VICTORIA MENDEZ, ETC.

v.

JOSE R. ALVAREZ

LINDSEY, J.

Appellant (Defendant below) Victoria Mendez, the former City Attorney for the City of Miami, appeals from a non-final order denying her motion to dismiss, which asserts, inter alia, entitlement to sovereign immunity.¹

Because Appellee (Plaintiff below) Jose R. Alvarez’s operative Complaint contains sufficient allegations to survive a motion to dismiss asserting sovereign immunity, we affirm.

I. BACKGROUND

The Complaint contains only one count against Mendez: civil conspiracy to commit fraud. The relevant allegations are as follows. In 2017,

Alvarez inherited his family home after his mother passed away. The home had received a code violation from the Code Enforcement Board and was subject to more than $271,000 in past fines and penalties for containing an illegal living unit. Alvarez contacted Mendez—who was at that time the City

Attorney for the City of Miami—to address the violations. “Under the guise of assisting [Alvarez] with his desperate situation as a disinterested public official, the City Attorney scheduled a phone call with [Alvarez] and during that phone call referred Alvarez to her husband, Carlos Morales.”2

With respect to the civil conspiracy count against Mendez, the

Complaint specifically alleges the following:

Mendez assisted in the fraud by outwardly recommending her husband’s services instead of providing a city resource to [Alvarez] when asked about how to proceed with trying to fix the code violations. . . . Mendez acted in bad faith, with malicious purpose, and in willful disregard to . . . Alvarez’s property rights when she made this referral

In February 2023, Alvarez filed the underlying lawsuit. Mendez moved to dismiss arguing, inter alia, that the alleged facts were insufficient to overcome her entitlement to sovereign immunity.⁴ The trial court denied

Mendez’s motion to dismiss in an unelaborated order,5 and Mendez timely appealed.

II. ANALYSIS

“We review the trial court’s determination regarding sovereign immunity, a question of law, de novo.” Dist. Bd. of Trs. of Mia. Dade Coll. v.

Complaint. See Miami-Dade County v. Perez, 343 So. 3d 175, 177 (Fla. 3d

DCA 2022). Further, we consider the allegations in a light most favorable to the Plaintiff. Id. at 177 n.2.6 Since our review is confined to the sufficiency of the allegations in the Complaint, our decision does not in any way address the ultimate merits of the case.

The Complaint alleges Mendez is personally liable for civil conspiracy to defraud Alvarez. At all relevant times, Mendez was the City Attorney for the City of Miami. “In order to adequately assert a cause of action against

[defendant] in his personal capacity, [the] complaint must allege one of the identified exceptions to the employee immunity statute[, § 768.28(9)(a).]”

Kist v. Hubbard, 93 So. 3d 1100, 1101 (Fla. 5th DCA 2012). Section

768.28(9)(a), Florida Statutes (2023), provides as follows:

(9)(a) An officer, employee, or agent of the state or of any of its subdivisions may not be held personally liable in tort or named as a party defendant in any action for any injury or damage

Pursuant to the statute, Mendez may be held personally liable if she

“acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” Id. Here, the

Complaint specifically alleges that “Mendez acted in bad faith, with malicious purpose, and in willful disregard to [Alvarez’s] property rights when she made this referral with intent to personally profit, through her husband’s company,

from the sale of the home.”⁷

Mendez argues that the allegations of bad faith, malicious purpose, or willful disregard are insufficient because they are conclusory. We disagree.

The Complaint does more than merely copy and paste language from the statute. It contains factual allegations that Mendez was involved in a conspiracy with her husband to defraud Alvarez and that “Mendez assisted

We agree with Mendez’s assertion that the pleading standard for fraud,

the underlying tort upon which the conspiracy is based, requires facts stated with particularity. See Fla. R. Civ. P. 1.120(b) (“In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with such particularity as the circumstances may permit.”). Here, Alvarez has stated facts with particularity as to the underlying fraud allegedly committed by Morales and Express Homes.

However, Mendez has not pointed us to any authority directly supporting her assertion that the pleading standard for bad faith, malicious purpose, or wanton disregard is “a very high standard.” Indeed, Rule

1.120(b) provides that “[m]alice, intent, knowledge, mental attitude, and other condition of mind of a person may be averred generally.” See also Kist, 93

So. 3d at 1101–02 (“[Defendant] contends that the allegations in [plaintiff’s] complaint were not sufficient to meet the requirement of pleading malice because they merely asserted conclusory allegations that [defendant] acted with malice. We disagree. Rule 1.120(b) of the Florida Rules of Civil

Procedure provides that ‘[m]alice, intent, knowledge, mental attitude, and⁷ other conditions of mind of a person may be averred generally.’”); Gangelhoff v. Lokey Motors Co., Inc., 270 So. 2d 58, 59 (Fla. 2d DCA 1972) (“We believe

Rule 1.120(b), R.C.P. 30 F.S.A., correctly recites what must be pleaded in order to constitute a cause of action. . . . The plaintiff may have difficulty in proving malice toward him by the defendant but he has made sufficient averments to afford him the opportunity.”).

III. CONCLUSION

Because the Complaint sufficiently alleges that Mendez acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of Alvarez’s property, we affirm the trial court’s order denying

Mendez’s motion to dismiss.

Affirmed.

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