AUBREY DAVIS
v.
REGINALD TOOKES

Fla. 3d DCA | 2023-11-01
No. 2022-0537
388 So. 3d 155 Florida District Court of Appeal, Third District (2023) Positive Treatment
Cited by 1 case

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Holding

Allegations that a supervisor made false statements to police at a private social event fall outside the scope of employment and are not protected by absolute immunity, even though reporting to the employer is protected.


Headnotes

[1] A notice of appeal that improperly specifies a non-appealable order denying post-trial motions will be treated as correctly directed to the reviewable final judgment if f…

[2] Technical defects in the form or content of a notice of appeal do not affect the jurisdiction of the appellate court.

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Facts & Procedural History

Davis, a former Miami-Dade Transit employee, and Tookes, his supervisor, encountered each other at a private event in Orlando. Tookes falsely told Orl…

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Opinion of the Court

Third District Court of Appeal

State of Florida

Opinion filed November1, 2023. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-0537 Lower Tribunal No. 21-2836

________________

Aubrey Davis,

Appellant,

vs.

Reginald Tookes,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, David C. Miller, Judge. Michael A. Pizzi, Jr., P.A., and Michael A. Pizzi Jr., for appellant. Geraldine Bonzon-Keenan, Miami-Dade County Attorney, and Eric A. Rodriguez, Assistant County Attorney, for appellee. Before FERNANDEZ, LINDSEY, and MILLER, JJ. LINDSEY, J.

Appellant Aubrey Davis (Plaintiff below) appeals from a final order

dismissing his defamation action against Appellee Reginald Tookes

(Defendant below) based on the doctrine of absolute immunity.1 Because

the Complaint contains allegations that fall outside the scope of employment,

we reverse the dismissal and remand for further proceedings.

Davis is a former Miami-Dade Transit employee, and Tookes was his

supervisor. According to the allegations in the Complaint,2 in November

2019, the parties coincidentally attended the same event at the House of

Blues in Orlando, Florida. The Complaint further alleges that Davis avoided

Tookes at the event. Despite this, Tookes called the police and “falsely

claimed that Mr. Davis pushed him three times.” According to the police

report attached to the Complaint, Tookes did “not wish to prosecute or testify

in court[; he] just wanted to report the incident and receive a case number

that he can provide to his employer.” Tookes reported the incident to Miami-

Dade Transit management, and Davis was fired.

Davis filed suit for defamation, and Tookes moved to dismiss based on

absolute immunity. In his motion, Tookes argued that as a supervisor, his

reporting the incident to Miami-Dade Transit fell within the scope of his

employment and was therefore protected by absolute immunity. The trial

court entered an unelaborated order granting Tookes’s motion and

dismissing Davis’s action with prejudice.3 Davis timely appealed.

On appeal, Davis points to allegations in the Complaint that fall outside

the scope of employment. Specifically, the Complaint alleges that Tookes

made a defamatory statement when reporting the incident to Orlando law

enforcement at an event the parties coincidentally attended at the House of

Blues. We agree these allegations fall outside the scope of employment.

Accordingly, we reverse the dismissal and remand for further proceedings.

Reversed and remanded.

Footnotes
1 Tookes’s primary argument on appeal is that this Court lacks jurisdiction because Davis’s notice of appeal attaches an order denying rehearing and not the underlying final order of dismissal. We have jurisdiction because the notice of appeal was filed within the jurisdictional time limit. See, e.g., Puga v. Suave Shoe Corp., 417 So. 2d 678, 679 (Fla. 3d DCA 1981) (“[I]t has been repeatedly held on these very facts that a notice which improperly specifies a non-appealable order denying post-trial motions is to be treated as correctly directed to the reviewable final judgment.”); see also Philip J. Padovano, 2 Fla. Prac., Appellate Practice § 9:4 (2023 ed.) (“Technical defects in the form or content of the notice of appeal are not jurisdictional. Likewise, the failure to include a required attachment to the notice does not affect the jurisdiction of the appellate court.”). 2 “In reviewing an order granting a motion to dismiss, we assume the truth of the allegations.” Yacht Club by Luxcom, LLC v. Vill. of Palmetto Bay, 306 So. 3d 268, 269 n.1 (Fla. 3d DCA 2020).
3 “Generally, refusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party; the privilege to amend has been abused; or the amendment would be futile.” Readon v. WPLG, LLC, 317 So. 3d 1229, 1238 (Fla. 3d DCA 2021).

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  • …enactment of the governing rules of appellate procedure—that non-jurisdictional and non- prejudicial defects in the notice or other steps in the appellate process are not grounds for dismissal.” Id. (citations omitted); see also Davis v. Tookes, 388 So. 3d 155, 157 n.1 (Fla. 3d DCA 2023). And our Court has continued to hold that identifying a rehearing order as the only order to be reviewed is not a jurisdictional defect warranting dismissal. Salgado, 254 So. 3d at 1056 n.6 (citing Tunstall v. Folsom, 6…

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