CITY OF MIAMI v. ALVAREZ (2024)

Appellant (Defendant below) the City of Miami appeals from a non-final order denying its motion to dismiss based on sovereign immunity.¹ Because Appellee (Plaintiff below) Jose R. Alvarez failed to comply with the sovereign immunity pre-suit notice requirement, we reverse.

This appeal stems from Alvarez's underlying civil conspiracy action against the City. According to the operative Complaint, Alvarez came into possession of his family home after his mother passed away in 2017. The home had received code violations for containing an illegal living unit. Alvarez contacted Victoria Mendez,² who was at that time the City Attorney for the City of Miami, for assistance with the code violations, and she referred him to her husband, Carlos Morales. Alvarez further alleges that Morales, through his company Express Homes, purchased the home at a steep discount, remodeled it, had all violations cleared by the Code Enforcement Board, and sold it for a large profit.³

Several years later, Alvarez filed the underlying civil conspiracy action alleging the City conspired to defraud him out of his family home. The City moved to dismiss based on sovereign immunity. The trial court denied the motion to dismiss, and the City timely appealed.

On appeal, the City argues, inter alia, that Alvarez failed to provide pre-suit notice as required by Florida's sovereign immunity statute. We agree. Section 768.28(6), Florida Statutes (2023), requires that notice be given as a condition precedent to maintaining an action:

(6)(a) An action may 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, county, or the Florida Space Authority, presents such claim in writing to the Department of Financial Services, within 3 years after such claim accrues and the Department of Financial Services or the appropriate agency denies the claim in writing ․

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(b) For purposes of this section, the requirements of notice to the agency and denial of the claim pursuant to paragraph (a) are conditions precedent to maintaining an action but shall not be deemed to be elements of the cause of action and shall not affect the date on which the cause of action accrues.

Not only is written notice a condition precedent to maintaining an action against a municipality, but “the complaint must contain an allegation of such notice.” Menendez v. N. Broward Hosp. Dist., 537 So. 2d 89, 91 (Fla. 1988) (quoting Levine v. Dade Cnty. Sch. Bd., 442 So. 2d 210, 213 (Fla. 1983)). Here, the Complaint contains no such allegation. This alone requires dismissal because absent an allegation of notice, “the complaint fails to state a cause of action.” Id.

Moreover, Alvarez does not dispute that he failed to give pre-suit notice. Instead, Alvarez relies on notice provided after he brought his action. However, “because section 768.28(6) is part of a statutory waiver of sovereign immunity, ‘it must be strictly construed.’ ” Simmons v. Pub. Health Tr. of Miami-Dade Cnty., 338 So. 3d 1057, 1062 (Fla. 3d DCA 2022) (quoting Levine, 442 So. 2d at 212)). Since the requirements of notice are “conditions precedent to maintaining an action” under § 768.28(6)(b), providing notice after initiating an action does not satisfy the statutory requirement.

Accordingly, because Alvarez did not comply with the sovereign immunity statute's pre-suit notice requirement, we reverse and remand with instructions to dismiss the action against the City.

Reversed and remanded.

FOOTNOTES

1.   The order is appealable pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(F)(iii), which authorizes appellate review of non-final orders denying a motion that “asserts entitlement to sovereign immunity.”

2.   In case 3D23-1341, a companion case decided in a separate opinion, Mendez appeals from a separate non-final order denying her motion to dismiss based on sovereign immunity.

3.   Morales and Express Homes are Defendants below but are not parties to the two sovereign immunity interlocutory appeals.

LINDSEY, J.