JASON WEEKS v. TOWN OF PALM BEACH

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JASON WEEKS,
Appellant,
v.
TOWN OF PALM BEACH, a municipality of the State of Florida; PETER
B. ELWELL, Town Manager and in his individual capacity; KIRK
BLOUIN, Director of Public Safety and in his individual capacity;
DARREL DONATTO, Deputy Fire Chief and in his individual capacity;
DANIELLE OLSON, Director of Human Resources and in her individual
capacity; DAN SZARSZEWSKI, Deputy Police Chief and in his individual
capacity; BRODIE ATWATER, Assistant Fire Chief and in his individual
capacity; MARGARET COOPER, in her individual capacity; JOHN
CUOMO, in his individual capacity; RICHARD WARD, in his individual
capacity; MARK BRADSHAW, in his individual capacity; DANNY
DUNNAM, in his individual capacity; JAMES DUANE, in his individual
capacity; PETER CODISPOTI, in his individual capacity; and BRIAN
FULLER, in his individual capacity,
Appellees.
No. 4D17-1061
[July 25, 2018]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Jeffrey Dana Gillen, Judge; L.T. Case No.
502015CA103586XXXXMB.
Jonathan O’Boyle of The O’Boyle Law Firm, Deerfield Beach, for
appellant.
Robert W. Wilkins of Jones, Foster, Johnston & Stubbs, P.A., West
Palm Beach, for appellees.
FAHNESTOCK, FABIENNE E., Associate Judge.
Jason Weeks, the Appellant, filed an amended complaint for fraud,
conspiracy to defame, negligent supervision, negligent interference with a
prospective advantageous business relationship, 1 prevention of due
process, and injunctive relief against the Town of Palm Beach (“the Town”)
and several individual defendants, 2 personally and in their official
capacities (collectively, “the Appellees”). The complaint was based upon
an alleged series of events that caused his demotion within, and eventual
termination from, the Town’s Fire and Rescue Department. Upon motion,
the trial court granted summary judgment in favor of the Appellees. Weeks
appealed the judgment, and he raises five issues on appeal, but only two
merit discussion. 3 We affirm the trial court’s decision as to each issue.
In his complaint, Weeks claimed that while employed by the Town’s Fire
and Rescue Department, and with full support of his command staff, he
created a website that offered public facts and opinions about the Town’s
proposed changes to the department’s pension plan. Thereafter, the Town
fired Weeks’ superior, Chief William Amador, for his role in the site’s
creation and his alleged untruthfulness regarding such role. Weeks
claimed that after he met with the allegedly displeased Appellees, the
Appellees planned a scheme to gather false and defamatory statements
and fabricate documents and records with malicious intent towards him.
He asserted that the plan brought about several investigations throughout
2011 and 2012, which resulted in his demotion and ultimate termination.
On December 9, 2015, Weeks filed his initial complaint against the
Appellees. In it, he alleged that the action was “for defamation, negligent
supervision, tortious interference with a prospective advantageous
business relationship, and civil conspiracy . . . .” Five months later, he
filed his first amended complaint in which he alleged that the action was
1 It is well-established that Florida does not recognize a cause of action for
negligent interference with a business relationship. See Ragsdale v. Mount Sinai
Med. Ctr. Of Miami, 770 So. 2d 167, 169 n.2 (Fla. 3d DCA 2000); Fla. Power &
Light Co. v. Fleitas, 488 So. 2d 148, 151 (Fla. 3d DCA 1986).
2 In addition to the Town of Palm Beach, Weeks also sued: Peter B. Elwell,
individually and as the Town’s manager, Kirk Blouin, individually and as the
Directory of Public Safety, Darrel Donatto, individually and as the Deputy Fire
Chief, Danielle Olson, individually and as Director of Human Resources, Dan
Szarszewski, individually and as the Deputy Police Chief, Brodie Atwater,
individually and as the Assistant Fire Chief, and the following individuals:
Margaret Cooper, John Cuomo, Richard Ward, Mark Bradshaw, Danny Dunnam,
James Duane, Peter Codispoti, and Brian Fuller.
3 Throughout his brief, Weeks frequently mislabels and wrongly argues that his
appeal concerns a dismissal; instead, this case concerns an order granting final
summary judgment in favor of the Appellees, and this court reviews this appeal
as such.
2
“for defamation, conspiracy to defame, tortious interference with a
prospective business relationship, and intentional infliction of emotional
distress . . . .”
After a hearing where the trial court considered the defense of absolute
immunity, Weeks filed a second amended complaint. In it, Weeks stated
that the action was “for Common Law Fraud, Conspiracy to Defame,
Negligent Supervision, Negligent Interference with a Prospective
Advantageous Business Relationship, Prevention of Due Process and
Intentional Infliction of Emotional Distress . . . .” The complaint’s general
allegations and facts closely mirrored those of the first amended
complaint. Within the second amended complaint, Weeks discussed
allegedly false, malicious, critical, disparaging, inaccurate, misleading,
wrongful, and fraudulent statements and accusations that were allegedly
damaging to his personal and professional reputation.
After Weeks filed his second amended complaint, the Appellees filed
joint motions to dismiss and for summary judgment. After a hearing on
the motions, the trial court found, among other things, that the Appellees
were acting within “the scope of their duties as set forth in codified rules
and under direction of their superiors.” It concluded that the statements
made by the individual defendants were “protected by an absolute
privilege.” Consequently, the trial court granted the motion for summary
judgment, and within the order granting the motion, the court specifically
noted that the order rendered the motion to dismiss moot.
Standard of Review
This court reviews summary judgment orders de novo. See Weinstein
Design Grp., Inc. v. Fielder, 884 So. 2d 990, 997 (Fla. 4th DCA 2004).
“‘When reviewing a ruling on summary judgment, an appellate court must
examine the record and any supporting affidavits in the light most
favorable to the non-moving party.’” Id. (quoting City of Lauderhill v.
Rhames, 864 So. 2d 432, 434 n.1 (Fla. 4th DCA 2003)).
Defamation
“The question of whether allegedly defamatory statements are
absolutely privileged is one of law to be decided by the court, Resha v.
Tucker, 670 So. 2d 56, 59 (Fla. 1996), and consequently is ripe for
determination on motion for summary judgment.” Stephens v. Geoghegan,
702 So. 2d 517, 522 (Fla. 2d DCA 1997). Public officials are absolutely
immune from claims for defamation where their allegedly defamatory
statements are made within the scope of their duties. See Bates v. St.
Lucie Cty. Sheriff’s Office, 31 So. 3d 210, 213 (Fla. 4th DCA 2010).
Further:
3
“The public interest requires that statements made by officials
of all branches of government in connection with their official
duties be absolutely privileged.” The court recognized that
democracy needs “free and open explanations” of
governmental actions and the right to this absolute privilege
is a function of that necessity. This absolute privilege extends
to a sheriff for comments made in the course of the sheriff’s
duties.
Crowder v. Barbati, 987 So. 2d 166, 167 (Fla. 4th DCA 2008)
(quoting Hauser v. Urchisin, 231 So. 2d 6, 8 (Fla. 1970)).
Id.; see also Blake v. City of Port Saint Lucie, 73 So. 3d 905, 906 (Fla. 4th
DCA 2011) (“Nothing in the emphasized language suggests that the
legislature intended to abrogate or limit the absolute immunity which the
common law provides to public officials who make statements within the
scope of their duties.”).
The Florida Supreme Court has stated:
“It seems to be well settled in this State that words spoken or
written by public servants in judicial and legislative activities
are protected by absolute privilege from liability for
defamation. However false or malicious or badly motivated
the accusation may be, no action will lie therefor in this State.
Nor is it questioned that such absolute immunity in this State
extends to county and municipal officials in legislative or
quasi-legislative activities as well as to members of the State
Legislature and activities connected with State legislation.”
Hauser, 231 So. 2d at 8 (quoting McNayr v. Kelly, 184 So. 2d 428, 430
(Fla. 1966)); accord Cassell v. India, 964 So. 2d 190, 193 (Fla. 4th DCA
2007).
“[T]he controlling factor in deciding whether a public employee is
absolutely immune from actions for defamation is whether the
communication was within the scope of the officer’s duties.” City of Miami
v. Wardlow, 403 So. 2d 414, 416 (Fla. 1981); accord Forman v. Murphy,
501 So. 2d 640, 641 (Fla. 4th DCA 1986). “[T]he Florida Supreme Court
has decided that the scope of an official’s duties extends beyond
enumerated, required tasks, and includes discretionary duties that are
associated with a given position.” Stephens, 702 So. 2d at 523.
4
In this case, the trial court correctly found that the Appellees were
absolutely immune from defamation claims due to their status as public
officials. See Bates, 31 So. 3d at 213. Weeks’ initial complaint and first
amended complaint included claims for defamation. After the trial court
considered the defense of absolute immunity, Weeks filed a second
amended complaint, and instead of including a claim for defamation,
asserted a claim for common law fraud. The terminology used in each of
the three complaints regarding statements made in the various
investigations indicates that the re-labeling of the defamation claim was
simply a poisoned apple.
Based upon the facts presented to the trial court and made part of the
appellate record, the statements made by the Appellees were protected by
absolute privilege from claims for defamation, no matter how false,
malicious, or badly motivated. See Cassell, 964 So. 2d at 193; Hauser,
231 So. 2d at 8. This is because the alleged statements or accusations
were made in the course of sanctioned investigations by the Appellees. As
such, the controlling factor of whether the communications were in the
scope of the public officer’s duties was met for each Appellee. See
Stephens, 702 So. 2d at 523; Alfino v. Dep’t of Health & Rehab. Servs., 676
So. 2d 447, 449 (Fla. 5th DCA 1996); City of Miami, 403 So. 2d at 416. We
affirm on this ground.
Statute of Limitations
The statute of limitations for a defamation suit is two years. See §
95.11(4)(g), Fla. Stat. (2012); Wagner, Nugent, Johnson, Roth, Romano,
Erikson & Kupfer, P.A. v. Flanagan, 629 So. 2d 113, 114 (Fla. 1993). “The
period begins to run from the time the cause of action accrues[.]” Id. at
115; accord § 95.031, Fla. Stat. (2012). “A cause of action for defamation
accrues on publication[.]” Wagner, 629 So. 2d at 115; accord § 770.07,
Fla. Stat. (2012). “Although chapter 770 primarily addresses media
defendants, we note that the chapter is broadly titled Civil Actions for
Libel.” Wagner, 629 So. 2d at 115. Thus, section 770.07 is “applicable to
all civil litigants, both public and private, in defamation actions.” Id.
On appeal and below, Weeks claims that the Town terminated him
based upon a compilation of allegations that were fabricated on December
13, 2012. The record on appeal demonstrates that Weeks knew of the
alleged defamatory statements at or near the time of publication. The
instant lawsuit, filed three years later on December 9, 2015, was one year
beyond the conclusion of the statute of limitations for defamation. 4 See §
4The application of the two-year statute of limitations, as opposed to the four-
year statute of limitations as argued by Weeks, is based upon our prior
5
95.11(4)(g); § 95.031; Wagner, 629 So. 2d at 114-15. We therefore affirm
the trial court’s entry of summary judgment on this basis.
Conclusion
Consequently, we affirm the trial court’s order granting summary
judgment in favor of the Appellees because the Appellees were immune
from claims for defamation and Weeks filed the lawsuit beyond the
applicable two-year statute of limitations. See § 95.11(4)(g); Bates, 31 So.
3d at 213.
Affirmed.
DAMOORGIAN and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
determination that the second amended complaint is nothing more than a
reassertion of the defamation claims in the guise of fraud claims.
6