DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JOYCE BULLEN GAY and ADENA TESTA,

Petitioners-Appellants,

v.

JUPITER ISLAND COMPOUND, LLC,

a Delaware limited liability company, and

DOLPHIN SUITE, LLC, a Florida limited liability company,

Respondents-Appellees.

Nos. 4D22-1007 and 4D22-1030

[April 12, 2023]

Consolidated petition 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 

Schiller Flexner LLP, Fort Lauderdale, for petitioner-appellant Adena 

Testa.

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

and Nicholas M. Gieseler of Bartlett, Loeb, Hinds & Thompson, PLLC, 

Tampa, for respondents-appellees.

ON RESPONDENTS-APPELLEES’ MOTIONS FOR REHEARING,

REHEARING EN BANC, CLARIFICATION, AND CERTIFICATION

GERBER, 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 discussion 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 consolidate these cases for opinion purposes as well.

Case number 4D22-1007 arises from a public official’s petition for a 

writ of certiorari. In that petition, the 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 official’s motion 

to dismiss the landowners’ action against her with prejudice based on 

common law absolute immunity.

Case number 4D22-1030 arises from 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 ... asserts entitlement to immunity under section 768.28(9), 

Florida Statutes ....”); § 768.28(9)(a), Fla. Stat. (2020) (“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 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.”).

Our holding in case number 4D22-1007—that the public official was

entitled 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 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 
3

768.28(9)(a). Although the landowners’ complaint pleads that the public 

official acted in the scope of her official duties, the landowners’ complaint 

also pleads the public official acted in bad faith or with malicious purpose, 

thus precluding 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; and

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 landowners”) sued Joyce Bullen Gay (“the 

public official”) for engaging in tortious interference while serving as the 

Town of Jupiter Island’s Impact Review Committee chairperson. The

landowners 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 landowners 

materially alleged, in pertinent part, as follows.

The landowners’ properties are located in the Town of Jupiter Island

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

houses on their respective properties. To properly submit their 

construction applications 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 application to 

the Town in March 2021.

The Town’s Code of Ordinances required the landowners to obtain 

approval of their construction applications from the Town’s appointed fiveperson 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 they had with 

other people regarding the landowners’ construction applications. Those 

disclosures would have allowed the landowners to seek to disqualify IRC 

members for possible bias before having their construction applications

determined.
4

When the landowners submitted their construction applications to the 

IRC, the public official was the IRC chair. According to the landowners’ 

complaint, as the IRC chair, the public official’s duties 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.

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 embarked upon a series of acts with 

her three co-conspirators to delay the landowners’ applications and 

interfere with their relationships with their retained professionals. The 

landowners’ complaint detailed the public official’s acts as follows.

Sometime in or before February 2021, the public official had oral

communications with Testa and Geddes to discuss the goals of delaying,

and preventing the approval of, the landowners’ construction applications. 

Testa and Geddes then recruited Brooks to join the effort. Brooks initiated

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, the IRC held a hearing at which it initially 

considered the first landowner’s construction application.

On 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 official 

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 another set of letters may be necessary. ... 

Geddes and Testa then prepared letters making allegedly false 

statements that the landowners’ planned construction would destroy 
5

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 interfere 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’ commitments to deny the applications.

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

both landowners’ construction applications. The public official began the 

meeting by requiring all IRC members to disclose any ex parte 

communications which they had with other people regarding the 

landowners’ construction applications. 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 applications. 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, the 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 considered 

the second landowner’s application. During the disclosure period, the 

public official falsely stated: “I have had no ex parte communications.” 

After discussion, the IRC voted 3-2 to approve the second landowner’s 

application, with the public official 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 communications with 

Testa and Geddes before having been elected to the Town Commission. 

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 records 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 damages to the landowners during the IRC process.

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 

consultants 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 the 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’] Applications.

[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 violate 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 

communications 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; and

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 quasijudicial 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. Those causes of action 

alleged that Testa, Geddes, and Brooks each had:

• “conspired with and assisted [the public official’s] efforts 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 damage [the landowners]”; and
8

• “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 court’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. of Trs. of Internal Improvement Tr. Fund v. Am. Educ. Enters., 

LLC, 99 So. 3d 450, 454 (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 landowners’ complaint, accept the landowners’

allegations as true, and view all reasonable inferences arising therefrom in 

their favor. See Peterson v. Pollack, 290 So. 3d 102, 105, 109 (Fla. 4th 

DCA 2020) (“[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 spoken or 

written by public servants—however false, malicious, or badly motivated 

the words may be—extends to public servants in judicial and legislative 
9

activities, and to county and municipal officials in legislative or quasilegislative 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 interests. 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 indirectly 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 ...

absence 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 immunity, we have described the controlling factor in deciding 

when 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] duties. 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. Because 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 the 
10

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 the 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, all of 

the actions which the landowners’ 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 

occurred outside of, or during, an IRC meeting, and however false,

malicious, or badly motivated those actions may have been.

At its core, the landowners’ tortious interference action ultimately

focuses on the public official’s multiple failures to disclose, and her 

multiple false representations regarding, her ex parte communications 

regarding the landowners’ construction applications. However, as our 

supreme court made clear in Hauser and Fridovich, the landowners’ 

allegations that the public official falsely and repeatedly stated she had

not engaged 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 was sufficient 

to bring her statements within the scope of her duties, regardless of

whether those statements were false. 964 So. 2d at 195. Further, the fact 
11

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 public official has demonstrated 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 occur 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 entitled to dismissal at the pleading stage 

for immunity under section 768.28(9)(a), Florida Statutes (2020).

For that issue, our standard of review is de novo. See Peterson, 290 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, 290 So. 3d at 109.

Section 768.28(9)(a) provides:

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 damage 
12

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.

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

Section 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. 

(2020) (“Members of elected or appointed 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 

members’ 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 official 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,” thus

precluding the public official from obtaining dismissal at the pleading 

stage 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’ complaint does not 

expressly use the section 768.28(9)(a) phrases “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 “with malicious purpose” as causing 

the complaint to have been insufficiently pled. Rather, viewing all 

reasonable inferences arising from the landowners’ complaint in their 

favor, we consider whether the landowners’ allegations could demonstrate 

that the public 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 contained no 

specific allegation describing how a deputy’s conduct fit those synonymous 
13

phrases, “we can foresee how a reasonable trier of fact could find that the 

deputy’s alleged conduct, in certain respects, meets those standards”).

As we have previously observed, “the 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 been 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 committed 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).

Applying 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 

precluding the public official from obtaining dismissal at the pleading 

stage based on immunity under section 768.28(9)(a). According to the 

complaint:

• Although 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 with 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, which 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, the public official—at three separate IRC meetings—failed to 

disclose, 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 disclosure
14

of such ex parte communications would have allowed 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 public 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 based 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 with 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 city’s action, 

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 elections ... [as well as] 

purposely and in bad faith routinely confus[ing] and switch[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. They 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, those counts’ allegations “[did] not 

arise to the level of bad faith, malicious purpose or a manner exhibiting 

wanton and willful disregard of human rights, safety or property,” i.e., the 
15

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 complaint’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] counts ... 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, we have reviewed the 

landowners’ complaint here, and find their allegations sufficient to have 

alleged 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 support 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 officials 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 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 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 final 
16

judgment 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 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 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 make 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 stated a 

cause of action for tortious interference, or whether such a cause of action 

would have been meritorious. Nothing 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 briefs limited to supporting the public 

official’s petition, or formally adopting the public official’s petition. Testa 

chose to file briefs. However, Testa’s briefs went beyond supporting the 

public official’s petition, by requesting us to direct the circuit court to 

dismiss 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 actions against 

Testa, Geddes, and Brooks. See, e.g., Palm Beach Cnty. 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 has 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 

the merits of that request.

Certiorari petition granted in case number 4D22-1007; non-final appeal 

in case number 4D22-1030 dismissed as moot.
17

LEVINE and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.