### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

JOYCE BULLEN GAY and ADENA TESTA
, Petitioner s

- Appellant s ,

v.

JUPITER ISLAND COMPOUND, LLC
, a Delaware l imited l iability c ompany , and

DOLPHIN SUITE , LLC
, a Florida l imited l iability c ompany , Respondent s

- Appellee s

.

No s . 4D 22

- 1007 and 4D22

- 1030

[ April 12, 2023 ]

Consolidated p etition for writ of certiorari and appeal of nonfinal order

from the Circuit Court for the Nineteenth Judicial Circuit, Martin County ; Gary L. Sweet , Judge; L.T. Case No. 432022CA000093

.

Christopher J. Stearns of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., Fort Lauderdale , for petitioner

- appellant Joyce Bullen Gay

.

Jesse Panuccio, Stuart H. Singer and James Grippando of Boies

Schil ler Flexner LLP, Fort Lauderdale

, for pet itioner

- appellant Adena

Testa.

Ethan J. Loeb, Cynthia G. Angelos, Elliot P. Haney , Steven Gieseler,

and Nicholas M. Gies e ler of Bartlett, Loeb, Hinds & Thompson, PLLC, Tampa , for respondents

- appellee s

.

ON RESPONDE NTS

- APPELLEES’ MOTION S FOR REHEARING,

REHEARING EN BANC, CLARIFICATION, AND CERTIFICATION

G ERBER
, J

.

We deny Respondents

- Appellees’ motion for rehearing , rehearing en banc, and certification. We grant Respondents

- Appellees’ motion for clarification. We substitute the following opinion for our original opinion.

The following opinion corrects our earlier description of one allegation pled in the complaint , and adds discussi on of one case before the conclusion

. The following opinion’s remainder mirrors the original opinion.2 In an earlier order, we had consolidated the above

- captioned case numbers 4D22

- 1007 and 4D22

- 1030 for consideration by the same panel.

We now consolida te th e se cases for opinion purposes as well.

Case number 4D 22

- 1007 arises from a public official’s petition for a writ of certiorari

. In that petition, t he public official challenges the circuit court’s nonfinal order denying the public official’s motion to dismiss two landowners’ action against her for tortious interference with business relationships . The public official argues she was entitled to dismissal at the pleading stage based on common law absolute immunity because , as pled in the landowners’ complaint, her alleged tortious interference

occurred in the scope of her official duties

. We agree with the public

official’s reading of the landowners’ complaint , and therefore grant her

certiorari petition

. We direct the circuit court, on remand, to vacate its prior order and issue a final judgment granting the public officia l’s motion

to dismiss the landowners’ action against her with prejudice based on common law absolute immunity

.

Case number 4D 22

- 1030 arises fro m the public official’s appeal of the

same nonfinal order denying the public official’s motion to dismiss , but alternatively based on immunity under section 768.28(9) (a) , Florida

Statutes (2020)

. See Fla. R. App. P. 9.130(a)(3)(F)(ii) (“ Appeals to the district courts of appeal of nonfinal orders [include] those that

... deny a

motion that ... a sserts entitlement to immunity under section 768.28(9),

Florida Statutes ....”) ; § 768.28(9)(a), Fla. Stat. (2020) (“No officer, employee, or agent of th e state or of 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 functi on, 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.”)

.

O ur holding in case number 4D22

- 1007

— that the public official was enti tled to dismissal with prejudice at the pleading stage based on common law absolutely immunity

— moots the public official’s argument in case

number 4D22

- 1030 for immunity under section 768.28(9) (a)

.

However, to the extent our common law absolute immunity h olding in

case number 4D 22

- 1007 may be subject to review which necessitates our reaching the merits in case number 4D22

- 1030

, ou r holding in case number 4D 22

- 1030 would have been that the public official was not
entitled to dismissal at the pleading stage for immunity under section3 768.28(9) (a)

. A lthough the landowners’ complaint pleads that the public

officia l acted in the scope of her official duties

, the landowners’ complaint also pleads the public official acted in bad faith or with mali cious purpose

, thus pr ecluding the public official from obtaining dismissal at the pleading
stage based on immunity under section 768.28(9) (a)

.

We present this opinion in three parts:

1. The landowners ’ complaint;

2. Our certiorari review of the absolute immunity argument ; an d

3. Our rule 9.130 review of the section 768.28(9) (a) argument

.

1. The Landowners’ Complaint

Respondents

- Appellees Jupiter Island Compound LLC and Dolphin Suite LLC (collectively, “the land owners ”) sued Joyce Bullen Gay (“the public official”) for engaging in tortious interference while serving as the Town of Jupiter Island’s Impact Review Committ ee chairperson. The

land owners also sued three Town residents

— Adena Testa, Anne Geddes

and Michael Brooks

— who allegedly conspired with the public official to

commit the tortious interference. In the complaint, the land owners materially alleged , in pertinent part

, as follows.

The landowners’ propert ies are located in the Town of Jupiter Island

and face the Atlantic Ocean . The landowners intended to construct beach

house s on their respective properties

. To properly submit their construction applica tions to the Town, the landowners retained various professionals whose services required payment on an hourly basis. One of the landowners submitted their construction application to the Town in November 2020, and the other landowner submitted their appli cation to
the Town in March 2021.

T he Town’s C ode of O rdinances required the landowners to obtain approval of their construction applications from the Town’s appointed five

person Impact Review Committee ( “the IRC ” )

. The IRC’s duty was to

ensure the landowners’ proposed construction : (i) would not adversely affect the public interest; and (ii) would conform with the Town’s neighborhood character. IRC members sat as quasi

- judicial officers and were required to disclose ex parte communications which t hey had with other people regarding the landowners’ construction applications

. Those

disclosures would have allow ed the landowners to seek to disqualify IRC

members for possible bias before having their construction application s determined

.4 When the land owners submitted their construction applications to the IRC, the public official was the IRC chair. A ccording to the landowners ’ complaint

, as the IRC chair, the public official ’s duties included : (i) help ing

other IRC members gather information to suppo rt or deny an application ; (ii) set ting the agenda, timing, and tone of any hearing; (iii) controll ing the timing and participation of individuals at any hearing ; (i v ) test ing other

IRC members ’ viewpoints and shift ing viewpoints of a hearing into a certain direction; and (v) delay ing any hearing if she deemed it necessary

.

The landowners ’ complaint further alleged that although the public official was aware the landowners’ applications had satisfied the IRC ’s approval criteria, the public official e mbarked upon a series of act s with

her three co

- conspirators to delay the landowners’ applications and

interfere with their relationships with their retained professionals. The

landowners ’ complaint detailed th e public official’s acts as follows.

Sometim e in or before February 2021, the public official had oral

communications with Testa and Geddes to discuss the goals of delay ing, and preventing the approval of, the landowners’ construction applications.

Testa and Geddes then recruited Brooks to join the effort

. Brooks initiat ed meetings between Testa

, Geddes , and other Town residents to spread a false narrative surrounding the landowners’ applications so that the public official could delay approval and increase the landowners’ costs.

On March 4, 2021, t he IR C held a hearing at which it initially

considered the first landowner’s construction application

.

O n March 6, 2021, further to the public official’s personal efforts to prevent development on Jupiter Island, the public official, for apparent quid pro quo, emailed Testa to ask if she and her husband would make a substantial cash donation to an environmental organization with which the public official was involved.

On March 23, 2021, after the public official learned that the second

landowner had submitted their construction application , the public officia l

e

- mailed Geddes and Testa with the following message :

Just got my [IRC] package today

... another house on the ocean parcel. Get to work. I will go down to prevent [approvals before the IRC] from happening. Hope you can help. Sorry

about this but anot her set of letters may be necessary.

...

Geddes and Testa then prepared letters making allegedly false statements that the landowners’ planned construction would destroy5 beach dunes on their parcels and would cause severe environmental harm

to the Town

.

Throughout the remainder of March 2021, the public official allegedly : (i) attended private, in

- person meetings with Testa and Geddes; (ii) introduced Testa to other Town residents who could help provide financial support to further interfe re with the landowners’ construction applications; (iii) indicated she would try to sway other IRC members to delay and deny the applications; and (iv) directed Testa and Geddes to

obtain other IRC members’ commitment s to deny the applications.

On April 1 , 2021, the IRC held a nother hearing at which it considered

both landowners’ construction application s . The public official began the meeting by requiring all IRC members to disclose any ex parte

communications which they had with other people regarding t he

landowners’ construction application s

. The public official falsely stated :

“ I

... have had no ex parte communications. ”

On May 28, 2021, the public official e

- mailed Testa , stating, in pertinent part :

We have received our packs for the [June 3, 2021, IRC ] meeting

. Not a mention of any information from the residents who oppose the development.

... Our information has been presented to us as if NOTHING is disputed.

...

Time to sue the town ... I guess.

On June 3, 2021, the IRC held another hearing at which it considered

both landowners’ construction application s . During the disclosure period, the public official falsely stated: “I have had no ex parte communications. Let me just think. No, no ex parte communication.

... I have spoken to

no one. ” After discussion, t he IRC voted 3

- 2 to approve the first landowner’s application, with the public official being one of the “no” votes.

On August 5, 2021, the IRC held another hearing at which it con sidered the second landowner’s application. During the disclosure period, the public official falsely stated : “ I have had no ex parte communications

. ” After discussion, t he IRC voted 3

- 2 to approve the second landowner’s application, with the public off icial being one of the “no” votes.

Testa

— with Geddes’ assistance

— appealed to the Town Commission the IRC’s approval of the first landowner’s construction application

. By this time, Brooks had been elected to the Town Commission.6 On August 17, 2021, the Town Commission held a hearing to consider Testa’s appeal. Brooks did not disclose his prior communicat ions with

Testa and Geddes before having been elected to the Town Commiss ion.

The Town Commission voted 4

- 1 to overturn the IRC’s approval of the first landowner’s construction application, with Brooks being one of the votes

to overturn the approval

.

Following the Town Commission’s ruling, the landowners served

various public rec ords requests. Through these requests, the landowners

discovered that the public official, Testa, Geddes, and Brooks had engaged in efforts to delay the landowners’ construction applications in order to

cause damage s to the landowners during the IRC proce ss.

The landowners ’ complaint then pled causes of action against

— individually

— the public official, Testa, Geddes, and Brooks

.

The landowners’ cause of action against the public official was for tortious interference. The landowners alleged, in pertinent part:

[The public official] knew of the substantial business relationships that [the landowners] had with third party

consulta nts and professionals, and that any delays of the IRC process would result in additional expenses and damages to [the landowners].

Likewise, [the public official] knew that the [the landowners’] Applications met the IRC’s criteria and that [the

landowners ] thereby had a legitimate expectation of procuring Town approval for the proposed developments.

Rather than make the proper disclosures as required by law to allow [the landowners] to properly disqualify [the public official’s] participation in any of th e multiple IRC hearings, [the public official] elected to conceal such information and falsely represent her intentions to create, delay, and prevent any development on the [landowners’] waterfront parcels of

land

... by denying the [the landowners’] Applica tions

.

[The public official] knew of her ethical and legal obligations to disclose all communications with Testa and Geddes, and that acts of concealment would be illegal, as well

as detrimental to [the landowners]

.7 [The public official] elected to viola te Florida and local laws

so that she could continue to sit as the chair of the IRC and

harm [the landowners].

There is no valid justification for [the public official’s] behavior, specifically:

a. concealing the existence of highly relevant

communicati ons indicating her bias and impermissible motive surrounding the [landowners’] Applications;

b. lying to others at the IRC hearings whereupon [the public official] contended she did not have written communications with others; an d

c. utilizing Testa as a tool to communicate with other IRC members surrounding the [landowners’] Applications in an effort to create delay and undue influence in a quasi

judicial setting.

Indeed, as detailed herein, [the public official] acted with

malice and used improper means and methods to interfere

with [the landowners’] substantial and legitimate business relationships and economic advantages.

As a result of [the public official’s] activities, [the landowners] have been harmed.

(paragraph numbers omitted)

.

The landowners’ individual causes of action against Testa, Geddes, and Brooks were for conspiracy to tortiously interfere. Th o se cause s of action alleged that Testa, Geddes, and Brooks each had :

• “conspired with and assisted [the public official’s ] effort s at delaying and denying [the landowners’] Applications” ;

• “ [ been ] part of an agreement with [the public official] to cause harm to [the landowners]”;

• “substantially acted and assisted [the public official] in furtherance of her efforts to delay and dama ge [the landowners]” ; and8 • “acted with malice and used improper means and methods to interfere with [the landowners’] substantial business relationships.”

The public official filed a motion to dismiss the landowners’ action against her on the basis of : (1) common law absolute immunity ; and (2) immunity under section 768.28(9) (a) , Florida Statutes (2020). The circuit court entered an order summarily denying the public official’s motion to dismiss, without providing any differentiation between the public official’s common law absolute immunity argument and her argument for immunity under section 768.28(9) ( a) . From that order, the public official filed the

cases now before us

— her certiorari petition in case number 4D22

- 1007

, and her rule 9.130 appeal in case number 4D22

- 1030.

2. Our Certiorari Review of the Absolute Immunity Argument

“[C]ertiorari [review] [ is] an appropriate method of challenging the denial of a motion to dismiss based upon principles of immunity from

suit.” Crowder v. Barbati , 987 So. 2d 166, 167 (Fla. 4th DCA 2008). More specifically, certiorari review is available to challenge a lower c ourt ’ s denial

of a motion to dismiss a tortious interference action, when the motion to

dismiss is based on common law absolute immunity. City of Stuart v.

Monds , 10 So. 3d 1134, 1134 (Fla. 4th DCA 2009)

.

As with all certiorari petitions, “ [ t ] he petitioning party must demonstrate that the contested order constitutes (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case, (3) that cannot be corrected on postjudgment appeal.” Bd. o f Trs. of Internal Improvement Tr. Fund v. Am. Educ. Enter s ., LLC , 99 So. 3d 450, 45 4 (Fla. 2012) (citations , alteration and internal quotation marks omitted).

Further, as with the review of any motion to dismiss, we look only to

the four corners of the l andowners’ complaint, accept the landowners’ allegations as true, and view all reasonable inferences arising therefrom in

their favor. See Peterson v. Pollack , 2 90 So. 3d 102, 105, 10 9 (Fla. 4th

DCA 20 20 ) (“[I]n reviewing a motion to dismiss, a court may not go beyond the four corners of the complaint and must accept the allegations therein as true, viewing all reasonable inferences arising therefrom in favor of the plaintiff.”) (citation omitted)

.

Under Florida common law, absolute immunity for words spo ken or written by public servants

— h owever false

, malicious

, or badly motivated

the words may be

— extends to public servants in judicial and legislative9 activities , and to county and municipal officials in legislative or quasi

legislative activities

. Hauser v. Urchisin , 231 So. 2d 6, 8 (Fla. 1970).

Our supreme court has described the basis for common law absolute immunity as follows :

[Common law absolute immunity is] based chiefly upon a recognition of the necessity that certain persons, because of their special position or status, should be as free as possible from fear that their actions in that position might have an adverse effect upon their own personal inter ests. To accomplish this, it is necessary for them to be protected not only from civil liability, but also from the danger of even an

unsuccessful civil action. To this end, it is necessary that the propriety of their conduct not be inquired into indirec tly by either court or jury in civil proceedings brought against them for misconduct in their position. Therefor [e] the privilege, or immunity, is absolute and the protection that it affords is complete. [The immunity] is not conditioned upon the

... absen ce of ill will on the part of the actor.

Fridovich v. Fridovich , 598 So. 2d 65, 68 (Fla. 1992) (quoting Restatement (Second) of Torts § 584, at 243) (emphasis omitted).

Adding to our supreme court’s description of the basis for common law

absolute immuni ty, we have described t he controlling factor in deciding

whe n common law absolute immunity applies:

The controlling factor in deciding whether the absolute privilege applies is whether the communication was within the scope of the [public official’s] duti es. The scope of [a public official’s] duties is to be liberally construed. The term “duties” is not confined to those things required of the [public official], but rather extends to all matters which [the public official] is authorized to perform. Beca use the balancing of interests favors the public official, it is considered better to leave unredressed the wrongs done by dishonest [public officials] than to subject those who try to do their duty to the constant

dread of retaliation.

Cassell v. India

, 964 So. 2d 190, 194 (Fla. 4th DCA 2007) (internal

citations and other quotation marks omitted)

. See also Cameron v.

Jastremski , 246 So. 3d 385, 387

- 88 (Fla. 4th DCA 2018) (“ Conduct is within the scope of one ’ s employment if it is the type of conduct which the10 employee is hired to perform, the conduct occurs substantially within the time and space limits authorized or requested by the work to be performed, and the conduct is activated at least in part by a purpose to serve the employer. ”) (citations omitted ).

Here, we agree with the public official’s argument that, as pled in the landowners’ complaint, her alleged tortious interference occurred in the scope of her duties as an IRC member and as its chair

.

More specifically, as pled in the landowners’ complaint, the IRC’s duty was to ensure the landowners’ proposed construction: (i) would not adversely affect the public interest; and (ii) would conform with the Town’s neighborhood character. In our reading of the landowners’ complaint, and accepting the landowners’ allegations as true, the public official’s actions

were indeed driven to serve those ends

— albeit using false

, malicious

, and badly

- motivated means to accomplish those ends

.

Further, as pled in t he landowners’ complaint, the public official’s duties, as the IRC chair, included: (i) helping other IRC members gather information to support or deny an application; (ii) setting the agenda, timing, and tone of any hearing; (iii) controlling the timing and participation of individuals at any hearing; (iv) testing other IRC members’ viewpoints and shifting viewpoints of a hearing into a certain direction; and (v) delaying any hearing if she deemed it necessary. In our view, a ll of

the acti ons which the l andowners’ complaint alleges the public official

undertook

— in an attempt to delay or defeat the landowners’ construction applications

— fall under those duties

, regardless of whether those actions

occurr ed outside of, or during, an IRC meeting

, and h owever f alse

, malicious

, or badly motivated those actions may have bee n

.

At its core , the landowners’ tortious interference action ultimately

focuses on the public official’s multiple failure s to disclose, and her multiple false representations regarding, her ex parte communications regarding the landowners’ construction applications. However, a s our supreme court made clear in Hauser and Fridovich

, the landowners’ allegation s that the public official falsely and repeatedly stated she had

not en gaged in ex parte communications regarding the landowners’ construction applications is not relevant to whether those actions occurred in the scope of her duties as an IRC member and as its chair

. Hauser , 231 So. 2d at 8; Fridovich , 598 So. 2d at 68. As we held in Cassell

, the fact

that the public official had the authority

— as an IRC member and as its

chair

— to address the landowners’ construction applications wa s sufficient to bring her statement s within the scope of her duties, regardless of

whether those statements were fals e. 964 So. 2d at 195. Further, t he fact11 that the landowners may view the public official’s statements as having an unworthy or non

- public purpose does not destroy her common law absolute immunity. Id

.

In sum

, we conclude the p ublic official has demo nstrate d that the

circuit court’s order denying her motion to dismiss based on common law absolute immunity constitutes : (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case, (3) that cannot be corrected on postjudgment appeal.

Thus, we grant the public official’s certiorari petition in case number

4D22

- 1007. We direct the circuit court, on remand, to vacate its prior

order and issue a final judgment granting the public official’s motion to

dismiss the landowners’ action against her with prejudice based on common law absolute immunity

. See Blake v. City of Port Saint Lucie , 73

So. 3d 905, 907 (Fla. 4th DCA 2011) (“ We conclude that dismissal with prejudice can occ ur at the pleading stage where, as here, the plaintiff alleges that the public official made the statements within the scope of the

official ’ s duties. ”)

.

3. Our Rule 9.130 Review of the

Section 768.28(9) (a) Immunity Argument

As stated above, to the extent our granting the public official’s certiorari petition in case number 4D22

- 1007 may be subject to review, we shall proceed with our rule 9.130 review in case number 4D22

- 1030 , to consider

whether the public official was entit led to dismissal at the pleading stage for immunity under section 768.28(9) (a) , Florida Statutes (2020).

For that issue, o ur standard of review is de novo. See Peterson , 2 90 So.

3d at 108 (whether a state employee or agent is entitled to section 768.28(9)(a) immunity is a pure question of law reviewed de novo) (citation omitted) ; Execu

– Tech Bus. Sys., Inc. v. New Oji Paper Co. , 752 So. 2d 582, 584 (Fla. 2000) (“A trial court ’ s ruling on a motion to dismiss based on a question of law is subject to de novo review.”). Again, we look only to the

four corners of the landowners’ complaint, accept the landowners’ allegations as true, and view all reasonable inferences arising therefrom in

their favor. Peterson , 2 90 So. 3d at 109.

Section 768.28(9)(a) p rovides :

No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage12 suffered as a result of any act, event, or omission of action in the scop e 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.

§ 768.28(9)(a), Fla. Stat. (2020) (em phasis added).

S ection 768.28(9)(a) immunity can extend to appointed municipal

committee members

— such as the public official in this case

— if section 768.28(9)(a)’s requirements are satisfied

. See § 768.1355(3), Fla. Stat. (202 0) (“ Members of elected or a ppointed boards, councils, and commissions of the state, counties, municipalities, authorities, and special districts shall incur no civil liability and shall have immunity from suit as provided in s. 768.28 for acts or omissions by members relating to

mem bers’ conduct of their official duties.

... ”).

Because we already have concluded the landowners’ complaint facially pleads that the public official ’s alleged tortious interference actions

occurred in the scope of her o fficial duties , the issue remaining before us is whether the landowners’ complaint sufficiently alleged that the public

official nevertheless acted “ in bad faith ” or “ with malicious purpose

, ” th us precluding the public official from obtaining dismissal at the pleading

s tage based on immunity under section 768.28(9) (a)

. The issue of whether the public official acted “in a manner exhibiting wanton and willful disregard of human rights, safety, or property” is not before us.

We initially acknowledge that the landowners’ c omplaint does not expressly use the section 768.28(9)(a) phrase s “in bad faith” or “with malicious purpose ” to characterize the public official’s alleged actions. Instead, the landowners’ complaint, after specifying the public official’s alleged actions, summarizes that the public official “ acted with malice and used improper means and methods ” to interfere with the landowners’

business relationships

.

However, we do not view the complaint’s non

- use of the section 768.28(9)(a) phrases “in bad faith” or “wi th malicious purpose” as causing the complaint to have been insufficiently pled

. Rather, view ing all reasonable inferences arising from the landowners’ complaint in their

favor , we consider whethe r the landowners’ allegations could demonstrate that the pu blic official acted “in bad faith” or “with malicious purpose” to preclude section 768.28(9)(a) immunity. See Peterson , 290 So. 3d at 110 ( concluding that although the plaintiffs’ amended complaint contain ed no specific allegation describing how a deputy’s conduct fit those synonymous13 phrases , “ we can foresee how a reasonable trier of fact could find that the deputy ’ s alleged conduct, in certain respects, meets those standards ”).

A s we have previously observ ed, “t he Florida Statutes do not define the phrases ‘ in bad faith ’ or ‘ with malicious purpose ’

... as those phrases are used in section 768.28(9)(a). ” Id. at 109. But we have recognized that

“ [t] he phrase ‘bad faith,’ as used in section 768.28(9)(a), has b een equated

with the actual malice standard.” Id. (citation and other internal quotation

marks omitted)

. And we have recognized that “ [t] he phrase ‘malicious purpose,’ as used in section 768.28(9)(a), has been interpreted as meaning

the conduct was commi tted with ill will, hatred, spite, [or] an evil intent.”

Id. (citation and other internal quotation marks omitted). “Or perhaps stated more simply, the subjective intent to do wrong.” Id. (citation and internal quotation marks omitted).

A pply ing those definitions to the allegations contained in the four

corners of the landowners’ complaint , the complaint sufficiently pleads the public official acted “ in bad faith ” or “ with malicious purpose, ” thus

p recluding the public official from obtaining dismissal at the pleading stage based on immunity under section 768.28(9) (a)

. According to the complaint :

• A lthough the public official was aware the landowners’ applications had satisfied the IRC’s approval criteria, the public official allegedly embarked upon a series of acts with her three co

- conspirators to delay the landowners’ applications and interfere wi th their relationships with their retained professionals.

• Those alleged acts included spreading a false narrative surrounding the landowners’ applications so that the public official could delay approval and increase the landowners’ costs; emailing Testa, for apparent quid pro quo, to ask if she and her husband would make a substantial cash donation to an environmental organization with which the public official was involved ; and directing Testa and Geddes to engage in a second letter

- writing campaign, whi ch letters made allegedly false statements that the landowners’ planned construction would destroy beach dunes on their parcels and would

cause severe environmental harm to the Town.

• Lastly, t he public official

— at three separate IRC meetings

— failed to

dis close, and instead falsely stated

, she had not had any ex parte communications regarding the landowners’ construction applications . Even though the IRC ultimately voted to approve the

construction applications, the public official’s timely prior d isclos ur e14 of such ex parte communications would have all owed the landowners to seek to disqualify the public official for bias before having their construction applications determined

.

Based on the foregoing, the landowners’ complaint sufficiently alleged the pub lic official’s actions showed “the subjective intent to do wrong

, ” i.e., that she acted “in bad faith” or “with malicious purpose.” Peterson , 290 So. 3d at 109. Thus, we conclude the public official was not entitled to dismissal at the pleading stage bas ed on immunity under section 768.28(9) (a)

.

Our conclusion is consistent with our prior opinion in Palazzo Las Olas Group LLC v. City of Fort Lauderdale , 966 So. 2d 497 (Fla. 4th DCA 2007).

In Palazzo , the appellant developer appealed from a circuit court order dismissing the developer’s complaint against, among others, various public officials in their individual capacities. Id. at 498. Three of the counts sought damages for tortious interference wi th contract, tortious interference with an advantageous business relationship, and conspiracy.

Id. at 500. The counts were based on allegations that after the city had accepted the appellant’s development proposal, and after the developer had spent over two years and $5 million in reliance on the c ity ’ s actio n, the various public officials, “ as a consequence of a changing political

climate

... undertook efforts to derail the Project

, including efforts

... to delay the

... vote on the site plan until after the e lections ... [as well as] purposely and in bad faith routinely confus [ing] and switc h[ing] their respective roles in accomplishing a grossly improper objective. ” Id. at 499 (internal quotation marks omitted)

.

The public officials filed a motion to dismiss. Id. at 500. The y insisted

the tortious interference and conspiracy claims could not stand for two

reasons: “ (1) because [those claims] were predicated upon the [public

officials ’ ] actions in voting at a public meeting and such actions constituted the exercise of quasi

- judicial powers and were thus absolutely

immune

, ... and (2) because section 768.28(9)(a), Florida Statutes, affords government officers, agents, and employees immunity from suit unless

their actions are taken in ‘ bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety,
or property ’ and the complaint failed to adequately allege such bad faith or malicious purpose

. ” Id. at 502

- 03 (internal citations omitted).

The circuit court dismissed the tortious interference and conspiracy

counts

, finding that, as a matter of law, th ose counts’ allegations “ [did] not arise to the level of bad faith, malicious purpose or a man ner exhibiting wanton and willful disregard of human rights, safety or property,” i.e., the15 level of bad faith necessary to avoid section 768.28(9) ’ s sovereign immunity. ” Id. at 500.

On appeal, we reversed that finding, reasoning:

We have reviewed the c omplaint ’ s allegations and find them minimally sufficient to allege the kind of bad faith and malicious purpose necessary to seek to impose individual liability. The [public officials’] alternative claim that [the tortious interference and conspiracy] cou nts

... must fail as they are predicated upon the [public officials’] actions in voting at a public meeting is also insufficient to support the

dismissal of the counts as the claims are not predicated solely upon the act of voting

.

Id. at 503 (emphasis added).

Consistent with our reasoning in Palazzo , w e have reviewed the

landowners’ complaint here, and find th eir allegations sufficient to have allege d the kind of “ bad faith ” and “ malicious purpose ” necessary to seek to impose individual liability against the public official for tortious

interference . The fact that some of the landowners’ allegations were predicated upon the public official ’s actions outside of voting at a public meeting does not su pport the public official’s attempt to obtain dismissal at the pleading stage based on immunity under section 768.28(9) (a)

.

We note that Palazzo ’s application to this case is limited to the issue of whether the public official was entitled to dismissal at the pleading stage under section 768.28(9)(a). Palazzo cannot be applied to determine whether the public official was entitled to dismissal at the pleading stage based on common law absolute immunity. Although we observed in

Palazzo that the public offi cials had argued they also were entitled to dismissal at the pleading stage based on common law absolute immunity, our opinion did not state whether the circuit court had ruled on that argument, nor did our opinion comment on the merits of that argument.

Conclusion

In sum , we conclude the public official wa s entitled to dismissal at the pleading stage based on common law absolute immunity because, as pled in the landowners’ complaint, her alleged tortious interference occurred in the scope of her official duties. We therefore grant the public official’s certiorari petition in case number 4D22

- 1007. As stated above, we direct the circuit court, on remand, to vacate its prior order and issue a final16 jud g ment granting the public official’s motion to dismiss the landowners’ action against her with prejudice based on common law absolute immunity

.

Our holding in case number 4D22

- 1007

— that the public official was entitled to dismissal with prejudice at the pleadi ng stage based on common law absolutely immunity

— moots the public official’s argument in case

number 4D22

- 1030 for immunity under section 768.28(9) (a)

. However, to the extent our common law absolute immunity holding in case number

4D22

- 1007 may be subject to review which necessitates our reaching the

merits in case number 4D22

- 1030, our holding in case number 4D22

- 1030 would have been that the public official was not entitled to dismissal at the pleading stage for immunity under section 768.28(9) (a)

.

We m ake two final points for clarity’s sake in issuing this opinion.

First, in neither case number 4D22

- 1007 nor case number 4D22

- 1030

have we reached the issues of whether the landowners’ complaint state d a cause of action for tortious interference, or wheth er such a cause of action

would have been meritorious . N othing in this opinion should be construed as commenting on those issues.

Second , earlier in these cases, we accepted Testa’s notice of joinder and permitted Testa to either file brief s limited to s upporting the public official’s petition, or formally adopting the public official’s petition. Testa

chose to file brief s . However, Testa’s brief s went beyond supporting the public official’s petition, by requesting us to direct the circuit court to

dism iss the action with prejudice as to all defendants, including her. Testa argued that precluding the landowners from pursuing their tortious interference action against the public official would derivatively preclude the landowners from pursuing their individual conspiracy action s against Testa, Geddes, and Brooks. See, e.g.

, Palm Beach C n ty. Health Care Dist.

v. Pro. Med. Educ. , Inc

. , 13 So. 3d 1090, 1096 (Fla. 4th DCA 2009) ( “An act which does not constitute a basis for an action against one person cannot be made the basis of a civil action for conspiracy.”). However, we cannot consider Testa’s request, because the circuit court ha s not reviewed such
a request in the first instance . Our opinion is without prejudice to Testa (or the other defendants) making this request to the circuit court on remand

. Nothing in this opinion should be construed as commenting on

th e merits of that r equest

.

Certiorari p etition granted in case number 4D 22

- 1007 ; non

- final appeal

in case number 4D 22

- 1030 dismissed as moot

.17 L EVINE and C ONNER
, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.