It must be a trial lawyer’s worst nightmare. You’re in the middle of the trial you spent months preparing for. Your opening went well. Your witnesses are doing great. You can see that your client’s case is resonating with the jury. Your clients are looking hopeful. Opposing counsel isn’t.

You’re about to rest your case-in-chief. You ask the court for a recess so you can make sure opposing counsel has agreed to necessary stipulations, and that you’ve covered all of your bases. Opposing counsel moves for a directed verdict.

You’re suing a state hospital, and opposing counsel refers the court to Florida Statutes Section 768.28, the state’s limited waiver of sovereign immunity. You go through the statute in your mind. Subsection (6) – did I give written notice to the defendant and the DFS within 3 years of the time the claim accrued? Yes. Did I wait 6 months before filing the complaint? Yes.

Then you come to Subsection (7). Did I serve the complaint on the defendant? Yes, of course. Did I serve a copy of the complaint on the DFS? Uh-oh.

You call your office to arrange to get a copy of the complaint served on the DFS immediately. But is it too late? You feel your stomach tighten. You see visions of your clients’ files being flushed down the toilet. You can almost hear the judge granting a directed verdict. You wonder how much the defendant’s bill of costs will be. You imagine yourself telling your clients that you’ve lost. You hope they won’t cry. You hope they won’t sue you.

Okay, breathe. If you’ve gotten this far, you might just be able to keep going.

Yes, that’s right. In a case then known as Acanda v. Public Health Trust of Miami-Dade County, a Miami-Dade County Circuit Judge reserved judgment, then denied, a motion for directed verdict, even though the DFS wasn’t served until mid-trial. The jury found for the plaintiff. The 3rd DCA affirmed.

And in Public Health Trust of Miami-Dade County v. Acanda, No. SC10-302 (released June 23, 2011), the Florida Supreme Court (per Justice LaBarga) upheld the jury’s verdict. Why?

The Analysis:

The Supreme Court’s reasoning was threefold.

First, the Court agreed with the 5th DCA’s conclusion in Turner v. Gallagher, 640 So.2d 120, 122 (Fla. 5th DCA 1994), that unlike pre-suit notice under Subsection 768.28(6), service under Subsection (7) is not a “condition precedent” to bringing suit, and it doesn’t require that service be made at a particular time. So the plaintiff satisfied Subsection (7) when she served the DFS mid-trial, whether or not she did so before resting her case-in-chief.

Second, the Court held lack of service on the DFS under Subsection (7) is an affirmative defense, rather than an element on which the plaintiff bears the burden of proof. It reasoned that even the notice requirements of Subsection (6), which are conditions precedent to suit, aren’t “elements of the cause of action.” So the Subsection (7) service requirements, which aren’t conditions precedent, surely can’t be elements of the cause of action. As such, a directed verdict can’t be granted based on a failure to prove service on the DFS in the case-in-chief.

Third, the Court took issue with how the defendant attempted to allege noncompliance with Subsection (7) within the affirmance defense of failure to state a cause of action. To properly raise the issue, “such noncompliance must be pled with specificity and particularity.”

Rather than covertly stating the defense as “a ‘gotcha’ tactic,” the Court explained, it should be spelled out, and raised by pre-trial motion. The Court roundly condemned what it saw as the defendant’s “practice of trial by surprise,” in failing to allege this affirmative defense in sufficient detail as to put the plaintiff on notice that it related to service under Subsection (7).

Some Observations:

  1. The Court’s concern with vague pleading of affirmative defenses makes sense.  But how far does it go?  It’s fairly common for defendants to plead defenses generally.  Was the Court rejecting that practice generally in favor pleading defenses “with specificity and particularity”?
  2. It’s unclear what compelled the second part of the Court’s reasoning.  Extrapolating from Subsection (6), the Court concludes that service on the DFS isn’t an element of the cause of action, so the plaintiff can’t bear the burden of proof on it.  But in Levine v. Dade-County Schoolboard, 442 So.2d 210 (Fla. 1983) the Court held that the plaintiff does bear the burden of proof as to compliance with Subsection (6) even though it’s explicitly not an element of the cause of action.  And while lack of service in general is a defense, Florida Rule of Civil Procedure 1.140, the plaintiff still bears the burden of proving service.  See Re-employment Servs., Ltd. v. National Loan Acquisitions Co., 969 So. 2d 467 (5th DCA 2007).  Why not deal with service under Subsection (7) in the same manner?