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City of Coconut Creek v. City of Deerfield Beach3/19/2003
Hanley v. Kajak, 661 So. 2d 1248, 1248-49 (Fla. 4th DCA 1995) (holding that mechanics lien law as a creature of statute to be strictly construed). It should be applied as written, and not modified to reflect what the deciding authority thinks it should say. See City of Hollywood v. Lombardi, 770 So. 2d 1196, 1200 (Fla. 2000). As this court has observed, " n a special statutory proceeding . . . the trial court does not have the same discretion to bend time requirements that might be allowed under the rules of civil procedure." Dracon Constr., Inc. v. Facility Constr. Mgmt., Inc., 828 So. 2d 1069, 1071 (Fla. 4th DCA 2002).
The requirement that the governmental entity issuing a development order alleged to be inconsistent with its comprehensive plan be placed on notice and offered an opportunity to review its action prior to being brought to court is not specious. The procedure offers the governmental entity the chance to assess its position, without the attendant financial and political consequences of litigation. It permits an early resolution of the dispute, perhaps one without judicial intervention. See Thomas v. Suwannee County, 734 So. 2d 492, 498 (Fla. 1st DCA 1991). It places the government on notice of the party's position and intent to pursue it. See Educ. Dev. Ctr., Inc. v. Palm Beach County, 751 So. 2d 621, 623 (Fla. 4th DCA 1999).
Our courts have repeatedly affirmed that failure to comply with a statutory condition precedent, absent waiver or estoppel, requires dismissal. See Hosp. Corp. of Am. v. Lindberg, 571 So. 2d 446, 449 (Fla. 1990) ("We therefore hold that, in medical malpractice actions, if a presuit notice is served at the same time as a complaint is filed, the complaint is subject to dismissal with leave to amend."); Levine v. Dade County Sch. Bd., 442 So. 2d 210, 212-13 (Fla. 1983) (holding that complaint against school board was properly dismissed with prejudice where plaintiff failed to provide written notice to Department of Insurance required by section 768.28(6), and time for compliance expired); Mancini v. Personalized Air Conditioning & Heating, Inc., 702 So. 2d 1376, 1377 (Fla. 4th DCA 1997) (finding that failure to provide notice under section 770.01 prior to commencing libel suit required dismissal). If there remains sufficient time to comply with the statutory precondition, the action should be dismissed with leave to amend. If the time to comply with the precondition has expired, the action should be dismissed with prejudice.
Coconut Creek argues that its failure should be excused under the holding of Thomas. There, the Suwannee County Zoning Board of Adjustments granted a special exception allowing construction of a migrant labor camp in an area zoned for agricultural use. Neighbors sued the county, contending the use was inconsistent with the comprehensive plan. The neighbors filed the verified complaint with the county the same day they instituted suit. In reversing the trial court's dismissal of the action with prejudice, the first district found that the proper remedy for the premature filing of the complaint was to abate the action. See 734 So. 2d at 498. Further, since the county's thirty-day time to respond to the verified complaint had expired prior to hearing on the motion, the motion should have been denied.
Thomas is inapplicable. It dealt with the proper remedy where a legal action is prematurely taken, though the condition precedent has been met, and applied the general principle that if the mere passage of time will cure a defect, the action should be abated, not dismissed. See Williams v. State, 324 So. 2d 74, 79 (Fla. 1975) (holding premature notice of appeal goes into limbo until order rendered, then matures); Pura
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