for the filing of an appeal by Tuscawilla Homeowners’ Association.

Tuscawilla Homeowners’ Association contends that the notice of appeal was timely as to it since the motion for rehearing was also filed on its behalf. The record does not support his contention.

The motion for rehearing was filed on behalf of unspecified “petitioners”, but was only signed by Attorney Alex Finch, who at the time of the filing only represented SC. Read and Jennifer Finch. The motion does not reference Tuscawilla Homeowners’ Association, nor purport, on its face, to be filed on behalf of that entity. On the day of the hearing on that motion, Finch did file a notice of appearance as additional counsel on behalf of Tuscawilla Homeowners’ Association. However, that notice of appearance does not purport to have the effect of entering an appearance on behalf of Tuscawilla Homeowners’ Association on any date prior to the date of the filing of the notice. The notice appears to have been an after-the-fact attempt to turn the earlier filed motion for rehearing on behalf of the other petitioners into a timely motion for rehearing by the association.

Tuscawilla Homeowners’ Association contends that Finch’s late filing of the notice of appearance as additional counsel at the time of the hearing on the motion was sufficient to make this appeal timely, based upon the ease of Hicks v. Hicks, 715 So.2d 304 (Fla. 5th DCA 1998). We disagree. In Hicks, a motion for rehearing was filed by an attorney who had not filed the initial pleadings and who had not been properly substituted as counsel. However, Hicks signed an affidavit accompanying the motion which asserted that all facts alleged in the motion were true. In addition, the attorney stated that he had not complied with Florida Rule of Judicial Administration 2.060 regarding substitution of counsel because he had not had enough time to accomplish the substitution. This case is factually distinguishable. Tuscawil-la Homeowners’ Association was represented by other counsel at the time the motion for rehearing was filed and the motion nowhere indicated that it was being filed on behalf of the association. Nothing would have prevented Finch from filing his notice of appearance as additional counsel simultaneously with filing the motion for rehearing.

APPEAL DISMISSED.

PLEUS, C.J., and SAWAYA, J., concur.

      . This conclusion is supported by the fact that the ultimate notice of appeal filed after the denial of the motion for rehearing was signed by Alex Finch only in his capacity as attorney for Read and Finch, not in his alleged capacity as co-counsel for Tuscawilla.


author: SHARP, W., Senior Judge.

text:
    BREVARD COUNTY, Florida, Appellant, v. Charles R. STACK, Trustee etc., Appellee.
    No. 5D05-2935.
    District Court of Appeal of Florida, Fifth District.
    July 14, 2006.

      Scott L. Knox, County Attorney, of the Office of County Attorney, Viera, for Appellant.
    Lauri Waldman Ross, of Lauri Waldman Ross, P.A., Miami, and Phillip A. Hubbart of Wetherington, Klein & Hubbart, Miami, for Appellee.
    Steven Geoffrey Gieseler and Valerie A. Fernandez of Pacific Legal Foundation, Coral Gables, Amicus Curiae.
   SHARP, W., Senior Judge.

Brevard County (the County) appeals a non-final order, which granted partial summary judgment in favor of the appel-lees, after they brought suit against the County under the Bert J. Harris, Jr. Act (the Act), section 70.001, Florida Statutes (2004). The order determined the issue of liability in favor of appellees, and reserved the issue of damages for a subsequent trial. In this appeal, the County argues that the Act is unconstitutional, and that the trial court failed to make findings required by the Act. We affirm in part, reverse in part and remand to the trial court.

The facts of this case are not in dispute. Appellees purchased two adjoining parcels of land for investment purposes in 1984 and 1987. The parcels consist of over four acres, and are located near the northwest corner of Wickham Road and Interlachen Road (the Property). In the center of the Property is a wetlands area of about one acre. The zoning for these parcels was designated BU-1, a general retail commercial zoning classification, under the Bre-vard County Zoning Regulations at the time it was purchased. Since August 2001, it has been designated “community commercial” on the Future Land Use Map.

In September of 2000, the County adopted section 62-3691, et seq., of the Brevard County Code, known as the “Bre-vard County Wetlands Protection Act” (the Ordinance). Subsection 62-3694(e)(2) of the Ordinance provides that, with certain exceptions, commercial land development activities are prohibited in wetlands contained in properties designated on the Future Land Use Map as commercial after February 23,1996.

On March 17, 2003, appellees and Douglas Development Group, Inc. (Douglas) executed a contract for sale of the Property for $1.1 million. Douglas intended to develop the Property as a 10,000 square foot shopping plaza and a 6,000 square foot restaurant, with 170 parking spaces, 35 of which were to be located in the wetlands area in the center of the Property, and required the destruction of that wetlands area. Douglas had 90 days to investigate the permitted uses of the Property and cancel the contract.

Douglas’ proposed site plan was in conformity with all County zoning and development requirements, except for the Ordinance. Douglas intended to mitigate the wetlands offsite, and received approval to do so from the St. John’s Water Management District. Douglas then sought approval of its site plan by the County, based on an exception listed in the Ordinance.

However, the County Office of Resource Management advised Douglas that the wetlands area could not be impacted by the proposed development, and any type of wetlands listed in section 62-3694(c)(3) of the Ordinance would require a natural, native upland buffer with wetlands ranging from fifteen to fifty feet, depending on the type of wetland. As a result Douglas can-celled the contract.

Appellees submitted a Notice of Claim for $760,000 to the County for reduction in value of the Property pursuant to section 70.001(4) of the Act. The claim was later increased to $1 million. The County responded to appellees’ Notice of Claim with a “ripening decision” ie., an alternative layout plan prepared by County staff.

The County’s plan reflected the same intensity of commercial development as that proposed by Douglas, but reduced the number of parking spaces from 170 to 102. It also required construction of a bridge across the wetlands area for passage from the eastern portion of the Property to the western portion (one parcel to the other), to facilitate access to the Property. Other waivers and modifications, including buffering and grading requirements, and allowing the use of a portion of the wetlands for storm water management, were included in the County’s plan, which the County approved.

Appellees obtained a certified appraisal which indicated that prior to enactment of the Ordinance, the Property consisted of 142,006 square feet of buildable land, with a value of $1.7 million. After enactment of the Ordinance, the property consisted of only 98,446 square feet of buildable land, with a value of $700,000; a loss of $1 million. The appraiser found that the County’s plan did not cure the problems created by the Ordinance, and that the diminution of value remained the same, because the plan required that the Property be bisected, it did not provide for sufficient parking, and it made no provision for a traffic signal. All of these factors made the Property less attractive to a developer.

Appellees filed suit under the Act and eventually filed a motion for partial summary judgment on the issue of liability, in which they asserted that they had preexisting property rights and “reasonable investment backed expectations” at the time they purchased the Property. They argued that the Property had suffered a significant diminution in value due to the Ordinance, and that the Ordinance, as applied, denied them their rights under the Act, including the ability to develop over the wetlands and mitigate at an off-site location. The circuit court agreed and entered the order from which the County appeals.

On appeal, the County argues that the Act is unconstitutional for a variety of reasons. First, it submits that the Act authorizes local governments to contract away their inherent sovereign police powers, and requires them to buy-back their ability to exercise those powers, both of which violate the due process clause. We view the Act in a different light.

In the Act, the Legislature expressed its recognition that in some instances, laws, regulations, and ordinances of the state and its political subdivisions, as applied, may inordinately burden, restrict, or limit private property rights without amounting to a taking. § 70.001(1), Fla. Stat. The Legislature determined that there was an important state interest in protecting private property owners from these burdens, and provided relief in the Act by establishing a new cause of action, where none previously existed. § 70.001(1), (9), Fla. Stat.

Where property is inordinately burdened by a regulation, the Act provides relief to the owner. § 70.001(2). It requires the state and its political subdivisions to, inter alia, waive, modify, transfer, purchase or financially compensate the property owner by entering into a settlement agreement providing relief, as enumerated in section 70.001(4)(c). The Act does not affect the inherent power of a governmental entity, but merely requires the government to provide relief, in fairness, to a property owner. This is not and does not lead to a due process violation.

The state has police power to enact laws reasonably construed as expedient for protections of the public health, safety, welfare, or morals. State v. Saiez, 489 So.2d 1125, 1127 (Fla.1986). The state’s police power embraces regulations designed to promote the public convenience or the general prosperity or the public welfare as well as those designed to promote the public safety or the public health. Atlantic Coast Line R. Co. v. Coachman, 59 Fla. 130, 52 So. 377 (1910). The Legislature is vested with a great deal of discretion to determine public interest and the measures for its protection. See Newman v. Carson, 280 So.2d 426 (Fla.1973); McInerney v. Ervin, 46 So.2d 458 (Fla.1950); Scarborough v. Newsome, 150 Fla. 220, 7 So.2d 321 (1942).

The due process clause does not override the power of the state or its political subdivisions to establish laws that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community. Atlantic Coast Line R. Co. v. City of Goldsboro, 232 U.S. 548, 558-559, 34 S.Ct. 364, 58 L.Ed. 721 (1914). See also Munao, Munao, Munao and Munao v. Homeowners Association of La Buona Vita Mobile Home Park, Inc., 740 So.2d 73, 76 (Fla. 4th DCA 1999). In enacting section 70.001, the Legislature acted within its authority and for the benefit of its citizens as a whole.

Because the Act establishes a new cause of action and requires the governmental entity to grant relief to the owner in one form or another, the provision cannot be characterized as a “buy-back” of a governmental entity’s inherent power. For the same reasons, we reject a related argument made by the County, that it constitutes an illegal gift of public funds.

The County also argues the Act is unconstitutional because it violates the separation of powers doctrine, and alters and enlarges the judiciary’s interpretation of a taking under the Florida Constitution. We reject this contention as well because the Act clearly provides that the Legislature has established a new cause of action, independent from a taking, sections 70.001(1), (9); and that it is not a taking. § 70.001(13).

The remaining challenge to the Act’s constitutionality is that it delegates legislative power to the courts because the Act contains no standards, conditions or criteria to guide the judiciary in interpret ing it. This claim has no merit. The Act contains definitions; time periods; settlement options; and other requirements and guidance for the judiciary to enable it to make the determinations required under the statute. In sum, we do not find that any of the challenges made by the County regarding the constitutionality of the Act are viable.

However, the County’s claim that the trial court failed to make findings required by the Act has more substance. Subsection (6)(a) of the Act provides that the circuit court “shall” determine

whether an existing use of the real property or a vested right to a specific use of the real property existed, and if so, whether, considering the settlement offer and ripeness decision, the governmental entity or entities have inordinately burdened the real property .... (emphasis added)

We have reviewed the order on appeal and find that the trial court failed to make either of these required findings. We must therefore remand to the trial court for its review to make these findings as required by the Act.

AFFIRMED in part; REVERSED and REMANDED in part.

PLEUS, C.J., and MONACO, J., concur.

      . See Fla. R. App. P. 9.130(a)(3)(C)(viii). Rule 9.130(a)(3)(C)(iii) was added to make rule 9.130 consistent with section 70.001(6)(a), which permits a governmental entity to take an interlocutory appeal of a determination that a government action has resulted in an inordinate burden. Amendments to the Florida Rules of Appellate Procedure, 894 So.2d 202 (Fla.2005).

      . Charles Stack (Stack) is the Trustee of an investment group (the Group), which includes Michelle Headley, Eugene Kubicki, Harold Barkas and himself.

      . That is, 142,006 square feet x $12.00 a square foot = $1,704,072.

      . That is, 98,446 square feet x $7.00 a square foot = $689,122. There was a loss of 43,560 square feet and a reduction in value of $5.00 per square foot.

      .The law of regulatory takings is insufficient to provide relief to private property owners unless those owners were either ousted from, or deprived of, all beneficial use of their property. Lee County v. Kiesel, 705 So.2d 1013 (Fla. 2d DCA 1998).

      . § 70.001(3), Fla. Stat (2004).

      . § 70.001(4), Fla. Stat. (2004).

      . § 70.001(4)(c), Fla. Stat. (2004).

      . § 70.001(4)(d), (5) — (12), Fla. Stat. (2004).


author: NORTHCUTT, Judge.

text:
    Meleah E. FRANCE, Petitioner, v. Grady JUDD, in his capacity as Sheriff of Polk County, Florida, Respondent.
    No. 2D06-1841.
    District Court of Appeal of Florida, Second District.
    July 14, 2006.

      James Marion Moorman, Public Defender, and William E. McManus, Jr., Assistant Public Defender, Bartow, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Respondent.
   NORTHCUTT, Judge.

Meleah E. France petitioned this court for a writ of habeas corpus ordering her release from the Polk County Jail, where she was held as a fugitive from the states of Illinois and Missouri. By previous unpublished order, we granted France’s petition and directed her release on the out-of-state charges. We now write to explain our reasons.

In her petition, France contended that she was illegally held without bond on the out-of-state charges because the procedures outlined in sections 941.13, 941.14, and 941.15, Florida Statutes (2005), were not properly followed. These statutes, enacted in 1941, are derived from the Uniform Criminal Extradition Act. See eh. 20460, §§ 13, 14, 15, Laws of Fla. (1941). The Act facilitates provisions of the United States Constitution and federal implementing legislation that provide for the extradition of fugitives from state to state, upon one governor’s demand to another. U.S. Const., art. IV, § 2, cl. 2; 18 U.S.C.A. §§ 3182, 3194, and 3195; § 941.02, Fla. Stat. (2005). Likewise, under the uniform law the extradition process is primarily an executive function, in which the governor of the state from which the fugitive has fled may issue a written demand, or “requisition,” to the governor of the asylum state to detain the fugitive and deliver her to the demanding state. §§ 941.03, .22, Fla. Stat. (2005).

Under the Act, a governor’s demand for extradition must be accompanied by, among other things, an authenticated copy of (1) an indictment or an information supported by affidavit in the state having jurisdiction of the crime; (2) a warrant supported by an affidavit made before a committing magistrate of the demanding state; or (3) a judgment of conviction or a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his or her bail, probation, or parole. § 941.03, Fla. Stat. (2005). The import of this requirement is to demonstrate either that there has been a judicial determination of probable cause to believe that the accused committed the crime for which she is wanted or that she has been convicted of it. See, e.g., Shapiro v. State, 456 So.2d 968 (Fla. 2d DOA 1984); State v. Diaz, 440 So.2d 1318 (Fla. 3d DCA 1983); Chesser v. Dougherty, 417 So.2d 1164 (Fla. 1st DCA 1982).

If the asylum state governor determines that the demand is in order and should be honored, he must issue a warrant for the arrest of the fugitive. § 941.07, Fla. Stat. (2005). This is sometimes referred to as a “rendition warrant” or “extradition warrant.”

France’s case involves provisions of the Act that permit the arrest and detention of an accused fugitive before the issuance of a governor’s arrest warrant. A Florida court may order the pre-requisition arrest of an accused fugitive by issuing an arrest warrant, commonly known as a “fugitive warrant,” under section 941.13. That statute authorizes the issuance of a fugitive warrant under two scenarios. Under the first, a “credible person” must charge before a Florida judge that a person in Florida either (1) has committed a crime in another state and has fled from justice, or (2) has been convicted of a crime in another state and has escaped from confinement or broken the terms of her bail, probation, or parole. Under the second method, a complaint is presented to a Florida judge based on an affidavit from a credible person in the demanding state attesting either (1) that a crime has been committed in that state, that the accused has been charged with the committing the crime, and that the accused has fled from justice; or (2) that the accused has been convicted of a crime in that state and has escaped from confinement or broken the terms of her bail, probation, or parole, and is believed to be in Florida.

There is a notable difference between the two methods for securing a fugitive warrant to arrest an accused who has not been convicted. Under the first method, the accused need not have been formally charged with committing the out-of-state crime. All that is required is that a credible person charge under oath before a Florida judge that the person committed a crime in the demanding state and has fled. In the second scenario, however, the person for whom the warrant is sought must have been formally charged in the demanding state with committing a crime in that state.

It is also important to note that the requirements of section 941.13 generally comport with the showing that would satisfy the requirement of probable cause either for the issuance of an arrest warrant generally or at a pretrial nonadversary probable cause determination at a first appearance hearing under Florida Rule of Criminal Procedure 3.133(a)(3). See Perry v. State, 842 So.2d 301, 303 (Fla. 5th DCA 2003). Thus, whereas the governor may issue an extradition warrant only after the demanding state governor has documented that there has been a judicial determination of probable cause, in the absence of an extradition warrant a court may issue a fugitive warrant only after it has received either a direct showing of probable cause or proof that one has been made in the demanding state.

Warrantless pre-requisition arrests are permitted by section 941.14, provided that three elements are satisfied. Under the statute, an alleged fugitive may be arrested without a warrant (1) based on “reasonable information” that (2) the person “stands charged in the courts of a state” with (3) “a crime punishable by death or imprisonment for a term exceeding 1 year....”

Importantly, section 941.14 further provides that a person arrested without a warrant under that statute “must be taken before a judge with all practicable speed and complaint must be made against the accused under oath setting forth the ground for the arrest as in the preceding section; and thereafter his or her answer shall be heard as if the accused had been arrested on a warrant.” In other words, as soon as practicable after a warrantless arrest, the probable cause requirements for obtaining a fugitive warrant under section 941.13 must be established.

When an accused fugitive is arrested pre-requisition, whether pursuant to a fugitive warrant or not, section 941.15 requires the judge to perform an examination to determine whether “it appears that the person held is the person charged with having committed the crime alleged and ... that the person has fled from justice ....” If so, the judge must issue a warrant reciting the accusation against the fugitive and committing her to the county jail for a specified period, not exceeding thirty days, pending her arrest on a governor’s rendition warrant. If the rendition warrant is not forthcoming during that period, the court may extend the commitment for up to sixty days. § 941.17, Fla. Stat. (2005).

In this case, none of the foregoing statutes were honored. A Polk County sheriffs deputy arrested France on April 7, 2006, for a local misdemeanor. At or about the time of the arrest, the deputy determined that France was wanted on four out-of-state charges. He arrested her for those as well, without obtaining a fugitive warrant.

For health reasons, France was initially-taken to a hospital and was not brought for a first appearance hearing until April 18. At that hearing the judge considered four arrest affidavits executed by the deputy on the day he arrested France. One affidavit indicated that France was found to have an open warrant from the Greene County, Missouri Sheriffs Office, which had advised that it would extradite her. The affidavit contained no information concerning the offense France was alleged to have committed. The second arrest affidavit indicated that France had an open warrant from the Missouri Department of Corrections. There was no further information in this affidavit. A third arrest affidavit stated that France had an open warrant for theft from St. Clair County, Illinois, with a bond in the amount of $75,000. The arrest affidavit further indicated that “[t]he warrant response stated they would extradite.” The fourth arrest affidavit alleged that France had an open warrant from the sheriffs office in Bond County, Illinois, for “deceptive practice” and that “[t]he warrant response stated they would extradite.”

The first appearance hearing on the four arrest affidavits was set over to the next day, and again to the next. At the reconvened hearing on April 20, the first appearance judge ordered France held without bond for thirty days “based upon the teletypes and based upon the affidavits] from local law enforcement.” According to the State’s response to the petition for writ of habeas corpus, on May 3, 2006, an amended arrest affidavit was filed with the Polk County Clerk of Court stating that the fugitive warrants section of the Polk County Sheriffs Office had received a teletype advising that the warrant from St. Clair County, Illinois, was for a felony theft and that France had failed to appear to answer the charge.

Manifestly, France’s warrantless arrest was not in compliance with section 941.14. The arrest affidavits did not disclose how the deputy who arrested France came to learn that she was wanted in Illinois and Missouri. If, as we suspect, the deputy obtained his information from a national law enforcement database, we would be inclined to believe that the “reasonable information” prong of the statute was satisfied. But even if we could assume as much, the fact remains that the affidavits were at best ambiguous on the question of whether France stood formally “charged in the courts” with any of the out-of-state offenses. And the affidavits said nothing about whether the offenses were punishable by death or imprisonment for a term exceeding one year, i.e., felonies. Thus, based on the information held by the deputy at the time, section 941.14 did not authorize France’s warrantless arrests on the out-of-state charges.

The result of this habeas corpus proceeding is not altered by the filing of the amended arrest affidavit weeks after France’s arrest. The amended affidavit alleged that the sheriffs office had received a teletype stating that one of the four out-of-state charges against France was, indeed, for a felony. Of course, the filing of the amended affidavit did not cure the other deficiencies discussed herein. In any event, the new information was not known to the deputy at the time of France’s arrest, and it cannot retroactively justify it. See Owens v. Boyer, 207 So.2d 29, 31 (Fla. 2d DCA 1968) (holding that the sufficiency of a rendition warrant must be determined at the time of the arrest, and rejecting lower court’s reasoning that subsequent submission of omitted information cured defect in the warrant so as to render accused fugitive’s arrest legal).

Be that as it may, after France’s arrest there was no compliance with the second requirement of section 941.14, i.e., that she be taken before a judge and a complaint made against her under oath comporting with the strictures of section 941.13. Although the arrest affidavits were sworn, at most they merely attested that the arresting deputy had received hearsay information from an unspecified source that a person with the same name as France, and with the same date of birth or other similar characteristics, was wanted for the commission of a crime in another state. In other words, the deputy was a recipient of information and not the source of credible information. Thus, none of the affidavits constituted a charge on the oath of a credible person that France had committed a crime in another state and had fled from justice, or that she had been convicted of a crime and was a fugitive. Nor did any of the arrest affidavits have attached to it or make reference to an affidavit of a credible person in another state that a crime had been committed in that state and that France had been charged with committing it. The upshot is that section 941.14’s requirement of a post-arrest complaint in compliance with section 941.13 was not followed.

Consequently, France was detained without any demonstration — either in documentation supporting a demanding state governor’s requisition, or in proceedings to obtain a fugitive warrant under section 941.13, or in a post-arrest proceeding under section 941.13 — that there is or has been a judicial determination of probable cause to believe that France committed a crime in another state.

Finally, the judge below ordered France detained without bail based solely on the allegations in the arrest affidavits. He made no examination to determine that she was, in fact, the person wanted on the out-of-state charges and that she had fled from justice, as mandated by section 941.15. Nor did the judge issue the requisite warrant reciting the accusations against France and committing her to the county jail for a specified period to await her arrest on a governor’s warrant. Having failed to honor the requirements of section 941.15, the judge was not authorized to order France detained on the out-of-state charges.

As we have seen, France’s arrest and detention were unauthorized due to noncompliance with sections 941.13, 941.14, and 941.15. For that reason, we granted France’s petition for writ of habeas corpus and ordered her released on the out-of-state charges.

Petition granted.

ALTENBERND and CASANUEVA, JJ., Concur.

      . France was also arrested on a local misdemeanor charge, for which bond was set in the amount of $500. Our ruling does not apply to that case.

      . The Uniform Criminal Extradition Act was promulgated by the National Conference of Commissioners on Uniform State Laws in 1926, and amended in 1932 and 1936. It was withdrawn by the Conference in 1980, when it adopted the Uniform Extradition and Rendition Act. To date, only North Dakota has adopted the latter uniform law. N.D.C.C. 29-30.3-01 — 29-30.3-21.

      . Section 941.13 states:
      Arrest prior to requisition. — Whenever any person within this state shall be charged on the oath of any credible person before any judge in this state with the commission of a crime in any other state, and, except in cases arising under s. 941.06, with having fled from justice or with having been convicted of a crime in that state and having escaped from confinement, or having broken the terms of his or her bail, probation, or parole, or whenever complaint shall have been made before any judge in this state setting forth on the affidavit of any credible person in another state that a crime has been committed in such other state and that the accused has been charged in such state with the commission of the crime, and, except in cases arising under s. 941.06, has fled from justice, or with having been convicted of a crime in that state and having escaped from confinement, or having broken the terms of his or her bail, probation, or parole, and is believed to be in this state, the judge shall issue a warrant directed to any peace officer commanding him or her to apprehend the person named therein, wherever the person may be found in this state, and to bring the person before the same or any other judge or court who or which may be available in, or convenient of, access to the place where the arrest may be made, to answer the charge or complaint and affidavit, and a certified copy of the sworn charge or complaint and affidavit upon which the warrant is issued shall be attached to the warrant.

      . Section 941.14 provides:
      Arrest without a warrant. — The arrest of a person may be lawfully made also by any peace officer or private person, without a warrant upon reasonable information that the accused stands charged in the courts of a state with a crime punishable by death or imprisonment for a term exceeding 1 year, but when so arrested the accused must be taken before a judge with all practicable speed and complaint must be made against the accused under oath setting forth the ground for the arrest as in the preceding section; and thereafter his or her answer shall be heard as if the accused had been arrested on a warrant.

      . Section 941.15 provides:
      Commitment to await requisition; bail.— If from the examination before the judge it appears that the person held is the person charged with having committed the crime alleged and, except in cases arising under s. 941.06, that the person has fled from justice, the judge must, by a warrant reciting the accusation, commit the person to the county jail for such a time not exceeding 30 days and specified in the warrant as will enable the arrest of the accused to be made under a warrant of the Governor on a requisition of the executive authority of the state having jurisdiction of the offense, unless the accused gives bail as provided in s. 941.16, or until the accused shall be legally discharged.

      . Although the judge referred to teletypes, neither the appendix to France’s petition nor the appendix to the State’s response contains copies of any teletypes.

      . Although France did not expressly request bail on the out-of-state charges and has made no issue of this in her petition, an accused who is arrested pre-requisition is eligible for bail under section 941.16, Florida Statutes (2005).


text:
    Jean M. PAVESE, Appellant/Cross-Appellee, v. Michael P. PAVESE, Appellee/Cross-Appellant.
    No. 2D05-1249.
    District Court of Appeal of Florida, Second District.
    July 14, 2006.

      Cynthia L. Greene of Law Offices Greene Smith McMillan, P.A., Miami, and Law Offices of Rubinstein & Holz, P.A., Fort Myers, for Appellant/Cross-Appellee.
    Robert L. Donald of Law Office of Robert L. Donald, Fort Myers, and William T. Haverfield of Pavese Law Firm, L.L.P., Fort Myers, for Appellee/Cross-Appellant.
   NORTHCUTT, Judge.

In its final judgment dissolving the Paveses’ marriage, the trial court named Mrs. Pavese as the primary residential parent of the parties’ remaining minor child, directed Mr. Pavese to pay rehabilitative alimony and child support, reserved jurisdiction on the issue of permanent alimony, and distributed the parties’ assets and liabilities. In this appeal and cross-appeal, both parties point out that the final judgment does not contain factual findings that are required by law. Accordingly, we reverse the judgment in all respects except insofar as it dissolves the parties’ marriage and provides for custody of the child.

When awarding or denying alimony, a court is required to make factual findings pertinent to the marital standard of living, the duration of the marriage, the age and health of the parties, and the economic circumstances of the parties. § 61.08, Fla. Stat. (2003). The failure to make such findings is reversible error. Walker v. Walker, 818 So.2d 711 (Fla. 2d DCA 2002); Farley v. Farley, 800 So.2d 710 (Fla. 2d DCA 2001). When awarding rehabilitative alimony, a court is required to make findings regarding the rehabilitative plan, and the failure to make such findings is reversible error. Zelahi v. Zel-ahi, 646 So.2d 278, 279 (Fla. 2d DCA 1994) (reversing and remanding for “findings of fact to support the goals for and the terms and amount of rehabilitative alimony”).

Relative to the issues of alimony and child support, a court is required to determine each party’s income. §§ 61.08(2)(g), .30(2). If income is imputed to a party, the court must make findings to support the amount. Alpert v. Alpert, 886 So.2d 999, 1001 (Fla. 2d DCA 2004), review denied, 901 So.2d 873 (Fla. 2005).

In fashioning an equitable distribution, a court is required to make specific written findings of fact that identify, classify, value, and distribute the parties’ assets and liabilities. § 61.075(3). A final judgment without such findings must be reversed. Pignataro v. Rutledge, 841 So.2d 636 (Fla. 2d DCA 2003).

As mentioned, the final judgment in this case lacks the necessary findings. This failure precludes meaningful appellate review. Moreover, the judgment left unresolved a number of issues raised by the parties. Because the evidence in several areas was disputed, we decline the parties’ invitations to comment on the issues in this case until the trial court makes its factual findings.

We affirm the dissolution of the parties’ marriage and the custody provisions. In all other respects, we reverse the final judgment and remand for further proceedings. On remand the trial court may, in its discretion, take additional evidence. See Nicholas v. Nicholas, 870 So.2d 245, 248 (Fla. 2d DCA 2004) (noting that further evidentiary proceedings on remand are appropriate when necessary to serve the judicial purpose of promoting equity in marriage dissolutions).

Affirmed in part; reversed in part; remanded.

FULMER, C.J., and VILLANTI, J., Concur.


text:
    SCM GROUP USA, INC., Petitioner, v. John NICKERSON, Respondent.
    No. 2D06-1139.
    District Court of Appeal of Florida, Second District.
    July 14, 2006.
    Donald W. Stanley, Jr., and Tabatha A. Liebert of Alen Dell, P.A., Tampa, for Petitioner.
    Pamela Beckham of Beckham & Beck-ham, P.A., North Miami Beach, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied. If SCM Group USA, Inc. (SCM), cannot provide the compelled discovery, it may seek further appropriate relief in the trial court. We express no view as to whether the trial court’s threat to impose sanctions against SCM is proper.

Denied.

ALTENBERND, SALCINES, and LaROSE, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Thurlow F. WILKINS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1584.
    District Court of Appeal of Florida, Second District.
    July 14, 2006.
   ALTENBERND, Judge.

Thurlow F. Wilkins appeals the trial court’s order that granted him only one additional day of jail credit on his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Mr. Wilkins maintains that he is entitled to additional credit of approximately 220 days. We affirm.

Rule 3.800(a) expressly states that a motion may seek additional jail credit only when “it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief.” Mr. Wilkins’ motion does not contain this allegation, and it is obvious from his claim that the matter could not be resolved on the face of the records in this case. If he wishes to establish a claim for jail credit based on matters in other court files or in the possession of various sheriffs, he must make a proper, timely request under oath pursuant to Florida Rule of Criminal Procedure 3.850.

Affirmed.

CASANUEVA and WALLACE, JJ., Concur.


author: PER CURIAM. CASANUEVA, Judge,

text:
    FOOTSTAR CORPORATION, a foreign corporation; f/k/a and a/k/a Foot Action, Inc., a foreign corporation; f/k/a and a/k/a Foot Action USA, a foreign corporation; f/k/a and a/k/a Regency Square Foot Action 209, f/k/a and a/k/a Gulf View Square Foot Action, f/k/a and a/k/a Foot Action, Appellant, v. John DOE and Jane Doe, as next friends and guardians of Minor Child, Appellees.
    No. 2D05-4134.
    District Court of Appeal of Florida, Second District.
    July 14, 2006.

      Robert E. Biasotti of Carlton Fields, P.A., St. Petersburg, for Appellant.
    Kennedy Legler, III, and Edwin Bradley of Legler & Flynn, Bradenton, for Appellees.
   PER CURIAM.

Footstar Corporation, a footwear retailer, appeals from an order denying its motion for summary judgment based on its affirmative defense of workers’ compensation immunity. We must dismiss this case for lack of jurisdiction.

The substance of the trial court’s order is as follows:

Defendant’s, Footstar Corporation, Motion for Summary Judgment is denied. See, Byrd v. Richardson-Greenshields Securities, Inc., 552 So.2d 1099 [ (Fla.1989) ].
Although there is no common law cause of action for sexual harassment in Florida, City of Miami Beach v. Guerra, 746 So.2d 1159 (Fla. 3d DCA 1999), the Byrd decision apparently does not require a discrfete] statutory cause of action for sexual harassment to be pled in order to avoid the exclusivity of the Workers’ Compensation Act remedy.

Footstar contends that Florida Rule of Appellate Procedure 9.130(a)(3)(C)(v) authorizes an appeal to the district court from this order. That rule provides jurisdiction over orders determining “that, as a matter of law, a party is not entitled to workers’ compensation immunity.” After oral argument and our further review of the parties’ arguments and appendices, we realize that Footstar is incorrect and that this court lacks jurisdiction.

The order under review does nothing more than simply deny the defendant’s motion for summary judgment. The order does not explicitly state, as a matter of law, that Footstar is not entitled to rely upon a workers’ compensation immunity defense at trial, nor does it enter judgment against Footstar on the issue of workers’ compensation immunity. “There is no determination, on the face of the order, that the respondents are precluded and prohibited, as a matter of law, from asserting the application of workers’ compensation immunity from liability at the time of trial.” Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 821 (Fla.2004). The supreme court in Reeves reiterated its holding in Hastings v. Demming, 694 So.2d 718 (Fla.1997), in which it had settled a conflict among the district courts, and held that “[njonfinal orders denying summary judgment on a claim of workers’ compensation immunity are not appealable unless the trial court order specifically states that, as a matter of law, such a defense is not available to a party.” Hastings, 694 So.2d at 720 (emphasis supplied). The clear language from Reeves and Hastings convinces us that the order is not appeal-able unless it includes the specific words denying the motion as a matter of law; the appellate court cannot supply the jurisdictional language by inference. The order must “conclusively and finally determine[ ] a party’s nonentitlement to such immunity.” Pizza Hut of Am., Inc. v. Miller, 696 So.2d 340, 341 (Fla.1997).

The difficulty in this case stems from the state of the pleadings and the facts toward which the motion for summary judgment was directed. The trial court never determined that there was an absence of genuine issues of material fact, the prerequisite to determining entitlement to summary judgment as a matter of law. To the contrary, at the hearing on the motion for summary judgment, the trial court specifically stated that factual issues remained. Furthermore, the amended complaint, when examined in light of the law surrounding the availability of the workers’ compensation immunity defense in the context of sexual batteries in the workplace, further obfuscated the issues. The trial court was precluded from determining, as a matter of law, that Footstar was not entitled to its workers’ compensation immunity defense, and it did not do so.

Accordingly, this appeal is dismissed.

WHATLEY, J. and ANDREWS, MICHAEL F., Associate Judge, Concur.

CASANUEVA, J., Concurs specially with an opinion in which WHATLEY, J., Concurs.

CASANUEVA, Judge,

Specially concurring.

I fully concur in the dismissal of this appeal for lack of jurisdiction. I write solely to elaborate upon the difficulty the plaintiffs will ultimately face in formulating a complaint that will survive Footstar’s workers’ compensation immunity defense.

The Does sued Footstar and alleged that their minor daughter, Ms. Doe, sustained damages during an episode that occurred during her brief employment as a sales clerk at a Footstar retail outlet. On the day of the incident leading to this lawsuit, Ms. Doe and her supervisor, Joel V. Cooper, were the only employees in the store when he allegedly directed her to accompany him to a back room to help him locate a pair of shoes for a customer. The Does’ amended complaint asserts that Mr. Cooper then assaulted, sexually battered, and raped Ms. Doe. The amended complaint further alleges that these acts and other prior abusive and harassing conduct constituted Mr. Cooper’s efforts to humiliate and control Ms. Doe as a subordinate employee. As a result of these acts, the Does claim that Footstar is legally responsible for damages to compensate them for Ms. Doe’s continued extreme and debilitating humiliation, emotional distress, and loss of self-esteem and dignity.

Footstar’s motion for summary judgment asserted that the exclusivity doctrine of the workers’ compensation law barred the claim. Under the workers’ compensation statutory scheme an employer is not liable in tort for injuries or damages sustained by an employee in the workplace. Instead, a form of strict liability has been placed upon the employer with a formula for payment to injured employees. See Seaboard Coast Line R.R. Co. v. Smith, 359 So.2d 427 (Fla.1978). The statutory scheme does not allow the injured employee to recover for certain noneco-nomic damages, such as pain, suffering, humiliation and emotional distress. See § 440.093, Fla. Stat. (2004) (“Nothing in this section shall be construed to allow for the payment of benefits under this chapter for mental or nervous injuries without an accompanying physical injury requiring medical treatment.”).

Relying on Byrd v. Richardson-Greenshields Securities, Inc., 552 So.2d 1099 (Fla.1989), the trial court denied Footstar’s motion. Additionally, the trial court concluded:

Although there is no common law cause of action for sexual harassment, City of Miami Beach v. Guerra, 746 So.2d 1159 (Fla. 3d DCA 1999), the Byrd decision apparently does not require a discr[ete] statutory cause of action for sexual harassment to be pled in order to avoid the exclusivity of the Workers’ Compensation Act remedy.

In Byrd, 552 So.2d 1099, our supreme court answered in the negative a question that this court had certified in Byrd v. Richardson-Greenshields Securities, Inc., 527 So.2d 899 (Fla. 2d DCA 1988): whether the workers’ compensation statute provides the exclusive remedy for a claim based on sexual harassment in the workplace. The plaintiffs in Byrd, female employees of the defendant corporation, asserted claims for assault, battery, intentional infliction of emotional distress, and negligent hiring and retention of a certain branch manager. Additionally, the plaintiffs sought damages for emotional anguish and stress. They alleged that the branch manager repeatedly touched them and made verbal sexual advances at their place of employment during work hours. Because it determined that, by statute, workers’ compensation was the exclusive remedy for the plaintiffs’ injuries, the trial court dismissed the tort claims. This court affirmed. 527 So.2d at 902.

In quashing this court’s opinion, the supreme court’s analysis began with the legal premise that generally workers’ compensation “is the sole tort remedy available to a worker injured in a manner that falls within the broad scope and policies of the workers’ compensation statute.” Byrd, 552 So.2d at 1100. The recognized legislative intent behind the workers’ compensation statute was to abolish potential liability arising from an employee’s injury and to substitute the exclusive remedy provided by the workers’ compensation statutory framework. Accidental injuries arising out of and in the course of employment would be covered; not covered were claims of mental or nervous injury absent physical injury. Id.

After completing its review of legislative intent, the supreme court stated, “[W]e cannot find that acts constituting sexual harassment were ever meant to fall under workers’ compensation.” Id. at 1102. In support of this conclusion, the court noted that both the state and federal governments had enacted legislation outlawing sexual harassment in the workplace. Id. at 1102-03

The supreme court highlighted the different nature of the injuries encompassed by the two statutory frameworks. Workers’ compensation claims tend to address purely economic injury, i.e., lost resources and earnings. By comparison, sexual harassment claims involve “a much more intangible injury to personal rights.” Id. at 1104. These intangible claims are generally based upon civil rights laws or similar legislation prohibiting sexual harassment or discrimination. Claims arising, as did the claims in Byrd, from workplace torts causing injury to intangible personal rights may stand and proceed outside workers’ compensation immunity. Such claimants are not seeking compensation for lost wages or other economic losses as a result of their injuries; rather, they seek to vindicate the violation of their personal rights. Id.

Performing its obligation to construe the policies behind both the workers’ compensation statutes and the statutes prohibiting sexual harassment in a manner that would promote each policy to the greatest extent, the supreme court concluded that placing claims involving sexual harassment under the workers’ compensation exclusivity rubric would undermine the legislative policy against sexual harassment. “This, we cannot condone. Public policy now requires that employers be held accountable in tort for the sexually harassing environments they permit to exist, whether the tort claim is premised on a remedial statute or on the common law.” Id. at 1104.

Having determined that sexual harassment torts would not come within the exclusive province of the workers’ compensation remedies, the court then sought to provide guidance in discerning which claims could proceed as tort claims based upon either a remedial statute or the common law. The Byrd court pointed out that it had previously adopted a two-part test to determine what types of injuries are compensable under workers’ compensation. The first inquiry explores whether the injury arose out of employment, that is, was the injury “caused by a risk inherent in the nature of the work in question?” Id. at 1104 n. 7 (citing Strother v. Morrison Cafeteria, 383 So.2d 623, 624-26 (Fla.1980)). The second question asks whether the injury occurred in the course of employment and can be answered by determining whether the injury substantially originated “from the ‘time and space’ of work, resulting in an injury directly linked to the work environment or work-related activities.” Byrd, 552 So.2d at 1104 n. 7 (citing Strother, 383 So.2d at 625-26). The court concluded that a claim for sexual harassment does not come within the first prong of this test and, as a matter of public policy, should not and could not “be recognized as a ‘risk’ inherent in any work environment.” Byrd, 552 So.2d at 1104 n. 7. However, the court declined to express an opinion whether the complaint in Byrd alleged sufficient facts to state a common law cause of action. Id. at 1105.

The trial court in this case will ultimately be required to determine whether the Does have pleaded a cause of action and can demonstrate undisputed material facts that will survive Footstar’s workers’ compensation immunity defense for the intentional torts that occurred in the workplace. Thus, the question to be answered by the trial court is whether Byrd recognizes three types of sexual harassment claims: a statutory cause of action, whether pleaded under state or federal law; a common law cause of action; or a hybrid “Byrd cause of action,” authorized by the supreme court’s opinion.

The Byrd court focused on claims based upon remedial legislation, not upon any kind of new cause of action, and it reconciled two competing public policy issues. In scrutinizing the court’s language, the reader will not find that the court designated any of the elements of a newly created cause of action. This failure to identify the elements of a cause of action is a critical factor. For example, most sexual harassment claims require either repeated or continued conduct, or both. See, e.g., Scelta v. Delicatessen Support Servs., Inc., 57 F.Supp.2d 1327 (M.D.Fla.1999). If the Byrd court intended to create a new cause of action, it would have set out its elements to guide both the courts and practitioners. Not only did the court fail to expressly identify the necessary elements of such a cause of action, it specifically declined to rule upon whether the complaint properly pleaded a common law claim.

Further support for this conclusion can be found in Sparks v. Jay’s A.C. & Refrigeration, Inc., 971 F.Supp. 1433 (M.D.Fla.

It must be stressed, however, at no point in the opinion did the court state that the prima facie elements of respon-deat superior for claims arising out of sexual harassment had been modified. Moreover, at no point did the court mention the elements of Title VII responde-at superior liability, much less state that these elements had replaced or modified the standard prima facie elements of respondeat superior liability. Thus, any conclusion that employers are accountable under any common law tort theories when their employees engage in sexual harassment to the same extent that an employer would be liable under Title VII for the action of its employees is an expansive reading of Byrd that this Court cannot endorse. The Florida Supreme Court was not and did not address the prima facie elements of re-spondeat superior for torts arising out of sexual harassment claims in Byrd. The Byrd court only addressed the specific and narrow issue of whether the Workers’ Compensation exclusivity rule barred claims based on sexual harassment.

Id. at 1439-40 (footnote omitted). The reasoning of Sparks is consistent with the Byrd opinion’s extensive public policy discussion and the inevitable conclusion that Byrd did not create a separate, new tort of sexual harassment.

The Does clearly elected not to plead a claim under either federal or state anti-discrimination laws. To the extent that they sought to proceed on a nonexistent “Byrd” claim, I conclude that Footstar’s workers’ compensation exclusivity defense would bar their claim, or, perhaps, more simply, that dismissal is appropriate for failing to state a cause of action.

Furthermore, as the trial court observed in its order denying Footstar’s motion for summary judgment, Florida does not recognize a common law cause of action for sexual harassment. Historically, employer liability for harassment originated in the common law principles of agency. Conduct of a servant in certain circumstances could render the master or employer liable. “Under Florida law, the underlying wrong allegedly committed by an employer in a negligent supervision or negligent retention claim must be based on an injury resulting from a tort which is recognized under common law.” Scelta, 57 F.Supp.2d at 1348. Thus, in order to recognize a common law cause of action based on the alleged negligent failure to maintain a workplace free of sexual harassment, there must first exist a common law cause of action for sexual harassment, but Florida does not recognize such a cause of action. Id. Other cases have reached a similar conclusion, including the case cited by the trial court in its order denying summary judgment, City of Miami Beach v. Guerra, 746 So.2d 1159 (Fla. 3d DCA 1999). See also Castleberry v. Edward M. Chadbourne, Inc., 810 So.2d 1028 (Fla. 1st DCA 2002).

These cases appear to correctly reflect the state of the law today and highlight the difficult task that a plaintiff who has chosen not to plead a statutory cause of action for sexual harassment might face in overcoming an employer’s workers’ compensation immunity defense to a claim for intangible injuries suffered as a result of an intentional tort.

WHATLEY, J., Concurs.