ALBERT WIDMER, APPELLANT,
v.
NATE CALDWELL-DIRECTOR OF ACDC, OFFICER SMITH 197, OFFICER TONY MARTIN, MARY PAXTON-KITCHEN STAFF, MIKE MCGLOCKIN, ALACHUA COUNTY DETENTION CENTER, APPELLEES
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Widmer sued detention center officials but failed to provide the statutorily required presuit notice, resulting in dismissal without leave to amend. The trial court awarded attorneys' fees against Widmer under section 57.105, but the appellate court reversed, holding that failure to provide presuit notice is merely a temporary procedural bar and does not alone justify frivolous suit fees.
Failure to provide the required presuit notice does not in itself justify an award of attorneys' fees under section 57.105. The presuit notice requirement is viewed as a temporary procedural bar, not a substantive absence of legal or factual merit. Dismissals for failure to give presuit notice should be without prejudice where the statute of limitations has not run.
[1] Failure to provide statutory presuit notice is a temporary procedural bar to a lawsuit, not a complete absence of a justiciable issue.
[2] A dismissal for failure to give presuit notice should be without prejudice if the statute of limitations has not yet run.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“failure to provide the required pre-suit notice is viewed by the courts as a temporary procedural bar to a lawsuit against the State or one of its subdivisions”
Establishes the legal characterization of presuit notice as a procedural bar rather than a substantive defect
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Join FLexlaw to unlock all legal intelligenceWidmer, a resident of the Alachua County Detention Center, brought suit against detention center officials and staff in their official capacities. The…
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KAHN, Judge.
This action arises out of a suit brought by appellant Widmer against the appellees in their official capacity as officers and staff of the Alachua County Detention Center.
The circuit court dismissed the lawsuit because Widmer failed to provide the required statutory presuit notice pursuant to section 768.28(6)(a), Florida Statutes (1995). The order granting appellees’ motion to dismiss stated that the complaint is dismissed “with out leave to amend.” Widmer took no appeal from that order. After obtaining the dismissal, appellees moved to tax attorneys’ fees pursuant to section 57.105, Florida Statutes (1995).
The trial court granted the motion for fees and found a complete absence of a justiciable issue of law or fact based solely on Widmer’s failure to provide statutory presuit notice before bringing his suit.
We acknowledge the appellees’ frustration with Mr. Widmer, who apparently occupies some of his time while residing in the Alachua County Detention Center with various lawsuits against local officials.
Nevertheless, failure to provide the required pre-suit notice is viewed by the courts as a temporary procedural bar to a lawsuit against the State or one of its subdivisions. See e.g. Wemett v. Duval County, 485 So. 2d 892 (Fla. 1st DCA 1986); Lee v. South Broward Hosp. Dist., 473 So. 2d 1322 (Fla. 4th DCA 1985); Askew v. County of Volusia, 450 So. 2d 233 (Fla. 5th DCA 1984).
Admittedly, Widmer did not take an appeal of the order dismissing his complaint without leave to amend. The cases we have just noted clearly indicate that a dismissal for failure to give presuit notice should be without prejudice where the statute of limitations has not yet run at the time of dismissal. Although these eases do not remedy Widmer’s failure to appeal the order, they do very strongly indicate that failure to give presuit notice does not equate with “a complete absence of a justiciable issue of either law or fact ...” as required by section 57.105(1), Florida Statutes. Because the issue is not before us, we express no opinion as to whether the facts alleged by Widmer could have led to frivolous suit attorneys’ fees, but we do hold that the mere failure to comply with presuit notice does not in and of itself allow an award of fees.
REVERSED.
BARFIELD, C.J., and WEBSTER, J., concur.
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VonDRASEK v. City OF ST. Petersburg, 777 So. 2d 989 (Fla. 2d DCA 2000)…Int'l, Ltd. v. Division of Admin., State of Fla. Dep’t of Transp., 573 So. 2d 105, 106 (Fla. 4th DCA 1991). The notice has been described as a “temporary procedural bar to a lawsuit against the State or one of its subdivisions.” Widmer v. Caldwell, 714 So. 2d 1128, 1129 (Fla. 1st DCA 1998). Failure to comply with this condition precedent often results in the dismissal of a lawsuit without prejudice to the plaintiffs right to refile after providing notice. Nevertheless, there have been occasions when a notice…
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Villa Maria Nursing & Rehab. Ctr., Inc. v. S. Broward Hosp. Dist., 8 So. 3d 1167 (Fla. 4th DCA 2009)…10, 1022-23 (Fla.1979); Lindberg v. Hosp. Corp. of Am., 545 So. 2d 1384, 1387 (Fla. 4th DCA 1989) (citing Commercial Carrier ). The notice is a “temporary procedural bar to a lawsuit against the State or one of its subdivisions.” Widmer v. Caldwell, 714 So. 2d 1128, 1129 (Fla. 1st DCA 1998). In Lee v. S. Broward Hosp. Dist., 473 So. 2d 1322 (Fla. 4th DCA 1985), this court permitted the amendment of a complaint to allege compliance with section 768.28(6) where notice to governmental agencies was given subsequen…
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Barthlow v. Jett, 930 So. 2d 739 (Fla. 1st DCA 2006)…also disputes the trial court’s award of fees for failure to comply with the presuit notice requirements. She contends such failure cannot form the basis for a section 57.105 fee award. In support of this argument, Barthlow cites Widmer v. Caldwell, 714 So. 2d 1128 (Fla. 1st DCA 1998). This court did hold in Widmer that “the mere failure to comply with presuit notice does not in and of itself allow an award of fees” pursuant to section 57.105. Id. at 1129. The Widmer decision is distinguishable from this case,…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- 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)
- Wemett v. Duval Cnty., 485 So. 2d 892 (Fla. 1st DCA 1986)