author: WALLACE, Judge.

text:
    Janice Melroe BECKLUND, Appellant, v. Donna M. FLEMING, individually and as Trustee of the William J. Fleming Family Trust dated 7 May 1993, Appellee.
    No. 2D02-4069.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 2003.
    Rehearing Denied Nov. 26, 2003.
    Robert L. Donald of Law Office of Robert L. Donald, Fort Myers, and William C. Merchant of Cottrell, Warchol, Merchant & Rollings, L.L.P., Cape Coral, for Appellant.
    Renée Marquis-Abrams and J. Stephen Tierney of Neill, Griffin, Fowler, Tierney, Neill & Marquis, Chartered, Fort Pierce, for Appellee as Trustee.
    No appearance for Appellee individually.
   WALLACE, Judge.

This case concerns a claim made by the creditor of a decedent against the decedent’s revocable trust and the trustee individually. Janice Melroe Beeklund (“the Creditor”) appeals the trial court’s order dismissing with prejudice her amended complaint filed against Donna Fleming, individually and as trustee of the William J. Fleming Family Trust (“the Trustee”). For the reasons set forth in this opinion, we affirm in part, reverse in part, and remand for further proceedings.

The Facts

The pertinent facts are alleged in the Creditor’s amended complaint. For purposes of our review, we must assume the factual allegations of the amended complaint to be true and construe them in the light most favorable to the Creditor as the nonmoving party. See Hosp. Constructors Ltd. v. Lefor, 749 So.2d 546, 547 (Fla. 2d DCA 2000). The Creditor was married to William J. Fleming (“the Decedent”). The Decedent was the father of the Trustee and the settlor of the William J. Fleming Family Trust dated May 7, 1993 (“the Trust”). Upon the Decedent’s death, if not earlier, the Trustee became the successor trustee of the Trust.

The Creditor and the Decedent obtained a dissolution of their marriage in Arizona on March 22, 1993. The Arizona decree of dissolution approved and incorporated by reference their property settlement agreement. As part of the property settlement agreement, the Creditor paid the Decedent $150,000 in exchange for a promissory note from the Decedent in a like amount. The Decedent’s $150,000 promissory note held by the Creditor provided, in pertinent part:

This note shall be due and payable in installments of fifty percent (50%) of any and all proceeds received by the undersigned in connection with the sale of the real property commonly known as “Cape Coral” located in the State of Florida in which the undersigned has an ownership interest. These payments shall be made to Payee within thirty (30) days of the receipt of those proceeds by the undersigned. Any unpaid balance shall be due at the time of the death of the undersigned and shall be paid in full from any of the assets of the undersigned.

The note was unsecured and did not bear interest. On July 7, 1993, the Decedent conveyed the Cape Coral property referred to in the note to himself as trustee of the Trust.

The Decedent died on May 15, 1995. At the time of his death, he had not made any payments on the note to the Creditor. The note remains unpaid.

In September 1994, the Decedent had entered into a contract for the sale of the Cape Coral property to Rottlund Homes of Florida, Inc. After his death, the Trustee sold a portion of the property. The Trustee’s representatives told the Creditor’s attorney that “the sale was to insure payment of taxes.” The Creditor’s amended complaint did not contain allegations concerning the disposition of the remaining portion of the property. Nevertheless, copies of numerous addenda to the contract with Rottlund Homes appear in the record on appeal. These addenda indicate that the closing date for the sale of the property was repeatedly extended over a number of years. The Trustee’s counsel informed this court at oral argument that the sale of the remaining portion of the property still has not occurred.

After the Decedent’s death, the Creditor’s attorney corresponded with the Trustee’s representatives. The Creditor’s attorney made “numerous requests” for payment on the note, requested a mortgage on the property to secure payment, and threatened legal action. Although this fact is not entirely clear from the allegations of the amended complaint and the exhibits attached to it, the Creditor’s attorney may have also had informal discussions by telephone with the Trustee’s representatives concerning these matters. The Trustee’s representatives assured the Creditor’s attorney that the Creditor would be paid upon the sale of the property and asked the Creditor’s attorney to forbear from any legal action because this would jeopardize the pending sale of the propertyto Rottlund Homes.

The Probate Proceeding

An estate was opened for the Decedent in Indian River County, Florida, more than two years after his death. The Trustee was appointed as the personal representative of the Decedent’s estate. The Creditor’s claim on the note, filed in the probate proceedings more than two years after the expiration of the two-year statute of nonclaim imposed by section 733.710, Florida Statutes (1993), was ultimately held to be barred. See Becklund, v. Fleming (In re Estate of Fleming), 786 So.2d 660 (Fla. 4th DCA 2001). The Fourth District held that the Creditor’s contention that she had been fraudulently induced to delay filing her claim in the estate was ineffective to extend the bar of the statute of nonclaim. Id. at 661. See generally May v. Ill. Nat’l Ins. Co., 771 So.2d 1143 (Fla.2000); Dobal v. Perez, 809 So.2d 78, 80 (Fla. 3d DCA 2002).

The Creditor’s Claims

On March 21, 2000, after the Trustee had objected to the Creditor’s claim filed in the probate proceeding but before the objection was finally resolved, the Creditor filed a separate action in Lee County, Florida. The Creditor initially sued the Trustee not only individually and as trustee of the Trust but also in her capacity as personal representative of the Decedent’s estate. After the Fourth District held that the Creditor’s claim filed in the probate proceeding was barred, Becklund, 786 So.2d at 661, the Creditor dropped her claim against the Trustee in her capacity as personal representative. She then filed her amended complaint against the Trustee individually and as trustee of the Decedent’s Trust. The claims that the Creditor pleaded in her amended complaint were as follows:

Count I — Fraud, based upon the so-called “lulling promises” allegedly made by the Trustee’s representatives.
Count II — Promissory Note, an action on the note executed by the Decedent.
Count III — Equitable Lien, a request for the imposition of an equitable lien on the Cape Coral property to secure the payment of the note.
Count IV — Oral Contract, an action based upon promises of payment to be made upon the sale of the Cape Coral property allegedly made by the Trustee after the Decedent’s death.
Count V — Unjust Enrichment, a claim that the Trustee would be unjustly enriched at the Creditor’s expense if she were not required to pay the note.

The Trustee moved to dismiss the amended complaint for failure to state a cause of action and on account of improper venue. After consideration of extensive memoran-da of law submitted by the parties, the trial court entered a thoughtful and detailed order finding that all of the Creditor’s claims, as pleaded, were barred. Based upon that conclusion, the trial court dismissed the Creditor’s amended complaint with prejudice. The trial court’s order did not address the Trustee’s objections to venue. This appeal followed.

The Standard of Review

The applicable standard of review for a trial court’s decision granting a motion to dismiss is de novo review. See Ruiz v. Brink’s Home Sec., Inc., 777 So.2d 1062, 1064 (Fla. 2d DCA 2001); W.R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc., 728 So.2d 297, 300 (Fla. 1st DCA 1999). Moreover, where, as in this case, the trial court dismisses a complaint with prejudice at a relatively early stage in the proceedings, we follow the principles summarized in Kapley v. Borchers, 714 So.2d 1217, 1218 (Fla. 2d DCA 1998):

A dismissal with prejudice should not be ordered without giving the party offering the pleading an opportunity to amend unless it appears that the privilege to amend has been abused or it is clear that the pleading cannot be amended to state a cause of action. See Countryside Christian Center, Inc. v. City of Clearwater, 542 So.2d 1037 (Fla. 2d DCA 1989); Central Florida Inv., Inc. v. Levin, 659 So.2d 492 (Fla. 5th DCA 1995). Where a party may be able to allege additional facts to support its cause of action or to support another cause of action based on a different legal theory, dismissal with prejudice is an abuse of discretion. See Harper Companies v. Scott, Royce, Harris, Bryan, Barra, & Jorgensen, P.A., 656 So.2d 627 (Fla. 4th DCA 1995); Kovach v. McLellan, 564 So.2d 274 (Fla. 5th DCA 1990).

Therefore, unless we are able to conclude that the Creditor is unable to plead any facts that would entitle her to relief, we are required to give her an opportunity to do so. See Clements v. Hillsborough County Health Dep’t, 837 So.2d 1085, 1085 (Fla. 2d DCA 2003); Dominion of Can. v. State Farm Fire & Cas. Co., 754 So.2d 852, 857 (Fla. 2d DCA 2000); Williams v. Sebring Hous. & Dev., 723 So.2d 359, 359 (Fla. 2d DCA 1998).

The Applicable Law

The Creditor’s claim against the Decedent’s estate was barred by her failure to file her claim against the estate within the two-year period established by section 733.710, Florida Statutes (1993). Becklund, 786 So.2d at 661. Likewise, the Trust was protected from any liability it may have had under sections 733.607(2) and 733.707(3) because the Creditor did not hold an “enforceable and timely filed” claim in the Decedent’s estate. See Estate of Read v. A.D.K. Props., 766 So.2d 393 (Fla. 2d DCA 2000) (construing a later version of section 733.707(3) that was substantially similar to the version of section 733.707(3) in effect on the date of the decedent’s death); Tobin v. Damian, 723 So.2d 396 (Fla. 4th DCA 1999) (same); ch. 95-401, §§ 9, 10, at 3286-87, § 43, at 3310, Laws of Fla. In view of these barriers to recovery, the question posed by this appeal is whether the Creditor has alleged or can allege any facts that would state a cause of action against the Trust or the Trustee individually. The answer to the question posed must be determined by reference to Florida’s trust claims procedures in effect on May 15, 1995, the date of the Decedent’s death.

The trust claims procedures in effect on the date of the Decedent’s death were enacted as part of chapter 93-257, Laws of Florida, and became effective on January 1, 1994. Ch. 93-257, § 15, at 2510, Laws of Fla. One commentator summarized the effect of the 1993 legislation as follows:

The 1993 Legislature, as part of Ch. 93-257, enacted a series of modifications to various existing statutes to clarify that assets in a revocable trust are subject to the expenses of administration and creditors’ claims, if probate assets are insufficient to satisfy those expenses and claims. The personal representative of a decedent’s probate estate, to the extent the decedent’s probate assets are insufficient to satisfy administration expenses and creditors’ claims, is now authorized to recover on behalf of the probate estate creditors, assets in a revocable trust created by the decedent, and the trustee of the trust is now authorized to contribute assets to satisfy any insufficiency. Furthermore, recognizing the public’s apparent acceptance of the need to avoid the perceived “horrors” of probate, the legislation avoids the imposition of any obligation upon a trustee to institute even an informal or summary probate proceeding.
Procedurally, the probate estate’s right of recovery, and/or the trust’s duty of contribution, exists only when the trustee of the trust is made a party to the probate proceeding and is granted a right to challenge any claim, or in the event there is no probate proceeding, personally fulfills the publication and notice requirements of F.S. § 733.702. Thus, in the event there is no probate proceeding, the trustee is required to publish a “notice to creditors” and serve the notice upon known or reasonably ascertainable creditors.

Jerome L. Wolf, 1995 Legislative Modifications to Florida’s Trust Claims Procedures, 69 Fla. B.J. 57, 57 (Oct.1995). In cases involving decedents for whom no probate administration was pending, section 737.3057 of the 1993 legislation required a trustee of a revocable trust to publish a notice to creditors. § 737.3057(1), Fla. Stat. (1993). Creditors of the decedent/settlor were obligated to present claims to the trustee within three months or be barred. See Charles E. Early, Notices Under the New Trust Law, 70 Fla. B.J. 12,14 (Jan.1996). Unless the creditor timely served a claim on the trustee within two years after the settlor’s death, section 737.3057(3) (the trust claims counterpart of section 733.710 in the Probate Code) barred claims against the trust, the trustee, and the beneficiaries.

The trust claims amendments included in the 1993 legislation have been criticized as “incomplete,” “ambiguous,” and limited in their effectiveness. Wolf, 69 Fla. B.J. at 57; see also Continuing Legal Educ., Fla. Bar, Administration of Trusts in Florida §§ 2.67, 6.2 (3d ed.200i). In response to the problems perceived in the 1993 legislation, the Ad Hoc Committee appointed by the Probate Division of the Real Property, Probate and Trust Law Section of the Florida Bar proposed legislation that was enacted in 1995. Wolf, 69 Fla. B.J. at 59. Chapter 95-401, Laws of Florida, made various changes to Florida’s trust claims procedures, including the repeal of section 737.3057, effective October 1, 1995, for decedents who died after September 30, 1995. Ch. 95-401, § 42, at 3310, Laws of Fla. Under the 1995 legislation, for Florida residents who died after September 30, 1995, a trustee seeking protection against the settlor’s debts before the expiration of the two-year nonclaim period would have to seek such protection in the Probate Code. The 1995 legislation does not apply to the case of the Decedent, who died on May 15, 1995. The particular version of Florida’s trust claims procedures applicable to this case was in effect from January 1, 1994, for decedents who died on or before September 30, 1995. Therefore, the analysis that follows will have limited relevance to cases involving decedents who died after September 30, 1995.

Analysis

Section 737.3057, titled “Trustee’s duty to notice creditors,” provided as follows:

(1) In the event the settlor’s estate is not represented and there is no personal representative of the estate to whom letters of administration have been issued so that the publication and notice requirements of s. 733.212 have not been discharged, then every trustee of a trust described in s. 733.707(3) shall cause a notice to creditors to be published and served.
(a)A notice shall be published once a week for 2 consecutive weeks, two publications being sufficient, in a newspaper published in the county where the trust is administered or, if there is no newspaper published in the county, in a newspaper of general circulation in that county. The notice shall notify all persons having claims or demands against the settlor which such person seeks to recover from the trust to serve their claims with the trustee serving at the time of or as a result of the settlor’s death within the time periods set forth in s. 733.702 with respect to notice of administration, or be forever barred.
(b) The notice shall contain the name of the deceased settlor of the trust; the name or other designation of the trust, if any, and the date the trust was established; the name and address of each trustee serving at the time of or as a result of the settlor’s death; the name and address of the attorney for the trustee, if any; and shall state the date of first publication.
(c) The trustee shall promptly make a diligent search to determine the names and addresses of creditors of the settlor who are reasonably ascertainable and shall serve on those creditors a copy of the notice within 3 months after the first publication of the notice. Impracticable and extended searches are not required. Service is not required on any creditor who has filed or served a claim as provided in this section or a creditor whose claim has been paid in full.
(d) A creditor shall serve a written statement, or demand for payment, of the claim with the trustee by any form of mail requiring a signed receipt.
(e) If not barred by subsection (3), no claim or demand against the settlor that arose before the death of the settlor which a person seeks to recover from the trust, including claims of the state and any of its subdivisions, whether due or not, direct or contingent, or liquidated or unliquidated; no claim for funeral or burial expenses; no claim for personal property in the possession of the trustee; and no claim for damages, including, but not limited to, an action founded on fraud or another wrongful act or omission of the settlor, is binding on the trust, on the trustee of such trust, or on any beneficiary unless served with the trustee within the later of 3 months after the time of the first publication of the notice to creditors or, as to any creditor required to be served with a copy of the notice to creditors, within 30 days after the date of service of such copy of the notice on the creditor, even though the trustee has recognized the claim or demand by paying a part of it or interest on it or otherwise.
(2) A trustee is not individually liable to any person for giving notice under this section, regardless of whether it is later determined that such notice was not required by this section. The service of notice in accordance with this section shall not be construed as admitting the validity or enforceability of a claim. If a trustee in good faith fails to give notice required by this section, the trustee is not liable to a beneficiary or any other person for the failure. Liability, if any, for the failure in such case is on the trust.
(3)(a) Notwithstanding any other provision of this chapter, 2 years after the death of a settlor, neither a trust described in s. 733.707(3) established by such settlor, the trustee of such trust, nor any beneficiary shall be liable for any claim or cause of action against the settlor which such creditor seeks to recover from the trust, except as provided in this subsection.
(b) This subsection shall not apply to a creditor who has timely served a claim pursuant to paragraph (l)(e) within 2 years after the settlor’s death and whose claim has not been paid or otherwise disposed of.
(c) This subsection shall not affect the lien of a duly recorded mortgage or security interest or the right to foreclose and enforce the mortgage or lien.

The Creditor did not file her action against the Trustee until March 21, 2000, more than four years after the Decedent’s death on May 15, 1995. Unless the Creditor timely served a claim on the Trustee within two years of the Decedent’s death pursuant to paragraph (1)(e) of the statute, the expiration of the two-year period of nonclaim established in paragraph (3)(a) barred all of the Creditor’s claims based upon the Decedent’s promissory note. Cf. May v. Ill. Nat’l Ins. Co., 771 So.2d 1143 (Fla.2000) (construing analogous section of the Probate Code as a statute of nonclaim not subject to waiver or extension). The Creditor’s claim against the Trustee for breach of an oral contract was based upon a promise to pay the note allegedly made by the Trustee after the Decedent’s death. This claim was similarly barred. We agree with the proposition that claims based on obligations undertaken by a trustee after the death of a decedent are not subject to the statute of nonclaim. Cf. Thompson v. Hodson, 825 So.2d 941, 948 (Fla. 1st DCA 2002) (holding that claims that arise after the death of a decedent are not subject to the Probate Code’s statute of nonclaim). Nevertheless, the post-mortem oral contract pleaded by the Creditor was based upon the Trustee’s alleged promise to pay the Decedent’s promissory note. Thus the Creditor’s claim relied upon the type of “lulling promises” that are insufficient to extend the bar of a statute of nonclaim. See Dobal v. Perez, 809 So.2d 78, 80 (Fla. 3d DCA 2002) (holding that the Probate Code’s statute of nonclaim was not subject to waiver or extension by “lulling promises”). Finally, the Creditor’s claim was not based on a recorded mortgage or security interest that would make applicable the exception of paragraph (3)(c) of section 737.3057.

For these reasons, the trial court correctly determined that the Creditor’s amended complaint failed to state a cause of action. Nevertheless, we think the trial court erred in dismissing the Creditor’s amended complaint with prejudice, because it appears that she may be able to state a cause of action.

For cases such as this one, involving decedents for whom no personal representative had been appointed and notice of administration had not been published, paragraphs (l)(a)-(c) of section 737.3057 required the trustee of a revocable trust to publish a notice to creditors and serve a copy of the notice to creditors of the set-tlor whose names and addresses were reasonably ascertainable. Paragraph (l)(d) required creditors to “serve a written statement, or demand for payment, of the claim with the trustee by any form of mail requiring a signed receipt.” Claims not otherwise barred by the two-year nonclaim period established in paragraph (3)(a) were barred unless the creditor had timely served a claim pursuant to paragraph (l)(e) within two years after the settlor’s death. § 737.3057(3)(b), Fla. Stat. (1993).

On appeal, the Creditor claims that she did serve a written statement, or demand for payment, of her claim on the promissory note with the Trustee within two years of the Decedent’s death as required by subsections 737.3057(l)(d) and (3)(a). The Creditor concludes that the purported service of her claim on the Trustee was sufficient to avoid the bar of the two-year statute of nonclaim for claims against the Trust.

Unlike comparable provisions in the Probate Code, section 737.3057 provided no further direction concerning the applicable procedure once the creditor served a claim on the trustee. In particular, the statute imposed no deadline for the creditor to file suit to enforce the claim against the trust. As one of the commentators noted, this lack of statutory direction left the trustee “with the dilemma of either continuing the trust administration subject to the continuing pendency of the claim or, alternatively, instituting an action challenging the validity or timeliness of the claim.” Wolf, 69 Fla. B.J. at 58. Therefore, assuming that the Creditor timely served her claim on the Trustee in the manner required by the statute, such service may have protected her right to recover against the assets of the trust against the expiration of the two-year statute of nonclaim made applicable to the trust assets by section 737.3057(3)(a).

It appears from the Creditor’s amended complaint and the exhibits attached to it that, after the Decedent’s death, the Creditor’s attorneys conducted a correspondence with the Trustee’s attorneys that included a request for payment of the promissory note. Based on the record, the dates and content of this correspondence are largely unknown to us. At least some of the correspondence may have been sent and received prior to the expiration of two years from the Decedent’s death. We do not know whether any such correspondence was served on the Trustee’s attorneys “by any form of mail requiring a signed receipt” as section 737.3057(l)(d) appears to require. Nevertheless, we cannot exclude the possibility that one or more pieces of such correspondence were sufficient to constitute a timely “claim” within the meaning of section 737.3057(l)(d). If so, then the Creditor may be able to amend her complaint to state a cause of action for recovery against the assets of the Trust.

Venue

In its order dismissing the Creditor’s amended complaint, the trial court did not address the Trustee’s objection to the venue of the action in Lee County, Florida. The parties have not argued this issue in their briefs. Accordingly, we do not reach the issue of the propriety of the Creditor’s filing of her action in Lee County. On remand, the trial court may decide the issue of venue.

Conclusion

The trial court correctly determined that none of the counts in the Creditor’s amended complaint stated a cause of action as pleaded. Nevertheless, because it appears that the Creditor may be able to state a cause of action on the theory that she served a claim with the Trustee within the two-year period allowed by section 733.3057(3)(a), we reverse the dismissal to the extent that it was made with prejudice. On remand, the Creditor should be given one additional opportunity to amend her complaint to state a cause of action.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

CASANUEVA and CANADY, JJ„ Concur.

      . The record on appeal does not include a copy of the Trust. In the proceedings in the trial court and in the briefs filed in this court, the parties have proceeded on the assumption that the Trust is a revocable trust of the type described in section 733.707(3), Florida Statutes (1993). For purposes of this opinion, we will make the same assumption.

      . We express no opinion on whether Florida law in effect on the date of the Decedent's death would have permitted a creditor holding an "enforceable and timely filed” claim in a decedent’s estate to maintain a direct action against that decedent's revocable trust for payment pursuant to section 733.707(3). We note that current Florida law precludes a creditor holding an enforceable claim in a decedent's estate from filing or maintaining a direct action against a trust for recovery on the claim. In 2001, the Florida Legislature enacted section 737.3061, Florida Statutes (2002), as part of the revision of the Florida Probate Code effective Januaiy 1, 2002. Ch.2001-226, § 189, at 2088, Laws of Fla. The statute prohibits a creditor from filing or continuing, after the death of the grantor, a direct action against a revocable trust, the trustee, or a beneficiary of the trust based upon a claim "that is dependent on the individual liability of the grantor.” The statute directs that such claims instead be presented and enforced against the grantor's estate.

      . Other portions of chapter 95-401 became effective July 1, 1995. Ch. 95-401, § 43, at 3310, Laws of Fla.
      With respect to the portion of the bill repealing section 737.3057 of the proposed legislation, the Committee comment said:
      The new legislation eliminates any affirmative duty on the part of a trustee, as trustee, to publish a notice to creditors or serve notice on ascertainable creditors. The provision, as originally proposed, was intended to specifically mirror the procedural steps pertaining to the payment of and objection to claims as set forth in F.S. § 733.705 of the Probate Code. Unfortu-
      nately, the provision as enacted failed to include all of the procedural steps required to join the claims issue with respect to trust assets. Experience now shows that an attempt to statutorily establish a separate creditors’ claims procedure with respect to trusts to run coincidentally with the creditors’ claims procedures established under the Florida Probate Code, the Probate Rules, and the body of case law constructing their meaning and application, is administratively inefficient and legally impractical.

        Wolf, 69 Fla. B J. at 61.

      . An estate was ultimately opened for the Decedent, and the Trustee was appointed as his personal representative. The estate was not opened, however, until after the two-year nonclaim period established in section 733.710, Florida Statutes (1993), had already expired. Section 737.3057(1), Florida Statutes (1993), does not establish a time limit for the trustee of a revocable trust to comply with the statutory notice-to-creditor requirement in cases where an estate is not promptly opened for a decedent. Nor does the statute provide for a waiting period after which creditors may properly serve their claims with the trustee if an estate has not been opened and a personal representative appointed. Nevertheless, the intent of the 1993 trust claims legislation— flawed in concept as it may have been — required that the statutory responsibilities of the trustee begin within a reasonable time if an estate has not been opened for the decedent and a personal representative appointed. The reference in section 737.3057(1) to a failure to discharge "the publication and notice requirements of s. 733.212” in an estate administration indicates that the purpose of the 1993 trust claims legislation was to provide creditors of a decedent who had established a revocable trust with at least one forum within which to present their claims. If no estate administration proceeding was pending, creditors were to have the option of filing their claims with the trustee of the revocable trust. If the creditor were willing to rely exclusively on the trust assets for payment, this feature of the 1993 legislation made it unnecessary for the creditor to file a creditor’s petition to open an estate administration proceeding in cases where the personal representative named in the will or other interested parties failed to act.
      The measure of a reasonable time from the decedent’s death after which the statutory responsibilities of the trustee were to begin may vary with the circumstances. However, the intent of the legislation to give creditors at least one forum within which to file their claims provides an outer limit. A reasonable time from the decedent’s death after which the trustee's statutory responsibilities were to begin must necessarily be substantially prior to two years after the decedent’s death in order to accomplish the clear legislative purpose.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Enrique HERNANDEZ a/k/a Miguel Lopez, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4086.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 2003.
    George M. Evans of The Law Offices of George M. Evans, P.A., Coral Gables, for appellant.
    No appearance required for appellee.
   PER CURIAM.

The court sua sponte vacates the previously issued opinion and substitutes the following in its place.

Affirmed. See § 775.082(9)(a)1.q., Fla. Stat. (2001) (effective July 1, 2001).

WARNER, POLEN and SHAHOOD, JJ., concur.


text:
    Jessie HILL, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3362.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 2004.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Jessie Hill was convicted of one count of robbery with a firearm. We find all arguments relating to Hill’s conviction unpersuasive and affirm his conviction. However, we reverse and remand Hill’s sentence.

In Hill v. State, 862 So.2d 815(Fla. 4th DCA 2003), a case involving these same parties, we considered the trial court’s imposition of the same sentence in relation to Hill’s conviction for robbery with a firearm in another incident. In both cases, the trial court sentenced Hill to life in prison without parole under the Prison Releasee Reoffender Punishment Act (“PRRPA”) in section 775.082(9)(a)3, Florida Statutes (2002). In both eases, the trial court also imposed a ten-year mandatory minimum sentence for the use of a firearm under section 775.087(2) and (3).

As we stated in Hill v. State, 862 So.2d 815 (Fla. 4th DCA 2003), it is improper to sentence a defendant who meets the requirements for sentencing under the PRRPA under another sentencing statute where the sentence imposed under the other statute is not greater than that imposed under the PRRPA. Smith v. State, 813 So.2d 1002, 1003 (Fla. 4th DCA 2002) (citing Grant v. State, 770 So.2d 655, 659 (Fla.2000)). As in Hill, the ten-year mandatory minimum was not greater than the life sentence imposed under the PRRPA. Therefore, Hill’s sentence was improper.

Accordingly, we reverse Hill’s ten-year mandatory minimum sentence and remand this case with instructions to resentence Hill to a life sentence without parole under the PRRPA.

REVERSED AND REMANDED for resentencing.

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


text:
    Frank MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-5272.
    District Court of Appeal of Florida, First District.
    Feb. 13, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of January 8, 2004, the Court has determined that the notice of appeal was not timely filed because the motion for rehearing was not filed within fifteen days of the date of service of the trial court’s order. Accordingly, the appeal is hereby dismissed.

DISMISSED.

WEBSTER, LEWIS, and HAWKES, JJ., concur.


text:
    Thomas WOODY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3817.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 2004.
    Rehearing Denied March 26, 2004.
    Thomas Woody, Century, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See State v. McBride, 848 So.2d 287 (Fla.2003).

GRIFFIN, PALMER and MONACO, JJ., concur.


text:
    Jay Leonard RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5197.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 2004.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Chief Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed without prejudice to any right Rodriguez may have to file a facially sufficient motion pursuant to Florida Rule of Criminal Procedure 3.850.

SALCINES, COVINGTON, and WALLACE, JJ., Concur.


text:
    BIO-MED PLUS, INC., et al., Appellants, v. Terri SHIKANY et al., Appellees.
    Nos. 3D02-2608, 3D02-1003.
    District Court of Appeal of Florida, Third District.
    Feb. 25, 2004.
    Bailey & Dawes and Guy B. Bailey, Jr., and John E. Hughes, III, and Kristina M. Bakardjiev, for appellants.

      Greenberg Traurig and Ronald M. Ro-sengarten and Elliot B. Rula, for appel-lees.
    Before SCHWARTZ, C.J., and COPE and SHEVIN, JJ.
   PER CURIAM.

We find no error or abuse of discretion in the order on appeal denying injunctive relief. See 29 Fla.Jur.2d Injunctions §§ 1, 13 (1998).

Affirmed.

      . We express no view on the availability of any other relief. See Bio-Med Plus, Inc. v. Health Coalition, Inc., 793 So.2d 1092 (Fla. 3d DCA 2001).


text:
    Adonius P. BAILEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4175.
    District Court of Appeal of Florida, Second District.
    Feb. 27, 2004.
   PER CURIAM.

Affirmed without prejudice to any right Bailey might have to file a timely motion pursuant to Florida Rule of Criminal Procedure 3.850 if he wishes to challenge the factual accuracy of the trial court’s records concerning the dates he was in jail. See King v. State, 809 So.2d 893 (Fla. 2d DCA 2002).

WHATLEY, CASANUEVA, and SILBERMAN, JJ., Concur.


author: KAHN, J.

text:
    STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellant, v. MIED, INC., a Florida corporation and John E. Carter, individually, Appellees.
    No. 1D02-4110.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2004.
    Rehearing Denied April 5, 2004.

      Charles J. Crist, Jr., Attorney General, and Christopher M. Rise, Solicitor General, and Louis F. Hubener, Deputy Solicitor General, Tallahassee, for Appellant.
    James C. Rinaman, Jr., and Sonya H. Hoener of Marks Gray, P.A., Jacksonville, for Appellees.
   KAHN, J.

The Florida Agency for Health Care Administration (AHCA) appeals from a $20 million jury award in favor of appellee, MIED, Inc. The jury found that AHCA had breached its Medicaid Provider Agreement with MIED and further found against AHCA on a claim of “equitable estoppel.” Because we find that MIED’s breach of contract theories fail as a matter of law and that equitable estoppel is not available as a cause of action on the facts here, we reverse.

I. Background

In 1980, John Carter and his business partner, Joe Cowart, constructed what is now the Southlake Nursing and Rehabilitation Center, a nursing home in Jacksonville. Carter and Cowart served on the board of directors of Southlake, Inc. (Southlake), the corporate owner of the nursing home. Between 1980 and 1997, several different firms were employed to manage the nursing home as it transitioned from a for-profit facility to a nonprofit facility. Over the years, Southlake accumulated substantial debts resulting from its ownership of the nursing home.

Early in 1998, Carter decided to purchase Southlake’s assets through MIED, Inc., a corporation in which Carter was the sole shareholder. Carter felt he was the only person who could realistically afford to purchase Southlake because a large portion of its debts were owed to him. Upon his purchase of Southlake, Carter intended to return the nursing home to a for-profit status thereby obviating the need for outside management as required under tax rules regulating non-profit entities. Carter believed that eliminating the cost of outside management would aid the nursing home in achieving a profit, a goal not previously attained.

Critical to Carter’s plan was an anticipated rate step-up in Medicaid reimbursements of $10 per patient, per day. To be eligible for a rate step-up, MIED would have to be deemed an unrelated purchaser by AHCA, the Florida agency responsible for Medicaid administration. In late January 1998, after consulting with his attorney, Carter spoke with Frank Hughes, an AHCA administrator, about the possibility of a rate step-up. According to Carter, Hughes said that MIED would be an unrelated party and therefore eligible for a rate step-up if Carter resigned from his position at Southlake as president and board member and exercised no further control of Southlake.

Carter resigned on February 20, 1998, and Cowart took over as Southlake’s president. • At Cowart’s request, Carter, through MIED, continued day-to-day management of the nursing home. In early December 1998, Carter, aided by Clara Corcoran, the nursing home’s administrator, and Karen Hoyt, the nursing home’s office manager, developed a business plan for MIED which assumed, among other things, a rate step-up. MIED’s purchase of Southlake closed on December 21, 1998.

Soon after the sale, in February 1999, several AHCA officials met and concluded that the nursing home should be placed in receivership. Underlying justifications for the decision included: 1) several instances of delinquent debts; 2) a site visit resulting in a substandard grade due to maintenance and repair issues; 3) Southlake’s inability to produce financial records for the years 1995 and 1996 in response to a random audit; and 4) an ongoing investigation by the Attorney General’s Medicaid Fraud Unit. Moving forward with its plan to institute receivership proceedings, AHCA conducted a site visit at the nursing home and subpoenaed its financial records in March 1999.

In April and May, MIED made several unavailing requests to AHCA for implementation of a rate step-up. At that time, AHCA had yet to make a formal determination of whether MIED and Southlake were related parties. To make matters worse from MIED’s perspective, AHCA withheld Medicaid reimbursements of $423,765.57 for the month of April in anticipation of the pending receivership proceeding. AHCA filed its petition for receivership on May 19, 1999. After a two-day hearing, the circuit court entered an order granting the petition on May 26, 1999. The next day, AHCA paid $155,168.23 of the April reimbursements to cover the nursing home’s payroll. AHCA paid the remainder of the April reimbursements on June 9, 1999, two days after appointment of a receiver.

On June 11, 1999, MIED filed a Petition for Formal Administrative Hearing seeking a determination that MIED was not a related party purchaser and would therefore qualify for a rate step-up. Over the course of the next several weeks, events began to unfold rapidly. On June 22, MIED’s lender, Principal Commercial Acceptance (PCA), declared MIED in default and stated its intent to foreclose on MIED’s mortgage. The same day, AHCA issued its final agency action determining that MIED was a related party purchaser and thus not entitled to a rate step-up.

On June 29, MIED filed a motion for an expedited hearing on its petition for administrative hearing regarding the rate step-up. On June 30, AHCA informed Carter that he must either find an unrelated purchaser for the nursing home or begin efforts to relocate the residents within thirty days. On July 8, AHCA issued a thirty-day Medicaid provider termination letter. The following day, residents of the nursing home were informed they had thirty days to relocate to another facility. On July 13, 1999, MIED and AHCA agreed that AHCA would allow the receivership to continue an additional thirty days in order for PCA to conduct a foreclosure sale of the nursing home to an unrelated third party.

On July 30, AHCA approved and joined what appeared to be a global settlement among MIED, PCA, and Carter. The four-way settlement (including AHCA) allowed the receivership to continue during PCA’s foreclosure, provided for PCA’s payment of $15,000 per month to Carter for twelve months, and excused Carter’s personal guarantee of the $9.3 million mortgage. Moreover, in return for AHCA’s approval of the settlement, MIED immediately dismissed with prejudice its petition for formal administrative hearing on the rate step-up issue on August 2.

On September 12, 2000, MIED and Carter filed an eight-count complaint against AHCA alleging: 1) unlawful taking without just compensation; 2) unlawful taking without due process of law; 3) inverse condemnation; 4) breach of contract; 5) equitable estoppel; 6) misrepresentation; 7) interference with business relationships; and 8) intentional infliction of emotional distress. On June 18, 2002, MIED and Carter amended the complaint, leaving four counts: 1) inverse condemnation; 2) breach of contract; 3) equitable estoppel; and 4) misrepresentation. The trial court eventually granted AHCA’s motion for directed verdict on MIED’s inverse condemnation claim and Carter was dropped as a plaintiff. A Jacksonville jury returned a $20 million verdict in favor of MIED finding that AHCA had breached the Medicaid Provider Agreement and had made material misrepresentations upon which MIED reasonably relied to its detriment.

AHCA raises a number of issues on appeal. Dispositive of the case, however, are the issues concerning whether MIED has a claim for breach of contract or has a cause of action based upon “equitable es-toppel.” Accordingly, we address each of these issues in turn.

II. Claim for Breach of Medicaid Provider Agreement

A. AHCA’s Denial of MIED’s Request for a Rate Step-up

MIED argued below that AHCA’s refusal to grant it a rate step-up constituted a breach of contract. We find that MIED conclusively waived any challenge to denial of a rate step-up by entering into a settlement that has never been set aside. To hold otherwise would deprive AHCA of the benefit of its bargain and would allow MIED and its owner, Carter, to retain the benefits of the settlement and to sue as if no settlement took place. MIED’s Notice of Voluntary Dismissal provided:

The Petitioner, MIED, Inc. d/b/a South-lake Nursing and Rehabilitation Center, through its undersigned counsel, hereby voluntarily dismisses, with prejudice, its Petition for Formal Administrative Hearing filed in this matter. For and in consideration of this voluntary dismissal by Petitioner, the Respondent has agreed to (1) Rescind the letter terminating the Petitioner’s Medicaid provider number, and (2) Allow for the appointment of a Receiver to operate the facility pending the sale.

(Emphasis added.) By this language AHCA agreed to conditions, beneficial to MIED, allowing the facility to operate until a sale, in exchange for MIED’s promise to abandon the rate step-up issue. The trial court should have honored this agreement by granting AHCA’s motion for summary judgment on the issue of whether the denial of the rate increase constituted a breach of contract.

AHCA also argues that by voluntarily dismissing its petition with prejudice, MIED abandoned, short of any conclusion, any remaining opportunity for administrative relief. Thus, AHCA urges that the doctrine of exhaustion of administrative remedies bars MIED from seeking relief in the circuit court on the rate step-up issue. We agree.

To avoid the requirement for exhaustion of administrative remedies, a party must satisfy one of the tests established by our case law:

(1) the complaint must demonstrate some compelling reason why the APA (Chapter 120, Florida Statutes) does not avail the complainants in their grievance against the agency; or (2) the complaint must allege a lack of general authority in the agency and, if it is shown, that the APA has no remedy for it; or (3) illegal conduct by the agency must be shown and, if that is the case, that the APA cannot remedy that illegality; or (4) agency ignorance of the law, the facts, or public good must be shown and, if any of that is the case, that the Act provides no remedy; or (5) a claim must be made that the agency ignores or refuses to recognize related or substantial interests and refuses to afford a hearing or otherwise refuses to recognize that the complainants’ grievance is cognizable administratively.

Bankers Ins. Co. v. Fla. Residential Prop. & Cas. Joint Underwriting Ass’n, 689 So.2d 1127, 1129 (Fla. 1st DCA 1997)(quoting Communities Fin. Corp. v. Fla. Dep’t of Envtl. Regulation, 416 So.2d 813, 816 (Fla. 1st DCA 1982)). MIED has never shown that no remedy would have been available under the APA or that AHCA refused to afford it a hearing on its petition. Nevertheless, MIED argues on appeal that “pursuit by MIED of administrative remedies for the erroneous related-party determination would not have afforded any relief, because MIED would have been out of business due to AHCA’s improper withholding of Medicaid payments, the eventual receivership, and the mortgage foreclosure.” The force of this argument is diminished by the fact that MIED filed its petition for an administrative hearing in the first place and then used its pending petition as leverage to reach a settlement with AHCA. MIED’s unequivocal abandonment of administrative remedies in this case bars its claims. See Communities Fin. Corp., 416 So.2d at 816 (finding that a failure to pursue administrative avenues of relief precluded a conclusion that the remedies of the administrative process were inadequate).

MIED also successfully argued below that a question of fact existed as to whether it was coerced into the settlement. MIED relies on Dantzler Lumber & Export Co. v. Defreitas, 544 So.2d 1135 (Fla. 4th DCA 1989), for support of the proposition that the existence of duress is a jury question. Dantzler Lumber, however, involved questions of conflicting evidence regarding whether an employee’s resignation was the product of duress and therefore involuntary. In this case, the duress claimed by MIED resulted from its placement into receivership. AHCA had a statutory right to petition for receivership. Threatening or exercising a legal right does not constitute duress. See City of Miami v. Kory, 394 So.2d 494, 498 (Fla. 3d DCA 1981) (observing that “the act supposedly coerced must be caused by some improper or illegal conduct of the defendant”). Moreover, AHCA prevailed in the receivership matter and ‘MIED did not appeal. For the jury to have found that MIED was under duress required it to conclude that AHCA had no basis for seeking the receivership and that the circuit court erred by granting the petition. That type of determination, however, is the province of an appellate court, not a jury.

The trial court erred by allowing a jury to consider whether AHCA’s denial of a rate step-up constituted a breach of contract. MIED’s settlement agreement, its failure to pursue administrative remedies, and failure to properly show duress render the claim insufficient as a matter of law.

B. AHCA’s Institution of Receivership Proceedings

MIED persuaded the jury that AHCA’s actions culminating in the appointment of a receiver violated a provision in the Medicaid Provider Agreement which required AHCA to comply with applicable laws and regulations. Although nothing in the contract specifically prevents AHCA from seeking a receivership, MIED essentially argued that AHCA conspired to create a false basis for the receivership with the solitary intention of driving Carter out of the nursing home business. This conspiracy, MIED argued, was contrary to law and therefore a breach of the provider agreement.

In advancing these themes, MIED ignored that it had appropriate forums for raising such claims in the receivership proceeding or a potential appeal. The federal Medicaid law requires that states have a mechanism in place for appointing a receiver to assure the health and safety of nursing home residents. See 42 U.S.C. § 1396r(h)(2)(A)(iii). Allowing Medicaid providers to challenge the propriety Of a receivership in a civil suit before a jury, rather than on direct appeal of the receivership proceeding, would potentially vaporize AHCA’s ability to administer receivership proceedings, thereby endangering Florida’s ability to comply with federal law.

Beyond these considerations, the breach of contract claim also fails as a matter of law under the doctrine of collateral estoppel. MIED’s case focused the impropriety of the receivership. Had it properly considered collateral estoppel, the trial court would never have allowed this. In Mobil Oil Corp. v. Shevin, a case relied upon by MIED, the supreme court noted that collateral estoppel “is a judicial doctrine which in general terms prevents identical parties from relitigating issues that have previously been decided between them.” 354 So.2d 372, 374 (Fla.1977). MIED had the opportunity to appeal the receivership order but chose not to do so. Thus, the propriety of the receivership had already been conclusively established and the trial court erred in allowing a jury to reconsider the issue.

C. AHCA’s Withholding of Medicaid Reimbursements

MIED’s final breach of contract theory-turned on AHCA’s withholding of the April 1999 Medicaid reimbursements. MIED admits the terms of the provider agreement did not specify a payment due date. Also MIED does not dispute the fact that AHCA paid the entire amount due in two separate payments on May 27, 1999, and June 9, 1999. Nevertheless, MIED maintains that payment was due during the first two weeks of May 1999 and that AHCA’s “delay” violated the contract provision requiring compliance with applicable laws and regulations.

Because the nursing home had been the subject of an investigation by the Medicaid Fraud Unit until May 10, 1999, the parties focus much attention on the requirement of AHCA to pay “clean claims,” which would be those claims made by a provider not under investigation for fraud or abuse. See 42 C.F.R. § 447.45(b). Under federal Medicaid regulations, once a claim is deemed clean, AHCA must pay at least 90% of a practitioner’s or group of practitioners’ claims within thirty days. See id. § 447.45(d)(2). A “practitioner” is defined as “a physician or other individual licensed under State law to practice his or her profession.” Id. § 455.2. Claims submitted by persons or entities not falling within the practitioner category are timely if paid within twelve months. Id. § 447.45(d)(4).

Our review of the regulations leads us to conclude that neither MIED nor the facility may be classified as a “practitioner” and, therefore, AHCA had twelve months in which to pay the April reimbursements. See United Cerebral Palsy Ass’n v. Cuomo, 966 F.2d 743, 745 (2d Cir.1992) (noting that Medicaid reimbursements for nursing facility services are to be paid within twelve months); III. Council on Long Term Care v. Bradley, 957 F.2d 305, 310 (7th Cir.1992) (finding that the only time limit imposed on state for Medicaid reimbursement to nursing facilities was the twelve-month limit of 42 C.F.R. § 447.45(d)(4)). Because AHCA paid the April reimbursement long before twelve months had elapsed, the reimbursement was timely irrespective of whether MIED’s claim was “clean” on May 1 or May 10.

We find no competent, substantial evidence that AHCA violated applicable laws and regulations regarding payment of the reimbursements. Accordingly, the claim for breach of contract by withholding the April reimbursements must fail.

III. Equitable Estoppel Claim

Finally, we address the question of whether the trial court properly submitted MIED’s equitable estoppel claim to the jury. In this state, equitable estoppel is a defensive doctrine rather than a cause of action. See Dep’t of Transp. v. FirstMerit Bank, 711 So.2d 1217, 1218 (Fla. 2d DCA 1998). Florida has long recognized that “[e]quitable estoppel is not designed to aid a litigant in gaining something, but only in preventing a loss.” Kerivan v. Fogal, 156 Fla. 92, 22 So.2d 584, 586 (1945). Such accords with the historical view of that doctrine. In Major League Baseball v. Morsani, 790 So.2d 1071, 1077 (Fla.2001), for example, the supreme court noted that “[b]y definition (and by usage throughout the centuries), equitable estoppel ‘estops’ or bars a party from asserting something (e.g., a fact, a rule of law, or a defense) that he or she otherwise would be entitled to assert.” MIED’s estoppel count did not seek to bar AHCA from doing anything. Instead, it demanded “judgment for damages, costs, and such other and further relief as the Court may deem proper.” In essence, MIED claimed that its abandonment of the rate step-up case notwithstanding, AHCA should be compelled to reimburse it for monies allegedly lost due to AHCA’s denial of the step-up.

Undeterred by the commonly accepted view, MIED attempts to frame equitable estoppel as a stand-alone cause of action entitling it to damages. On appeal, MIED relies upon two cases it believes have recognized estoppel as a cause of action. See Forest Creek Dev. Co. v. Liberty Sav. & Loan Ass’n, 531 So.2d 356 (Fla. 5th DCA 1988); Pasekoff v. Kaufman, 392 So.2d 971 (Fla. 3d DCA 1981). In our view, both of these cases are distinguishable.

First, Forest Creek, actually referred to a claim of promissory estoppel rather than a claim of equitable estoppel. 531 So.2d at 357. Promissory estoppel requires proof of a promise the promissor would reasonably expect to induce action or forbearance on the part of the promisee. See W.R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc., 728 So.2d 297, 302 (Fla. 1st DCA 1999) (identifying the elements of promissory estoppel). MIED’s amended complaint, however, failed to allege that Hughes, an AHCA administrator, reasonably should have expected Carter to pursue the specific course of action that he did. Carter’s own testimony revealed that Hughes told him a rate step-up would follow only if AHCA found that Carter retained no control of South-lake following his resignation. Hughes could not have foreseen that Carter would lay the groundwork for the sale, resign his position, and continue management of the facility through the date of the sale. Thus, the trial court should have dismissed the equitable estoppel count even if MIED had labeled it as a cause of action for promissory estoppel.

Second, in Pasekoff, the plaintiffs claim was actually a request for imposition of a constructive trust. 392 So.2d at 975-76. There, the appellate court held the trial court should have allowed the plaintiff to amend his complaint to raise a constructive trust claim “under the equitable estop-pel theory applied in Chamberlain v. Chamberlain, 115 Fla. 21, 155 So. 136 (1934).” Id. at 976. Here, MIED attempted to frame equitable estoppel as a cause of action at law, in and of itself, rather than as a supporting theory for some other equitable remedy. Consequently, Pasekoff offers no support for MIED.

We also find that any cause of action based upon Hughes’ alleged misstatements of law regarding unrelated purchaser is barred by sovereign immunity. Misstatements of law are insufficient to support a claim of estoppel against the state. See Branca v. City of Miramar, 634 So.2d 604, 606 (Fla.1994); Dep’t of Rev. v. Anderson, 403 So.2d 397, 400 (Fla. 1981). Further, waiver of sovereign immunity in the context of a contract action can only be supported through an express, written contract. See, e.g., County of Brevard v. Miorelli Eng’g, Inc., 703 So.2d 1049, 1051 (Fla.1997) (finding that estoppel cannot be used to alter the terms of an express written contract because otherwise an “unscrupulous or careless government employee could alter or waive the terms of the written agreement, thereby leaving the sovereign with potentially unlimited liability”).

The trial court should have dismissed MIED’s equitable estoppel claim.

IV. Conclusion

MIED’s three breach of contract theories and its equitable estoppel theory fail as a matter of law and should not have been presented to the jury. Our decision on these issues is dispositive and obviates the need to discuss the other issues raised on appeal by AHCA. We therefore REVERSE and REMAND with directions for

the trial court to enter judgment in favor of AHCA.

ERVIN and BOOTH, JJ., concur.


author: STRINGER, Judge.

text:
    John AIELLO, Jr., Appellant, v. Deborah Ann AIELLO, Appellee.
    No. 2D03-1822.
    District Court of Appeal of Florida, Second District.
    Feb. 27, 2004.

      John Aiello, Jr., pro se.
    M. Katherine Ramers, Dunedin, for Ap-pellee.
   STRINGER, Judge.

John Aiello, Jr., the Father, seeks review of the trial court’s nonfinal order requiring supervised visitation with his minor children until the court hears a petition to modify the final judgment filed by Deborah Ann Aiello, the Mother. We do not have jurisdiction to review this nonfi-nal order as an interlocutory appeal. See Fla. R.App. P. 9.130(a)(3). However, we elect to treat this appeal as a petition for writ of certiorari and grant the petition.

The trial court entered a final judgment of dissolution of marriage on August 31, 2001, which provided for shared parental responsibility of the parties’ four minor children with the Mother assuming primary residential responsibility and the Father exercising supervised visitation until his successful completion of the Children and Divorce Seminar. Shortly thereafter, the Father successfully completed the seminar. Pursuant to the terms of the final judgment, the Father’s visitation was subsequently unsupervised. However, at some point, the Mother decided to preclude the Father from exercising his right to visitation with the children.

At the time of the hearing on March 17, 2003, the following motions were pending: (1) the Father’s emergency motion for enforcement of the final judgment, (2) the Mother’s supplemental petition to modify the final judgment, (3) the Mother’s motion for contempt, and (4) the Mother’s motion to temporarily abate visitation. While all of these motions were noticed for hearing on March 17, 2003, the trial court expressly refused to consider any but the Father’s emergency motion for enforcement of the final judgment. The trial court denied the Father’s motion as moot because it sought visitation for two weekends that had already passed. Instead of concluding the hearing, however, the court attempted to get the parties to compromise regarding visitation and eventually ordered the Mother to allow the Father to have supervised visitation with the children until her supplemental petition and other motions were heard.

Pursuant to the final judgment of dissolution, the Father had a right to unsupervised visitation with the children at the time of the hearing on his petition to enforce that right. While purporting to consider only the Father’s petition to enforce the final judgment, the trial court effectively modified the final judgment. Florida courts have repeatedly held that it is a violation of a parent’s due process rights for a court to temporarily modify child custody without providing the parent notice and the opportunity to be heard. See Ryan v. Ryan, 784 So.2d 1215, 1217-18 (Fla. 2d DCA 2001); Wilson v. Roseberry, 669 So.2d 1152, 1154 (Fla. 5th DCA 1996); Gielchinsky v. Gielchinsky, 662 So.2d 732, 733 (Fla. 4th DCA 1995). This rationale plainly applies to a temporary modification of visitation. Furthermore, there are no allegations of an emergency that would justify violating the Father’s due process rights. See Loudermilk v. Loudermilk, 693 So.2d 666, 668 (Fla. 2d DCA 1997) (“[S]uch an order requires an emergency situation such as where a child is threatened with harm, or where the opposing party plans to improperly remove the child from the state.”).

In order to merit certiorari relief, an error must rise to the level of a departure from the essential requirements of the law and it must not have an adequate remedy on direct appeal. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987). An error is a departure from the essential requirements of the law if it is a violation of a clearly established principle of law that results in a miscarriage of justice. Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000). As stated above, modification of the final judgment without notice and opportunity to be heard is a violation of a clearly established principle of law. It is also a miscarriage of justice because it violates the Father’s due process rights. Furthermore, the Father will have no adequate remedy on direct appeal for the temporary interference with his visitation. Accordingly, we grant the Father’s petition for writ of certiorari and quash the trial court’s order.

Petition granted; order quashed.

SILBERMAN and CANADY, JJ„ Concur.


author: THREADGILL, EDWARD F„ Senior Judge.

text:
    Anthony Troy WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1954.
    District Court of Appeal of Florida, Second District.
    Feb. 27, 2004.
    Mark A. Fromang of Fromang & Fro-mang, P.A., Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appellee.
   THREADGILL, EDWARD F„ Senior Judge.

Anthony Troy Wright appeals from his sentence for trafficking in 3,4-methylene-dioxymethamphetamine (MDMA). He argues that the three-year mandatory minimum sentence imposed by the trial court pursuant to section 893.135(1)(j)(2)(a), Florida Statutes (2000), is illegal under Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). We affirm because Wright’s sentence is not affected by Taylor.

Chapter 99-188, Laws of Florida, provided for the imposition of mandatory minimum prison sentences for certain drug offenses. Taylor held that chapter 99-188 was unconstitutional because it violated the single subject rule of the Florida Constitution. The window period for raising a Taylor challenge opened July 1, 1999, and closed April 29, 2002. See Green v. State, 839 So.2d 748, 750 n. 1 (Fla. 2d DCA), revieio granted, Franklin v. State, 854 So.2d 659 (Fla.2003). In this appeal, Wright argues that because his offense occurred in February 2002, within the window period, his mandatory minimum sentence is illegal under Taylor. However, this argument is incorrect because trafficking in MDMA was not among the drug offenses listed in chapter 99-188. Trafficking in MDMA and other phenethyla-mines did not become a statutory offense until chapter 2000-320, Laws of Florida, took effect on October 1, 2000. Ch. 2000-320, § 4, at 3497, § 29, at 3544, Laws of Fla. Chapter 2000-320 also imposed mandatory minimum sentences for the new drug offenses created by that amendment. Id. § 4, at 3497. As the Third District has recently noted, the addition of new drug offenses and the imposition of mandatory minimum sentences for these offenses by chapter 2000-320 was not part of chapter 99-188 “and thus was not affected by any infirmity in chapter 99-188,” by Taylor, “or by enactment of chapter 2002-212, Laws of Florida.” Urruchurtu v. State, 858 So.2d 387, 388 (Fla. 3d DCA 2003). Therefore, Wright is not entitled to relief.

Wright cites Gilbert v. State, 843 So.2d 972 (Fla. 2d DCA 2003), in support of his argument. In Gilbert, the defendant filed a postconviction motion under Florida Rule of Criminal Procedure 3.800(a), challenging, under Taylor, the imposition of three-year mandatory minimum sentences for trafficking in cocaine and trafficking in MDMA. This court stated that Gilbert’s offenses occurred within the Taylor window period and that he had presented a facially sufficient claim which may entitle him to relief. This court remanded for the trial court to consider whether Gilbert was entitled to resentencing under the 1997 statute for both offenses.

We were confronted with the same issue in Staley v. State, 860 So.2d 981 (Fla. 2d DCA 2003). In that case, the defendant challenged by direct appeal the three-year mandatory minimum sentences imposed on him for trafficking in hydrocodone and trafficking in phenethylamines. He argued that the mandatory minimum sentences were illegal under Taylor. Because Staley’s offenses occurred in July 2001, within the Taylor window period, this court reversed the mandatory minimum sentences and remanded for resentencing “under the valid law in effect at the time of Staley’s offenses.”

We recede from Gilbert and Staley to the extent that they hold that a defendant convicted of trafficking in phenethylamines and sentenced to a mandatory minimum sentence under section 893.135(1)© is entitled to relief under Taylor.

Accordingly, we affirm Wright’s judgment and sentence.

ALTENBERND, C.J., FULMER, WHATLEY, NORTHCUTT, CASANUEVA, SALCINES, STRINGER, DAVIS, SILBERMAN, COVINGTON, KELLY, CANADY, VILLANTI, and WALLACE, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Roger FOELEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3375.
    District Court of Appeal of Florida, Second District.
    Feb. 27, 2004.
   NORTHCUTT, Judge.

Roger Foeley appeals the order denying his motion to vacate judgment, withdraw plea, and correct illegal sentence. We affirm the denial of his claim based on Heggs v. State, 759 So.2d 620 (Fla.2000), and his claim of ineffective assistance of counsel without further comment. As to the remaining ground, however, we reverse and remand for further proceedings.

Foeley contended that his plea was involuntary because his ingestion of the prescription drug Pamelor rendered him unable to comprehend the nature and consequences of the plea. The circuit court denied the claim as successive because Foeley had previously attempted to withdraw his plea on these grounds in a motion filed pursuant to Florida Rule of Criminal Procedure 3.170(Z). Thus, the court did not reach the merits of this claim.

Apparently, the circuit court was not alerted to this court’s opinion in Foeley v. State, 828 So.2d 483 (Fla. 2d DCA 2002), in which we affirmed the order denying Foeley’s earlier rule 3.170(i) motion without prejudice to his filing a facially sufficient motion pursuant to Florida Rule of Criminal Procedure 3.850. We specifically stated that “[i]f Foeley files such a timely motion, it shall not be deemed successive.” Id. at 483. Because the present motion to withdraw his plea was timely, the circuit court should not have denied this claim as successive.

Foeley’s motion presents a facially sufficient claim. The circuit court attached the transcript of the plea colloquy to its order. That transcript supports, rather than rebuts, Foeley’s assertion. Because the record attachments do not conclusively refute Foeley’s claim, an evi-dentiary hearing is required. See Gunn v. State, 379 So.2d 431, 432 (Fla. 2d DCA 1980) (holding summary denial of a motion for postconviction relief can only be sustained where “the motion and the files and records in the case conclusively show that the prisoner is entitled to no relief'’) (citations omitted). Accordingly, we reverse that portion of the order denying Foeley’s motion to withdraw his plea on this ground, and we remand for an evidentiary hearing.

Affirmed in part, reversed in part, and remanded.

FULMER and SILBERMAN, JJ., concur.

      . The circuit court treated this portion of the motion as one filed pursuant to Florida Rule of Criminal Procedure 3.850.


text:
    Collie COX, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2978.
    District Court of Appeal of Florida, Second District.
    Feb. 27, 2004.
   WALLACE, Judge.

We affirm the order of the trial court summarily denying Collie Cox’s motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Our affirmance is without prejudice to any right Cox might have to file, within thirty days from the date of the mandate in this case, a rule 3.850 motion that raises a facially sufficient claim in regard to ground one of the present motion. Any such motion shall not be considered successive.

Affirmed.

FULMER and SILBERMAN, JJ., concur.


author: COVINGTON, Judge.

text:
    Brad MONTGOMERY, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4775.
    District Court of Appeal of Florida, Second District.
    Feb. 27, 2004.
   COVINGTON, Judge.

Brad Montgomery appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the order of the trial court and remand for an evidentiary hearing.

In June 2001, Montgomery pleaded no contest to aggravated manslaughter of a child and was sentenced pursuant to a negotiated plea to twenty-two years in prison, with the last two years suspended, to be followed by 100 hours of community service. In his motion, Montgomery alleges that his plea was involuntary because his counsel erroneously informed him that he was not eligible to be classified as a youthful offender. He contends that he would not have entered a plea if he had known that he qualified as a youthful offender.

In order to adequately refute a claim like this from the record, the discussion with the court during the plea colloquy must explore the specific issue upon which the defendant asserts he was misadvised. Johnson v. State, 736 So.2d 713, 714 (Fla. 2d DCA 1999). The issue of Montgomery’s eligibility to be sentenced as a youthful offender was never discussed. Therefore, his claim is not refuted by the record.

“Defense counsel must inform a defendant of ‘all pertinent matters bearing on the choice of which plea to enter ... and the likely results.’ Fla. R.Crim. P. 3.171(c)(2)(B).” Carswell v. State, 845 So.2d 263, 263 (Fla. 2d DCA 2003) (citing Walker v. State, 642 So.2d 56, 57 (Fla. 2d DCA 1994)). We cannot conclude from this record whether Montgomery’s allegations regarding his attorney’s failure to advise him that he was eligible for sentencing as a youthful offender are true. However, we believe this claim is facially sufficient to entitle him to an evidentiary hearing. See Sanders v. State, 432 So.2d 752 (Fla. 2d DCA 1983).

Reversed and remanded.

FULMER and SILBERMAN, JJ., concur.


text:
    Kenneth BRADFORD, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3229.
    District Court of Appeal of Florida, Second District.
    Feb. 27, 2004.
   NORTHCUTT, Judge.

Kenneth Bradford appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. According to Bradford, he pleaded guilty to multiple counts of robbery in 1993. In his motion, Bradford sought to withdraw his plea based on newly discovered evidence. He attached an affidavit from Kendrick Cunningham. Cunningham claimed that Adrian Evans, the man who implicated Bradford in one of the robberies, admitted to Cunningham that he had an agreement with the police to implicate Bradford but that Bradford did not commit the robbery.

The circuit court applied the newly discovered evidence standard set forth in Jones v. State, 591 So.2d 911 (Fla.1991), in denying Bradford’s motion. In this case, the Jones standard is virtually impossible to apply because there was no trial and no evidence introduced. Any determinations as to the nature and admissibility of the evidence would be speculative. We believe that the circuit court should have applied the more appropriate standard for withdrawal of pleas after sentencing, which requires the defendant to prove that withdrawal of his plea is necessary to correct a manifest injustice. See Miller v. State, 814 So.2d 1131 (Fla. 5th DCA 2002); Scott v. State, 629 So.2d 888 (Fla. 4th DCA 1993).

In applying the more appropriate standard for withdrawal of pleas after sentencing, we conclude that the circuit court properly denied Bradford’s claim. Bradford’s claim is facially insufficient because he did not allege that withdrawal of his plea is necessary to correct a manifest injustice. See Williams v. State, 316 So.2d 267 (Fla.1975); Miller, 814 So.2d at 1132; Scott, 629 So.2d at 890. Therefore, we affirm the circuit court’s order of denial without prejudice to Bradford’s right to file a timely, facially sufficient motion to withdraw plea based on the newly discovered evidence.

Affirmed.

FULMER and SILBERMAN, JJ., concur.