BERKLEY WILLIAMS, APPELLANT,
v.
MIAMI-DADE COUNTY, APPELLEE
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The court held that the plaintiff's failure to comply with statutory notice requirements was fatal to his negligence claim against the county, and the county was entitled to attorney's fees under section 768.79.
[1] Failure to comply with the process service requirements of section 768.28(7), Florida Statutes, is fatal to a plaintiff's negligence action against the state, its agencie…
[2] A directed verdict is properly granted against a plaintiff who fails to prove compliance with the procedural requirements for suing the state under section 768.28, Florid…
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Join FLexlaw to unlock all legal intelligencePlaintiff sued Miami-Dade County for negligence. The trial court granted a directed verdict for the county due to the plaintiff's non-compliance with …
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FLETCHER, Judge.
Berkley Williams has appealed an order granting a directed verdict pursuant to section 768.28, Florida Statutes (2003), in favor of Miami-Dade County, as well as an order denying his motion to vacate the directed verdict. Miami-Dade County has cross-appealed the trial court’s partial denial of its motion pursuant to section 768.79, Florida Statutes (2005), for costs and attorney’s fees (attorney’s fees having been denied and costs granted).
We affirm the order granting the directed verdict as Williams did not prove compliance with section 768.28, which requires plaintiffs in negligence suits against the state, its agencies, and subdivisions to follow strict procedures in order to take advantage of the State’s waiver of sovereign immunity for tort liability. Specifically, Williams failed to prove compliance with the process service requirements of section 768.28(7). This is fatal to his action. Met ropolitan Dade County v. Lopez, 889 So. 2d 146 (Fla. 3d DCA 2004).
As to the County’s cross-appeal we reverse that portion of the order which denied an attorney’s fee award to the County notwithstanding that the County fully complied with the requirements of section 768.79, for an award of attorney’s fees. See TGI Friday’s, Inc. v. Dvorak, 663 So. 2d 606, 611 (Fla.l995)(“[W]e conclude that the legislature has created a mandatory right to attorney’s fees, if the statutory prerequisites [of section 768.79] have been met.”); Jordan v. Food Lion, Inc., 670 So. 2d 138, 140 (Fla. 1st DCA 1996)(“The statute [section 768.79] creates a mandatory right to attorney’s fees when the statutory prerequisites have been fulfilled.”).
As in Morejon v. Metropolitan Dade County, 710 So. 2d 233 (Fla. 3d DCA 1998) “[w]e find no cognizable basis for the denial of the defendant’s motion for attorney’s fees and costs under section 768.79.” Thus the order on cross-appeal is reversed.1 The cause is remanded solely to determine the recoverable amounts.
. With the exception of course of that portion of the order awarding costs to the County which we affirm,
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Pub. Health Tr. OF Miami-Dade Cnty. v. Acanda, 23 So. 3d 1200 (Fla. 3d DCA 2009)…quired. This Court has held, in cases almost identical, that, because the plaintiff failed to serve process pursuant to the statute, the governmental entity was immune from suit and a directed verdict was required. See Williams v. Miami-Dade County, 957 So. 2d 52, 52 (Fla. Bd DCA 2007) (affirming the trial court’s order granting directed verdict in favor of Miami-Dade County as plaintiff failed to prove compliance with the process service requirements of section 768.28(7); such failure was “fatal to his acti…
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Seminole Hard Rock Hotel & Casino -Hollywood v. Pupo (Fla. 4th DCA 2023)…hey did not strictly adhere to “the notice requirements set forth in Florida’s sovereign immunity waiver statute” and were “precluded from correcting their oversight” because “discovery is now closed”) (emphasis added); Williams v. Miami-Dade Cnty., 957 So. 2d 52, 52 (Fla. 3d DCA 2007) (affirming directed verdict in County’s favor and concluding that plaintiff’s failure to “prove compliance with the process service requirements of section 768.28(7)” was “fatal to his action”) (emphasis added); Aristide v. Ja…
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Seminole Tribe of Florida v. Manzini (Fla. 4th DCA 2023)…ive its tribal sovereign immunity. . . .” (Emphasis added). Because sovereign immunity waivers must be strictly construed, procedural requirements for the waiver should be strictly followed to enforce the waiver. See Williams v. Miami-Dade County, 957 So. 2d 52, 52 (Fla. 3d DCA 2007) (affirming a directed verdict in favor of Miami-Dade County because the plaintiff “did not prove compliance with section 768.28, which requires plaintiffs in negligence suits against the state, its agencies, and subdivisions…
Authorities Cited
- TGI Friday's, Inc. v. Dvorak, 663 So. 2d 606 (Fla. 1995)
- Jordan v. Food Lion, Inc., 670 So. 2d 138 (Fla. 1st DCA 1996)
- Metro. Dade Cnty. v. Lopez, 889 So. 2d 146 (Fla. 3d DCA 2004)
- Taylor v. Kirsten T. Malfara, 710 So. 2d 233 (Fla. 3d DCA 1998)