CITY OF PEMBROKE PINES, APPELLANT,
v.
BONNIE ATLAS, APPELLEE

Fla. 4th DCA | 1985-01-04
No. 84-631
ANSTEAD, C.J., and LETTS and DELL, JJ., concur.
474 So. 2d 237 Florida District Court of Appeal, Fourth District (1985) Positive Treatment
Cited by 31 cases
Topics
Waiver Of Defects Notice Provisions Condition Precedent To Suit Strict Construction Of Statutes

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant’s contention that a plaintiff must allege compliance with the notice provision of section 768.28(6), Florida Statutes (1983) in order to vest the circuit court with subject matter jurisdiction of a tort suit against a municipality is without merit. This allegation is a condition precedent to suit, Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010 (Fla.1979), which must be pled to state a cause of action, but which may be waived by a defendant, City of Jacksonville Beach v. Duncan, 392 So. 2d 25, 26 (Fla. 1st DCA 1981), petition for review denied, 399 So. 2d 1141 (Fla.1981); Hutchins v. Mills, 363 So. 2d 818 (Fla. 1st DCA 1978), cert. denied, 368 So. 2d 1386 (Fla.1979). We hold that appellant waived the defect in the pleadings under the facts of this case.

Appellant, however, correctly asserts its right to jury trial on damages. Barge v. Simeton, 460 So. 2d 939 (Fla. 4th DCA 1984); Jayre, Inc. v. Wachovia Bank & Trust Co., 420 So. 2d 937 (Fla. 3d DCA 1982).

We reverse and remand for jury trial upon the question of damages only.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

ANSTEAD, C.J., and LETTS and DELL, JJ., concur.

Other
PER CURIAM.

PER CURIAM.

Appellee’s motion for rehearing is denied. State v. Green, 105 So. 2d 817 (Fla. 1st DCA 1958), cert. discharged, 112 So. 2d 571 (Fla.1959). Although appellant’s motion is also without merit, it has directed our attention to a matter which requires clarification of our earlier opinion.

Appellee failed to include in her complaint an allegation that she had complied with the notice provisions of Section 768.28, Florida Statutes (1983). We held that appellant had waived that defect “under the facts of this case.” Appellant suggests that this holding conflicts with Levine v. Dade County School Board, 442 So. 2d 210 (Fla.1983), in which the Supreme Court held that the statute must be strictly construed. Levine, however, did not overrule Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010 (Fla.1979), in which the Supreme Court held that compliance with section 768.28(6) is a condition precedént to suit. The crucial “facts of this case” are that appellant, with knowledge of the claim and with knowledge of the suit, failed to raise the pleading defect until after entry of final judgment. The only defense available to appellant which survived the post-judgment motion proceedings was lack of subject matter jurisdiction. Rule 1.140(h), Fla.R.Civ.P.; see Atlas v. City of Pembroke Pines, 441 So. 2d 652 (Fla. 4th DCA 1983), petition for review denied, 450 So. 2d 485 (Fla.1984). We hold that appellee’s failure to allege compliance with the statutory notice provision did not deprive the circuit court of subject matter jurisdiction because such an allegation is not an element necessary to the existence of subject matter jurisdiction.

Appellant’s motion for rehearing is denied.

ANSTEAD, LETTS and DELL, JJ., concur.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By (16 total)

  • City OF Gainesville v. State, 778 So. 2d 519 (Fla. 1st DCA 2001)
    …Comm’n v. Sicker, 509 So. 2d 968, 969 (Fla. 2d DCA 1987); Bryant v. Duval County Hosp. Auth, 502 So. 2d 459, 462 (Fla. 1st DCA 1986). Unless the state is estopped to raise the defense, see Bryant, 502 So. 2d at 462; City of Pembroke Pines v. Atlas, 474 So. 2d 237, 238 (Fla. 4th DCA 1985), the state may raise the plaintiffs failure to plead or prove facts showing sovereign immunity has been waived for the first time even after judgment has been entered. See Charity, 698 So. 2d at 908 n. 1; State Dep’t of Tran…
  • Solimando v. Int'l Med. Ctrs., 544 So. 2d 1031 (Fla. 2d DCA 1989)
    …e County School Board, 490 So. 2d 120 (Fla. 3rd DCA 1986), rev. denied, 500 So. 2d 543 (Fla.1986); State ex rel. Manatee County v. Kruysman, 475 So. 2d 1007 (Fla. 2d DCA 1985), rev. denied, 486 So. 2d 598 (Fla.1986); City of Pembroke Pines v. Atlas, 474 So. 2d 237 (Fla. 4th DCA 1985), rev. denied, 486 So. 2d 595 (Fla.1986). In Kruysman, this court stated that “[wjhile a claimant must allege compliance with section 768.28(6) in order to state a cause of action, the failure to do so does not affect subject matt…
  • Lindberg v. Hosp. Corp. OF Am., 545 So. 2d 1384 (Fla. 4th DCA 1989)
    …otice is a condition precedent to suit, Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010 (Fla.1979), which must be pled to state a cause of action, but is not fatal to subject matter jurisdiction. See City of Pembroke Pines v. Atlas, 474 So. 2d 237 (Fla. 4th DCA 1985). Recently the Second District has come to the same conclusion with respect to subject matter jurisdiction under section 768.57, Florida Statutes (1985). Solimando v. International Medical Centers, 544 So. 2d 1031 (Fla. 2d DCA 198…

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