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City of Coconut Creek v. City of Deerfield Beach3/19/2003
v. State, 789 So. 2d 436, 438-39 (Fla. 5th DCA 2001) (finding premature demand for discovery in criminal action revived on filing of information); Hattaway v. McMillian, 903 F.2d 1440 (11th Cir. 1990) (affirming trial court's denial of defendant's motion for judgment notwithstanding the verdict where section 768.28(6) notice filed day before suit filed); Fitzgerald v. McDaniel, 833 F.2d 1516, 1519-20 (11th Cir. 1987) (affirming trial court's denial of motion to dismiss based on filing of claim against governmental entity prior to expiration of six months from date of statutory notice or denial of claim). See generally Grip Dev., Inc. v. Coldwell Banker Residential Real Estate, Inc., 788 So. 2d 262, 270-71 n.8 (Fla. 4th DCA 2000) (Farmer, J., dissenting) ("Just as one recognizes a difference in consequences from being in line beforehand and getting there after the train has already left the station, so the law applies different consequences to filing or doing an act prematurely and filing or doing an act too late.").
No complaint as contemplated by the statute was ever filed with Deerfield Beach. Service of process does not satisfy the statutory requirement. Campagnulo, 588 So. 2d at 983 ("It is evident that the legislature intended to distinguish the furnishing of a prefiling notice from the filing of a complaint. To approve the district court's decision would require us to rewrite that statute and effectively eliminate the notice requirement as a condition precedent to maintaining this type of action."); Malunney v. Pearlstein, 539 So. 2d 493, 495-96 (Fla. 2d DCA 1989) (filing of complaint does not satisfy statutory pre- suit notice). Deerfield Beach promptly served its motion to dismiss, raising the defect. While compliance with a statutory precondition may be excused by waiver or estoppel, neither is present here. See Ingersoll v. Hoffman, 589 So. 2d 223, 224 (Fla. 1991); Menendez v. N. Broward Hosp. Dist., 537 So. 2d 89, 91 (Fla. 1988); City of Pembroke Pines v. Atlas, 474 So. 2d 237, 238 (Fla. 4th DCA 1985); Prestige Dev. Group, Inc. v. Russell, 612 So. 2d 691, 692 (Fla. 1st DCA 1993).
In summary, Coconut Creek's consistency challenge fails because it exists solely as a creature of statute; Coconut Creek never complied with a statutory condition precedent; the time for complying with the condition has expired; and Coconut Creek's failure to comply was not based on any action or inaction by Deerfield Beach, which timely raised the defect.
Finally, it is well-settled that traditional site plan review is a quasi-judicial act. See Park of Commerce Assocs. v. City of Delray Beach, 636 So. 2d 12, 15 (Fla. 1994). Consequently, review other than on a consistency challenge is limited to certiorari, and the trial court properly dismissed counts II and III. See id.; Educ. Dev. Ctr., Inc. v. Palm Beach County,721 So. 2d 1240, 1241 (Fla. 4th DCA 1998); Keller v. Town of Palm Beach, 707 So. 2d 429, 429-30 (Fla. 4th DCA 1998); Grace v. Town of Palm Beach, 656 So. 2d 945, 945-46 (Fla. 4th DCA 1995). However, since these dismissals were not adjudications on the merits of the claims raised, they should have been designated as being without prejudice. See Smith v. St. Vil, 714 So. 2d 603 (Fla. 4th DCA 1998).
We affirm the trial court's dismissal of Coconut Creeks' amended complaint with prejudice, but reverse solely for the dismissals as to counts II and III to be redesignated as being without prejudice.
SHAHOOD and GROSS, JJ., concur.
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