DELMA ASHLEY, APPELLANT,
v.
LAWSON LAMAR, AS SHERIFF OF ORANGE COUNTY, FLORIDA; JOHN POLK, AS SHERIFF OF SEMINOLE COUNTY, FLORIDA; DAVID WEIGEL AND JOHN O'BRIEN, JOINTLY AND SEVERALLY, APPELLEES
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Ashley sued county sheriffs and deputies for excessive force during her arrest. The trial court dismissed her complaint for failure to allege compliance with statutory notice requirements, but the appellate court reversed, holding that Ashley adequately pleaded proper notice in her complaint and the defendants bore the burden of specifically denying notice through proper procedural motions.
Ashley adequately pleaded compliance with the notice requirements through her allegations in the complaint. The burden then shifted to the defendants to deny with specificity and particularity that required notices were given, and to present this issue properly through summary judgment or motion for judgment on the pleadings rather than through a motion to dismiss.
[1] A plaintiff must properly allege compliance with the notice provisions of section 768.28(6)(a), Florida Statutes, before instituting an action against the state or its su…
[2] A plaintiff adequately pleads compliance with notice requirements by alleging that due and proper notices were given to all proper parties as prescribed by law.
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Join FLexlaw to unlock all legal intelligence“Looking solely to the allegations of the complaint, we think Ashley adequately pleaded that she gave proper notice.”
Establishes the standard that allegations in a complaint are sufficient to satisfy pleading requirements for notice compliance.
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Join FLexlaw to unlock all legal intelligenceAshley was arrested by deputies David Weigel (Orange County) and John O'Brien (Polk County), during which she suffered personal injuries. She sued the…
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SHARP, Judge.
Ashley appeals from a dismissal of her complaint against appellees Lawson Lamar, as Sheriff of Orange County, John Polk, as Sheriff of Seminole County, David Weigel, a Deputy Sheriff of Orange County, and John O’Brien, a Deputy Sheriff of Polk County. The essence of her suit was that the two deputies had used excessive force in effecting her arrest, during the course of which she suffered personal injuries.
The appellees filed similar motions to dismiss based on various grounds, but at oral argument, they conceded that the only valid basis for dismissal was Ashley’s failure to properly allege that she had complied with the notice provisions of section 768.28(6)(a), Florida Statutes (1983).1 In her complaint, Ashley alleged that due and proper notices of claims had been given to all proper parties as prescribed by law, and that all other prerequisites and conditions precedent to suit had been complied with.
An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality, presents such claim in writing to the Department of Insurance, within 3 years after such claim accrues and the Department of Insurance or the appropriate agency denies the claim in writing; except that, if such claim is for contribution pursuant to s. 768.31, it shall be so presented within 6 months after the judgment against the tortfeasor seeking contribution has become final by lapse of time for appeal or after appellate review or, if there is no such judgment, within 6 months after the tortfeasor seeking contribution has either discharged the common liability by payment or agreed, while the action is pending against him, to discharge the common liability. The failure of the Department of Insurance or the appropriate agency to make final disposition of a claim within 6 months after it is filed shall be deemed a final denial of the claim for purposes of this section. The provisions of this subsection do not apply to such claims as may be asserted by counterclaim pursuant to s. 768.14.
Looking solely to the allegations of the complaint, we think Ashley adequately pleaded that she gave proper notice. Fla.R.Civ.P. 1.120(c). This then shifted the burden to the appellees to deny with specificity and particularity that the required notices were given and to properly present this issue to the trial court in the context of a summary judgment motion, Fla.R.Civ.P. 1.510, or motion for judgment on the pleadings, Fla.R.Civ.P. 1.140(c).
REVERSED.
DAUKSCH and COWART, JJ., concur. . This statute provides:
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Edwards Cummings v. Warren Henry Motors, Inc., 648 So. 2d 1230 (Fla. 4th DCA 1995)…. Appellant alleged that all conditions precedent to bringing suit had been complied with. This is sufficient to shift the burden to appellees to deny with specificity and particularity that the required notices were given. See e.g. Ashley v. Lamar, 468 So. 2d 433 (Fla. 5th DCA 1985). Finally, appellees offer no substantial explanation as to why appellant’s final count of conversion fails to state a cause of action. Taking the allegations as true that the appel-lees converted to their own use appellant’s pri…
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McSWAIN v. Evan Earl Dussia, II, M.D., 499 So. 2d 868 (Fla. 1st DCA 1986)…cause of action. The giving of such notice may be alleged generally in accordance with rule 1.120(c), Florida Rules of Civil Procedure, and shift to the defendant the burden of denying the allegations of compliance with specificity. Ashley v. Lamar, 468 So. 2d 433 (Fla. 5th DCA 1985). Since the notice requirement in section 768.28(6) is neither jurisdictional nor an essential element of the cause of action, failure to give the requisite notice may be waived by the hospital authority. [*871] Meli v. Dade Count…
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Thuy Thanh Nguyen v. Roth Realty, Inc., 550 So. 2d 490 (Fla. 5th DCA 1989)…t. denied, 376 So. 2d 75 (Fla.1979). The failure to allege compliance with the condition precedent made the complaint in this case fatally defective. Babe, Inc. v. Baby’s Formula Service, Inc., 165 So. 2d 795 (Fla. 3d DCA 1964). See Ashley v. Lamar, 468 So. 2d 433 (Fla. 5th DCA 1985); San Marco Contracting Co. v. State Dept. of Transportation, 386 So. 2d 615 (Fla. 1st DCA 1980); Massey-Ferguson, Inc. v. Santa Rosa Tractor Company, Inc., supra; Capital Nat. Bank v. Southern Pine Isle Corp., 353 So. 2d 600 (Fla…
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