Brown v. McKinnon

• Decision Date: 01 August 2007
• Docket Number: No. 3D06-1332.,3D06-1332.
• Citation: 964 So.2d 173
• Parties: Ophelia BROWN, Appellant, v. Samuel McKINNON, Appellee.
• Court: Florida District Court of Appeals

964 So.2d 173

Ophelia BROWN, Appellant, v. Samuel McKINNON, Appellee.

No. 3D06-1332.

District Court of Appeal of Florida, Third District.

August 1, 2007.

Rehearing Denied September 26, 2007.

An Appeal from the Circuit Court for Miami-Dade County, Robert N. Scola, Jr., Judge.

Murray A. Greenberg, Miami, and Craig E. Leen & Rachel M. Wilhelm, for appellant.

Charles McKinnon, for appellee.

Before RAMIREZ, SHEPHERD, and CORTIÑAS, JJ.

PER CURIAM.

Ophelia Brown appeals the trial court's order denying her motion to dismiss, which denied her absolute and official immunity from suit in her individual capacity as a matter of law. We dismiss the appeal, as this Court has no jurisdiction to hear it. See Dep't of Educ. v. Roe, 679 So.2d 756 (Fla.1996); Fla. R.App. P. 9.130(a)(3)(C)(vii).

Appeal dismissed.

RAMIREZ and CORTIÑAS, JJ., concur.

SHEPHERD, J., dissenting.

The appellant, Ophelia Brown, director of the Miami-Dade County Community Action Agency, seeks review of a non-final order denying her motion to dismiss a complaint filed against her individually by Samuel McKinnon, the deposed Executive Director of a Community Action Agency funds recipient, St. Albans Nursery. Ms. Brown asserts in this case that the common law doctrine of absolute immunity from suit and its statutory counterpart, sovereign official immunity, shield her individually from being named a defendant in this action. Because the relief to which she claims entitlement is immunity from suit, as distinguished from immunity from liability, Ms. Brown asserts there must exist a vehicle for immediate review of the order, else the immunity afforded her under the law is illusory. Relying upon Dep't of Ed. v. Roe, 679 So.2d 756 (Fla.1996), the majority concludes that she is not entitled to immediate appellate review of this non-final order. I agree with the majority on this point. However, our labor is not thus concluded. Ms. Brown argues in the alternative that in circumstances such as these, we should treat her appeal as a petition for certiorari and grant relief. Fla. R.App. P. 9.040(c)("If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy."); Edwards v. Edwards, 634 So.2d 284, 285 n. 1 (Fla. 4th DCA 1994)(treating a petition of certiorari as an appeal from a non-final order); Harris v. Lewis State Bank, 482 So.2d 1378, 1380-81 (Fla. 1st DCA 1986)(treating an appeal from a non-final order dismissing an action with leave to amend as a petition for certiorari). Cf. Greene v. Cal. Fed. Bank, 658 So.2d 1027, 1028 (Fla. 4th DCA 1995)("If this order constituted a departure from the essential requirements of law for which there was no adequate remedy by appeal from final judgment, we would treat this appeal as a petition for certiorari. It does not, however, and we therefore dismiss the appeal."). I agree with Ms. Brown on this point. On the facts presented, I would grant, in part, the petition filed by Ms. Brown.

FACTS

This case arises out of the termination of Samuel McKinnon by his employer, St. Albans Nursery. The nursery participates in the federal Head Start program, which provides assistance to pre-school age children in economically disadvantaged communities. According to the complaint, the program is administered in Miami-Dade County by the Miami-Dade County Community Action Agency. The Agency Director, Ophelia Brown, is alleged to be the individual in charge of allocating and administering the distribution of the federal funds for the program within the County.

At the time of his termination, McKinnon was the Executive Director of St. Albans. It is not seriously disputed that St. Albans was in financial crisis. McKinnon alleges that Brown unlawfully caused St. Albans to terminate him. His complaint is supported by an attached letter from Ms. Brown on Agency stationery dated the day before his demise, stating that the Agency intended to withhold an $88,527 "second advance" necessary to pay the next day's nursery personnel salaries unless "[t]he [St. Albans] Board moves to terminate the services of the present Executive Director, Samuel McKinnon, effective immediately," and "[t]he Board cooperates fully with the Agency with the investigation of the financial status of St. Alban's by an independent auditor . . ."). He also alleges that prior to his dismissal, Brown stated to a gathering of Board members and others that McKinnon had been observed in a known drug area, had an outside job in contravention of his employment agreement with St. Albans, and was otherwise guilty of professional malfeasance. The complaint sounds in three counts, tortious interference by Brown in McKinnon's written contract with St Albans, injurious falsehood, and defamation.

ANALYSIS

I. The Jurisdictional Question

The majority declines review of the order presented on the strength of Roe, 679 So.2d 756 (Fla.1996), which treated only the question of whether an earlier decision of the Florida Supreme Court, Tucker v. Resha, 648 So.2d 1187 (Fla.1995), should be extended to "create yet another nonfinal order for which review is available (under Florida Rule of Appellate Procedure 9.130)." Roe, 679 So.2d at 759. In Tucker, inspired by the fact that an interlocutory order denying a defense of qualified immunity to a federal civil rights claim in the federal system is treated as a reviewable final order in the United States Court of Appeal if the denial turns on an issue of law, our High Court elected to amend Florida Rule of Appellate Procedure 9.130 to afford a like benefit of review to government officials in this state who find themselves in the same circumstance in our state courts. Id. at 1190. See Fla. R.App. P. 9.130(a)(3)(C)(vii). Roe acknowledges the uniqueness of Tucker. Roe, 679 So.2d at 759 ("[I]n Tucker we had an interest in affording federal causes of action brought in state court the same treatment they would receive if brought in federal court."). Although in Roe, the Florida Supreme Court "approve[d] the decision of the district court of appeal [below]," Roe, 679 So.2d at 757-58, which "[had] considered DOE's petition according to the standard of review for common law certiorari and denied relief." Id. at 759, neither Roe nor Tucker appear to have expressly and directly opined on whether certiorari jurisdiction lies to review an order denying a motion to dismiss on the ground of common law or statutory immunity in the proper case. Certiorari review does exist in our court to review orders denying motions to dismiss in the proper circumstance. See, e.g., Miami-Dade County v. Fente, 949 So.2d 1101, 1102 (Fla. 3rd DCA 2007)(granting a petition for certiorari and quashing a non-final order denying petitioner's motion to dismiss on sovereign immunity grounds); Jenne v. Maranto, 825 So.2d 409, 414 (Fla. 4th DCA 2002)(treating a non-final order denying a motion to dismiss for immunity pursuant to the Eleventh Amendment as a petition for writ of certiorari). If the intention of the above affirmance is to hitch interlocutory reviewability of an order denying a public official immunity defense to federal reviewability, then I must stand athwart the evolution of appellate jurisdiction in this state yelling "stop." I have no need for a federal invitation to assert the historic original jurisdiction of this court.

II. This is a Proper Case

A writ of certiorari properly issues to the lower court from the denial of the motion to dismiss in this case if (1) the trial court departed from an essential requirement of law, (2) the order resulted in irreparable injury, and (3) the injury is incapable of being remedied by a final appeal. Blades v. State, Dept. of Revenue ex rel. Stewart, 943 So.2d 300 (Fla. 3d DCA 2006).

Ms. Brown asserts she is immune from suit in this case on the basis of both absolute immunity under the common law and its statutory counterpart, sovereign official immunity under section 768.29(9)(a)(2005). This section of the Florida statutes reads as follows:

No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

§ 768.28(9)(a), Fla. Stat. (2005). A perusal of the statute makes clear that in order for a plaintiff to succeed in piercing the statutory immunity defense, he must make a good faith allegation in the complaint that the public official either acted outside the scope of his employment or in bad faith. Id. The statute places an affirmative duty on the plaintiff to satisfy this pleading requirement. Medberry v. McCallister, 937 So.2d 808, 814 (Fla. 1st DCA 2006). This duty cannot be satisfied by mere conclusory allegations. See McClelland v. Cool, 547 So.2d 975, 977 (Fla. 2d DCA 1989). Without support, the complaint must fail.

Common law immunity provides even greater protection for public officials, shielding them from all statements made within the scope of their authority, "however false or malicious or badly motivated" the statement may be. Hauser v. Urchisin, 231 So.2d 6, 8 (Fla.1970); Albritton v. Gandy, 531 So.2d 381, 387 (Fla. 1st DCA 1988)(holding that common law immunity attaches "no matter how false or malicious or badly motivated a statement may be as long as the statements or actions fall within `the scope of duty' of the public official").¹ As with statutory immunity, a plaintiff seeking to pierce a common law immunity defense has the burden of proper pleading. See Medberry, 937 So.2d at 814. To escape a motion to dismiss on the ground of common law immunity, the plaintiff has the...