THE SUPREME COURT OF FLORIDA CASE NO. SC06-50 L.T. Case No. 4D04-3583 SALVATORE RAFFONE, Petitioner, vs. CITY OF FORT LAUDERDALE, Respondent. / JURISDICTIONAL BRIEF OF RESPONDENT CITY OF FORT LAUDERDALE HAL B. ANDERSON CLARK J. COCHRAN, JR. BILLING, COCHRAN, HEATH, LYLES MAURO & ANDERSON, P.A. Attorneys for Respondent, CITY OF FORT LAUDERDALE 888 S.E. Third Avenue, Suite 301 Fort Lauderdale, Florida 33316 Telephone: (954) 764-7150 Facsimile: (954) 764-7279
TABLE OF CONTENTS TABLE OF AUTHORITIES...-ii- STATEMENT OF THE CASE AND THE FACTS...-1- POINT ON APPEAL...-2- No basis has been shown for the exercise of discretionary jurisdiction over this routine tort case against a municipality where the precedent uniformly requires dismissal for failure to give presuit notice within the three-year period mandated by the waiver of sovereign immunity statute, section 768.28, Florida Statutes..-2- SUMMARY OF ARGUMENT...-2- ARGUMENT...-3- CONCLUSION...-4- -i-
TABLE OF AUTHORITIES CASES Commercial Carrier Corp. v. Indian River Cty.,... 371 So. 2d 1010 (Fla. 1979) 3 Levine v. Dade County School Bd.,... 442 So. 2d 210 (Fla. 1983) 3 STATUTES ' 768.28, Florida Statutes...1,3 -ii-
STATEMENT OF THE CASE AND THE FACTS This case involves a per curiam affirmance of the dismissal of this replevin lawsuit due to failure to give the pre-suit notice within the three-year period allowed by section 768.28, Florida Statutes, for suits seeking to invoke Florida's statutory waiver of municipal sovereign immunity. The decision below simply quotes the statute and followed two decisions of this Court on point. Petitioner, filed a pro se Petition for Writ of Certiorari which this Court treated as Notice to Invoke Discretionary Jurisdiction. -1-
POINT ON APPEAL No basis has been shown for the exercise of discretionary jurisdiction over this routine tort case against a municipality where the precedent uniformly requires dismissal for failure to give presuit notice within the three-year period mandated by the waiver of sovereign immunity statute, section 768.28, Florida Statutes. SUMMARY OF ARGUMENT The Fourth District's decision correctly applied two cases of this Court, consistent with their holdings, in affirming the dismissal of this replevin case due to Petitioner's failure to give presuit notice within the three-year period mandated by section 768.28, Florida Statutes. Therefore, no basis exists for discretionary jurisdiction in this Court. -2-
ARGUMENT No basis has been shown for the exercise of discretionary jurisdiction over this routine tort case against a municipality where the precedent uniformly requires dismissal for failure to give presuit notice within the three-year period mandated by the waiver of sovereign immunity statute, section 768.28, Florida Statutes. There is no basis for exercise of discretionary jurisdiction over this case. As set forth in the decision of the Fourth District Court of Appeal, Petitioner filed a replevin case against the City of Fort Lauderdale for certain alleged actions or inactions of its police department. (A copy of the decision below is attached for the Court's convenience.) Since the lawsuit sounded in tort, the trial court and the district court applied Florida's waiver of sovereign immunity statute, section 768.28, Florida Statutes, which among other things requires that presuit notice be given within three years fro the incident. Petitioner failed to give such presuit notice timely. Therefore, relying upon this Court's decisions in Commercial Carrier Corp. v. Indian River Cty., 371 So. 2d 1010 (Fla. 1979) and Levine v. Dade County School Bd., 442 So. 2d 210 (Fla. 1983). Both of these precedents from this Court hold that compliance with the presuit notice provision is a condition precedent to maintaining suit; consequently, the -3-
failure to comply timely with this condition precedent within the statutory three-year period requires dismissal with prejudice. These precedents were consistently and exactingly followed by the district court. Therefore, no conflict jurisdiction or other basis for discretionary review has been, or could be, established by Petitioner. Accordingly, review should be denied. CONCLUSION Because Petitioner fails to establish conflict jurisdiction or any other basis for discretionary review, this appeal should be denied. Respectfully submitted, BILLING, COCHRAN, HEATH, LYLES MAURO & ANDERSON, P.A. Attorneys for Respondent, CITY OF FORT LAUDERDALE 888 S.E. Third Avenue, Suite 301 Fort Lauderdale, Florida 33316 Telephone: (954) 764-7150 Fax: (954) 764-7279 By: HAL B. ANDERSON Florida Bar No.: 93051 CLARK J. COCHRAN, JR. Florida Bar No.: 179614-4-
CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true copy of the foregoing was mailed this 22nd day of March, 2006, to: Salvatore J. Raffone, Pro Se #079281 M-1120-S Polk Correctional Institution 10800 Evans Road/E2215L Polk City, Florida 33868 Petitioner CERTIFICATION OF TYPESIZE Undersigned counsel certifies that this brief employs proportionately spaced Times New Roman type in fourteen (14) points which typesize meets or exceeds the legibility standards set by Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. S:\204953\PLDS\juris brief.02.final.wpd