161 So. 3d 421
Fla. Dist. Ct. App.2014Background
- Plaintiff Willie Scullock sued the Hillsborough County Sheriff and deputies for false arrest (May 14, 2007) and excessive force (battery) (May 16, 2007).
- Circuit court dismissed the suit with prejudice on three grounds raised in the Sheriff’s motion: statute of limitations, failure to give presuit notice under § 768.28, and untimely service of process.
- Scullock filed his complaint with the clerk on May 18, 2011, but delivered it to jail officials for mailing on May 12, 2011; he argued the mailbox rule made the filing timely.
- Scullock asserted in response to the motion to dismiss that he mailed presuit notice (certificate of service dated April 6, 2010) despite claiming a copy had been confiscated while in custody.
- Service on defendants occurred March 30, 2012, more than 120 days after filing; the Sheriff relied on Rule 1.070(j) to argue dismissal for untimely service.
- The district court reviews each ground and reverses the dismissal with prejudice, remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Statute of limitations | Complaint was delivered to jail officials for mailing May 12, 2011, so mailbox rule deems filing timely | Complaint was filed May 18, 2011, after 4-year limitations expired May 16, 2011 | Mailbox rule applied; complaint was timely — dismissal on SOL ground was error |
| Presuit notice under § 768.28 | Scullock asserted he mailed timely presuit notice (certificate of service April 6, 2010) despite confiscation claim | No allegation of compliance in complaint; thus suit should be dismissed for failure to satisfy condition precedent | Failure to plead compliance warrants dismissal with leave to amend, not dismissal with prejudice; fact issue existed because of Scullock’s response |
| Timely service of process (Rule 1.070(j)) | Timely service need not doom action where statute of limitations has run and dismissal would be inequitable | Service occurred >120 days after filing, warranting dismissal | Court erred to dismiss on this ground because SOL had run and dismissal for untimely service was improper |
| Appropriate remedy for pleading defects | Scullock can allege compliance or cure defects if allowed to amend | Defendants urged dismissal with prejudice | Dismissal with prejudice was improper; remand for further proceedings (leave to amend as appropriate) |
Key Cases Cited
- Essex Ins. Co. v. Big Top of Tampa, Inc., 53 So.3d 1220 (Fla. 2d DCA 2011) (use-of-force claim treated as battery for limitations purposes)
- Cristiani v. City of Sarasota, 65 So.2d 878 (Fla. 1953) (cause accrues at time of injury)
- Leatherwood v. City of Key West, 347 So.2d 441 (Fla. 3d DCA 1977) (false arrest claim accrues on date of arrest)
- Commercial Carrier Corp. v. Indian River Cnty., 371 So.2d 1010 (Fla. 1979) (failure to allege presuit notice requires dismissal with leave to amend)
- Thompson v. State, 761 So.2d 324 (Fla. 2000) (mailbox rule for incarcerated litigants)
- Lowery v. Lowery, 654 So.2d 1218 (Fla. 2d DCA 1995) (fact issues preclude resolution on motion to dismiss)
- Miranda v. Young, 19 So.3d 1100 (Fla. 2d DCA 2009) (court abuses discretion dismissing for untimely service after SOL has expired)
- Levine v. Dade Cnty. Sch. Bd., 442 So.2d 210 (Fla. 1983) (dismissal with prejudice appropriate when notice not given and time to give notice has passed)