Full Opinion

Third District Court of Appeal State of Florida Opinion filed January 2, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D18-2545 Lower Tribunal No. 15-4002 ________________ Luis Quintero, Appellant, vs. Jose M. Diaz, Appellee. An Appeal from the Circuit Court for Miami-Dade County, Antonio Arzola, Judge. Gerald J. Tobin, P.A., and Howard Brodsky, for appellant. Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., and Michael R. Piper (Fort Lauderdale), for appellee. Before EMAS, C.J., and SALTER and GORDO, JJ. GORDO, J. Quintero, the former Director of Parks and Recreation for the City of Sweetwater, appeals the trial court’s grant of summary judgment in favor of Jose M. Diaz, the former Mayor of Sweetwater. Quintero sued Diaz alleging defamation per se based on a termination letter written while acting in his official capacity. We affirm the trial court’s ruling as we conclude the alleged defamatory statements were protected by the doctrine of absolute immunity. FACTUAL AND PROCEDURAL BACKGROUND Quintero was the Director of Parks and Recreation for the City of Sweetwater during the time that Diaz was the City’s Mayor. On June 2, 2014, Diaz—acting in his official capacity as City Mayor—terminated Quintero. The termination letter stated, among other things, that Quintero had exhibited “poor judgment” and had been “incompetent, negligent and inefficient in the performance of [his] duties.” The letter was included as part of Quintero’s personnel file with the City, which is a public record. Based on the contents of the termination letter, Quintero sued Diaz for defamation per se. Quintero alleged that the statements were false, and that Diaz was aware of their falsity at the time he authored the letter. Quintero also claimed that the statements were made in bad faith, with malice and with reckless disregard for the truth. 2 Diaz and Quintero filed competing motions for summary judgment.1 Quintero argued that Diaz was not entitled to absolute immunity because section 768.28(9)(a), Florida Statutes (2014), had abrogated the common law immunity afforded to public officials in defamation per se claims. Diaz claimed that he was entitled to absolute immunity and that section 768.28(9)(a) was inapplicable in this case. The trial court granted Diaz’s motion and denied Quintero’s, finding that Diaz was entitled to absolute immunity because he was acting in his official capacity and section 768.29(9)(a) did not abrogate the common law privilege. This appeal followed. LEGAL ANALYSIS “The question of whether allegedly defamatory statements are absolutely privileged is one of law to be decided by the court and consequently is ripe for determination on motion for summary judgment.” Stephens v. Geoghegan, 702 So. 2d 517, 522 (Fla. 2d DCA 1997) (internal citation omitted). We review a trial court’s ruling on a motion for summary judgment de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). The issue presented in this appeal is whether section 768.29(9)(a) abrogates the absolute immunity provided by common law to public officials who make statements within the scope of their duties when those statements are alleged to be 1 For purposes of summary judgment, the parties stipulated that the statements in the letter were false and that the letter legally constituted defamation per se. 3 false, malicious, or badly motivated. We hold that section 768.29(9)(a) does not abrogate such absolute immunity. As the trial court aptly noted, Quintero’s argument overlooks the well-settled fact that the defense of absolute immunity or privilege is a separate and distinct concept from sovereign immunity. Cobb’s Auto Sales, Inc. v. Coleman, 353 So.2d 922, 923 (Fla. 4th DCA 1978). The Cobb’s court explained why these legal concepts are distinct: The doctrine of sovereign immunity was a rule laid down by the ruling authority that he, because he was the ruler, could do no wrong and therefore was immune from any charges that he had done wrong. The legislature, by enacting Section 768.28, decided this common law doctrine should be removed from the law of Florida. On the other hand, the defense of absolute privilege is based on consideration of the public interest: The public interest requires that statements made by officials of all branches of government in connection with their official duties be absolutely privileged. Under our democratic system the stewardship of public officials is daily observed by the public. It is necessary that free and open explanations of their actions be made. Id. at 923 (citing Hauser v. Urchisin, 231 So. 2d 6, 8 (Fla. 1970)). Quintero argues that Diaz is exempt from immunity to suit under sovereign immunity where Diaz’s statements were false, malicious or badly motivated.2 2 Section 768.28(9)(a), Florida Statutes, titled “Waiver of Sovereign Immunity in Tort Action,” states, in relevant part: 4 Diaz counters that as a public official, he is entitled to absolute immunity for statements that were made within the course of his duties as Mayor. We find “[n]othing in the . . . language [of the sovereign immunity statute] 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.” Weeks v. Town of Palm Beach, 252 So. 3d 258, 261 (Fla. 4th DCA 2018) (quoting Blake v. City of Port Saint Lucie, 73 So. 3d 905, 906 (Fla. 4th DCA 2011)). “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.” Brown v. McKinnon, 964 So. 2d 173, 175 (Shepherd, J., dissenting) (quoting Hauser, 231 So. 2d at 8). “[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. Warlow, 403 So. 2d 414, No officer, employee, or agent of the state or 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. 5 416 (1981). The parties here have stipulated that Diaz was acting in his official capacity as the Mayor of Sweetwater and within the scope of his duties when he issued the termination letter. Thus, Diaz—as Mayor—enjoys absolute immunity from statements contained in the termination letter as they are shielded by privilege from suit. CONCLUSION The trial court correctly granted summary judgment in favor of Diaz, as he is entitled to absolute immunity for statements made in connection with his official duties. Affirmed. 6