CHRISTINA PAYLAN, APPELLANT,
v.
DARRELL DIRKS, CHRISTINE BROWN, AND MARK OBER, APPELLEES

Fla. 2d DCA | 2017-10-11
Nos. Case Nos. 2D15-2962, 2D15-4972
NORTHCUTT, SALARIO, and ROTHSTEIN-YOUAKIM, JJ., Concur.
228 So. 3d 679 Florida District Court of Appeal, Second District (2017) Positive Treatment
Cited by 2 cases

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Synopsis

Christina Paylan appealed the dismissal of her civil claims against state prosecutors for narcotics investigation and prosecution. The court affirmed dismissal of most counts but reversed the dismissal of Fourth Amendment and tortious interference claims against individual Assistant State Attorneys Dirks and Brown, holding that Paylan had alleged sufficient facts to survive dismissal and deserved leave to amend.


Holding

The court affirmed dismissal of most counts against all defendants but reversed the dismissal of Fourth Amendment and tortious interference claims against ASAs Dirks and Brown individually. The trial court abused its discretion in dismissing these claims with prejudice without leave to amend, as Paylan sufficiently alleged facts that could support causes of action and the immunity defenses were not clearly established on the face of the complaint.


Headnotes

[1] A dismissal with prejudice should not be ordered without giving the party an opportunity to amend unless the privilege to amend has been abused or it is clear the pleadin…

[2] A trial court abuses its discretion by dismissing a complaint with prejudice without leave to amend when the plaintiff has sufficiently alleged deprivation of civil right…

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Key Quotes

“A dismissal with prejudice should not be ordered without giving the party offering the pleading an opportunity to amend unless it appears that the privilege to amend has been abused or it is clear that the pleading cannot be amended to state a cause of action.”

Establishes the standard for dismissal with prejudice and the requirement to permit amendment

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Facts & Procedural History

Paylan was investigated and prosecuted by the State Attorney's Office for narcotics violations. She filed amended complaints naming State Attorney Mar…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Christina Paylan appeals the dismissal with prejudice of her first amended and second amended complaints against State Attorney (SA) Mark Ober and Assistant State Attorneys (ASAs) Darrell Dirks and Christine Brown. The complaints arise out of the State Attorney’s Office’s investigation and prosecution of Paylan for narcotics violations.

After a de hovo review and the benefit of oral argument, we affirm without comment the trial court’s dismissal with prejudice of-Counts III (intentional infliction of emotional distress), IV (negative entrustment and hiring), V (malicious prosecution), and VI (abuse of process) of the first amended complaint; Counts II (42 U.S.C. *680§ 1983/Fifth and Fourteenth Amendments), III (42 U.S.C. § 1983/negligent supervision and failure to train), V (defamation), and VI (defamation by implication) of the second amended complaint; and all other claims against SA Ober.

Although we affirm the trial court’s dismissal with prejudice of Counts I (42 U.S.C. § 1983/Fourth Amendment) and IV (tortious interference with a business relationship) of the second amended complaint as they pertain to SA Ober,. we reverse the dismissal of those counts as they pertain to ASAs Dirks and Brown, individually. Paylan sufficiently alleged deprivation of her civil rights under the Fourth Amendment and tortious interference with her business relationships. Although she did not sufficiently attribute specific improper conduct to a specific ASA in every instance, she did raise some specific allegations against both ASA Dirks and ASA Brown. Thus, the trial court abused its discretion in determining that allowing Paylan to amend her claims would be futile and dismissing Counts I and IV against ASAs Dirks and Brown without leave to amend. See Kapley v. Borchers, 714 So.2d 1217, 1218 (Fla. 2d DCA 1998) (“A dismissal with prejudice should not be ordered without giving the party offering the pleading an opportunity to amend unless it appears that the privilege to amend has been abused or it is clear that the pleading cannot be amended to state a cause of action.”); cf. Gerentine v. Coastal Sec. Sys., 529 So.2d 1191, 1194 (Fla. 5th DCA 1988) (“Because the second amended complaint did not provide short and plain statements of the ultimate facts as required by the rules of pleading, the court correctly dismissed it. However, because a cause of action can be gleaned from said second amended complaint, the court should have permitted the plaintiffs another opportunity to amend it .... ”).

Moreover, Paylan’s allegations against the ASAs in their individual capacities fall within Florida’s limited waiver of sovereign immunity, see § 768.28(9)(a), Fla. Stat. (2010), and the face of her complaint does not. otherwise conclusively establish that the ASAs are entitled either to sovereign immunity or to qualified immunity. See Peak v. Outward Bound, Inc., 57 So.3d 997, 999 (Fla. 2d DCA 2011) (“Sovereign immunity generally is an affirmative defense that may justify granting a motion to dismiss only when the complaint itself conclusively establishes its applicability.” (quoting Sierra v. Associated Marine Insts., Inc., 850 So.2d 582, 590 (Fla. 2d DCA 2003))); Becker v. Clark, 722 So.2d 232, 233 (Fla. 2d DCA 1998) (“On a motion to dismiss based on a qualified immunity defense, a trial court must examine the complaint to determine whether the allegations themselves reveal the existence of the qualified immunity defense; that is, whether, under the most favorable version of facts alleged, the defendant’s action violated clearly established law.”); Town of Southwest Ranches v. Kalam, 980 So.2d 1121, 1122 (Fla. 4th DCA 2008) (“[A] qualified immunity defense may be resolved on a motion to dismiss where ... the facts supporting the defense are clear from the complaint.”).

Therefore,'the trial court erred in dismissing with prejudice Counts I and IV as to ASAs Dirks and Brown. On remand, Paylan must be given the opportunity to amend Counts I and IV to clearly identify the particular defendant to which she attributes a particular improper act.

Affirmed in part; reversed in part; remanded with instructions.

NORTHCUTT, SALARIO, and ROTHSTEIN-YOUAKIM, JJ., Concur.


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Citator

Cited By

  • Santiago v. Rodriguez (Fla. 2d DCA 2019)
    …on to dismiss on statute of limitations grounds only when the complaint on its face conclusively shows ---PAGE 3--- that the action is barred. Hummer v. Adams Homes of Nw. Fla., Inc., 198 So. 3d 750, 752 (Fla. 2d DCA 2016); cf. Paylan v. Dirks, 228 So. 3d 679, 680 (Fla. 2d DCA 2017) (reversing dismissal on sovereign immunity grounds when the complaint did not conclusively show that the defendant was entitled to immunity). That was not the case here. Section 95.11(4)(b) provides that a medical malpra…
  • GAY v. City of Dunedin (Fla. 2d DCA 2021)
    …se of discretion to do so with prejudice since it was not clear from the record that a cause of action could never be alleged against appellee individually. Appellant should have therefore been given an opportunity to amend."); cf. Paylan v. Dirks, 228 So. 3d 679, 680 (Fla. 2d DCA 2017) ("[T]he trial court erred in dismissing with prejudice Counts I and IV as to [Assistant State Attorneys] Dirks and Brown. On remand, Paylan must be given the opportunity to amend Counts I and IV to clearly identify the part…

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