GLEN A. WEMETT, APPELLANT,
v.
DUVAL COUNTY D/B/A JACKSONVILLE POLICE DEPARTMENT, ET AL., APPELLEES
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Dismissal of complaint was proper on the merits but erroneous as to prejudice; appellant failed to comply with statutory notice requirements and sued the wrong defendant, but dismissal should have been without prejudice to allow compliance before statute of limitations expired.
A complaint may be dismissed for failure to comply with statutory notice requirements and for suing the wrong defendant, but dismissal must be without prejudice when the statute of limitations has not run and the plaintiff could still comply with the law.
[1] A complaint may be dismissed for failure to comply with statutory notice requirements under Section 768.28(6)(a), Florida Statutes, and for naming an improper defendant,…
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Join FLexlaw to unlock all legal intelligence“Appellant should not have been foreclosed from complying with Florida law and filing a timely proper complaint if he could.”
Court explaining why dismissal with prejudice was improper when statute of limitations had not yet run
Appellant Wemett brought suit against Duval County and the Jacksonville Police Department without complying with Section 768.28(6)(a) notice requireme…
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JOANOS, Judge.
This is an appeal from the dismissal with prejudice of appellant’s complaint. We agree with appellees that the trial court could dismiss appellant’s complaint. Appellant failed to comply with Section 768.-28(6)(a), Florida Statutes, prior to bringing suit. Appellant also erroneously brought suit against Duval County rather than the City of Jacksonville as required by law; and appellant has alleged inconsistent causes of action within a single count.
However, it was error to dismiss the complaint with prejudice. Since the case has not been decided on the merits, and since the statute of limitations had not yet run at the time of dismissal, the dismissal should not have been with prejudice. It was still possible at the time of the dismissal for appellant to comply with the notice requirements of Section 768.28(6)(a), Florida Statutes, before the statute of limitations ran out. Appellant should not have been foreclosed from complying with Florida law and filing a timely proper complaint if he could. See: Lee v. South Broward Hospital District, 473 So. 2d 1322 (Fla. 4th DCA 1985); Thigpin v. Sun Bank of Ocala, 458 So. 2d 315 (Fla. 5th DCA 1984); Askew v. County of Volusia, 450 So. 2d 233 (Fla. 5th DCA 1984).
Accordingly, the judgment appealed from should be amended by striking “with prejudice”.
Reversed and remanded for proceedings consistent with this opinion.
SHIVERS, J., concurs.
NIMMONS, J., dissents without opinion.
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Angrand v. Morry FOX, D.O., 552 So. 2d 1113 (Fla. 3d DCA 1989)…posedly precluding the commencement of a subsequent action. See Lake Lucerne Civic Ass’n v. Dolphin Stadium Corp., 878 F. 2d 1360, 1366 n. 7 (11th Cir.1989); Malunney v. Pearlstein, 539 So. 2d 493 (Fla. 2d DCA 1989); see also Wemett v. Duval County, 485 So. 2d 892 (Fla. 1st DCA 1986). . With the qualification contained in note 4, supra. . It should be noted that the recent, and we think correctly decided, cases hold that a malpractice complaint brought within the statute of limitations is maintainable upon…
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Pub. Health Tr. OF Dade Cnty. v. The Honorable Francis X. Knuck, 495 So. 2d 834 (Fla. 3d DCA 1986)…ns period expires, plaintiff loses the opportunity to provide the omitted requirements. Burkett v. Calhoun County, 441 So. 2d 1108 (Fla. 1st DCA 1983); Dukanauskas; see Halpin v. Short, 490 So. 2d 1271 (Fla. 2d DCA 1986); cf. Wemett v. Duval County, 485 So. 2d 892 (Fla. 1st DCA 1986) (dismissal of complaint with prejudice error where plaintiff could comply with § 768.-28(6)(a) within limitations period); Lee v. South Broward Hospital District, 473 So. 2d 1322 (Fla. 4th DCA 1985) (same); Askew v. County of Vol…
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Lindberg v. Hosp. Corp. OF Am., 545 So. 2d 1384 (Fla. 4th DCA 1989)…o the filing of suit but within the statute of limitations period. In doing so, we adopted the reasoning of the Fifth District in Askew v. Volusia County, 450 So. 2d 233 (Fla. 5th DCA 1984). This rational was also followed in Wemett v. Duval County, 485 So. 2d 892 (Fla. 1st DCA 1986) where the court held that it was error to dismiss a complaint with prejudice where the plaintiff had failed to comply with section 768.28(6)(a), Florida Statutes (1985), prior to filing the suit because the statute of limitations…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
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- LEE v. S. Broward Hosp. Dist., 473 So. 2d 1322 (Fla. 4th DCA 1985)
- Askew v. Cnty. OF Volusia, 450 So. 2d 233 (Fla. 5th DCA 1984)
- Thigpin v. SUN Bank OF Ocala, 458 So. 2d 315 (Fla. 5th DCA 1984)