Kelley v. Jackson County Tax Collector

745 So. 2d 1040, 1999 WL 965617

• Court: District Court of Appeal of Florida
• Decided: October 25, 1999
• Docket: 99-194
• Status: Published

Opinion

745 So.2d 1040 (1999)

Janice F. KELLEY and Sherry C. Williams, Appellants,
v.
JACKSON COUNTY TAX COLLECTOR, Appellee.

No. 99-194.

District Court of Appeal of Florida, First District.

October 25, 1999.

Marie A. Mattox of Mattox & Hood, P.A., Tallahassee, for Appellants.

Michael K. Grogan and Robert T. Devine of Coffman, Coleman, Andrews & Grogan, P.A., Jacksonville, for Appellee.

LAWRENCE, J.

Janice Kelley and Sherry Williams (appellants) seek review of the trial court's order dismissing their complaint with prejudice for retaliatory discharge under section 440.205, Florida Statutes (1997). It was undisputed that appellants failed to provide presuit notice as required by section 768.28, Florida Statutes (1997). The dismissal was with prejudice because the time for curing the defect had expired when the order of dismissal was entered. We affirm.

Appellants argue that the presuit notice under section 768.28, Florida Statutes (1997), was not required because section 440.205, Florida Statutes (1997), contains an implicit waiver of the notice requirement. We disagree. Section 440.205 contains no language which lends any significant support to appellants' argument. An action for retaliatory discharge under section 440.205 is clearly a "tort" within the meaning of section 768.28 and presuit notice is therefore required. Scott v. Otis Elevator Co., 524 So.2d 642 (Fla.1988) (holding that retaliatory discharge is tortious in nature). Accordingly, we affirm the trial court's order dismissing the appellants' complaint with prejudice.

AFFIRMED.

JOANOS and VAN NORTWICK, JJ., CONCUR.