DRAX INTERNATIONAL LTD., A GRAND CAYMAN CORPORATION, TRUSTEE, AND TRADE CENTER SOUTH, INC., A FLORIDA CORPORATION, APPELLANTS,
v.
DIVISION OF ADMINISTRATION, STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, AN AGENCY OF THE STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Appellants filed a negligence suit against the Florida Department of Transportation but failed to comply with statutory notice requirements under Section 768.28(6). The trial court granted summary judgment dismissing the case for lack of subject matter jurisdiction, but the appellate court reversed, holding that notice requirements are not jurisdictional and remanding for trial.
The notice requirements of the statute are not jurisdictional, and even where a plaintiff has failed to plead compliance with notice requirements, the state agency may waive the defect. The case must be remanded to address whether the defendant waived the defect as an affirmative defense, whether subsequent actions constituted waiver, and whether the written notice provided was sufficient.
[1] Failure to comply with the notice provisions of Section 768.28(6), Fla.Stat. …
[2] A state agency may waive a defect in a plaintiff's pleading regarding compliance with statutory notice requirements.
Previewing 2 of 5 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“The notice requirements of the statute are not jurisdictional”
Establishes that compliance with Section 768.28(6) notice requirements is not a jurisdictional prerequisite, reversing the trial court's reasoning for dismissal.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellants Drax International Ltd. and Trade Center South, Inc. filed a tort claim against the Division of Administration of the Florida Department of…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Notice Provisions cases and more on FLexlaw
OWEN, WILLIAM C., Associate Judge, Retired.
Appellants suffered an adverse summary judgment on their tort claim against appel-lee, an agency of the State of Florida. The trial court held that it lacked subject matter jurisdiction due to appellants’ failure to comply with the notice provisions of Section 768.28(6), Fla.Stat. (1983) prior to filing this action. We reverse.
The notice requirements of the statute are not jurisdictional, Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010 (Fla.1979); McSwain v. Dussia, 499 So. 2d 868, 870 (Fla. 1st DCA 1987); City of Pembroke Pines v. Atlas, 474 So. 2d 237 (Fla. 4th DCA 1985), rev. denied, 486 So. 2d 595 (Fla.1986). Although the summary judgment does not state the basis upon which it was entered, we have assumed that the trial court determined the notice requirement to be jurisdictional since that was the basis upon which the motion for summary judgment was submitted.
There is no question but that appellants failed to plead specifically that they had met the notice requirements of the statute, or to plead generally the performance of conditions precedent to bringing their action. Nonetheless, this defect in their pleading is one which the state agency may waive, McSwain v. Dussia; City of Pembroke Pines v. Atlas, and there remains an issue for the trial court to determine as to whether the defendant, by its failure to plead this defect as an affirmative defense, may have waived this defect in the pleadings. There is also an issue as to whether the defendant, by its subsequent actions, may have waived this defect. Additionally, there remains a factual issue for the trial court as to whether appellants’ written notice was sufficient to comply with the statutory provisions. See State of Florida, Department of Transportation v. Alvarez, 490 So. 2d 1068 (Fla. 3d DCA 1986); Lee v. South Broward Hospital District, 473 So. 2d 1322 (Fla. 4th DCA 1985).
The summary judgment in favor of appellee on the negligence count (count IV) is reversed and this cause is remanded for further proceedings consistent herewith.
REVERSED AND REMANDED.
HERSEY, C.J., and STONE, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
VonDRASEK v. City OF ST. Petersburg, 777 So. 2d 989 (Fla. 2d DCA 2000)…rt, but rather is a condition precedent to the lawsuit. See § 768.28(6)(b), Fla. Stat. (1998); Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010, 1022 (Fla.1979); Drax 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 p…
Authorities Cited
- Commercial Carrier Corp. v. Indian River Cnty., 371 So. 2d 1010 (Fla. 1979)
- LEE v. S. Broward Hosp. Dist., 473 So. 2d 1322 (Fla. 4th DCA 1985)
- City OF Pembroke Pines v. Atlas, 474 So. 2d 237 (Fla. 4th DCA 1985)
- McSWAIN v. Evan Earl Dussia, II, M.D., 499 So. 2d 868 (Fla. 1st DCA 1986)
- State v. Alvarez, 490 So. 2d 1068 (Fla. 3d DCA 1986)