ROBERT J. HANOPOLE, D.C., P.A. a/a/o NATALIA BUSTAMANTE v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

ROBERT J. HANOPOLE, D.C., P.A., a/a/o NATALIA BUSTAMANTE,
Appellant,

v.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
Appellee.

No. 4D21-1019

[August 10, 2022]

Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; Robert W. Lee, Judge; L.T. Case No. COCE20-027093.

John C. Daly and Christina M. Kalin of Daly & Barber, P.A., Plantation,
for appellant.

Marcy Levine Aldrich and Nancy A. Copperthwaite of Akerman LLP,
Miami, for appellee.

GERBER, J.

In this personal injury protection (“PIP”) action, the provider—to whom
the insured allegedly assigned her PIP benefits—appeals from the county
court’s order dismissing the provider’s action with prejudice. The county
court dismissed the provider’s action because the provider had failed to
attach to its complaint a copy of the insured’s alleged written assignment
of benefits. The provider argues no such requirement exists. We agree
with the provider and therefore reverse.

Procedural History

The provider filed a one-count complaint against the insurer for breach
of contract based on the insurer’s non-payment of the insured’s medical
bills. Regarding the provider’s standing to file suit in the insured’s shoes,
the provider pertinently alleged:

[The insured] equitably assigned to [the provider] and/or
also executed a written assignment of … certain benefits
payable pursuant to the policy of insurance issued by [the
 insurer]. A copy of the [a]ssignment has been previously
furnished to the [insurer].

(emphases added).

In response, the insurer filed a motion to dismiss for lack of standing.
The insurer pertinently argued:

Pursuant to Fla. R. Civ. P. 1.130, the [provider] has an
obligation to attach any instruments or documents that give
rise to [the] basis for the claim and moreover which give [the
provider] legal standing to bring the claim. As of the filing of
this lawsuit, the [provider] has failed to attach a valid
assignment of benefits to the … [c]omplaint.

Florida Statute § 627.736 [requiring automobile insurance
policies to include PIP benefits] allows medical providers to file
suit directly against an insurance carrier whenever there is a
dispute regarding payment of a medical bill for medical
services rendered by [the provider] to the patient. However,
Florida law mandates that the medical provider have a valid
assignment of benefits at the time it files suit against the
[insurer].

In this case the [provider] failed to attach a valid
assignment of benefits to the [c]omplaint and therefore does
not have standing to bring suit.

(paragraph numbering and internal citation deleted).

The county court held a hearing on the motion. At the hearing, the
provider’s counsel argued that the provider was not required to have
attached to its complaint a copy of the insured’s alleged written
assignment. The provider’s counsel argued that, instead, the provider was
permitted to have merely alleged in its complaint the assignment’s
existence, which allegation must be accepted as true on review of the
insurer’s motion to dismiss. According to the provider’s counsel:

If [the insurer] want[s] a written assignment of benefits [it]
can ask for that in discovery or [it] can move in summary
judgment but that is not proper on a motion to dismiss. It’s
the four corners of the [complaint] and [the provider] would
ask that [the court] deny the [insurer’s motion to dismiss].

2
 At this point, the county court repeatedly asked the provider’s counsel
whether the provider possessed the insured’s written assignment of
benefits, as the provider had alleged in the complaint. However, rather
than candidly answering the county court’s question, the provider’s
counsel refused to answer on the basis that the provider was not required
to have produced any written assignment at this stage of the litigation.
Instead, the provider’s counsel reiterated, “[I]f [the insurer] want[s] [the
written assignment] in discovery[,] I can provide it.”

The county court, apparently frustrated by the provider’s counsel’s lack
of candor regarding whether the provider possessed the insured’s written
assignment of benefits, granted the insurer’s motion to dismiss the action
with prejudice, followed by a brief written order to that effect.

The Parties’ Arguments on Appeal

This appeal followed. The provider summarizes its argument on appeal,
in pertinent part, as follows:

On a motion to dismiss the court must assume all the
allegations in the complaint are true. The [c]omplaint
sufficiently set forth that the [p]rovider had standing through
an equitable assignment and/or written assignment. Florida
law is clear that lack of standing is a defense which is
[properly] raised in a responsive pleading and should not be
considered at the pre-answer stage of litigation.

The insurer summarizes its response as follows:

Th[is] Court should affirm the county court’s [d]ismissal
[o]rder in part and … reverse it in part. The Court should
affirm the dismissal of the [c]omplaint for failure to allege the
basis of [the provider’s] standing to sue [the insurer]. And the
Court should reverse the dismissal with prejudice.

[The insurer] properly raised the threshold issue of
standing in its [m]otion to [d]ismiss, and the county court
properly asked [the provider] to clarify its standing—especially
in view of the conflicting allegations in the [c]omplaint
[regarding whether the assignment was equitable or written].

Based on the limited record in this appeal, the Court does
not have to decide now whether [the provider] can
demonstrate standing under the PIP [s]tatute through an

3
 equitable assignment. But if the Court were to address this
issue, it should find that the [s]tatute requires a written
assignment of benefits.

The provider replies, in pertinent part, as follows:

The Florida Rules [of Civil Procedure] and [case] law allow
for parties to plead inconsistent theories or claims in a
complaint which is what was done here. Accordingly, a
dismissal WITHOUT prejudice is also inappropriate.

[Further,] [n]owhere in the PIP [s]tatute does it state that a
plaintiff is required to attach a written assignment benefits to
the complaint. … Of course, an assignment is the basis of a
provider’s standing to bring a lawsuit altogether and of course
an assignment is required to bring and maintain the lawsuit.
Had the Florida Legislature intended to require a written
assignment be attached to complaint, it would have done so.
It is inappropriate to add requirements to the PIP [s]tatute that
do not exist.

(internal footnote and citations omitted).

Our Review

Our review is de novo. See Burgess v. N. Broward Hosp. Dist., 126 So.
3d 430, 433 (Fla. 4th DCA 2013) (“The standard of review of orders
granting motions to dismiss with prejudice is de novo.”); Agee v. Brown,
73 So. 3d 882, 885 (Fla. 4th DCA 2011) (“We review orders of dismissal
based on a lack of standing de novo.”). We also must accept the
complaint’s factual allegations as true. See Schneiderman v. Baer, 334 So.
3d 326, 330 (Fla. 4th DCA 2022) (“In assessing the adequacy of the
pleading of a claim, the court must accept the facts alleged therein as true
and all inferences that reasonably can be drawn from those facts must be
drawn in favor of the pleader.”) (citation omitted).

Applying de novo review—and assuming, as we must, that a written
assignment exists as pled in the complaint (regardless of the additional
alternative allegation regarding an “equitable assignment”)—we agree with
the provider’s argument that the county court erred in dismissing the
provider’s complaint with prejudice. We will discuss the three reasons for
our reversal below.

4
 First, as the insurer properly concedes, the county court erred in
dismissing the provider’s action “with prejudice” based on the failure to
attach to the initial complaint a document which the provider had alleged
it possessed. As our sister court has observed:

As a general matter, trial courts are to give plaintiffs an
opportunity to amend the defective pleading, unless it is
apparent that the pleading cannot be amended to state a
cause of action. And the failure to attach necessary documents
is a remediable offense.

Wells Fargo Bank, N.A. v. Bohatka, 112 So. 3d 596, 601 (Fla. 1st DCA
2013) (emphasis added; internal citation and quotation marks omitted).

Second, as the provider argues, we see nothing in section 627.736,
Florida Statutes (2020), which requires an assignee of an insured’s PIP
benefits to attach to a complaint a copy of the assignment of benefits.
Instead, section 627.736 requires that an assignee provide an insurer with
a copy of the assignment before filing an action for benefits. More
specifically, section 627.736(10), Florida Statutes (2020), provides in
pertinent part:

(a) As a condition precedent to filing any action for benefits
under this section, written notice of an intent to initiate
litigation must be provided to the insurer. …

(b) The notice must state that it is a “demand letter under s.
627.736” and state with specificity:

1. The name of the insured upon which such benefits are
being sought, including a copy of the assignment giving rights
to the claimant if the claimant is not the insured.

(emphases added). Thus, because section 627.736’s plain language does
not require an assignee also to attach to a complaint a copy of the
assignment of benefits, we are without power to extend section 627.736’s
express terms to impose such a requirement. See Hill v. Davis, 70 So. 3d
572, 575–76 (Fla. 2011) (“Courts are without power to construe an
unambiguous statute in a way which would extend, modify, or limit, its
express terms or its reasonable and obvious implications. To do so would
be an abrogation of legislative power. Thus, if the meaning of the statute
is clear then this Court’s task goes no further than applying the plain
language of the statute.”) (citations and quotation marks omitted).

5
 Third, as the provider argues, we see nothing within Florida Rule of
Civil Procedure 1.130 (entitled “Attaching Copy of Cause of Action and
Exhibits”), or within case law interpreting rule 1.130, requiring an
assignee of an insured’s PIP benefits to attach to a complaint a copy of the
assignment of benefits. Rule 1.130(a) states:

All bonds, notes, bills of exchange, contracts, accounts, or
documents on which action may be brought or defense made,
or a copy thereof or a copy of the portions thereof material to
the pleadings, must be incorporated in or attached to the
pleading. No documents shall be unnecessarily annexed as
exhibits. The pleadings must contain no unnecessary recitals
of deeds, documents, contracts, or other instruments.

(emphases added). “The purpose of [rule 1.130] is to apprise the defendant
of the nature and extent of the cause of action so that [it] may plead with
greater certainty.” Atallah v. Transworld Bus. Brokers of Fla., LLC, 297 So.
3d 576, 580 (Fla. 4th DCA 2020) (citation and internal quotation marks
omitted).

Here, the provider’s complaint apprised the insurer of the nature and
extent of the cause of action brought—the insurer’s alleged breach of the
policy by failing to pay the insured’s alleged assigned benefits to the
provider. The provider’s action is not brought upon the assignment itself—
which could have occurred, for example, if the provider had sued the
insured for a breach of the assignment.

Thus, although the provider was required to have alleged the insured’s
assignment of benefits to have alleged standing, the provider was not
required to have attached to its complaint a copy of the insured’s alleged
written assignment. The existence of the insured’s alleged written
assignment is more properly addressed through discovery and proof at an
evidentiary hearing or trial.

Case Law Does Not Support Interpreting Rule 1.130
as Requiring Attachment of an Assignment

Surprisingly, despite the presence of assignments in a variety of
commerce-based actions, we have located only three Florida cases which
have discussed an assignment’s attachment to a complaint in the context
of a rule 1.130 argument. However, those three cases—which we address
briefly below—discussed the assignment only tangentially.

6
 Parkway v. Allstate

In Parkway General Hospital, Inc. v. Allstate Insurance Co., 393 So. 2d
1171 (Fla. 3d DCA 1981), a circuit court entered a final order dismissing
with prejudice a provider’s complaint against an insurer based on non-
payment of the insured’s medical bills. Id. at 1171-72. The circuit court
reasoned that the provider had not attached to its complaint a copy of the
insured’s policy. Id. at 1172. The Third District reversed the dismissal,
reasoning that the provider had alleged it did not possess the policy and
would obtain the policy through discovery. Id. According to the Third
District, “[e]ven without that allegation in the complaint, a prejudicial
dismissal would have been improper.” Id.

In dicta, the Third District mentioned that the provider also had not
attached to its complaint a copy of the insured’s alleged written
assignment. Id. However, the Third District’s opinion does not indicate
whether the insurer’s motion to dismiss raised that point, or whether the
circuit court’s dismissal had been based on that point as well. Instead,
our sister court merely stated:

Consideration of [the insurer’s] affirmative defenses or
sufficiency of evidence which [the provider] will likely produce
on the merits is wholly irrelevant and immaterial to deciding
a motion to dismiss. [The provider’s] allegation of assignment
… is sufficient to state a cause of action against [the insurer] as
required by Fla. R. Civ. P. 1.110.

Id. at 1172-73 (emphasis added; internal citations omitted).

Nationstar v. McDaniel

In Nationstar Mortgage, LLC v. McDaniel, 288 So. 3d 1235 (Fla. 5th DCA
2020), a circuit court entered an order dismissing a mortgage servicer’s
foreclosure action, because the servicer had not attached to its complaint
any document supporting its allegation that it was the mortgagee’s
servicer. Id. at 1236. The Fifth District reversed the dismissal, reasoning
rule 1.130 “only requires that the documents (or copies thereof) on which
the action is brought be attached to the complaint; here, those would be
the mortgage and note,” which had been attached to the complaint. Id. at
1237. According to the Fifth District, the servicer was “not suing on the
servicing agreement or power of attorney”—i.e., documents evidencing the
servicer’s standing—“thus, those documents need not be attached to the
complaint.” Id.

7
 In dicta, the Fifth District mentioned that the provider also had
attached to its complaint a copy of the document assigning the mortgage
to the mortgagee. Id. However, the Fifth District’s opinion does not
mention if the dismissal would (or would not) have been proper had the
servicer not attached the assignment to the complaint. Id. at 1236-37.

Jeff-Ray v. Jacobson

In Jeff-Ray Corp v. Jacobson, 566 So. 2d 885 (Fla. 4th DCA 1990)—the
case upon which our dissenting colleague primarily relies—a circuit court
entered an order denying a defendant’s motion to dismiss the plaintiff’s
foreclosure action. Id. at 886. The defendant’s motion argued that the
plaintiff had failed to state a cause of action. Id. We reversed, stating as
follows:

[The plaintiff’s] complaint for mortgage foreclosure was
filed on January 4, 1988, and alleged an assignment of the
subject mortgage to them in 1986. However, it was not
attached to the complaint. When the alleged assignment was
finally produced, it was dated April 18, 1988, some four
months after the lawsuit was filed.

Our opinion in Safeco Insurance Co. v. Ware, 401 So. 2d
1129 (Fla. 4th DCA 1981), would support dismissal of the
action based on failure to comply with Florida Rule of Civil
Procedure 1.130. Given the scenario before us, [the plaintiff’s]
complaint could not have stated a cause of action at the time
it was filed, based on a document that did not exist until some
four months later. Marianna & B.R. Co. v. Maund, 62 Fla. 538,
56 So. 670 (Fla. 1911). If appellees intend to proceed on the
April 18, 1988, assignment, they must file a new complaint.

566 So. 2d at 886.

As shown above, although we cited rule 1.130 in Jeff-Ray, we ultimately
based our holding not on rule 1.130’s plain language or any interpretation
of rule 1.130, but on the legal principle of lack of standing when the suit
was filed, because the assignment did not exist until after the plaintiff had
filed the lawsuit. Thus, any reliance on Jeff-Ray would be questionable at
best.

To the extent an argument could be made that Jeff-Ray requires a
plaintiff to attach an assignment to a complaint pursuant to rule 1.130, a
counterargument could be made that such a holding was incorrect based

8
upon its reliance upon Safeco. In Safeco, the insurer’s motion to dismiss
or abate argued that the plaintiff’s action was based upon the insurance
contract which the plaintiff had not attached to his complaint. 401 So. 2d
at 1130. The Safeco court held that dismissal was appropriate under rule
1.130, which the Safeco court characterized as applying to contracts “upon
which action may be brought or defense made.” Id. at 1130-31. However,
the Jeff-Ray court did not provide any reasoning of why it had extended
Safeco to apply equally to an assignment of contract. For example, the
Jeff-Ray court did not explain why the assignment was the document
“upon which action [was] brought or defense made” under rule 1.130.

An argument also could be made that that Jeff-Ray was wrongly
decided because it considered facts outside of the complaint’s four corners.
See Peterson v. Pollack, 290 So. 3d 102, 109 (Fla. 4th DCA 2020) (“As with
the review of any motion to dismiss, we look only to the four corners of the
parents’ amended complaint, accept their allegations as true, and view all
reasonable inferences arising therefrom in their favor.”). By relying upon
its knowledge of the post-suit assignment (which likely had been produced
in discovery), the Jeff-Ray court improperly went outside of the complaint’s
four corners.

Conclusion

In sum, because of the tangential manner in which Parkway,
Nationstar, and Jeff-Ray discussed an assignment’s attachment to a
complaint in the context of a rule 1.130 argument, we cannot rely on those
cases as supporting or weakening our decision in this case. However, at
minimum, we can say that our decision here is not inconsistent with
Parkway, Nationstar, or Jeff-Ray.

Based on the foregoing, dismissal of the provider’s complaint, whether
with or without prejudice—and in spite of trial counsel’s unprofessional
behavior during the motion hearing—was improper. Accordingly, we
reverse the county court’s dismissal order and remand for the matter to
proceed on the provider’s complaint as pled. 1

1 As mentioned above, during the hearing on the insurer’s motion to dismiss,
the county court repeatedly asked the provider’s counsel whether the provider
possessed the insured’s written assignment of benefits, as the provider had
alleged in the complaint. However, rather than answering with a simple “yes,”
“no,” or “I don’t know,” the provider’s trial counsel repeatedly refused to answer
on the basis that the provider was not required to have attached the assignment
to the complaint. The provider’s trial counsel’s responses were often sharp,
including his final disrespectful response: “I swear, the law is the law, Your

9
 Reversed and remanded with instructions.

GROSS, J., concurs.
ARTAU, J., concurs in part and dissents in part with opinion.

ARTAU, J., concurring in part and dissenting in part.

I concur in result because the trial court erred in dismissing this case
without providing the plaintiff with an opportunity to amend its complaint.
See Karn v. Coldwell Banker Residential Real Estate, Inc., 705 So. 2d 680,
681 (Fla. 4th DCA 1998) (“As a general rule, refusal to allow amendment

Honor. If you want to do whatever you do, fine. All right, thank you, Your Honor.”
(emphasis added).

In our opinion, by repeatedly refusing to answer the county court’s question
regarding whether the provider possessed the insured’s alleged written
assignment, and by speaking disrespectfully to the county court during the
hearing, the provider’s trial counsel failed to abide by the Preamble to Chapter 4
of the Rules Regulating the Florida Bar, entitled “A Lawyer’s Responsibilities.”
The Preamble states, in pertinent part:

A lawyer should demonstrate respect for the legal system and for
those who serve it, including judges, other lawyers, and public
officials. While it is a lawyer’s duty, when necessary, to challenge
the rectitude of official action, it is also a lawyer’s duty to uphold
legal process.

R. Reg. Fla. Bar., Chap. 4, Preamble.

As the Preamble suggests, the fact that the county court may have erred in
its ruling does not excuse the provider’s trial counsel’s behavior towards the
county court. The provider’s trial counsel should have directly answered the
county court’s question regarding whether the provider possessed the insured’s
alleged written assignment, as the provider had alleged in the complaint. Any
direct answer would not have prejudiced the provider. More importantly, after
the county court’s ruling, unlike the provider’s trial counsel’s disrespectful
statement quoted above, counsel’s only comment should have been “Thank you,
Your Honor.”

We do not name the provider’s trial counsel in this opinion, as doing so is not
in the interest of posterity at this time, nor necessary to convey our concerns to
counsel—whom we trust will become aware of this opinion and will govern his
future behavior accordingly. However, we use the occasion of this opinion to
remind all counsel of the Preamble’s admonition to “demonstrate respect for the
legal system and for those who serve it.”

10
of a pleading constitutes an abuse of discretion unless it clearly appears
that allowing the amendment would prejudice the opposing party; the
privilege to amend has been abused; or amendment would be futile.”).

However, I dissent from the majority’s interpretation of Florida Rule of
Civil Procedure 1.130(a). In my view, the majority’s interpretation of the
rule conflicts with Jeff–Ray Corp. v. Jacobson, 566 So. 2d 885 (Fla. 4th
DCA 1990), which held that the failure to attach an assignment “would
support dismissal of the action based on failure to comply with Florida
Rule of Civil Procedure 1.130.” Id. at 886.

Rule 1.130 requires that “[a]ll bonds, notes, bills of exchange,
contracts, accounts, or documents on which action may be brought . . .
must be incorporated in or attached to the pleading.” Fla. R. Civ. P.
1.130(a) (emphasis added). Accordingly, this case calls for us to determine
whether rule 1.130(a) requires an assignee of personal injury protection
(“PIP”) benefits to attach the assignment of those insurance benefits to its
PIP complaint.

The PIP statute provides that a purported assignee has no right to bring
a PIP claim without a written assignment. § 627.736(5)(a), Fla. Stat.
(2020). Cases interpreting the PIP statute have also uniformly held that a
purported assignee has no right to bring a PIP claim under either the PIP
statute or the insurance contract in the absence of a written assignment.
See, e.g., Progressive Exp. Ins. Co. v. McGrath Cmty. Chiropractic, 913 So.
2d 1281, 1285 (Fla. 2d DCA 2005) (“[T]he assignment of PIP benefits is not
merely a condition precedent to maintain an action on a claim held by the
person or entity who filed the lawsuit. Rather, it is the basis of the
claimant’s standing to invoke the processes of the court in the first place.”);
Hartford Ins. Co. of the Se. v. St. Mary's Hosp., Inc., 771 So. 2d 1210, 1212
(Fla. 4th DCA 2000) (a PIP claim cannot be brought in the absence of the
statutorily required written assignment of benefits without which an
assignee lacks “standing to bring suit against [the insurer] pursuant to
Florida's No Fault law or the insurance contract between [the insurer] and
the insured motorist”).

The plaintiff argues that because section 627.736(5)(a), Florida Statutes
(the PIP statute), does not require an assignee to attach a copy of the
assignment of benefits to a complaint, we are without power to extend
section 627.736’s express terms to impose such a requirement. But this
argument ignores the fundamental separation of powers provided by our
constitutional system of government. See Art. II, § 3, Fla. Const. (“The
powers of the state government shall be divided into legislative, executive
and judicial branches.”). While the legislative branch can impose the

11
requirement that an assignment of PIP benefits must be in writing—as it
did in the PIP statute—it is up to the judicial branch to establish
procedural rules imposing the requirement that the writing be attached to
a complaint—as it did in Florida Rule of Civil Procedure 1.130(a).

Rule 1.130(a) was amended in 1992. In re Amendments to Fla. R. Civ.
P., 604 So. 2d 1110 (Fla. 1992). At the time of the rule’s amendment, an
“action” was defined at law as “[t]he legal and formal demand of one’s right
from another person or party made and insisted on in a court of justice.”
Black’s Law Dictionary (6th ed. 1990) (emphasis added). Moreover, at the
time of the rule’s amendment, we had already construed the rule to require
attachment of an assignment. Jeff–Ray, 566 So. 2d at 886. Yet, the rule
was not amended to exclude a contractual assignment from the
enumerated documents that must be attached to an action at law. See
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 322 (2012 ed.) (discussing the prior-construction canon, in which
an amendment without modifying a prior authoritative construction is to
be understood according to that construction).

Since an “action” consists of a “legal and formal demand of one’s right,”
the plain meaning of rule 1.130(a) requires the attachment of the
assignment as a document “on which [such] action may be brought”
because it is the essential document on which the assignee has the “right”
to make “legal and formal demand” against the insurer for payment of the
assigned PIP benefits. See City of Parker v. State, 992 So. 2d 171, 176 (Fla.
2008) (holding that if the language we are interpreting is clear, it must be
given its plain meaning).

Therefore, while I concur in result because the plaintiff should have
been given an opportunity to amend the complaint, I respectfully dissent
from the majority’s interpretation of Florida Rule of Civil Procedure
1.130(a).

* * *

Not final until disposition of timely filed motion for rehearing.

12