RAUL CARABEO, JR., A MINOR, BY AND THROUGH HIS PARENTS, RAUL CARABEO, SR., AND AIDA CARABEO AND RAUL CARABEO, SR., AND AIDA CARABEO, INDIVIDUALLY, PLAINTIFFS,
v.
METROPOLITAN DADE COUNTY, ETC., ET AL., DEFENDANTS
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A quiet title action was brought to challenge the validity of a Small Claims Court judgment and subsequent execution sale, where the plaintiff argued the judgment was void because she was sued individually but only appeared in a representative capacity.
The trial court erred in finding the Small Claims Court judgment valid and not subject to collateral attack, as the plaintiff was not properly before the court individually.
Following a Small Claims Court judgment against Annie Culberth (as next friend of her son) in favor of Iola Keith (as next friend of her son), Culbert…
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PER CURIAM.
The following question has been certified from the Circuit Court of Dade County pursuant to Fla.App. Rule 4.6. The question is:
Whether under the provisions of extant Section 768.28, Florida Statutes (regarding waiver of sovereign immunity, recognizing the State and its subdivisions have the same tort liability as a private person) a tort claimant must allege and prove a special duty (owed to a special class of persons rather than to the public in general) in order to prevail and recover?
In our opinion, there appears to be controlling precedent in this State on which the decision of the trial judge could be based. Therefore, because the requirement of Fla. App. Rule 4.6, i. e., that the question must be one without controlling precedent in this State, is not met, we respectfully decline to answer the question as certified. The trial court, under Article V, Section 6, Florida Constitution, has the power to adjudicate the question, the answer to which may be reviewed on appeal, if desired,
Denied.