Epley v. Washington County, GG-164

• Decision Date: 12 May 1978
• Docket Number: No. GG-164,GG-164
• Parties: William David EPLEY and Pauline Epley, husband and wife, Appellants, v. WASHINGTON COUNTY, a political subdivision of the State of Florida, and State of Florida Department of Transportation, Appellees.
• Court: Florida District Court of Appeals

Page 592

358 So.2d 592

William David EPLEY and Pauline Epley, husband and wife, Appellants, v. WASHINGTON COUNTY, a political subdivision of the State of Florida, and State of Florida Department of Transportation, Appellees.

No. GG-164.

District Court of Appeal of Florida,First District.

May 12, 1978.

W. Paul Thompson of Thompson, Adkinson & Beasley, Defuniak Springs, for appellants.

Gerald Holley, Chipley and Ronald W. Brooks, Tallahassee, for appellees.

BOYER, Judge.

Appellants Epley filed a complaint in the Circuit Court of Washington County naming Washington County and the Department of Transportation as parties defendant alleging that certain culverts had been improperly maintained and that as a direct and proximate result of the negligent maintenance by the defendants water was caused to back up onto Epleys' property and damage their home located thereon. The Department of Transportation filed a motion to dismiss asserting sovereign immunity and the failure to allege the existence of a duty owed by the Department of Transportation to Epley. Washington County filed a motion to dismiss on the ground that the complaint failed to allege compliance with Florida Statute 768.28(6) which provides in material part that:

"An action shall not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality, presents such claim in writing to the department of insurance, within three years after such claim accrues and the department of insurance or the appropriate agency denies the claim in writing. . . . "

On July 13, 1976 the Circuit Judge entered an order reciting that the case had come on to be heard on the motions of both defendants "and it appearing that the complaint is one sounding in tort and has failed to allege compliance with the provisions of Florida Statute 768.28(6), it is, thereupon, ordered and adjudged that said complaint filed herein be, and the same is, hereby dismissed with leave, however, to amend within twenty days from July 13, 1976."

The Epleys apparently thereupon undertook to comply with F.S. 768.28(6) but filed no amended complaint. Instead, their attorney filed a notice of hearing on March 25, 1977, calling up for hearing on April 26, 1977, the motions to dismiss which had been filed by the two defendants, apparently intending to adduce at said hearing evidence of compliance with the above mentioned statute.

On April 29, 1977 the trial judge entered the order here appealed, reciting as follows:

"THIS MATTER first came before the Court on July 13, 1976, on motions to dismiss the Plaintiffs' Complaint, filed by the Defendants, State of Florida Department of Transportation and Washington County, a subdivision of the State of Florida. After having heard the arguments of counsel, and being duly advised in the premises, this Court found the Plaintiffs had failed to allege compliance with the provisions of Florida Statutes 768.28(6), and entered an Order dismissing the Complaint, but granting Plaintiffs leave to amend within twenty days from July 13, 1976.

"The Defendants' motions to dismiss (which were directed to the original Complaint) were again called up by Plaintiffs for hearing on April 26, 1977. The matter came on for hearing as set, and Defendants moved to dismiss or quash the notice of hearing, urging that the matter was no longer before the Court and that Plaintiffs' action was barred by their failure to file a timely appeal from the Order of July 13, 1977, or to file an Amended Complaint within twenty days in compliance with such Order. Plaintiffs took the position that although no Amended Complaint had been filed, the requirements of Florida Statutes 768.28(6) had been met by filing written notice of claim with the Florida Department of Transportation, in August of 1976.

"Having considered the Court file, as well as the respective arguments of counsel, the Court is duly advised in the premises and finds as follows:

"1. On July 13, 1976, the Court entered an Order dismissing Plaintiffs' Complaint, with leave to amend within twenty days.

"2. As of April 26, 1977, Plaintiffs had failed to submit an Amended Complaint in accordance with the provisions of the above-referenced Order.

"3. Rule 3.2(b) of the Florida Appellate Rules requires that appeals from:

'. . . final decisions, orders, judgments or decrees...