Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT SCOTT D. HUNTER and LESLIE N. ) HUNTER, ) ) Appellants, ) ) v. ) Case No. 2D19-2981 ) JOHN V. CATALANO and SUSAN ) CATALANO, ) ) Appellees. ) ) Opinion filed February 3, 2021. Appeals from the Circuit Court for Collier County; Hugh D. Hayes, Judge. Phillip A. Roach, Bonita Springs; and Anthony M. Lawhon of Anthony M. Lawhon, P.A., Naples, for Appellants. John I. Silverfield and Ian T. Holmes of Holmes Fraser, P.A., Naples, for Appellees. MORRIS, Judge. Scott and Leslie Hunter appeal an order dismissing their action, without prejudice, against their neighbors, John and Susan Catalano, and their two homeowners' associations. We agree with the Hunters that the trial court erred in dismissing their complaint against the Catalanos because the presuit mediation requirement in section 720.311(2)(a), Florida Statutes (2018), does not apply to disputes between parcel owners or members. The Hunters' action alleged that the Catalanos made changes to their property that adversely affected the drainage easement between their two homes and thus the drainage on the Hunters' property. The Hunters alleged three counts: a count for injunctive relief, a count for breach of the associations' declarations, and a count against the associations for breach of fiduciary duty. In each count, the Hunters alleged twenty various violations of the associations' declarations and chapter 720. The Catalanos and one of the associations filed separate motions to dismiss the action alleging, among other things, that the Hunters failed to comply with the presuit mediation requirements of section 720.311(2)(a).1 After a hearing, the trial court granted the motions to dismiss on the basis of the Hunters' "failure to comply with [section] 720.311" and entered a final order of dismissal without prejudice. The Hunters now appeal.2 Section 720.311 provides in relevant part: (1) The Legislature finds that alternative dispute resolution has made progress in reducing court dockets and trials and in offering a more efficient, cost-effective option to litigation. The filing of any petition for arbitration or the serving of a demand for presuit mediation as provided for in this section shall toll the applicable statute of limitations. . . . (2)(a) Disputes between an association and a parcel owner regarding use of or changes to the parcel or the 1The other association filed a separate motion to dismiss, alleging different bases for dismissal. The trial court did not rule on the issues raised in this motion to dismiss, but the order on appeal states that all three defendants' motions to dismiss are granted based on the Hunters' failure to comply with section 720.311. 2During the pendency of this appeal, the Hunters settled with both associations and dismissed the portion of this appeal of the order that relates to the associations. -2- common areas and other covenant enforcement disputes, disputes regarding amendments to the association documents, disputes regarding meetings of the board and committees appointed by the board, membership meetings not including election meetings, and access to the official records of the association shall be the subject of a demand for presuit mediation served by an aggrieved party before the dispute is filed in court. Presuit mediation proceedings must be conducted in accordance with the applicable Florida Rules of Civil Procedure, and these proceedings are privileged and confidential to the same extent as court- ordered mediation. Disputes subject to presuit mediation under this section shall not include the collection of any assessment, fine, or other financial obligation, including attorney's fees and costs, claimed to be due or any action to enforce a prior mediation settlement agreement between the parties. Also, in any dispute subject to presuit mediation under this section where emergency relief is required, a motion for temporary injunctive relief may be filed with the court without first complying with the presuit mediation requirements of this section. After any issues regarding emergency or temporary relief are resolved, the court may either refer the parties to a mediation program administered by the courts or require mediation under this section. An arbitrator or judge may not consider any information or evidence arising from the presuit mediation proceeding except in a proceeding to impose sanctions for failure to attend a presuit mediation session or to enforce a mediated settlement agreement. Persons who are not parties to the dispute may not attend the presuit mediation conference without the consent of all parties, except for counsel for the parties and a corporate representative designated by the association. When mediation is attended by a quorum of the board, such mediation is not a board meeting for purposes of notice and participation set forth in s. 720.303. . . . (Emphasis added.) Section 720.311(2)(a) expressly lists five types of disputes that are subject to presuit mediation. The list includes "[d]isputes between an association and a parcel owner regarding use of or changes to the parcel or the common areas and other covenant enforcement disputes"; thus, the Hunters' disputes with the two associations were subject to the presuit mediation requirement. -3- However, the list does not include disputes between a parcel owner and another parcel owner or disputes between a member of an association and another member, even though such disputes are actionable under 720.305, Florida Statutes. See § 720.305(1)(b) ("Actions at law or in equity, or both, to redress alleged failure or refusal to comply with these provisions may be brought by the association or by any member against . . . [a] member . . . ."). The language of section 720.311(2)(a) is clear and unambiguous; it does not require that a dispute between parcel owners or members be mediated prior to the filing of the suit. See Kasischke v. State, 991 So. 2d 803, 807 (Fla. 2008) ("[W]hen the statute is clear and unambiguous, courts will not look behind the statute's plain language for legislative intent or resort to rules of statutory construction to ascertain intent." (alteration in original) (quoting Borden v. E.-European Ins. Co., 921 So. 2d 587, 595 (Fla. 2006))). If the legislature had intended such disputes to be subject to the presuit mediation requirement, the legislature could have easily included language regarding "disputes between a parcel owner and another parcel owner" or "disputes between members." Or the legislature could have stated that all disputes filed under section 720.305 are subject to presuit mediation. But the legislature did not do so; rather, it specifically listed five types of disputes that must be mediated presuit, and the list does not include a dispute between parcel owners or members. If this court were to read into the statute a requirement that disputes between parcel owners be mediated presuit, this court would be rewriting the language of the statute, which it is not permitted to do. See Fla. Dep't of Revenue v. Fla. Mun. Power Agency, 789 So. 2d 320, 324 (Fla. 2001) ("Under fundamental principles of -4- separation of powers, courts cannot judicially alter the wording of statutes where the Legislature clearly has not done so."). The Catalanos point to language in section 720.311(1) and section 720.302(2) that explains the legislature's intent that an expedited process for alternative dispute resolution will benefit members and associations. See § 720.311(1) ("The Legislature finds that alternative dispute resolution has made progress in reducing court dockets and trials and in offering a more efficient, cost-effective option to litigation. The filing of any petition for arbitration or the serving of a demand for presuit mediation as provided for in this section shall toll the applicable statute of limitations."); § 720.302(2) ("[I]n accordance with s. 720.311, the Legislature finds that homeowners' associations and their individual members will benefit from an expedited alternative process for resolution of election and recall disputes and presuit mediation of other disputes involving covenant enforcement and authorizes the department to hear, administer, and determine these disputes as more fully set forth in this chapter."). However, this general language does not lead to the conclusion that a dispute between parcel owners or members is subject to presuit mediation when the enumerated list in section 720.311(2)(a) does not explicitly include such disputes. The legislature generally indicated its preference for presuit mediation, but it identified specific disputes that are subject to the presuit mediation requirement. In sum, the trial court erred in dismissing the complaint against the Catalanos based on the Hunters' failure to comply with the presuit mediation requirement because the statute does not require presuit mediation of disputes between -5- parcel owners or members.3 Accordingly, we reverse the order of dismissal and remand for further proceedings.4 Reversed and remanded. NORTHCUTT and STARGEL, JJ., Concur 3The Catalanos make much of the fact that if this court were to agree with the Hunters' argument, the Catalanos would not be "entitled to cost-saving alternative dispute resolution afforded to" the associations. However, this concern is moot because after this appeal was filed, the Hunters settled with the associations. 4The Hunters also argue that section 720.311(2)(a) permitted their request for temporary relief to be resolved by the trial court before any presuit mediation would be required. In light of our ruling that the Hunters' dispute with the Catalanos is not subject to presuit mediation, we need not consider this issue. We also do not address the Catalanos' argument that the Hunters' complaint improperly joined or commingled the claims against the three defendants because this issue was not addressed by the trial court in the order of dismissal and is more properly addressed on remand, especially in light of the fact that the Hunters settled with the associations. -6-