Malone v. City of Satellite Beach, No. 97-2658

• Court: Court of Appeal of Florida (US)
• Writing for the Court: PER CURIAM; COBB, J., and ORFINGER, M.; W. SHARP; W. SHARP
• Citation: 717 So.2d 1067
• Parties: 23 Fla. L. Weekly D1921 John J. MALONE, Appellant, v. CITY OF SATELLITE BEACH, Florida, et al., Appellees.
• Docket Number: No. 97-2658
• Decision Date: 14 August 1998

Page 1067

717 So.2d 1067 23 Fla. L. Weekly D1921 John J. MALONE, Appellant,
v.
CITY OF SATELLITE BEACH, Florida, et al., Appellees. No. 97-2658. District Court of Appeal of Florida,
Fifth District. Aug. 14, 1998.
Rehearing Denied Sept. 28, 1998.

Appeal from the Circuit Court for Brevard County; J. Preston Silvernail, Judge.

John A. Racin, Melbourne and Sharon Lee Stedman of Sharon Lee Stedman, P.A., Orlando, for Appellant.

Steven F. Lengauer and Ernest J. Myers of Meier, Lengauer, Bonner, Muszynski & Doyle, P.A., Orlando, for Appellees.

PER CURIAM.

AFFIRMED. See McNayr v. Kelly, 184 So.2d 428 (Fla.1966).

COBB, J., and ORFINGER, M., Senior Judge, concur.

W. SHARP, J., dissents with opinion.

W. SHARP, Judge, dissenting.

I respectfully dissent. I do not think that McNayr v. Kelly, 184 So.2d 428 (Fla.1966) is dispositive of this appeal in any way. This case presents the question of whether the trial court abused its discretion in awarding the appellees (City of Satellite Beach, et al.), attorney's fees against the appellant (Malone), after he voluntarily dismissed his lawsuit. The court found that the complaint showed on its face that it was a frivolous lawsuit and failed to raise any justiciable issue of law or fact. I do not think it was.

Malone filed a complaint against the City of Satellite Beach and the council members individually for defamation based on a resolution it passed containing allegedly false and malicious statements concerning him, which were designed to prevent him from serving on the Brevard (County) Metropolitan Planning Organization Citizens Advisory Board, and to cause him public disgrace and scandal. At the time the resolution was passed, Malone was a candidate for appointment to the Citizens Advisory Board.

The resolution accused Malone of wasting taxpayer monies by filing frivolous suits against Satellite Beach and instigating fruitless investigations against the City. It declared it had received six harassment complaints against him concerning inappropriate comments to its employees and volunteers, and he would be issued a trespass warning. It also declared that he has lowered morale and productivity in the City and that he had (inappropriately ) assisted a drunk driver who killed two City policemen by furnishing information and assistance.

As a basis for the resolution, it states that various mayors of nearby cities, and the vice mayor of Satellite Beach have directed their representatives to the Metropolitan Planning Organization to oppose Malone's appointment

Page 1068

to the Advisory Board. Accordingly, the City's resolution recommended that Malone not be appointed to the Advisory Board, and ordained that a copy of the resolution be given to all members of the Brevard County Metropolitan Planning Organization.

In response to the complaint, appellees filed a motion to dismiss which claimed absolute privilege for the defamatory remarks in the resolution on the ground that clearly and on its face, the City was acting in its official legislative capacity and the City, as well as council members, were entitled to absolute immunity for their legislative activity, citing McNayr. Malone did...