UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

CITIZENS STATE BANK, a

Florida corporation, f/k/a THE 

CITIZENS BANK OF PERRY, a

Florida corporation,

Plaintiff,

v. Case No.: 1:10-CV-00224-SPM-GRJ

DIXIE COUNTY, a political

subdivision of the State of Florida

Defendant. 

______________________________/

ORDER ON DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S AMENDED

COMPLAINT

THIS CAUSE comes before the Court on Defendant’s motion to dismiss Plaintiff’s

amended complaint and demand for jury trial, filed December 17, 2010 (Doc. 19). Plaintiff filed

a responsive memorandum to Defendant’s motion on February 1, 2011 (Doc. 25). For the

reasons set forth below, Defendant’s motion will be denied in part and granted in part.

Background

River Shores at Jena owned a parcel of real property in Dixie County. With the help of

attorney Joseph Lander, River Shores sought and obtained land development approvals from the

Dixie County Board of County Commissioners. The current controversy arises from the role of

Joseph Lander and his conduct prior to and subsequent to the county’s issuance of the approvals.

During certain stages of the approval process, Joseph Lander served as both attorney for
the approving body, Dixie County, and attorney for the applicant, River Shores. In his dual role,

Joseph Lander made representations to the county board on behalf of the applicant and also

provided a legal opinion, in his capacity as county attorney, that the applicant’s development

plans complied with the county’s comprehensive plan. Ethical considerations aside, Joseph

Lander’s compliance assessment resulted in the county board issuing development approvals to

River Shores. 

Upon the issuance of the approvals, River Shores took steps to secure the development of

its property. River Shores gave Joseph Lander $820,000.00 in cash to deposit into his trust

account with the understanding that the cash bond would secure performance and construction

improvements to the property. Once the money was in the trust account, River Shores began

construction on the property pursuant to the county’s approvals. As time progressed, River

Shores requested that $510,000.00 be disbursed from the trust account to cover expenses related

to the development of the property. The request was granted, the money was disbursed, and

River Shores continued with construction. When it ran into additional funding shortages, River

Shores once again turned to Joseph Lander to request money from the trust account. Joseph

Lander refused the additional request on the grounds that the county board had instructed him to

hold on to the remaining funds until all of the land improvements had been completed. In need

of additional funds, River Shores, sought to obtain a loan from Citizens State Bank. 

Prior to issuing its loan, Citizens State Bank called Joseph Lander to inquire as to

whether the remainder of River Shores’ $340,000.00 cash bond remained in the trust account. 

During the call, Joseph Lander confirmed that the amount was still being held in the account. 

Around May 1, 2007, Citizens State Bank issued a loan to River Shores in the amount of

$850,000.00. In return, River Shores executed and delivered a number of loan documents,
including an assignment of funds and notice of assignment of the $340,000.00 cash bond that

supposedly remained in Joseph Lander’s trust account. 

Citizens State Bank maintains that it made the loan to River Shores in reliance on the

value of River Shores’ property, taking into consideration the enhancement of value that the land

development approvals added, and on the assignment of the $340,000.00 cash bond from the

trust account. 

Shortly after Citizens State Bank issued its loan to River Shores, things began to unravel. 

A new attorney replaced Joseph Lander as the county attorney for Dixie County. The new county

attorney discovered that the development approvals issued to River Shores did not comply with

the county’s comprehensive plan. As a result, the new county attorney immediately issued a stop

work order and halted all development on River Shores’ property. Subsequently, River Shores

defaulted on its loan with Citizens State Bank. 

In response to the default, Citizens State Bank foreclosed on River Shores’ property and

sought out additional avenues to make up for its loss. Citizens State Bank took ownership of the

property at the foreclosure sale which, it argues, had decreased in value as a result of the loss of

the development approvals. Citizens State Bank also sought to recover the $340,000.00 that was

assigned as security for the loan and discovered that Joseph Lander did not have the remainder of

the cash bond in the trust account; he had already converted the money to personal use. 

Citizens State Bank now asserts that it has been denied its property rights without due

process through the county’s deliberate indifference to the risk it was creating to those who might

have an interest in River Shores’ property when it failed to address Joseph Lander’s improper

conduct as county attorney. Citizens State Bank is also suing the county for negligent retention

of Joseph Lander as county attorney. Dixie County requests that Citizens State Bank’s claims be
dismissed pursuant to Rule 12(b)(6). 

Standard of Review

The pleading requirements set forth in Rule 8(a)(2) require a “short and plain statement of

the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). To survive a

motion to dismiss, a plaintiff needs only to “give the defendant fair notice of what the . . . claim

is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 

When evaluating the merits of a motion to dismiss, a court must accept all reasonable

inferences from the complaint and consider all allegations as true. Broward Garden Tenants

Ass’n. v. U.S. Envtl. Prot. Agency, 157 F. Supp. 2d 1329, 1337 (S.D. Fla. 2001). Furthermore, a

court must view the allegations of the complaint in the light most favorable to the plaintiff. See

FED. R. CIV. P. 12(b)(6); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Jackson v. Okaloosa

Cnty., Fla., 21 F. 3d 1531, 1534 (11th Cir. 1994).

The threshold of sufficiency a complaint must meet in order to survive a motion to

dismiss for failure to state a claim is “exceedingly low.” Broward Garden Tenants Ass’n., 157 F.

Supp. 2d at 1337. Dismissal pursuant to Rule 12(b)(6) is warranted “only if it is clear that no

relief could be granted under any set of facts that could be proved consistent with the allegations

of the complaint.” Shands Teaching Hosp. & Clinics, Inc. v. Beech Street Corp., 208 F.3d 1308,

1310 (11th Cir. 2000)(quoting Hison v. King & Spalding, 467 U.S. 69, 73 (1984) (internal

citations omitted). 

The standard by which a court should judge a motion to dismiss was modified in Bell

Atlantic Corp., et al. v. Twombly, 550 U.S. 544, 555 (2007), holding “[w]hile a complaint

attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations . . .
[f]actual allegations must be enough to raise a right to relief above the speculative level[.]” By

modifying the standard, the Supreme Court emphasized that it was not requiring a fact pleading

of specifics, but only enough facts to show that a claim to relief is plausible. Id. As the Supreme

Court explained,

[a]sking for plausible grounds to infer an agreement does not

impose a probability requirement at the pleading stage; it simply

calls for enough fact to raise a reasonable expectation that

discovery will reveal evidence of illegal agreement. And, of

course, a well-pleaded complaint may proceed even if it strikes a

savvy judge that actual proof of those facts is improbable, and “that

a recovery is very remote and unlikely.”

Id. at 556 (quoting Scheuer, 416 U.S. at 236). The Supreme Court further explained the

modified standard in Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948 (U.S. 2009), stating that

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Accordingly, to survive a motion to dismiss, a plaintiff must set

forth factual allegations in a manner that does not merely mirror the elements of a claim and

suggests that a claim for relief is plausible. 

Matters Outside the Pleadings

When considering a motion to dismiss under Rule 12(b)(6), a court must consider the

complaint, any exhibits attached to the complaint, “documents incorporated into the complaint by

reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues

& Rights, Ltd., 551 U.S. 308, 322 (2007). “If, on a motion under Rule 12(b)(6) . . . matters

outside the pleadings are presented to and not excluded by the court, the motion must be treated

as one for summary judgment under Rule 56.” FED. R. CIV. P. 12(d). A significant exception to

the 12(d) conversion rule has been recognized by the Eleventh Circuit, however, and a court has

the discretion to consider documents outside the pleadings without converting 12(b)(6) motions
into a motion for summary judgment if the court finds that two conditions are satisfied: (1) the

document must be central to the plaintiff’s claims and (2) the authenticity of the document must

be unchallenged. E.g., Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005); Horsley v. Feldt,

304 F.3d 1125, 1134 (11th Cir. 2002). Moreover, the court may consider public records without

converting the motion to one for summary judgment. E.g., Universal Express, Inc. v. U.S.

S.E.C., 177 Fed. Appx. 52, 53 (11th Cir. 2006); Stahl v. U.S. Dep’t of Agric., 327 F.3d 697, 700

(8th Cir. 2003). “[A] court may take judicial notice of the public record, without converting the

motion into one for summary judgment, because such documents are capable of accurate and

ready determination by resort to sources whose accuracy cannot reasonably be questioned.”

Spechler v. Tobin, 591 F.Supp.2d 1350, 1356 (S.D. Fla. 2008). So long as the underlying notice

and opportunity to be heard provisions of Rule 56 summary judgments are satisfied, a 12(b)(6)

motion does not need to be converted to a motion for summary judgment for the purposes of

consideration of extraneous public records. See Horsley, 304 F.3d at 1134.

In its motion to dismiss, Dixie County references the amendment to the contract related to

the provision of legal services to the Board of County Commissioners to support its contention

that Joseph Lander was not a county employee during the relevant time period and, as a

consequence, the county cannot be held liable for any constitutional violations committed by him

or for negligent retention. (See Doc. 5, Ex. A). This Court may take judicial notice of the

contractual amendment without converting Dixie County’s 12(b)(6) motion into a motion for

summary judgment because the document satisfies the two conditions set out above. First, the

question of whether or not Joseph Lander was employed by the county is central to Citizens State

Bank’s claims which assert that Dixie County is liable for his conduct as a county attorney. 

Second, the document is a public record and, as such, is a reliable document whose accuracy
cannot reasonably be questioned. 

Citizens State Bank argues that this Court must disregard Dixie County’s factual assertion

that Joseph Lander was no longer acting as a county official at the relevant times because, as

required by the standard of review, the Court must accept the facts as set out by Citizens State

Bank in the amended complaint. While this is true, the Court also has the discretion to take

judicial notice of public records that center on the plaintiff’s allegations if they are properly

asserted by the defendant in a 12(b)(6) motion. If there is a discrepancy between the allegations,

then, as appropriate under the standard, all possible inferences will be read in favor of the

plaintiff at this stage in the litigation proceedings. Therefore, because Dixie County’s claims can

be read in a manner that includes the relevant time period while Joseph Lander was Dixie

County’s attorney, the Court declines to adopt Citizens State Bank’s argument at this stage in the

proceedings. The Court now turns to the substance of Dixie County’s motion to dismiss.

COUNTS I, II, AND III: CITIZEN STATES’ § 1983 CLAIMS

In Counts I through III, Citizens State Bank asserts that Dixie County has violated 42

U.S.C. § 1983 by unlawfully depriving Citizens State Bank of its property rights without due

process in violation of the 14th Amendment. (See Doc. 11, ¶¶ 36, 37-45). 

Citizens State Bank’s Count I claim is based upon its allegation that Dixie County “was

deliberately indifferent to the risk it was . . . creating for the public in general and specifically

those . . . who might purchase, or take as collateral, portions of the property including [Citizens

State Bank]” when it took no action to curtail Lander’s authority in response to the conflict of

interest stemming from Lander’s dual representation of the county and the applicant, River

Shores, in a land use approval application. (Doc. 11, ¶ 42). As a result, Citizens State Bank

alleges that “[i]t is the actions of the County in the exercise of its zoning powers which have
impaired [its] property interest in the real property”. (Doc. 25, ¶ 5)

Counts II and III claim § 1983 violations based upon the allegation that Dixie County

“was deliberately indifferent to the risk it was . . . creating for the public in general and

specifically those . . . who might purchase, or take as collateral, portions of the property including

[Citizens State Bank]” when it allowed Lander manage development bonds without oversight. 

(Doc. 11, ¶ 47, 53). Count II asserts that Dixie County violated § 1983 by failing to supervise or

discipline Joseph Lander in the proper handling of cash bonds. (Doc. 11, ¶ 47-48, 53). Count III

adds on to Count II, alleging that Dixie County violated § 1983 through the custom and practice

of ceding to Joseph Lander the ultimate decision making authority over development bonds and

leaving him as Dixie County’s “final policy maker” with regards thereto. (Doc. 11, ¶ 54).

It is this conduct that makes up Citizens State Bank’s § 1983 claims, and the Court will

now address Dixie County’s responding arguments.

Standing

The threshold inquiry the Court must address before considering the merits of Dixie

County’s Rule 12(b)(6) motion is whether Citizens State Bank has standing to pursue its civil

rights claims against Dixie County. “For the purpose of ruling on a motion to dismiss for want

of standing, both the trial and the reviewing courts must accept as true all material allegations of

the complaint, and must construe the complaint in favor of the complaining party.” Warth v.

Seldin, 422 U.S. 490, 501 (1975)(citations omitted). 

To establish standing, Citizens State Bank must satisfy three elements. 

First, the plaintiff must have suffered an “injury in fact”- an

invasion of a legally protected interest which is (a) concrete and

particularized, and (b) “actual or imminent, not ‘conjectural or

‘hypothetical.’” Second, there must be a causal connection

between the injury and the conduct complained of-the injury has to
be “fairly . . . trace[able] to the challenged action of the defendant,

and not . . . th[e] result [of] the independent action of some third

party not before the court. Third, it must be “likely,” as opposed to

merely “speculative,” that the injury will be “redressed by a

favorable decision. 

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)(internal citations omitted). 

“When standing becomes an issue on a motion to dismiss, general factual allegations of injury

resulting from the defendant’s conduct may be sufficient to show standing.” Bischoff v. Osceola

Cnty., Fla., 222 F.3d 874, 878 (Fla. 2000). 

In the instant case, Dixie County attacks the first and second elements of the three part

constitutional standing inquiry. Citizens State Bank argues, in response, that as a mortgagee/

assignee in interest to the property, it has standing to pursue a claim under § 1983 for the

deprivation of its property interest in the collateral value of its secured property through improper

zoning. Upon evaluating the three elements, this Court finds that Citizens State Bank has

standing to bring its constitutional claims against Dixie County. 

First, Citizens State Bank sufficiently alleges in its amended complaint that it has suffered

an “injury in fact” to a legally protected interest. Dixie County’s argument that Citizens State

Bank is “impermissibly attempting to assume the rights of River Shores” and claim third party

standing is confused. Citizens State Bank is asserting damage to its own interest, the value of the

property as collateral to the loan, caused by the Dixie County’s acts or omissions relating to

Joseph Lander’s conduct and the development approval applications. 

In a similar case, Citigroup Global Mkts Realty Group v. City of Montgomery, No. 2:09-

CV-784-WKW, 2011 WL 147300, at *5 (M.D. Ala. 2011), the city argued that the plaintiff did

not have standing because it “[could] not claim an ‘interest or right in the Property at the time of

demolition’ because the demolition occurred prior to . . . assignment of its mortgage to [the
plaintiff]. Accordingly, the City [claimed] that [the plaintiff] did not suffer an ‘injury in fact’

and, thus, ha[d] no standing to sue.” The court in Citigroup, however, found that the plaintiff

had standing because the assignment of the mortgage gave the plaintiff an interest in the

property. Id. In the instant case, Citizens State Bank’s protected interest is comparable to the

plaintiff’s in Citigroup as it amounts to the value secured as collateral for the loan that Citizens

State Bank issued to River Shores. 

The second element of standing states that “there must be a causal connection between

the injury and the conduct complained of-the injury has to be fairly . . . trace[able] to the

challenged action of the defendant, and not . . . th[e] result [of] the independent action of some

third party not before the court.” Lujan, 504 U.S. at 560-61. Citizens State Bank alleges that

Dixie County’s deliberate indifference to the actions of Lander, acting as county attorney,

resulted in improper approvals being issued and resulted in harm to Citizens State Bank’s

security interest in the mortgaged property. As required under the applicable standard, if the

plaintiff sets forth sufficient allegations that the conduct complained of caused harm to a legally

protected interest, then the plaintiff has established the second requisite element of standing. In

the instant case, Citizens State Bank establishes this element by alleging that Dixie County’s

deliberate indifference with regards to the constitutional rights of those having an interest in the

property diminished Citizens State Bank’s property right in the value of the secured property. 

Therefore, the Court finds that Plaintiff has sufficiently alleged the second element to establish

standing. 

With respect to the third element, Dixie County does not contest that Citizens State Bank

has sufficiently established the likelihood that the injury will be redressed by favorable decision. 

It is evident from the amended complaint that Citizens State Bank will have redress for the
deprivation of its property interest if the Court finds favorably for Citizens State Bank. 

Accordingly, this Court finds that Citizens State Bank has standing to bring a § 1983 claim

against Dixie County for deprivation of a property interest. TheCourt now turns to Dixie

County’s argument that Citizens State Bank’s complaint should be dismissed for failure to state a

claim. 

Failure to State a Claim

In Counts I, II, and III Citizens State Bank alleges that it has been denied its property

rights, without due process of law, in violation of the Fourteenth Amendment of the United

States Constitution. The Due Process Clause of the Fourteenth Amendment provides, “nor shall

any State deprive any person of life, liberty, or property, without due process of law.” U.S.

CONST. amend. XIV, § 1. Embodied in the protection of the Fourteenth Amendment is the

protection of both procedural and substantive due process. 

To protect the rights guaranteed by the Fourteenth Amendment against unlawful

government invasion, Congress enacted 42 U.S.C. § 1983. Section 1983 states, in part, that

Every person who, under color of any statute, ordinance,

regulation, custom, or usage . . . subjects, or causes to be subjected,

any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or other proper

proceeding for redress.

42 U.S.C. § 1983. While § 1983 protects against acts committed by persons acting under the

color of law, the Court must be careful to consider the alleged violation to determine whether it

has harmed a constitutionally protected interest. Rymer v. Douglas Cnty., 764 F.2d 796, 800

(11th Cir. 1985). The Supreme Court has held that “a municipality cannot be held liable solely

because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under §
1983 on a respondeat superior theory.” Monell v. Dep’t of Soc. Servs. of New York, 436 U.S.

658, 691 (1978). Furthermore, in Monell, the Supreme Court held that § 1983 liability is only

appropriate if the plaintiff can establish that a government employee’s unconstitutional action

“implements or executes a policy statement, ordinance, regulation, or decision officially adopted

and promulgated by that body's officers,” or is “visited pursuant to governmental ‘custom’ even

though such a custom has not received formal approval through the body's official decisionmaking channels.” Id. at 690-691. 

Citizens State Bank asserts a claim for relief to for the protection of its property right by

alleging “that the County was ‘deliberately indifferent’ to the risk of loss it was creating by

allowing the flagrant violations of law and ethics that were being committed by Lander.” (Doc.

25, ¶ 7). To establish deliberate indifference on the part of Dixie County, Citizens State Bank

must “present some evidence that the municipality knew of a need to train and/or supervise in a

particular area and the municipality made a deliberate choice not to take any action.” Gold v.

City of Miami, 151 F.3d 1346, 1350 (11th Cir, 1998)(citations omitted). The Supreme Court

explained when a municipality may be liable under § 1983 for failure to take action, such as

failure to supervise, in City of Canton, Ohio v. Harris, 489 U.S. 378 (1989). 

Only where a municipality’s failure to train its employees in a

relevant respect evidences “deliberate indifference” to the rights of

its inhabitants can such a shortcoming be properly thought of as a

city “policy or custom” . . . Only where a failure to train reflects a

deliberate or “conscious” choice by a municipality-a “policy” as

defined by our prior cases- can a city be liable for such failure

under § 1983. 

Id. at 389.

In the instant case, Citizens State Bank alleges that Dixie County should have known of

the obvious conflict of interest present when Joseph Lander was acting as both county attorney
and attorney for River Shores before the county board. Because the county arguably had notice

of the conflict of interest and chose to do nothing about it, Citizens State Bank argues that Dixie

County was deliberately indifferent to the harm that this dual representation might cause to third

parties’ constitutional interests. Additionally, Citizens State Bank alleges that Dixie County was

deliberately indifferent to the risk that Joseph Lander might harm third parties’ interest in the

property because the board failed to supervise or discipline Joseph Lander in the proper handling

of cash bonds. 

At this stage in the proceedings, it is improper to grant dismissal of Citizens State Bank’s

§ 1983 claims. Citizens State Bank has met the low threshold requirement of pleading facts

sufficient to suggest that a cause of relief is plausible for its constitutional claims. 

COUNT IV: NEGLIGENT RETENTION

Sovereign Immunity

Citizens State Bank alleges that Dixie County negligently retained attorney Joseph Lander

in the position of county attorney while knowing or having reason to know that Joseph Lander

was unfit to perform the duties of county attorney, failed to take corrective action against Joseph

Lander to protect Citizens State Bank from the harm it suffered, and that the resulting harm was

foreseeable in light of the particular unfitness of Joseph Lander. (Doc. 11, p. 11). Citizens State

Bank bases its allegation on Lander’s criminal and ethical misconduct arising from mail fraud

and money laundering. Dixie County asserts it is entitled to sovereign immunity from the tort

claim asserted by Citizens State Bank.

Section 768.28(9) of the Florida Statutes states that 

[t]he state or its subdivisions shall not be liable in tort for the acts

or omissions of an officer, employee, or agent committed while

acting outside the course and scope of her or his employment or
committed in bad faith or with malicious purpose or in a manner

exhibiting wanton and willful disregard of human rights, safety, or

property.

In analyzing whether sovereign immunity is appropriate under the circumstances, it is

necessary to determine first whether “there is a common law or statutory duty of care that would

have been applicable to an individual under similar circumstances.” Storm v. Town of Ponce

Inlet, 866 So.2d 713, 716 (Fla. 5th DCA, 2004). Without a duty, there is no need to determine

whether sovereign immunity applies. Id. Next, the Court must inquire as to whether the

governmental body was exercising a discretionary decision which is protected by sovereign

immunity or whether it was exercising an operational decision which is not covered by

immunity. See Id.; Avallone v. Bd. of Cnty. Com’rs of Citrus Cnty., 493 So.2d 1002, 1005 (Fla.

1986).

The Court now addresses the existence of a duty. In Florida, it is well settled that an

employer can be held liable for the tort of “negligent retention . . . of an incompetent, dangerous

agent [when] the employer knew or should have known of the agent’s or servant’s incompetence

. . . and the likelihood or foreseeability that such agent or servant would injure a third person,

growing out of the employment status”. Storm, 866 So.2d at 716; see also Mallory v. O’Neil, 69

So.2d 313 (Fla. 1954). Furthermore, the duty to protect third parties from the negligent retention

of employees extends to governmental actors, as explained in School Bd. of Orange Cnty. v.

Coffey, 524 So.2d 1052, 1053 (Fla. 5th DCA, 1988):

The school board has a common law duty to protect others from

the result of negligent . . . retention which duty is identical to the

duty upon private employers who hire, retain, or supervise

employees whose negligent or intentional acts in positions of

employment can foreseeably cause injuries to third parties.

See also Brantley v. Dade Cnty. School Bd., 493 So.2d 471 (Fla. 3d DCA 1986); Willis v. Dade
Cnty. School Bd., 411 So.2d 245 (Fla. 3d DCA), rev. denied, 418 So.2d 1278 (Fla. 1982). Thus,

Dixie County has a duty to protect third parties from foreseeable harm caused by an employee

which the employer knows or has reason to know is unfit for his or her duties. 

Having established the existence of a common law duty, it is now necessary to turn to the

second prong of inquiry, whether Dixie County was exercising a discretionary decision or

whether it was exercising an operational decision when it retained Joseph Lander as county

employee. The Florida Supreme Court, in Commercial Carrier Corp. v. Indian River Cnty., 371

So.2d 1010, 1020 (Fla. 1979), set forth a four part test for determining whether a government

action is entitled to sovereign immunity as part of a discretionary function: 

(1) Does the challenged act, omission, or decision necessarily

involve a basic governmental policy, program, or objective? (2) Is

the questioned act, omission, or decision essential to the realization

or accomplishment of that policy, program, or objective as opposed

to one which would not change the course or direction of the

policy, program, or objective? (3) Does the act, omission, or

decision require the exercise of basic policy evaluation, judgment,

and expertise on the part of the governmental agency involved? (4)

Does the governmental agency involved possess the requisite

constitutional, statutory, or lawful authority and duty to do or make

the challenged act, omission, or decision? If these preliminary

questions can be clearly and unequivocally answered in the

affirmative, then the challenged act, omission, or decision can,

with a reasonable degree of assurance, be classified as a

discretionary governmental process and nontortious, regardless of

its unwisdom. If, however, one or more of the questions calls for

or suggests a negative answer, then further inquiry may well

become necessary, depending upon the facts and circumstances

involved. 

This second prong of inquiry does not require extensive analysis as it is clear that the county was

acting under its discretionary decision-making power when it retained Joseph Lander as county

attorney. “The decision of a governmental executive . . . to hire or fire a top head of an agency is

necessarily fundamental, and involves the exercise of governmental discretion at the highest
level. This is precisely the area into which, under the separation of powers doctrine, courts must

not intervene.” Storm, 866 So.2d at 719. 

Having determined that the decision of the board is a discretionary decision, the Court

finds that Dixie County is entitled to sovereign immunity on Citizens State Bank’s negligent

retention claim. Accordingly, it is

ORDERED AND ADJUDGED that Defendant’s motion to dismiss Plaintiff’s amended

complaint (Doc. 19) is granted as to Count IV for negligent retention and denied as to Counts I,

II, and III. 

DONE AND ORDERED this seventh day of April, 2011.

s/ Stephan P. Mickle 

Stephan P. Mickle

Chief United States District Judge