Mason v. Highlands County Board of County Commissioners

788 So. 2d 1122, 2001 Fla. App. LEXIS 9207, 2001 WL 753848

• Court: District Court of Appeal of Florida
• Decided: July 6, 2001
• Docket: No. 2D00-4002
• Status: Published

Opinion

STRINGER, Judge.

Appellant, Marcellus M. Mason, challenges an order dismissing his complaint with prejudice due to his failure to comply with the notice requirements of section 768.28(6), Florida Statutes (1997). Although the trial court was correct in dismissing appellant’s complaint due to his failure to comply with section 768.28(6), the trial court improperly dismissed the complaint with prejudice. Since the statute of limitations had not yet run at the time of dismissal, appellant should have been given the opportunity to file an amended complaint after compliance with the statute. Lane v. Eckert, 652 So.2d 1257 (Fla. 2d DCA 1995). Highlands County Board of County Commissioners (“Highlands”) argues that this court should still affirm the dismissal with prejudice due to other defects in appellant’s complaint. While the defects pointed out by Highlands may authorize dismissal of the complaint, none of the defects would require a dismissal with prejudice. Thus, we reverse the dismissal in this case and remand for further proceedings consistent with this opinion.

Reversed and remanded for further proceedings.

FULMER, A.C.J., and CAMPBELL, MONTEREY, (Senior) Judge, Concur.