Opinion
No. XX-367.
December 11, 1980. As Modified on Denial of Rehearing January 21, 1981.
Petition for review from the Circuit Court, Duval County, Gordon A. Duncan, Jr., J.
Stephen Stratford, of Arnold, Stratford Booth, Jacksonville, for petitioner.
Angela B. Corey, of Howell Howell, Jacksonville Beach, for respondent.
ON PETITION FOR WRIT OF PROHIBITION
This cause is before us on petition for writ of prohibition to review the order of the circuit court denying a motion to dismiss the complaint in a tort action against the City of Jacksonville. Petitioner asserts that the circuit court exceeds its jurisdiction in entertaining the suit because the city is immune under the doctrine of soverign immunity, as most recently clarified by the Florida Supreme Court in Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla. 1979), and further because notice requirements were not complied with.
Soverign immunity and the notice requirement have occasionally been referred to as questions going to the subject matter jurisdiction of the trial court. We hold that the determination of these questions are within the trial court's jurisdiction and that alleged error in those determinations does not form the basis for invoking this court's original jurisdiction. As to the notice requirement of Florida Statutes § 768.28, it is a condition precedent to suit but may be waived. Hutchins v. Mills, 363 So.2d 818 (Fla. 1st DCA 1978). Compliance with conditions precedent is a matter for determination by the trial court, and refusal to dismiss the complaint on that basis is not grounds for writ of prohibition.
See, e.g., State Road Department v. Brill, 171 So.2d 229 (Fla. 1st DCA 1964).
Accordingly, the alternative writ is discharged and the petition denied.
MILLS, C.J., and LARRY G. SMITH, J., concur.