text:
    B.M., a juvenile, Petitioner, v. Dale DOBULER, Super. Miami-Dade, etc., et al., Respondents.
    No. 3D07-2734.
    District Court of Appeal of Florida, Third District.
    March 19, 2008.

      Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for petitioner.
    Bill McCollum, Attorney General, and Lane Hodes, Assistant Attorney General, for respondents.
    Before GREEN, SHEPHERD and ROTHENBERG, JJ.
   PER CURIAM.

B.M., a child, petitioned this Court for a writ of habeas corpus on the ground that she was being held illegally in secure detention pending disposition of a violation by her of the conditions of her probation. Although her petition, along with several others involving the same issue recently filed with this Court, has become moot, we address the issue because of its frequent continued recurrence before this Court. A.K. v. Dobuler, 951 So.2d 989, 990 (Fla. 3d DCA 2007) (noting that although time sensitivity required an earlier grant of ha-beas corpus, a later opinion was necessary to “give some guidance to the juvenile bench and bar”); RG. v. State, 817 So.2d 1019, 1020 (Fla. 3d DCA 2002) (“We would think that the message to this trial court judge should be clear that he too must follow the law.”).

The detention of juveniles in Florida is governed by chapter 985, Florida Statutes. See ch. 985, pt. V, Fla. Stat. (2007). Part III of chapter 985 expressly states that the sole means by which a juvenile judge may take a child into custody is “[pjursuant to an order of the circuit court issued under this chapter.” § 985.101, Fla. Stat. (2007); see also A.K, 951 So.2d at 991 (“In Florida, the detention of juveniles is governed completely by statute.”); accord R.G., 817 So.2d at 1020. Section 985.24 of the Florida Statutes, entitled “Use of detention; prohibitions,” clearly and unambiguously sets forth the grounds on which a child may be detained. See § 985.24(1)(a)-(e), Fla. Stat. (2007). Absent a statutory exception, see § 985.255(2), Fla. Stat. (2007), an order placing a child in detention must be based “primarily” upon at least one of those grounds and supported by a proper “risk assessment of the child.” § 985.245(1), Fla. Stat. (2007); R.W. v. Soud, 639 So.2d 25, 26-27 (Fla.1994) (“[AJbsent the findings required by subsection (1) [of section 985.24] and the risk assessment required by [section 985.245(1) ], detention of a juvenile is not permitted either before or after adjudication.”).

The only other authority to be found in chapter 985 authorizing a juvenile court judge to hold a child in custody or “secure detention” prior to adjudication or disposition appears in section 985.037 of the Florida Statutes, where the legislature afforded the juvenile court “limit[ed]” powers to “punish [a] child for contempt for interfering with the court or with court administration, or for violating any provision of this chapter or order of the court relative thereto.” § 985.037(1), Fla. Stat. (2007) (emphasis added); see also R.G., 817 So.2d at 1019 (holding that “[s]ection 985.213(2)(a) [now renumbered as section 985.245(1) ] is clear in its requirement that all determinations and court orders regarding detention be based on a risk assessment of the child[,]” but noting that the trial court also may base an order of detention on the contempt statute).

This case involves an unmanageable fourteen-year-old child. In August 2006, the child, B.M., was charged with misdemeanor battery for kicking her mother in the leg during an argument. At the end of September, she accepted a plea in which she agreed to attend a state-sponsored Juvenile Alternative Sanctions System (JASS) diversion program in lieu of trial. When, on November 6, 2006, the court was advised that B.M. had failed to complete the program, it set her case for disposition on January 22, 2007. In the next thirty days, three “pick-up orders” were issued for B.M. for various infractions, resulting in the disposition hearing being rescheduled for December 19, 2006. B.M. voluntarily appeared in court on that date and pled guilty to the misdemeanor charge. The trial court sentenced her to probation, the conditions of which included that she “stay at her mother’s home” and “abide by all the other rules and regulations [of] her probation officer and her mother.”

Not surprisingly, B.M. had no interest in staying home. Between January and July of 2007, the juvenile court issued four more “pick-up orders” at the behest of her parents or her juvenile probation officer. Just as before, B.M. refused to report to home or school. During this time, she also was tested once for drugs, and the report came back negative. Eventually, B.M.’s irresponsibility drew an affidavit of violation of probation from her juvenile probation officer. In July, B.M. — again appearing voluntarily before the court — pled guilty, and was sentenced to attend Dade Marine Institute, a nonresidential commitment program, abide a 7:00 p.m. curfew at her mother’s house, attend counseling, and comply with other conditions. Thirteen days later, B.M. left home again, and between her disposition in July and the month of September, she drew another two “pick-up orders” and a second affidavit of violation of probation.

A hearing on this violation was set for October 22, 2007. B.M. again appeared voluntarily and again admitted to violating her probation. Disposition was set for November 9, 2007. As the hearing concluded, the judge summarily ordered her from the courtroom to secure detention pending disposition. When her counsel objected, the court responded that it would issue an order to show cause why B.M. should not be held in contempt of court for her unruly behavior. Two days later, the rule issued. But before a hearing was held on the show cause order, the court issued an Order of Detention. After chronicling B.M.’s conduct, the court stated:

This unfortunate history of this child running away, staying away from home for days at a time with people the Mother is unaware of is dangerous and risky behavior. The child has shown a willful, wanton disregard for all prior orders of the Court notwithstanding the Court, and DJJ’s efforts to modify the Respondent’s behavior. Both the Court and the Mother are afraid that this child will continue to run and eventually disappear and not return home, thereby subjecting her to the possibility of being killed or injured while she is out on the street. Further, there is a great possibility that the child will commit new law violations in order to support herself on the street or at the request of others who may be supporting her. This is an untenable and unacceptable risk both to the child and to the community.
Based on this child’s extensive record of absconding from home and her [u]tter disregard of the Court process, the Court has determined that it is in the best interest of the child to be detained until the date of her next hearing, which is the disposition on her second admission to a violation of probation scheduled for November 9th at 9:00 a.m.

There is no evidence that the court was favored with a statutory risk assessment instrument sufficient to justify upgrading B.M.’s status to secure detention before its summary dispatch of B.M. to a secure facility. The only risk assessment instrument provided to us — prepared December 8, 2006 in connection with a “pick-up order”. — .gives B.M. a score of one point for the shin kick she gave her mother. A period of eighteen days would have passed between B.M.’s initial placement in secure detention on October 22, 2007, and her disposition on November 9, 2007.

On October 26, 2007, B.M. filed an emergency petition for writ of habeas corpus seeking release. On October 31, 2007, we granted the writ and ordered her immediate release from secure detention.

DISCUSSION

Florida’s juvenile justice system is — for better or worse — a creature of statute. See §§ 985.01-.807, Fla. Stat. (2007). This arrangement imposes a unique set of limitations on the ability of the circuit judges in this state to control juvenile delinquents. While the circuit judges of this state have a panoply of inherent powers to impose restraints on recalcitrant adult criminal defendants, the power of those same judges to detain a child respondent in a juvenile proceeding conducted pursuant to chapter 985 of the Florida Statutes is strictly limited by law. R.G., 817 So.2d at 1020; see also § 985.02(4)(a), Fla. Stat. (2007) (“The Legislature finds that detention should be used only when less restrictive interim placement alternatives prior to adjudication and disposition are not appropriate.”).

In this case, B.M. argued to us that, under the circumstances, a juvenile court judge only had the power to detain her pursuant to a properly conducted contempt proceeding initiated pursuant to section 985.037(4)(b), Florida Statutes (2007). In that section, the legislature established the following procedure for juvenile contempt proceedings:

(b) If a child is charged with indirect contempt of court, the court must hold a hearing within 24 hours to determine whether the child committed indirect contempt of a valid court order. At the hearing, the following due process rights must be provided the child:
1. Right to a copy of the order to show cause alleging facts supporting the contempt charge.
2. Right to an explanation of the nature and the consequences of the proceedings.
3. Right to legal counsel and the right to have legal counsel appointed by the court if the juvenile is indigent under s. 985.038.
4. Right to confront witnesses.
5. Right to present witnesses.
6. Right to have a transcript or record of the proceeding.
7. Right to appeal to an appropriate court.

§ 985.037(4)(b), Fla. Stat. (2007). Although the judge issued an order to show cause in this case, a hearing was never held on the rule issued. No statutory safeguards were afforded.

In its response, the State conceded that the summary detention of B.M. could not be sustained under the juvenile court’s statutory contempt powers, but argued that the trial court’s dual findings that B.M. presented an “extensive record of absconding from home” as well as “disregard of the Court process” were sufficient to justify secure detention under section 985.255(3)(b) of the Florida Statutes (2007). For the reasons that follow, this argument is meritless, if not frivolous.

Ordinarily, the placement of a child into detention is dependent upon the existence of a validly prepared and scored risk assessment instrument supporting the placement. See supra n. 2. However, section 985.255(3)(b) of the Florida Statutes (2007), in which the State seeks solace in this case, authorizes a juvenile court judge to depart from the placement indicated in the risk assessment instrument and order a more restrictive placement in a proper circumstance. The section states: “If the court orders a placement more restrictive than indicated by the results of the risk assessment instrument, the court shall state, in writing, clear and convincing reasons for such placement.” § 985.255(3)(b), Fla. Stat. (2007) (emphasis added). Importantly, the authorization to depart contemplates that the beginning point of any departure will be a preexisting risk assessment. See K.E. v. Dep’t of Juvenile Justice, 963 So.2d 864, 866 (Fla. 1st DCA 2007) (“The written statement of clear and convincing reasons for deviating from the level of restrictiveness indicated by the standardized scoring is not optional; it is required by the department in order to make a more restrictive placement lawful.”); Fryer, 765 So.2d at 265 (noting that a judge is “given the power to order a more restrictive placement than recommended by the RAI, but if that judge does so it must be based on clear and convincing reasons gleaned from the record and evidence and consistent with the statutes”).

In this case, there is no evidence that the court had a risk assessment instrument in front of it when it ordered B.M. from the courtroom. There is no indication in the record, the hearing transcript, or in the judge’s order, that the court took account of any risk assessment when it ordered B.M.’s detention. Thus, the order of detention cannot fairly be called a “departure” from anything. § 985.25, Fla. Stat. (2007); K.E., 963 So.2d at 866. The trial court simply summarily ordered B.M. into detention.

Moreover, to the extent the court sought in its post-hearing Order of Detention to label B.M. as an “absconder” to justify detaining her, this post-hoc justification is not supportable either factually or legally. The record reflects that B.M. left or “ran away” from home on three occasions after entering the system as a result of kicking her mother in August 2006, and nine more times in the full year 2007. In each case, she was picked up either by her mother or authorities and returned to her mother. On the one occasion in 2006 for which we have a sufficient record from which to glean, B.M. left home on December 6 and was found by her mother the next day. Of the six occasions in 2007 for which we have data, the record reflects that she was away from home overnight on four occasions, two nights on a fifth occasion, and four nights on a sixth. There is no suggestion in the record of extraordinarily lengthy absences or even an effort to avoid judicial process. That these facts are insufficient to warrant the designation of B.M. as an “absconder” in this case is supported by reference both to case law and the manual of the department responsible for managing wayward youth in this state, the Florida Department of Juvenile Justice.

As to the latter, we allude to this reference — the Florida Department of Juvenile Justice’s Probation & Community Corrections Handbook — largely due to the absence of a statutory definition of the term “absconder” in the law of this state as it has been adopted to protect the public against juvenile crime and delinquency. See generally ch. 985, Fla. Stat. (2007). This handbook, which aspires to function as a comprehensive guide to all Department staff, agents, interns, and volunteers associated with the Department in the performance of their duties, contains the following definition — utilized by juvenile probation officers and other Departmental officials who receive children taken into custody by law enforcement — for classifying a child as an “absconder” when completing a risk assessment instrument for that child:

1. A youth is considered an absconder if he/she “goes in a clandestine manner out of the jurisdiction of the courts in order to avoid the legal process”, or “to hide, conceal, or absent oneself clandestinely, with the intent to avoid the legal process”.
a. The juvenile probation officer must have cause to believe that the youth is deliberately avoiding supervision or has removed himselfiherself from the home or community to avoid supervision and the legal process. A youth reported by the parent(s)/guardian(s) to have run away, without the parent(s’)/guardian(s’) knowledge of their whereabouts, is considered to be an absconder.
b. There must be intent to avoid the legal process. Simple absence or not appearing for appointments does not constitute absconding, but may constitute a technical violation of the conditions of probation.

Department of Juvenile Justice, Probation & Community Corrections Handbook, 6-27-28 (2006) (emphasis added). The definition is clear in its requirement of two elements: first, there must be some kind of “going in a clandestine manner,” “hiding,” “concealing,” or “absenting”; and second, there must be some “intent to avoid the legal process.” Id. Subsection l.b underscores the importance of the intent requirement of subsection 1 and draws a sharp distinction between “absconders” and children who merely have violated the conditions of their probation by “simple absence” or “not appearing.” B.M. is not an “absconder” under any departmental rules, policies, or definitions of the Florida Department of Juvenile Justice.

Nor is B.M. an absconder under the reasoning of the most comprehensive case that we have been able to locate in which a court of this state has plumbed the legal contours of the term in the juvenile context, Z.B. v. Department of Juvenile Justice, 938 So.2d 584 (Fla. 1st DCA 2006). In Z.B., the First District Court of Appeal had before it a consolidated appeal involving two separately detained petitioners. Id. One, Z.B., was adjudged an absconder simply for violating curfew and twice staying out all night. The other, G.T., was adjudged an absconder for failing to complete community service, failing to write an essay, unsatisfactory attendance in a program and failure to appear at his violation of probation arraignment. Id. Both were ordered to secure detention. Id. at 585. Without the additional points on their respective risk assessment instruments for absconding, neither would have been eligible. Id.

On appeal, both Z.B. and G.T. asserted that their offenses failed to rise to the level of “absconding” within the meaning of chapter 985, Part V. Id. Agreeing with the petitioners, the First District Court of Appeal found support in several legal quarters, including chapter 985 itself, the Department of Juvenile Justice Handbook, and the legal dictionary, noting that:

[I]t appears that although petitioners may have violated the curfew condition of their probation, petitioners cannot be considered “absconders” because they voluntarily returned to their approved residences. Petitioners do not meet [the Department’s] Handbook’s definition of an absconder. There was no evidence presented that either petitioner was “gone in a clandestine manner out of the jurisdiction of the courts in order to avoid legal process” or to “hide, conceal or absent himself clandestinely with the intent to avoid legal processes.” Chapter 985 does not define the term “abscond,” nor does there appear to be any juvenile case law defining the term. Black’s Law Dictionary 7 (8th ed. 2004) defines abscond as to “depart secretly or suddenly, especially to avoid arrest, prosecution, or service of process,” or “to leave a place, usually hurriedly, with another’s money or property.” The Interstate Compact on Juveniles, codified in Chapter 985, Part V, makes several references to juveniles who have “absconded, escaped or run away,” [] which suggests a leaving without the intent to return.

Z.B., 938 So.2d at 585-86.

Finally, according to the work of the First District, which our research confirms, “cases [exist] in which juveniles have been charged with both violating curfew and absconding, which suggests that curfew violations and absconding are not the same offense.” Id. (emphasis added); see, e.g., K.G. v. State, 759 So.2d 752 (Fla. 4th DCA 2000) (reversing trial court finding of violation of aftercare where affidavit alleged that juvenile had violated by leaving home without permission, disobeying curfew and absconding from aftercare program); Dep’t of Health & Rehab. Servs. ex reí M.H. v. State, 447 So.2d 359, 360 (Fla. 1st DCA 1984) (finding a violation of community control where juvenile failed to abide by curfew and absconded). Z.B. fully supports our conclusion in this case that B.M. is not an absconder for purposes of a detention determination made pursuant to chapter 985. At most, B.M. — like Z.B. and not unlike G.T. — violated curfew, or, as the trial court itself at one point observed, on occasion chose simply to “stay[ ] away from home for [several] days at time.”

The State calls our attention to T.C. v. Layne, 725 So.2d 1278 (Fla. 4th DCA 1999), and argues that it is more apposite on the facts of our case than Z.B. We disagree. In T.C., the Fourth District Court of Appeal affirmed a decision of the juvenile court, which ordered T.C. to secure detention “for the dual reasons that she had escaped or absconded from a community control program and because she qualified for detention under the Department of Juvenile Justice’s risk assessment calculation for the same reason.” Id. at 1279. However, the issue addressed in T.C. was not whether she was an “absconder” but rather whether, under the law applicable at the time, “[T.C.’s] act of leaving her approved residence while on community control can be considered escaping or absconding from a ‘community control program.’ ” Id. The court of appeal answered the question in the affirmative. Id. at 1280. Based on this finding, the State urges to us that the Fourth District also implicitly found that she was an “absconder.” Because the statute applicable at the time applies to both “an escapee or an absconder,” see § 985.215(2)(a), Fla. Stat. (1997), no such deduction can be made. Of equal importance, the trial court had before it in T.C. “the Department of Juvenile Justice’s risk assessment calculation” — i.e., a risk assessment instrument. T.C., 725 So.2d at 1278. T.C. offers no support to the State in orn-ease.

The second reason given by the trial court and argued to us by the State for ordering B.M. directly to secure detention — “disregard of court process” — is also an insufficient reason to support secure detention in this case. In the first place, it is not factually supported. B.M. has appeared voluntarily at every court hearing set in her case. Furthermore, if the trial court was truly of the belief that B.M.’s conduct amounted to an “[utter] disregard of court process,” the proper vehicle by which to vindicate such a snub was a properly-convened indirect contempt proceeding. See § 985.037(4)(b), Fla. Stat. (2007); R.G., 817 So.2d at 1020; see, e.g., T.M. v. Dobuler, 959 So.2d 279, 280 (Fla. 3d DCA 2007) (noting that contempt is “an alternative permissible procedure to address juvenile violators of community control)” (quoting G.S. v. State, 709 So.2d 122, 123-24 (Fla. 5th DCA 1998)). The court ordered, but did not conduct, such a proceeding in this case. Instead, the court chose to accept a plea by B.M. for violation by her of her probation and set her case for disposition. Having so chosen, the court was limited to the remedies prescribed in section 985.439(4)(a)-(d), Florida Statutes (2007):

(4) If the child is found to have violated the conditions of probation or postcom-mitment probation, the court may:
(a) Place the child in a consequence unit in that judicial circuit, if available, for up to 5 days for a first violation and up to 15 days for a second or subsequent violation.
(b) Place the child on home detention with electronic monitoring .... if a residential consequence unit is not available.
(c) Modify or continue the child’s probation program....
(d) Revoke probation ... and commit the child to the department.

See also Z.B., 938 So.2d at 586-87. Secure detention is not among these remedies.

While it is quite understandable that a juvenile court judge, as here, would be frustrated by B.M.’s lack of respect for the court and her mother — herself a full participant in the effort to tame B.M. — that does not empower the court to abandon its statutory role as a neutral arbiter between the child, the parents, and the power of the state. Even the United States Supreme Court has remarked about the negative impact on credibility and rehabilitative capacity that failure to follow the law can have in juvenile delinquency cases. See In re Gault, 387 U.S. 1, 26, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (“Unless appropriate due process of law is followed, even the juvenile who has violated the law may not feel that he is being fairly treated and therefore may resist the rehabilitative efforts of court personnel.”) (quoting Stanton Wheeler & Leonard S. Cottrell, Jr., Juvenile Delinquency — Its Prevention and Control 33 (1966)). We will not pretend to expertise in this area. However, we do know that the courts charged with enforcing chapter 985 of the Florida Statutes relating to juveniles, including both the trial courts and all other courts in our state, are under a legislative charge “[t]o provide judicial and other procedures to assure due process through which children and other interested parties are assured fair hearings by a respectful and respected court[.]” § 985.01, Fla. Stat. (2007). That is good enough for us.

In so stating, we are not unmindful of the concerns stated by the trial court for summarily ordering B.M. to secure detention pending disposition of her case. However, fear that B.M. will “continue to run and eventually disappear and not return home” with all of its potential consequences is insufficient to justify the order entered in this case. See K.E., 963 So.2d at 867 (holding that “fear[] that child would run away and then perhaps take drugs or engage in sexual activity [was] not sufficient to justify an order holding a child with two misdemeanor offenses and a score of only two points in a secure detention facility”). This is consistent with the express legislative policy of strictly controlling the detention of juveniles in this state. If a trial judge were to treat the power to detain a child as a purely discretionary power, the purpose of the statute would be subverted. It is not for us to question the wisdom of that legislation. Rather, it is our role simply to carry it out.

As we stated at the outset, we address the issue raised in this case because of its frequent continued recurrence before this Court. The public defender has pointed out that the trial judge in this case — the same one who detained A.K. in A.K., 951 So.2d at 989 — has similarly detained at least three other juveniles. See id.; K.J. v. Dobuler, 939 So.2d 1073 (Fla. 3d DCA 2006); R.B. v. Dobuler, Case No. 3D07-211 (Fla. 3d DCA Jan. 26, 2007) (Wells, Cortiñas, JJ., and Schwartz, Senior J.) (order); see also A.R. v. Dobuler, 960 So.2d 793 (Fla. 3d DCA 2007). Although this might have been done for the best of motives, a decision to detain a child must be made according to the strict statutory criteria established by the legislature for this purpose. If this basic principle of the law pertaining to the detention of juveniles prior to an adjudicatory hearing or disposition was not clear before today, then we believe it should be now. Accordingly, just as the trial judge in this case had the “right to expect that [B.M. would] respect his orders” and understandably was frustrated when B.M. did not, “we, as the court created by the constitution for the purpose of supervising the lower court, are entitled to the same obedience.” State ex rel. Schwartz v. Lantz, 440 So.2d 446, 450 (Fla. 3d DCA 1983).

Petition granted.

      . In 1994, when R.W. issued, the statutory language supporting this conclusion of the Florida Supreme Court appeared in sections 39.042(1) and (3) of the Florida Statutes (1993). Compare § 39.042, Fla. Stat. (1993) with § 985.24(1), Fla. Stat. (2007); § 985.245(1), Fla. Stat. (2007).

      . A Risk Assessment Instrument (RAI) is a standardized document developed cooperatively by interested state agencies and utilized statewide in determinations regarding placement of a child in detention care. § 985.245(1), (2)(a). Since 1988, Florida law has required detention determinations to be based upon a validly prepared and scored RAI, replacing a scheme which had previously reposed broad discretion in juvenile court judges to make such determinations. See § 39.082(2), Fla. Stat. (1987); JJ. v. Fryer, 765 So.2d 260, 265 (Fla. 4th DCA 2000) ("The current statutory framework supplants discretion with specific rules governing the judge and disposition ... [with the] purpose to make the matter of juvenile detention in delinquency cases less subject to individualized variations by judges.”). According to criteria set by the instrument, a child who has a score of twelve or more points qualifies for secure detention, a child who has a score of seven to eleven points qualifies for home detention, and a child who scores below seven points does not qualify for any form of detention. See S.W. v. Woolsey, 673 So.2d 152, 154 (Fla. 1st DCA 1996) (detailing the requirements for a valid RAI, the instrument's method of assessing risk, and the impact of that assessment on custody status). The infraction which brought B.M. into the system is a misdemeanor. Counsel for B.M. argues, for reasons not material here, that under proper application of the uniform protocol, there should have been no point assessment for the misdemeanor on her RAI.

      . Notably, a finding of contempt under section 985.037 would not have accomplished the trial judge’s goal since B.M. could not have been placed in secure detention more than five days. § 985.037(2), Fla. Stat. (2007).

      . We acknowledge that the final sentence of subsection l.a, read in isolation, affords an argument equating a "run away” to an "absconder.” We believe that such a wooden interpretation of this handbook provision would be improper on numerous levels ranging from unnecessarily constricting the judgment which must be afforded probation officers and other departmental personnel in making risk assessments, to vitiating the remainder of the definition requiring "intent” to avoid the legal process and excluding "simple absence[s]” from the absconder definition. Cf. Knowles v. Beverly Enters.-Fla., Inc., 898 So.2d 1, 9 (Fla.2004) ("[W]here possible, it is the duty of the courts to adopt that construction of a statutory provision which harmonizes and reconciles it with other provisions of the same act.”) (quoting Agency for Health Care Admin, v. Estate of Johnson, 743 So.2d 83, 87 (Fla. 3d DCA 1999)); Triple E Dev. Co. v. Floridagold Citrus Corp., 51 So.2d 435, 438-39 (Fla.1951) ("[I]f clauses in a contract appear to be repugnant to each other, they must be given such an interpretation and construction as will reconcile them if possible[.]”).

      . The court referenced part V, sections 985.501(l)(a) and 985.502, Florida Statutes (2005). The Interstate Compact on Juveniles now appears in part XIII, sections 985.801 and 985.802, Florida Statutes (2007).

      . A search of cases from neighboring jurisdictions reveals our understanding of the meaning of “abscond” to be similar to that of other states. See, e.g., State v. Graham, 284 N.J.Super. 413, 665 A.2d 769, 770 (1995) (noting that the offense of absconding from parole in New Jersey consists of two elements, "hiding” or "leaving” and the "intent” to avoid law enforcement); In re R., 73 Misc.2d 390, 341 N.Y.S.2d 998, 1001 (1973) ("To abscond in the eyes of the law ... involves a design to withdraw clandestinely, to hide or conceal one's self for some purpose such as avoiding legal proceedings.”); State v. Snelgrove, 299 S.C. 290, 384 S.E.2d 705, 706 (1989) (noting that “[t]here must be some evidence, either direct or circumstantial, that the departure was secretive, clandestine, or surreptitious in order for it to constitute 'absconding'") (quoting State v. Wagenius, 99 Idaho 273, 581 P.2d 319, 327 (1978)).

      .The applicable statute at the time, section 985.215(2)(a), Florida Statutes (1997) read:
      (2) Subject to the provisions of subsection (1), a child taken into custody and placed into nonsecure or home detention care or detained in secure detention care prior to a detention hearing may continue to be detained by the court if:
      (a) The child is alleged to be an escapee or an absconder from a commitment program, a community control program, furlough, or aftercare supervision, or is alleged to have escaped while being lawfully transported to or from such program or supervision.
      § 985.215(2)(a), Fla. Stat. (1997) (emphasis added).


source: Caselaw Access Project

author: WELLS, Judge.

license: Public Domain

text:
    MIAMI-DADE COUNTY, Florida, a political subdivision of the State of Florida, Appellant, v. CORAL BAY SECTION C HOMEOWNERS ASSOCIATION, INC., Appellee.
    No. 3D07-2315.
    District Court of Appeal of Florida, Third District.
    March 19, 2008.

      R.A. Cuevas, Jr., Miami-Dade County Attorney, and Thomas Goldstein and Jorge Martinez-Esteve, Assistant County Attorneys, for appellant.
    Kruk & Dough and Graden M. Dough, Port Richey, for appellee.
    Berger Singerman and Daniel H. Thompson, Tallahassee, for Village of Pi-necrest as Amicus Curiae.
    Before COPE, WELLS and ROTHENBERG, JJ.
   WELLS, Judge.

Miami-Dade County appeals from an order denying its motion to set aside a default judgment. Because we agree that the trial court abused its discretion in refusing to set aside the default, we reverse.

In July of 1972, Gables-by-the-Sea, a bay-front development located in southwest Miami-Dade County, conveyed to the County an earthen salinity dam located within a manmade canal. This salinity dam prevents saltwater from intruding from Biscayne Bay into the up-land South Florida water table via the manmade canal system in and around the Gables-by-the-Sea development.

The deed conveying the salinity dam expressly provides that the property conveyed will revert to the grantor if the property ceases to be used as a salinity dam or if any structure or obstruction is erected or maintained on the property:

This Deed is executed and delivered upon the express agreement and condition that the property conveyed hereby shall be used solely as a site for a permanent earthen salinity dam and for no other purpose, and that no structures or obstructions of any kind shall ever be erected or maintained thereon, (i.e., that the property shall be maintained as “open space”), and in the event of a discontinuance of said use or the erection or maintenance of any structure or obstruction thereon, the title shall automatically revert to the grantor, its successors or assigns.

Following this conveyance in 1972, the salinity dam has been continuously maintained by the County and used as a salinity dam.

In February 2007, the Coral Bay Section C Homeowner Association, Inc., an entity comprised of a few Gables-by-the-Sea homeowners whose properties abut canals that provide no direct access to Biscayne Bay, filed suit to quiet title in the property conveyed to the County by Gables-by-the-Sea in 1972. Claiming to be the assignee of the original grantor of the 1972 deed, the Association sought to enforce the re-versionary provision of the deed because “utilities were placed into the interior portion of the earthen dam,” and because “the earthen dam has become unsightly and hazardous overgrown with trees, bushes, dense undergrowth, and debris.”

On March 1, the Association served its complaint on Bruno Barreiro, the recently elected Chairman of the Board of the Miami-Dade County Commission. The complaint was delivered to Commissioner Barreiro’s district office located in Little Havana rather than to the Commissioner’s main downtown Miami office (which is located in the same building as that of the Miami-Dade County Attorney’s Office) where service ordinarily is effected. District office staff, unaware that the newly-elected chairman could be served with lawsuits against the County, and believing that the complaint was only a copy of an original filed at the Chairman’s downtown office, failed to follow standard procedure for forwarding legal papers to the County Attorney’s Office until well after the time for answering the complaint had run.

On June 18, 2007, the Chairman’s district office staff learned that no copy of the complaint had been provided to the County Attorney. The complaint was immediately forwarded to the County Attorney’s office which promptly obtained the court file, and, upon learning that a default judgment had been entered, moved to vacate the default judgment. The County’s motion, filed only four days after the County Attorney received the complaint from Chairman Barreiro’s office, was supported by four affidavits asserting excusable neglect, due diligence, and a meritorious defense. The motion was denied. We reverse.

There is no dispute that the County acted with due diligence in moving to vacate the default judgment. The County sought to vacate the default judgment only four days after the County Attorney’s Office received notice of it. There is also no question that the County has a meritorious defense to the Association’s claims. In support of its motion to vacate, the County submitted the affidavit of Susan M. Markley, Ph.D., the Ecosystem Restoration & Planning Division Chief of the Miami-Dade Department of Environmental Resources Management. That affidavit, which was unrebutted, states as follows: (1) by ordinance passed in 1960, salinity dams must be constructed when canals are created near the Biscayne Bay coastline to prevent saltwater intrusion into large up-land public wellfields; (2) in the late 1950’s Gables-by-the-Sea agreed that salinity barriers would be constructed, and remain in place, to “help hold relatively fresh groundwater on the western side, prevent inflow of salty water at the surface, and diminish intrusion of salty groundwater”; (4) in 1972, after the dams were built, the 1950’s agreement was su-perceded by deed; (5) since 1972, some Gables-by-the-Sea homeowners have repeatedly tried to have the dams removed to provide access to Biscayne Bay; (6) although some Gables-by-the-Sea residents have tried to have the dams removed, others have opposed it; (7) recent sampling of water in the canals on both sides of the dams shows that the Gables-by-the-Sea dams do in fact hold back saltwater and function as anticipated; (8) numerous residents of the adjacent Village of Pinecrest obtain their drinking water from private water wells which will be adversely impacted by removal of Gables-by-the-Sea salinity dams; (9) the utilities about which the Association complains consist of a water pipeline that provides water to residents of Gables-by-the-Sea and was placed in the dam before the 1972 deed; and, (10) the only thing on the dam is vegetation grown by “natural recruitment.” Thus, the sole issue for determination here is whether the trial court correctly rejected the County’s claim of excusable neglect. It did not.

Rule 1.540(b) of the Florida Rules of Civil Procedure, in relevant part, provides:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect.

The circumstances constituting excusable neglect, mistake or inadvertence that will justify Rule 1.540 relief are not precisely defined, and as this court long ago recognized, the facts of each case are of singular importance in determining whether relief should be granted. Schwab & Co. v. Breezy Bay, Inc., 360 So.2d 117, 118 (Fla. 3d DCA 1978).

In this case, we find Judge Cope’s analysis in Edwards v. Najjar, 748 So.2d 1101, 1103 (Fla. 3d DCA 2000), which addresses a claim of excusable neglect, to be directly applicable to the facts at hand. As Judge Cope explained:

Florida has a long-standing policy in favor of deciding lawsuits on their merits. See North Shore Hosp., Inc. v. Barber, 143 So.2d 849, 852-53 (Fla.1962); Markowski v. Attel Bank Int’l, 701 So.2d [416] at 417 [(Fla. 3d DCA 1997)] ; Cinkat Transp., Inc. v. Maryland Cas. Co., 596 So.2d 746, 747 (Fla. 3d DCA 1992). Thus, “ ‘ * * * if there be any reasonable doubt in the matter [of vacating a default], it should be resolved in favor of granting the application and allowing a trial upon the merits of the case.’ ” North Shore, 143 So.2d at 853 (citations omitted); see also Apolaro v. Falcon, 566 So.2d 815, 816 (Fla. 3d DCA 1990); cf. George v. Radcliffe, number 98-4416, 753 So.2d 573, 1999 WL 817818 (Fla. 4th DCA Oct. 6, 1999) (analyzing standard of review).

The Fourth District has explained:

[W]here inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir, then upon timely application accompanied by a reasonable and credible explanation the matter should be permitted to be heard on the merits. It is a gross abuse of discretion for the trial court to rule otherwise.
Somero v. Hendry General Hosp., 467 So.2d 1103, 1106 (Fla. 4th DCA 1985).
This court has held that excusable neglect was shown where “the complaint, which had been transmitted from Florida to the corporate secretary at the company’s national headquarters in Los Angeles, became ‘lost’ in a pile of unrelated documents on the desk of the general counsel, who was responsible for retaining a local attorney to file an appropriate response.” Carter, Hawley, Hale Stores, Inc. v. Whitman, 516 So.2d 83, 83-84 (Fla. 3d DCA 1987) (citing, inter alia, Edwards v. City of Fort Walton Beach, 271 So.2d 136 (Fla.1972)) (remaining citations omitted).
Keeping in mind the admonition that in case of doubt, discretion is to be exercised in favor of vacating the default, see North Shore, 143 So.2d at 852-53, we conclude that on this showing the default should have been vacated.

Najjar, 748 So.2d at 1103; see In re Estate of Cummins, 979 So.2d 984, 2008 WL 373414 (Fla. 3d DCA Feb. 13, 2008) (concluding that excusable neglect should have been found where legal assistant unsuccessfully attempted to procure a hearing date, then told counsel she would follow-up on scheduling the hearing but subsequently stopped reporting for work, resulting in failure to timely file notice of objections to discharge petition in probate case).

Similarly, in Kuehne & Nagel, Inc. v. Esser International, Inc., 467 So.2d 457, 458 (Fla. 3d DCA 1985), we observed:

We conclude, as we have repeatedly in similar instances in the recent past, that the trial court’s failure to set the default aside was a clear abuse of discretion. E.g., Wien v. Quayside Realty, Inc., 462 So.2d 569 (Fla. 3d DCA 1985) and cases cited; Huerta v. Saphin, 459 So.2d 438 (Fla. 3d DCA 1984); B.C. Builders Supply Co., Inc. v. Maldonado, 405 So.2d 1345 (Fla. 3d DCA 1981); see North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); Savela v. Fisher, 464 So.2d 240 (Fla. 2d DCA 1985). As the court correctly summarized the law in Zimmerman v. Vinylgrain Industries of Jacksonville, Inc., 464 So.2d 1353 (Fla. 1st DCA 1985):
The Florida Supreme Court has established a policy of providing relief from defaults and allowing trials on the merits. If there is any reasonable doubt in the matter of vacating a default, it should be resolved in favor of granting the application and allowing the trial upon the merits. North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962). Although an abuse of discretion is necessary in order to reverse a trial court’s ruling on a motion to vacate default, appellate courts need not find as great a showing of abuse to reverse a trial court’s denial of a motion to vacate default as they do to reverse a grant of such a motion. Garcia Insurance Agency, Inc. v. Diaz, 351 So.2d 1137 (Fla. 2d DCA 1977).

In the instant case, the Commission Chairman was new to the position and his staff was unaccustomed to receiving complaints on the County’s behalf. Additionally, staff members at the Chairman’s local office mistakenly believed that the complaint they received had also been received by other County offices where such documents ordinarily were delivered. This inexperience in processing complaints, compounded by service at the Chairman’s constituent-oriented office instead of the Chairman’s downtown office, contributed to staffs failure to follow established procedure for handling documents such as the complaint.

Such “clerical errors” have been held to constitute excusable neglect. See Edwards v. City of Fort Walton Beach, 271 So.2d 136, 137 (Fla.1972) (concluding that it was proper to vacate a default judgment entered against a municipality because a complaint that had been promptly forwarded to an insurer was misplaced during a nationwide change in the insurer’s claim processing procedures); Okeechobee Imports, Inc. v. Am. Sav. & Loan Ass’n of Fla., 558 So.2d 506, 507 (Fla. 3d DCA 1990) (concluding that an automobile dealership was entitled to have a default and final judgment set aside where the complaint was forwarded to a business office and placed in a non-litigation related file dealing with the same subject); Carter, Hawley, Hale Stores, Inc. v. Whitman, 516 So.2d 83, 83-84 (Fla. 3d DCA 1987) (concluding that a corporate defendant was entitled to relief from a default that resulted from tardiness in answering, because tardiness was due to fact that complaint, which had been transmitted from Florida to corporate secretary at company’s national headquarters in Los Angeles, became “lost” in pile of unrelated documents on desk of general counsel, who was responsible for retaining local attorney to file an appropriate response, and that corporate defendant admittedly presented a meritorious defense and acted with due diligence after discovering the default). Likewise, the failure to follow established policy has been held to constitute excusable neglect. See Fla. Aviation Acad., Dewkat Aviation, Inc. v. Charter Air Ctr., Inc., 449 So.2d 350, 353 (Fla. 1st DCA 1984) (holding that a default judgment taken against defendants resulted from “excusable neglect” of defendants’ attorney, where failure to file or serve pleadings was caused by an inexperienced legal secretary’s failure to calendar the time for filing an answer to the complaint, contrary to established office policy and procedure, and where no substantial prejudice resulted to plaintiff).

While the failure of a party to take the required steps necessary to protect its own interests ordinarily standing alone will not justify vacating judicially authorized acts to the detriment of other innocent parties, see John Crescent, Inc. v. Schwartz, 382 So.2d 383, 385-86 (Fla. 4th DCA 1980), that is not what occurred in this case. “Keeping in mind the admonition that in case of doubt, discretion is to be exercised in favor of vacating the default, see North Shore, 143 So.2d at 852-53,” Najjar, 748 So.2d at 1103, we conclude that the default should have been vacated in this matter.

The order under review is, therefore, reversed and the cause remanded.

      . Although the Association claims that it notified the County that it was seeking a default judgment in this matter, the County denies that it received any notice concerning entry of a default.

      . While the Association now seems to argue to the contrary, at the hearing on the motion to vacate, the Association’s counsel acknowledged that the County Attorney's office had acted with due diligence once it knew what had happened and as much as conceded that the fault rested with the Chairman's office, making instructive our observations in B.C. Builders Supply Co. v. Maldonado, 405 So.2d 1345, 1347 (Fla. 3d DCA 1981):
      As an additional factor in determining whether the neglect was excusable the court may consider whether the defendant subsequently demonstrated due diligence in seeking relief upon learning of the default. See, e.g., Chamberlin v. Mid-Century Insurance Co., 350 So.2d 364 (Fla. 2d DCA 1977) (subsequent delay factor in affirming trial court). We believe that this standard as first enunciated by the Supreme Court of Florida in Russ v. Gilbert, 19 Fla. 54, 57 (1882), cited by the court in Coggin v. Barfield, 150 Fla. 551, 8 So.2d 9 (1942), has been consistently followed by Florida courts, i.e., that "it would be a gross abuse of discretion not to allow a defendant to present his defense if he had a meritorious one, was innocent of culpable negligence and willing to plead and to go to trial without delay.” Id. 150 Fla. at 554, 8 So.2d at 11. See Sterling Drug, Inc. v. Wright, 342 So.2d 503 (Fla.1977); North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); Waterson v. Seat and Crawford, 10 Fla. 326 (1863); County National Bank of North Miami Beach v. Sheridan, Inc., [403 So.2d 502 (Fla. 4th DCA 1981)]; Pedro Realty Inc. v. Silva, 399 So.2d 367 (Fla. 3d DCA 1981); Dunn v. Jo Ann Taube Realty, Inc., 399 So.2d 63 (Fla. 3d DCA 1981); Thomas v. American Vinyl Co., 379 So.2d 448 (Fla. 3d DCA 1980); McAlice v. Kirsch, 368 So.2d 401 (Fla. 3d DCA 1979); Salomon v. Mid-States Mortgage Corp., 356 So.2d 915 (Fla. 3d DCA 1978); Garcia Insurance Agency, Inc. v. Diaz, supra; Travelers Insurance Co. v. Bryson, 341 So.2d 1013 (Fla. 4th DCA 1977); Flaxman v. Metropolitan Life Insurance Co., 340 So.2d 515 (Fla. 3d DCA 1976); Associated Medical Institutions, Inc. v. Imperatori, 338 So.2d 74 (Fla. 3d DCA 1976); Espinosa v. Racki, 324 So.2d 105 (Fla. 3d DCA 1975); Plotkin v. Deatrick Leasing Co., 267 So.2d 368 (Fla. 3d DCA 1972); Renuart-Bailey-Cheely Lumber and Supply Co. v. Hall, 264 So.2d 84 (Fla. 3d DCA 1972).
      That the County acted with due diligence is also supported by the affidavit of the Office Manager for the County Attorney's office and the affidavit of the Legal Assistant to the Assistant County Attorney.

      . Gables-by-the-Sea homeowners whose properties abut the salinity dam also oppose the Association's plans and moved to intervene in this lawsuit. That motion was not ruled on.

      . The Village of Pinecrest opposes removal of the dam and has filed an amicus brief herein voicing its strong opposition to removal and support for vacating the default judgment.


author: ROTHENBERG, J.

text:
    PROGRESSIVE EXPRESS INSURANCE CO., INC., Appellant, v. Louis R. MENENDEZ, Jr. and Cathy Menendez, Appellees.
    No. 3D06-2570.
    District Court of Appeal of Florida, Third District.
    March 19, 2008.

      Anania, Bandklayder, Blackwell, Baum-garten, Torricella & Stein and Douglas H. Stein, Miami, and Stephanie Martinez, for appellant.
    Tilghman & Vieth, P.A. and Robert C. Tilghman, Miami, for appellees.
    Before GERSTEN, C.J., and SHEPHERD and ROTHENBERG, JJ.
   ON MOTION FOR REHEARING AND CLARIFICATION

ROTHENBERG, J.

Based on the appellee’s motion for rehearing, rehearing en banc, or certification, and clarification, we withdraw this Court’s previous opinion dated December 5, 2007, and issue this opinion in its stead.

The defendant, Progressive Express Insurance Co., Inc. (“Progressive”), appeals from a stipulated final judgment entered in favor of the plaintiffs, Louis R. Menendez, Jr. and Cathy Menendez (collectively, “the plaintiffs”), after the trial court issued an order granting the plaintiffs’ motion for summary judgment as to liability. We reverse.

Procedural History

On June 14, 2001, Cathy Menendez (“Menendez”) was injured in an automobile accident while traveling to work. Menen-dez was covered by a policy issued by Progressive affording personal injury protection (“PIP”) benefits with effective dates of April 1, 2001, to October 1, 2001. In addition, Menendez was eligible for workers’ compensation benefits, and her employer paid for nine weeks of her lost income. While most of Menendez’s medical bills were paid through workers’ compensation, Progressive paid a total of $2,131.22 to four different medical care providers.

The plaintiffs have settled their claims against the insurer of the other motorist involved in the accident; paid $2000 from that settlement to satisfy a lien filed by Menendez’s employer; and in December 2001, began to pursue a PIP benefits claim on behalf of Menendez. On February 4, 2002, counsel for the plaintiffs sent the first of a series of letters to Progressive, pressing the plaintiffs’ claim for lost supplemental income and adding a claim for reimbursement of the $2000 paid to Men-endez’s employer. Progressive issued two written responses requesting additional documentation. The parties did not resolve the issues surrounding the PIP claims, and on November 26, 2002, the plaintiffs filed suit for overdue benefits.

When Progressive answered the complaint, it asserted that the plaintiffs had failed to comply with all conditions precedent to filing their lawsuit. Both parties subsequently filed motions for summary judgment. Progressive argued that the plaintiffs lacked standing to sue because they failed to provide Progressive with a presuit demand letter in compliance with subsection 627.736(11), Florida Statutes (2001). The trial court denied Progressive’s motion and granted the plaintiffs’ motion for partial summary judgment, finding that the presuit notice requirement of subsection 627.736(11) did not apply to any part of Menendez’s PIP claim, and that even if subsection 627.736(11) did apply, she was not required to serve a pre-suit written demand because “Progressive effectively denied Menendez’s claim.”

Legal Analysis

The presuit notice requirement relied upon by Progressive is contained in subsection 627.736(11), Florida Statutes (2001). Subsection 627.736(11) provides that as a condition precedent to filing a claim for overdue PIP benefits, the insured must provide the insurer with written notice of the intent to initiate litigation.

(11) DEMAND LETTER.—
(a) As a condition precedent to filing any action for an overdue claim for benefits under paragraph (4)(b), the insurer must be provided with written notice of an intent to initiate litigation; provided, however, that, except with regard to a claim or amended claim or judgment for interest only which was not paid or was incorrectly calculated, such notice is not required for an overdue claim that the insurer has denied or reduced, nor is such notice required if the insurer has been provided documentation or information at the insurer’s request pursuant to subsection (6). Such notice may not be sent until the claim is overdue, including any additional time the insurer has to pay the claim pursuant to paragraph (4)(b).

§ 627.736(ll)(a), Fla. Stat. (2001) (emphasis added).

The plaintiffs argue that they were not required to provide Progressive with pre-suit notice pursuant to subsection 627.736(11) because: (1) Progressive denied Menendez’s PIP claim; (2) the issuance of the policy and Menendez’s accident occurred prior to the effective date of the legislation adding this presuit notice requirement; and (3) the presuit notice requirement does not apply to wage loss benefits. In the alternative, the plaintiffs argue that if the presuit notice requirements did apply, and their lawsuit was prematurely filed, the proper remedy was abatement, and any deficiency in conditions precedent was cured by the complying demand letter sent in November 2003. Because we conclude that: whether Progressive denied the plaintiffs’ claim is a disputed issue of fact requiring further analysis on remand; the presuit notice requirements detailed in subsection 627.736(11) applied to the plaintiffs’ claim; and abatement was not requested by the plaintiffs, we reverse.

Our review of the trial court’s order granting summary judgment is de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Sheikh v. Coregis Ins. Co., 943 So.2d 242, 243 (Fla. 3d DCA 2006). Summary judgment may only be granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Volusia County, 760 So.2d at 130. All doubts and inferences must be resolved in favor of the non-moving party, and -if the “slightest doubt” exists, then summary judgment is not available. Sheikh, 943 So.2d at 244 (citing Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000)).

Whether Progressive Denied the Plaintiffs’ Claim Is a Disputed Issue of Fact

The plaintiffs argue that “[t]he undisputed evidence before the trial court conclusively establish[es] that Progressive denied Mrs. Menendez’s claim for PIP benefits,” thereby relieving the plaintiffs of any obligation they may have had to provide Progressive with presuit notice. In support of this argument, the plaintiffs filed an affidavit in which their attorney averred that he had phone conversations with Progressive wherein Progressive denied the plaintiffs’ claims and maintained that it owed the plaintiffs nothing because Menendez previously received workers’ compensation benefits.

While we agree with the plaintiffs that the presuit written demand requirements of subsection 627.736(11), Florida Statutes (2001), do not apply where an insurer denies a PIP claim, see § 627.736(ll)(a) (providing that “such notice is not required for an overdue claim that the insurer has denied or reduced”), there is, however, a material disputed issue of fact as to whether Progressive denied the plaintiffs’ claim, thereby precluding summary judgment.

A review of two letters sent by Progressive to Mr. Eden, the plaintiffs’ counsel, suggests that contrary to the affidavit submitted by Mr. Eden, wherein he averred that Progressive’s adjuster had repeatedly and consistently advised that Progressive was not obligated to pay PIP benefits to Menendez as she had received workers’ compensation benefits, Progressive did not refuse to pay PIP benefits to Menendez. In a letter dated April 15, 2002, Progressive’s representative stated, “I need a copy of what they [workers’ compensation] have paid and a copy of their lien if they are filing one so they can be reimbursed.” (Emphasis added). On June 4, 2002, in response to Menendez’s letter requesting reimbursement of the $2000 Menendez allegedly paid to satisfy a lien filed by workers’ compensation and stating that she has also sustained lost wages, Progressive requested information and documentation regarding the workers’ compensation lien and asked whether Menendez’s lost wages were paid. The content of these letters suggests that Progressive intended to pay the plaintiffs’ PIP claim upon receipt of appropriate documentation. Because these letters conflict with Mr. Eden’s affidavit as to whether Progressive denied Menendez’s PIP benefits claim, the conflict presents a disputed issue of fact precluding summary judgment.

Although it is axiomatic that an anticipatory breach of a contract excuses the non-breaching party from contractual compliance, Fabel v. Masterson, 951 So.2d 934, 936 (Fla. 4th DCA 2007), before rising to the level of anticipatory repudiation, “the refusal must be distinct, unequivocal, and absolute.” Mori v. Matsushita Elec. Corp. of Am., 380 So.2d 461, 463 (Fla. 3d DCA 1980). After carefully reviewing the evidence in the record, we find it impossible to 'construe Progressive’s written responses to the plaintiffs as unequivocal denials of coverage, and thus, we find sufficient conflict in the record to militate against summary judgment. We, therefore, hold that the trial court erred in finding that Progressive “effectively denied” the plaintiffs’ claim as a matter of law, and remand for resolution of this critical factual dispute by the appropriate trier of fact.

Application of the Presuit Demand Requirements Does Not Violate Florida’s Rule Against Retrospective Operation of Statutes

The plaintiffs argue that subsection 627.736(11) does not apply to their claim for PIP benefits because Menendez’s policy was issued on April 1, 2001, and her accident occurred on June 14, 2001, and that both of these events took place prior to the effective date of subsection 627.736(11). We disagree, as the statute specifies that its application is dependent upon the date of treatment and services and when the lawsuit is filed, not when the policy was issued or when the accident occurred.

Subsection 627.736(11), Florida Statutes (2001), was enacted on June 19, 2001, as a part of Florida’s No-Fault Act. Although June 19, 2001, was the general effective date of the amendments, selected portions of section 627.736 have a later effective date. See Ch. 2001-271, § 11(3), at 2948, Laws of Fla. (applying a later effective date to specific subsections of section 627.736, Florida Statutes (2001)). Subsection 627.736(11) is one of those portions of the statute with a later effective date. However, that later effective date only applies to claims involving treatment or services incurred on or after October 1, 2001. Otherwise, the statute provides that the presuit demand requirements shall apply to actions filed on or after the general effective date of the act, June 19, 2001.

(3) Paragraphs (4)(b), (5)(b) and (c) and subsection (6) of section 627.736, Florida Statutes, as amended by this act and subsection (11) of section 627.736, Florida Statutes, shall apply to treatment and services occurring on or after October 1, 2001, except that subsection (11) of section 627.736, Florida Statutes, shall apply to actions filed on or after the effective date of this act with regard to a claim or amended claim or judgment for interest only which was not paid or incorrectly calculated.

Ch. 2001-271, § 11(3), at 2948, Laws of Fla.

The plaintiffs also argue that to apply the presuit notice requirements in subsection 627.736(11) to their pre-existing policy violates Florida’s constitutional prohibition of laws impairing existing contracts. See Art. I, § 10, Fla. Const. (“No bill of attainder, ex post facto law or law impairing the obligation of contracts shall be passed.”).

In Florida, the general rule is that the statute in effect at the time an insurance contract is executed governs the substantive issues arising in connection with that contract. Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106, 108 (Fla.1996). Additionally, when a law affects substantive rights, liabilities, and duties, that law is presumed to apply prospectively. Metro. Dade County v. Chase Fed. Hous. Corp., 737 So.2d 494, 499 (Fla.1999). The policy rationale underlying this presumption is that “the retroactive operation of statutes can be harsh and implicate due process concerns.” Id. For this reason, if a statute operates retrospectively, the courts will not apply it to pending cases absent clear legislative intent. Id. It is critical to note, however, that courts will not attach the label of “retrospective operation” merely because the statute is applied in a case that arises out of conduct predating its enactment. See id. (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 269-70, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)).

Determining whether the new statute violates Article I, section 10 of Florida’s Constitution, depends on whether the statute attaches new legal consequences to events completed prior to its enactment. 737 So.2d at 499. “[Statutes which do not alter contractual or vested rights but relate only to remedies or procedure are not within the general rule against retrospective operation.... ” Tejada v. In re Forfeiture of The Following Described Prop.: $106,626.11 in U.S. Currency, 820 So.2d 385, 390 (Fla. 3d DCA 2002) (quoting Rothermel v. Fla. Parole & Prob. Comm’n, 441 So.2d 663, 664 (Fla. 1st DCA 1983)); see also Vill. of El Portal v. City of Miami Shores, 362 So.2d 275, 278 (Fla.1978) (“[P]rocedural statutes do not fall within the constitutional prohibition against retroactive legislation and they may be held immediately applicable to pending cases.”).

Although the plaintiffs’ lawsuit clearly arises out of events (the execution of the policy and Menendez’s accident) predating the enactment of subsection 627.736(11), Florida Statutes (2001), applying subsection 627.736(11) to the plaintiffs’ action would not violate the general rule against retrospective operation unless new legal consequences attach to these events. If application of the statute is merely procedural, retroactive application is not prohibited. On the other hand, retroactive application of a statute that alters the substantive, vested, or contractual rights is prohibited absent clear legislative intent. Because we conclude that the application of subsection 627.736(11) to the plaintiffs’ claim for PIP benefits is procedural in nature, and it does not alter any contractual or vested rights of the plaintiffs, we find that to require the plaintiffs to provide presuit notice before filing their lawsuit after the enactment of the statute does not violate the general rule against retrospective operation.

The Presuit Demand Requirements Apply to Claims for Wage Loss Benefits

The plaintiffs contend that only claims for treatment and services, and claims for “interest only,” are subject to the presuit demand requirements in subsection 627.736(11), not wage loss benefits. We disagree.

Subsection (11) of section 627.736 is that part of the statute which requires the insured to provide the insurer with presuit notice. Paragraph (a) provides, in pertinent part:

(a) As a condition precedent to filing any action for an overdue claim for benefits under paragraph (4)(b), the insurer must be provided with written notice of an intent to initiate litigation; provided, however, that, except with regard to a claim or amended claim or judgment for interest only which was not paid or was incorrectly calculated, such notice is not required for an overdue claim that the insurer has denied or reduced....

§ 627.736(ll)(a), Fla. Stat. (2001) (emphasis added). Paragraph 627.736(4)(b), which sets the time parameters for the payment of PIP benefits, states in relevant part:

(b) Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished notice of the fact of a covered loss and the amount of same .... However, not withstanding the fact that written notice has been furnished to the insurer, any payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for payment.

The statute’s enacting legislation provides that “[e]xcept as otherwise expressly provided in this act, this act shall take effect upon becoming a law.” Ch. 2001-271 § 11(1), at 2948, Laws of Fla. Paragraph 11(3) of the enacting legislation specifically addresses the effective date of the presuit notice requirement provided for in subsection 627.736(11).

(3) Paragraphs (4)(b), (5)(b) and (c) and subsection (6) of section 627.736, Florida Statutes, as amended by this act and subsection (11) of section 627.736, Florida Statutes, shall apply to treatment and services occurring on or after October 1, 2001, except that subsection (11) of section 627.736, Florida Statutes shall apply to actions filed on or after the effective date of this act with regard to a claim or amended claim or judgment for interest only which was not paid or incorrectly calculated.

Ch. 2001-271, § 11(3), at 2948, Laws of Fla. (emphasis added).

The plaintiffs urge us to interpret paragraph 11(3) of the enacting legislation as limiting application of the presuit demand requirements to claims for interest only, amended claims for interest only, or judgments for interest only. Thus, the plaintiffs argue that because their PIP benefits claim was based on a claim for lost income and a claim for a lien satisfaction payment, it was not a claim for treatment, services, nor a claim for interest only, and therefore their claim falls outside of the limited applicability of subsection 627.736(11). This reading is contrary to ordinary statutory construction.

Paragraph (3) of the enacting legislation provides for separate effective dates to satisfy the presuit notice requirement provided for in subsection 627.736(11). Pre-suit notice is required for treatment and services occurring on or after October 1, 2001, whereas, presuit notice for any other overdue claim, such as lost wages, is required for any action filed on or after the effective date of the act, which is June 19, 2001.

When considering subsection 627.736(11) and its enacting legislation, “[i]t is our duty to give effect to the language the legislature used.” D.M. v. Dobuler, 947 So.2d 504, 508 (Fla. 3d DCA 2006). Additionally, “[w]hen interpreting a statute, courts must determine legislative intent from the plain meaning of the statute.” Id. at 509 (quoting State v. Dugan, 685 So.2d 1210, 1212 (Fla.1996)). Accordingly, we turn first to the language within subsection 627.736(11) itself. Paragraph 11(b) requires that the notice: (1) state the name of the insured; (2) state the insured’s claim or policy number; and (3) state “[t]o the extent applicable, the name of any medical provider who rendered to an insured the treatment, services, accommodations, or supplies that form the basis of the claim.” (Emphasis added). Specifically, subsection (11) provides in part:

(11) DEMAND LETTER.—
(b) The notice required shall state that it is a “demand letter under § 627.736(11)” and shall state with specificity:
1.The name of the insured upon which such benefits are being sought.
2. The claim number or policy number upon which such claim was originally submitted to the insurer.
3. To the extent applicable, the name of any medical provider who rendered to an insured the treatment, services, accommodations, or supplies that form the basis of such claim; and an itemized statement specifying each exact amount, the date of treatment, service, or accommodation, and the type of benefit claimed to be due.

§ 627.736(ll)(b), Fla. Stat. (2001).

The addition of the qualifying phrase “to the extent applicable” makes it clear that presuit demand letters under subsection 627.736(11) are required where the information regarding medical care is inapplicable. Subsection 627.736(11) requires a presuit demand letter as a condition precedent to filing a lawsuit for overdue PIP benefit claims for all services received in connection with the claim, not just medical care and medical supplies. Thus, the plain meaning of the legislature’s words in the statute itself indicates that claims for lost wages or reimbursements to workers’ compensation are subject to the requirements of subsection 627.736(11).

The enacting legislation specifically provides that subsection (11) of the statute will apply to “actions filed on or after the effective date of this act with regard to a claim or amended claim or judgment for interest only which was not paid or incorrectly calculated.” Ch. 2001-271, § 11(3), at 2948, Laws of Fla. The plaintiffs interpret this language as a limitation on the applicability of subsection 627.736(11). The plaintiffs argue that the limiting phrase “for interest only” should apply not only to the word “judgment,” but also to the words “claim” and “amended claim.” This interpretation would essentially add limiting language that the legislature chose not to include.

When interpreting statutes, courts “are not at liberty to add words to the statute that were not placed there by the legislature.” State v. J.M., 824 So.2d 105, 111 (Fla.2002) (quoting Hayes v. State, 750 So.2d 1, 4 (Fla.1999)). Additionally, the trial court was not free to depart from the ordinary meaning of the words of the statute to establish the applicability and effective date of subsection 627.736(11). See State Farm Mut. Auto. Ins. Co. v. W. Gables Open MRI Servs., Inc., 846 So.2d 538, 540 (Fla. 3d DCA 2003). In the absence of limiting language, the ordinary meaning of the word “claim” is extremely broad and encompasses, at a minimum, the assertion of rights, money, property, and other remedies. See generally Black’s Law Dictionary 264-66 (8th ed. 2004) (detailing multiple ordinary definitions of the word “claim”). The plaintiffs’ and the trial court’s interpretation of the legislation enacting subsection 627.736(11), impermissibly limits the language of the statute. We, therefore, hold that the presuit written demand requirement of subsection 627.736(11) applies to lawsuits arising out of all types of claims for PIP benefits, including claims for lost supplemental wages.

The Plaintiffs Are Not Entitled To Abatement Because They Waived the Right To Seek That Remedy

Arguing in the alternative, the plaintiffs contend that if the presuit demand requirements of subsection 627.736(11), Florida Statutes (2001), applied to their claim, their lawsuit was merely premature, and should have been abated until their failure to comply with the statutory condition precedent was cured. We disagree.

In Florida, when a lawsuit is prematurely filed, the proper remedy at the trial level is an abatement or stay of the action. Bierman v. Miller, 639 So.2d 627, 628 (Fla. 3d DCA 1994). By definition, mere prematurity is curable “simply by the passage of time.” Angrand v. Fox, 552 So.2d 1113, 1115 (Fla. 3d DCA 1989). Litigation is also premature (and curable by abatement) where the plaintiffs complaint is dismissed for failing to fulfill statutory administrative prerequisites prior to filing a legal action. Interlatin Supply, Inc. v. S & M Farm Supply, Inc., 654 So.2d 254, 255 (Fla. 3d DCA 1995). Contrarily, the material breach of an insured’s contractual duty to perform a condition precedent renders the insurance contract ineffective and relieves the insurer of its contract obligations. Starling v. Allstate Floridian Ins. Co., 956 So.2d 511, 513 (Fla. 5th DCA 2007); Goldman v. State Farm Fire Gen. Ins. Co., 660 So.2d 300, 303 (Fla. 4th DCA 1995).

Similarly, where a plaintiff fails to comply with a statutory condition precedent, the lawsuit is not merely premature, and dismissal, not abatement, is the proper remedy. See 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 statutory written notice to Department of Insurance and time for compliance expired); see also City of Coconut Creek v. City of Deerfield Beach, 840 So.2d 389, 393 (Fla. 4th DCA 2003) (“If there remains sufficient time to comply with the statutory precondition, the action should be dismissed with leave to amend.”) (emphasis added).

The presuit demand letter requirement of subsection 627.736(11) was an unambiguous condition precedent to the filing of the plaintiffs’ lawsuit, and as described above, the statute applied to the plaintiffs’ claim unless Progressive denied or reduced the claim. See § 627.736(ll)(a), Fla. Stat. (2001) (excusing compliance with pre-suit written demand requirements where insurer denies or reduces coverage). Progressive’s answer, proposed amended answer, and motion for summary judgment all put the plaintiffs on notice of their failure to comply with that statutory requirement. At those points in the proceedings, the plaintiffs could have asked the trial court to abate the premature action until they complied with the statute, or could have voluntarily dismissed and refiled their action after complying with the presuit demand requirements. The plaintiffs, however, did not elect to seek abatement or to provide presuit notice; instead, they chose to litigate for nearly a year, and to maintain that the presuit written demand requirements either did not apply to their action, or if they applied, Progressive’s denial of coverage excused compliance. Because the plaintiffs (even after being put on notice by Progressive) took the position that they did not have to comply with the statutorily mandated pre-suit demand requirements and failed to seek abatement of their lawsuit until the issue of whether presuit notice was required to maintain their lawsuit could be determined, we conclude that the plaintiffs waived their right to argue on appeal the failure of the trial court to abate their action.

We are also not persuaded by the plaintiffs’ argument that the demand letter sent approximately eleven months after the initiation of the instant litigation cured the potential deficiencies in the conditions precedent to the filing of their lawsuit. In the absence of a dismissal and subsequent refiling of the complaint, the demand letter sent nearly one year after the initiation of the lawsuit has no legal effect. To rule otherwise would effectively nullify the words of the legislature, and we decline the invitation to do so. See Ingersoll v. Hoffman, 589 So.2d 223, 224 (Fla.1991) (“To suggest that the requirements of the statute may be easily circumvented would be to thwart the legislative will.”).

Conclusion

The presuit written demand requirements of subsection 627.736(11), Florida Statutes (2001), are applicable to the plaintiffs’ claim without violating Florida’s rule against the retrospective operation of statutes. After being put on notice that their lawsuit was, at best, premature, the plaintiffs willfully failed to request abatement or to voluntarily dismiss and refile their lawsuit, thereby waiving any argument regarding the trial court’s failure to abate their action. The complying demand letter sent after eleven months of litigation was, therefore, of no legal moment. Accordingly, the plaintiffs were in material breach of the statutory condition precedent unless Progressive denied or reduced the plaintiffs’ claim. See § 627.736(ll)(a), Fla. Stat. (2001).

Because material issues of fact prevent the resolution of that question as a matter of law, we reverse the trial court’s award of summary judgment for the plaintiffs. We remand to the trial court with instructions to have the trier of fact resolve the narrow question of whether Progressive denied or reduced the plaintiffs’ claim. The resolution of this disputed issue of fact will determine whether litigation can proceed forward on the plaintiffs’ claim. If Progressive did not deny or reduce the plaintiffs’ claim, the plaintiffs are barred from recovery under the insurance contract.

Reversed and remanded with instructions.

      . On November 21, 2003, after the commencement of litigation, the plaintiffs sent a complying demand letter to Progressive.

      . The plaintiffs argued at the trial level that Progressive carried the burden of requesting an abatement of the proceedings. We disagree. See Wright v. Life Ins. Co. of Ga., 762 So.2d 992, 993 (Fla. 4th DCA 2000) (affirming grant of summary judgment for insurer after the plaintiff-insured failed to comply with a condition precedent and failed to request abatement at the trial level).


author: PER CURIAM.

text:
    PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant, v. Louis R. MENENDEZ, Jr., and Cathy Menendez, Appellees.
    No. 3D07-766.
    District Court of Appeal of Florida, Third District.
    March 19, 2008.
    Anania, Bandklayder, Blackwell, Baum-garten, Torricella & Stein and Douglas H. Stein and Stephanie Martinez, for appellant.
    Tilghman & Vieth, P.A. and Robert C. Tilghman, for appellees.
    Before GREEN, RAMIREZ, and SALTER, JJ.
   PER CURIAM.

This is an appeal from a final judgment awarding attorney’s fees and costs pursuant to a final summary judgment in appel-lees’ favor. As that final summary judgment has now been reversed by this court in Progressive Express Insurance Co. v. Menendez, 979 So.2d 324, 2008 WL 723848 (Fla. 3d DCA March 19, 2008), this fee judgment must likewise be reversed. See Viets v. Am. Recruiters Enters., Inc., 922 So.2d 1090, 1096 (Fla. 4th DCA 2006); Amorello v. Tauck, 824 So.2d 244 (Fla. 4th DCA 2002); ARC Foods, Inc. v. MGI Props., 746 So.2d 514 (Fla. 2d DCA 1999); Fieldstone v. Chung, 416 So.2d 11 (Fla. 3d DCA 1982).

Reversed.


text:
    Willy ARAGON, Appellant, v. BANANA REPUBLIC, LLC and Florida Unemployment Appeals Commission, Appellees.
    No. 3D07-1679.
    District Court of Appeal of Florida, Third District.
    March 19, 2008.
    Willy Aragon, in proper person.
    John D. Maher, Tallahassee, for appellee Florida Unemployment Appeals Commission.
    Before GERSTEN, C.J., and SUAREZ and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See § 443.151(3)(a), Fla. Stat. (2007); Fla. Admin. Code R. 60BB-5.007; Malary v. Brinker Int’l Payroll, 898 So.2d 1184 (Fla. 3d DCA 2005); Thurman v. Fla. Unemployment Appeals Comm’n, 881 So.2d 89 (Fla. 1st DCA 2004); Suarez v. Unemployment Appeals Comm’n, 871 So.2d 1039 (Fla. 5th DCA 2004).


text:
    F.O., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1869.
    District Court of Appeal of Florida, Third District.
    March 19, 2008.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, and Ely Gonzalez and Melissa Del Valle, Certified Legal Interns, for appellant.
    Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before COPE, WELLS, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. Lynch v. State, 293 So.2d 44, 45 (Fla.1974); T.L.M. v. State, 755 So.2d 749, 751 (Fla. 4th DCA 2000); R.I. v. State, 561 So.2d 26 (Fla. 3d DCA 1990).


text:
    Robert V. STRAPP a/k/a Robert T. Strapp, Jr., Appellant, v. In re ESTATE OF Robert T. STRAPP, Sr., Appellee.
    No. 3D07-1904.
    District Court of Appeal of Florida, Third District.
    March 19, 2008.
    Glenn P. Miller, for appellant.
    Ira M. Witlin, Miami, for appellee.
    Before COPE, WELLS, and ROTHENBERG, JJ.
   WELLS, Judge.

Affirmed. See Boyle v. Schmitt, 602 So.2d 665, 666 (Fla. 3d DCA 1992).


text:
    Cesar MUREL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1916.
    District Court of Appeal of Florida, Third District.
    March 19, 2008.
    Anthony J. Scremin, Miami, for appellant.
    Bill McCollum, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before COPE, WELLS, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986) (holding that reversal is not required where the State proves that the complained-of error was harmless beyond a reasonable doubt).


author: THOMAS, J.

text:
    Robert Eric JOHNSTON, Appellant, v. Sharron Myers JOHNSTON, n/k/a Sharron Myers, Appellee.
    No. 1D07-4364.
    District Court of Appeal of Florida, First District.
    April 3, 2008.
    David C. Hawkins, Tallahassee, for Appellant.
    Nancy Jones Gaglio of Jones Gaglio, P.A., Panama City, for Appellee.
   THOMAS, J.

Former Husband seeks review of the dismissal of his petition to disestablish paternity and terminate a child support obligation. The petition was filed under section 742.18, Florida Statutes (2006), and was dismissed by the trial court under the authority of Parker v. Parker, 950 So.2d 388 (Fla.2007), and D.F. v. Department of Revenue ex rel. L.F., 823 So.2d 97 (Fla.2002). We reverse pursuant to the authority of section 742.18, Florida Statutes (2006), enacted by the Legislature during its 2006 session. See ch. 2006-265, § 1, Laws of Fla. This statute creates circumstances under which a male may disestablish paternity or terminate a child support obligation when he receives “newly discovered evidence” demonstrating that he is not the biological father of the child. § 742.18(1)(a), Fla. Stat. (2006).

Here, Former Husband’s petition alleges that he has independently verified that he is not the biological father of a child born during the marriage that was dissolved 17 years ago. Former Husband moved to disestablish his paternal obligations under section 742.18, Florida Statutes. The trial court dismissed his petition, finding that under Parker, the parties’ final judgment of dissolution of marriage was a final determination of paternity and, as such, relitigation of paternity is barred by res judicata. We note, however, that the supreme court specifically mentioned that Parker does not address the applicability of section 742.18(l)(a) to a situation similar to Former Husband’s. Parker, 950 So.2d at n. 5. Thus, it was error for the trial court to apply Parker to Former Husband’s petition.

Section 742.18, Fla. Stat. (2006), does not require a petitioner to prove fraud or duress when attempting to disestablish paternity. Rather, the statute clearly establishes the necessary allegations, requisite trial court findings, and conduct that would prohibit disestablishing paternity. §§ 742.18(l)-(3), Fla. Stat. (2006).

We agree with the trial court that the supreme court has previously held that any challenge to a paternity determination must be brought under rule 1.540, Florida Rules of Civil Procedure. We note, however, that the plain language of this new statute demonstrates that the Legislature intentionally created a new cause of action in situations where a father has “newly discovered evidence,” rather than allegations of fraud, as previously required. As evidence of this intent, we note subsection (11) of the statute, which states that “[njothing in this section precludes an individual from seeking relief from a final judgment, decree, order, or proceeding pursuant to Rule 1.540, Florida Rules of Civil Procedure, or from challenging a paternity determination pursuant to s. 742.10(4).” This subsection would be deemed immaterial and redundant had the Legislature meant for this new statute to require that all claims must be brought under rule 1.540. When interpreting the meaning of a statute, the supreme court has stated:

We are required to give effect to “every word, phrase, sentence, and part of the statute, if possible, and words in a statute should not be construed as mere surplusage.” Moreover, “a basic rule of statutory construction provides that the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.”

Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 198-99 (Fla.2007) (internal citations omitted). We hold that section 742.18 must be interpreted to authorize a male to seek to disestablish paternity without requiring a fraud allegation under rule 1.540.

Although we acknowledge that Former Wife raises questions regarding whether Former Husband’s petition meets the statutory requirements, it is clear that the petition was not dismissed due to any such deficiency under section 742.18, Florida Statutes. The trial court has not yet examined Former Husband’s claim on the merits. Former Husband should be given the opportunity to prove why his petition qualifies under the statute, and Former Wife may then argue why he should not prevail under the statute.

Accordingly, we REVERSE the trial court’s order, and remand with directions for the trial court to analyze Former Husband’s claim under the statutory provisions set forth in section 742.18, Florida Statutes (2006).

PADOVANO and LEWIS, JJ., concur.

      . See D.F., 823 So.2d at 100; Anderson v. Anderson, 845 So.2d 870, 871 (Fla.2003).

      . We have already determined that section 742.18 created a new cause of action for a male to disestablish paternity or terminate a child support obligation. See Dep’t of Revenue ex rel. Chambers v. Travis, 971 So.2d 157, 160-61 (Fla. 1st DCA 2007) (finding that a paternity determination could be challenged under section 742.10(4), Florida Statutes, “on the basis of fraud, duress, or material mistake of fact,” or under the new statute where "neither fraud nor duress induced the signing of the acknowledgment of paternity” if the statutory requirements were met). Furthermore, "The circuit court must grant relief if it finds each of seven [statutory] requirements is met.” Id. (emphasis added).


text:
    W. FRANK WELLS NURSING HOME, Appellant, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D07-2059.
    District Court of Appeal of Florida, First District.
    April 7, 2008.

      John D. Buchanan, Jr. and Laura Beth Faragasso of Henry, Buchanan, Hudson, Súber & Carter, P.A., Tallahassee, for Appellant.
    Thomas M. Hoeler, Assistant General Counsel, and Tracy Lee Cooper, Assistant General Counsel, Agency for Health Care Administration, Tallahassee, for Appellee.
   PER CURIAM.

W. Frank Wells Nursing Home (“the nursing home”) seeks review of a Final Order of Dismissal with Prejudice rendered by the Florida Agency for Health Care Administration (“AHCA”). The nursing home contends AHCA erred in concluding that a class III deficiency citation constituted preliminary agency action that is not reviewable in a section 120.57 hearing. We agree with this contention and conclude that a class III deficiency citation can, under certain circumstances, cause substantial injury to the recipient, entitling the recipient to a formal administrative hearing. Because AHCA erroneously believed that the citation of a class III deficiency in a Statement of Deficiencies could never form the basis for a section 120.57 hearing, it failed to address whether the nursing home had alleged a sufficient injury to show entitlement to a hearing in this specific instance. On appeal, AHCA argues that the nursing home would not be able to allege a sufficient injury based on the facts that gave rise to the citation. In turn, the nursing home contends that it could allege a sufficient injury through an amendment if given the opportunity to do so. We agree with the nursing home. Accordingly, we reverse AHCA’s order and remand the case for further proceedings consistent with this opinion.

The dispute underlying this appeal began in September 2006, when AHCA investigated Appellant’s nursing home facility to determine whether it was compliant with the requirements for nursing homes participating in Medicaid and/or Medicare programs. As a result of the investigation, AHCA prepared a Statement of Deficiencies, also known as a Form 2567, finding that Appellant had violated section 400.0255(11), Florida Statutes, by failing to comply with the Baker Act discharge requirements of chapter 394, Florida Statutes. AHCA listed this violation as a class III deficiency and requested that Appellant formulate and return a plan of correction within ten days of receiving the Statement of Deficiencies.

Approximately five months later, Appellant filed a petition for a section 120.57 hearing. In the petition, Appellant stated that it disagreed with the facts set forth in the Statement of Deficiencies, noted that AHCA had levied a citation against its license, and listed its version of the facts. Appellant did not explain in the petition how a class III deficiency citation adversely affected its substantial interests. In response to the petition, AHCA issued a Final Order of Dismissal with Prejudice, ruling that the Statement of Deficiencies constituted an inspection report, which was investigatory in nature. Accordingly, the agency concluded that section 120.57 did not apply to the matter and that Appellant was not entitled to a formal hearing. In the order, the agency acknowledged that section 120.569(2)(c), Florida Statutes, requires the agency to provide a petitioner with an opportunity to correct or amend a deficient petition unless it conclusively appears from the face of the petition that the defect cannot be cured. Observing that the lack of entitlement to a hearing was not a curable defect, the agency dismissed Appellant’s petition with prejudice.

Under Florida law, a party whose interests are substantially affected by agency action is entitled to a section 120.57 hearing to resolve disputed issues of fact. See Menorah Manor, Inc. v. Agency for Health Care Admin., 908 So.2d 1100, 1104 (Fla. 1st DCA 2005). However, parties are not entitled to formal administrative hearings to settle issues of fact with regard to an agency’s preliminary investigations. § 120.57(5), Fla. Stat. (2007). In Menorah Manor, Inc. v. Agency for Health Care Administration, 908 So.2d 1100, 1102 (Fla. 1st DCA 2005), this Court specifically rejected the agency’s position that “a Form 2567, even though it may contain erroneous findings and can result in demonstrated harm to the recipient, can never be the subject of a 120.57 proceeding.” Thus, the preparation of a Statement of Deficiencies is agency action, which can be reviewed in a section 120.57 hearing, provided that the petitioner sets forth sufficient allegations to show entitlement to relief. See id. In this context, sufficient allegations would reveal that, as a result of the Statement of Deficiencies, the nursing home will suffer an immediate, substantial injury-in-fact and that the substantial injury is of a type or nature that the Legislature intended to protect when providing for section 120.57 hearings. See id. at 1104-05. When a petition does not contain sufficient allegations, the petitioner is entitled to at least one opportunity to cure this defect by an amendment to the petition. See id. at 1104.

The instant case is on point with Menorah Manor. In Menorah Manor, AHCA prepared a report that included findings that Menorah Manor, Inc. (“Menorah Manor”), a nursing home, was deficient in the area of food preparation. This report was prepared on Federal Form 2567. Under section 400.23(7)(d), Florida Statutes (2003), Menorah Manor was required to post the report “in a prominent place that is in clear and unobstructed public view at or near the place where residents are being admitted to the facility.” Menorah Manor, 908 So.2d at 1102. Additionally, AHCA was required to send the information to various agencies that would make the information available to the public. See id. The information was made available on Web sites and was used as part of the basis for ranking Menorah Manor in comparison to other nursing homes. Id. Menorah Manor petitioned AHCA for a formal hearing to dispute its factual findings. Id. To support its request, Menorah Manor alleged that its reputation was being damaged by the dissemination of this information. Id. After AHCA denied the petition, Menorah Manor sought relief in this Court. See id. This Court held that because Menorah Manor had alleged injury to its reputation only, it failed to allege an injury sufficient to establish entitlement to a section 120.57 hearing. Id. However, this Court rejected the argument that Menorah Manor would be unable to cure the defect in its petition with an amendment. See id. at 1104-05. Accordingly, the Court reversed, instructing AHCA that Menorah Manor should be given an opportunity to amend its petition. Id.

It is unclear on the record before us whether AHCA was required to disseminate the information regarding its deficiency finding in the same way that it did in the dispute underlying Menorah Manor. However, as in Menorah Manor, AHCA’s preparation of a Statement of Deficiencies in this case is a reflection of the duties required of the agency under section 400.23. Here, the nursing home’s petition consists almost entirely of disputed factual allegations. The nursing home vigorously disputed AHCA’s class III deficiency citation, but it did not specifically explain in the petition how the citation adversely affected its substantial interests. While we could speculate as to how the nursing home was adversely affected by the citation, we believe the better course would be to allow the nursing home to amend its petition and give AHCA another opportunity to consider the request. See E.S.B. v. State, 822 So.2d 579, 581 (Fla. 1st DCA 2002) (observing that “speculation cannot be the basis of appellate review”). Accordingly, we REVERSE the order under review and REMAND the case to AHCA with instructions to allow the nursing home an opportunity to amend its petition.

KAHN, PADOVANO, and LEWIS, JJ., concur.

      . AHCA contends that the nursing home is not entitled to an opportunity to amend its petition because, unlike the nursing home in Menorah Manor, the nursing home in this case did not attempt to allege a substantial injury. This argument is unpersuasive. We believe that, although the nursing home did not take the extra step in its petition of tying the disputed facts to a particular type of injury, the nursing home intended to show that it was injured. Additionally, we believe it is immaterial whether the nursing home attempted but failed to allege a substantial injury or failed to attempt to allege a substantial injury.


text:
    Stephen ROBERTSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-0396.
    District Court of Appeal of Florida, First District.
    April 7, 2008.

      Stephen Robertson, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s sua sponte order of February 26, 2008, the Court has determined that the order on appeal is not final. See Lee v. State, 939 So.2d 154, 155 (Fla. 1st DCA 2006) (holding dismissal without prejudice to refile a facially sufficient motion is a nonappealable, nonfinal order). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

ALLEN, WEBSTER, and DAVIS, JJ., concur.


text:
    Maurice NEWBERRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-0860.
    District Court of Appeal of Florida, First District.
    April 7, 2008.
    Maurice Newberry, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Proctor v. State, 845 So.2d 1007 (Fla. 5th DCA 2003) (dismissing an untimely appeal and explaining the required elements of a petition for belated appeal).

ALLEN, WEBSTER, and DAVIS, JJ., concur.