Duplig v. City of South Daytona, H--127

• Decision Date: 28 February 1967
• Docket Number: No. H--127,H--127
• Citation: 195 So.2d 581
• Parties: John R. DUPLIG, Appellant, v. CITY OF SOUTH DAYTONA, Florida, etc., et al., Appellee.
• Court: Florida District Court of Appeals

Page 581

195 So.2d 581

John R. DUPLIG, Appellant, v. CITY OF SOUTH DAYTONA, Florida, etc., et al., Appellee.

No. H--127.

District Court of Appeal of Florida, First District.

Feb. 28, 1967.

Tucker & Fearns, for appellant.

Norton Josephson, Daytona Beach, for appellees.

CARROLL, DONALD K., Judge.

The plaintiff in a suit for declaratory and injunctive relief has taken this interlocutory appeal from an order entered by the Circuit Court for Volusia County, granting the defendants' motion to dismiss his complaint.

The sole question presented for our determination in this appeal is whether that court in the said order properly held that the allegations of the plaintiff's complaint are insufficient to state a claim for the relief sought therein against the defendants.

In his complaint the plaintiff alleges substantially as follows: He is a citizen, taxpayer, and duly-elected city councilman of the City of South Daytona, Florida. The corporate defendant is a municipal corporation established pursuant to a charter by the Florida Legislature, and the individual defendants are the duly elected and acting mayor, all of the remaining members of the city council, and the acting city clerk of the said municipality. At a special meeting of the city council held on July 21, 1965, a majority of the council passed a motion, contrary to certain sections of the city charter and to the state law governing municipalities as set forth in the Florida Constitution and the governing case law on the subject. That motion provided that 'the City would provide for the defense of Mayor Jacobs in the Law Suit for Defamation of Character filed against the Mayor by former City Clerk, Helen Nolte, choice of Attorney to be left to Mayor Jacobs.'

A copy of the complaint filed in the mentioned defamation action brought by Helen Nolte against the mayor is attached to and made a part of the complaint in the instant case. In her complaint Helen Nolte alleged, in brief and in substance, that at all times mentioned in her complaint she held the public office of City Clerk of the City of South Daytona, an appointive office in which she served at the pleasure of the City Council; that, on May 3, 1965, the defendant, Thornwell Jacobs, Jr., 'acting ostensibly in his capacity as Mayor of the City of South Daytona, Florida * * *' called an informal meeting of the City Council at the City Hall, requesting the appearance of the plaintiff, Helen Nolte; and that at the said meeting Jacobs read, uttered, and published to divers persons certain false and malicious statements concerning her. The alleged statements were to the effect that the City Council had lost faith in the said plaintiff in her office as City Clerk, that she had stabbed Jacobs 'in the back' by writing political letters for a political adversary, had given privileged information to a member of the City Council, and had helped a political adversary make illegal and unwarranted changes upon the public docket sheet of the Municipal Code, and was carrying on an illicit affair, and that she allowed herself to be used as a tool for opposing political forces that were maliciously attempting to discredit and embarrass the City, Jacobs individually, and a majority of the City Council. After alleging the damages which she suffered as a result of those statements--mental pain, damages to her name, reputation, business, etc.--she demanded of the defendant, Jacobs, compensatory damages in the sum of $150,000 and punitive damages in the sum of $250,000.

In the second count of her complaint, Helen Nolte alleged substantially the same facts concerning the informal hearing of the City Council and the statements made thereat by the defendant, Jacobs, concerning her. There is one omission from the second count, however, that might bear some significance in the present consideration-- --the omission of the allegation in the first count that Jacobs called the informal meeting and made the said statements 'acting ostensibly in his capacity as Mayor of the City of South Daytona, Florida. * * *' Nevertheless, early in both counts of her said complaint the plaintiff alleged: 'That at all times, mentioned hereinafter this complaint (sic), the defendant was the Mayor of the City of South Daytona, Florida.'

In the case at bar the defendants, in response to the plaintiff's complaint, filed a motion to dismiss the complaint for failure to state a cause of action, a motion to strike certain portions of the complaint, and a motion for a more definite statement. These three motions, together with the plaintiff's application for a temporary injunction, were heard by the Circuit Court, which then entered the order appealed from herein. In that order the court granted the defendants' motion to dismiss, with leave to the plaintiff to file an amended complaint within ten days, but did not rule upon the other two motions and the said application. The court did not set forth in its said order its reasons for granting the motion to dismiss, but the appellant in his 'statement of the case' in his brief declares that the court verbally stated that it was unable to find any allegation in the complaint 'that the actions complained of were performed by the Mayor in his personal capacity with bad faith * * *' and that, if the Plaintiff wished to plead violation of certain sections of the City Charter 'it was encumbent upon him to spell out what they provide.' The appellees in their main appellate brief concede that the plaintiff in his brief correctly stated the statement of the case. In the present consideration, however, the validity of the court's ruling, not its reasons therefor, is the question before us in this appeal.

The principal contention made by the plaintiff-appellant in this appeal is that the action brought by Helen Nolte against Mayor Jacobs was a personal action and hence the motion passed by the City Council on July 21, 1965, providing for the Mayor's defense in that action, was illegal as not being for a legitimate municipal purpose. In evaluating this contention we must first examine the complaint in the said action to see whether the cause of action sued upon is against Jacobs as a municipal official or as an individual.

Judging from the allegations of the complaint filed by Helen Nolte, we think the cause of action alleged by her is basically against Mayor Jacobs in his official capacity rather than against him personally.

The basic rule of law invoked and relied upon by the appellant here in support of his cause of action is that enunciated by the Supreme Court of Florida in Peck v. Spencer, 26 Fla. 23, 7 So. 642 (1890), as follows:

'An ordinance making an appropriation of the funds of a town or city, derived from taxation, for purposes wholly beyond the purview of municipal grant, is a wrongful appropriation of the funds held in trust for the tax-payers and people to pay the...