Hearing that had been set for April 3 cancelled
On April 3, a 12th Judicial Circuit Court hearing had been scheduled in regard to the defamation complaint that Laurel Park resident Kelly Franklin filed against Sarasota city Commissioner Kyle Battie in February.
The hearing was a response to a motion filed by Battie’s attorney, Brian Goodrich, of the Sarasota firm Bentley Goodrich Kison, on March 28, seeking a temporary stay of the discovery process in the case.
As the Cornell University’s Legal Information Institute explains, “In civil actions, the discovery process refers to what parties use during pre-trial to gather information in preparation for trial.”
In the Motion for Protective Order and Motion for Temporary Stay, Goodrich again asserted the contention he made in his response to Franklin’s lawsuit — that Battie “has absolute immunity from the claims Franklin raises [and] should never have been sued in the first place.”
Therefore, Goodrich continued, Battie wanted to prevent “non-party depositions” in the case from taking place as scheduled on April 9, and he was seeking the “short-term stay of discovery” until the court could rule on Battie’s motion to dismiss the complaint.
“Depositions and other discovery prior to a ruling on Commissioner Battie’s Motion to Dismiss would effectively upend Commissioner Battie’s absolute immunity, needlessly waste resources, and needlessly burden non-parties,” Goodrich added in his March 28 brief.
Goodrich cited Florida Rule of Civil Proceedings 1.289(c), which says, “Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery …”
On March 27, Franklin’s attorney, Richard A. Harrison of Tampa, had filed a formal notice that videotaped depositions of City Manager Marlon Brown and City Auditor and Clerk Shayla Griggs were planned on April 9, court records show.
Goodrich added in the March 28 brief, “Commissioner Battie is not seeking a protracted stay in discovery. Rather, he is requesting a short-term delay of non-party depositions and discovery to allow the Court to first rule on the … absolute immunity argument contained within the Motion to Dismiss.”
Moreover, Goodrich argued, with emphasis, “The harm to Commissioner Battie is considerably more than just expense; the depositions which have already been set effectively gut Commissioner Battie’s absolute immunity by exposing him to continued litigation.
“Second,” Goodrich continued, “the depositions are likely a multiple-thousand-dollar expense for each party, which expense would be entirely unnecessary if the Motion to Dismiss is granted. Franklin is electing to videotape these depositions, which is an extra cost to her as well.
“Third,” Goodrich pointed out, “a protective order will not prejudice either party. This case was only filed last month.” He noted that the parties already had “stipulated to a trial date of July 2025. The agreed-upon discovery cutoff is April 25, 2025 — more than a year away. If the Motion to Dismiss is denied, Franklin has ample time in which to conduct these non-party depositions. In such event, Commissioner Battie and his counsel are more than willing to provide agreeable dates to allow these non-party depositions to occur expeditiously.”
After Goodrich filed the motion on behalf of Battie on March 28, in response to Harrison’s notice, Circuit Judge Stephen Walker agreed to the 15-minute hearing on April 3. Then, on April 2, a document in the case docket said that the hearing had been cancelled.
In response to a Sarasota News Leader inquiry about that April 2 notice, Goodrich wrote in an April 3 email, “Attorney Richard Harrison and Ms. Franklin initially refused to cancel the depositions pending the outcome of Mr. Battie’s Motion to Dismiss, thus necessitating our Motion for Protective Order/Temporary Stay. After we filed our Motion [for the protective order and temporary stay], Mr. Harrison and [Ms. Franklin] agreed to cancel the depositions and reset them sometime in mid-June so the Motion to Dismiss could first be decided.”
As the News Leader has reported, an April 30 hearing has been scheduled, in-person before Judge Walker, for him to consider Battie’s motion to dismiss Franklin’s complaint. That event is set for 3:30 p.m. in Courtroom C of the Judge Lynn N. Silvertooth Judicial Center on Ringling Boulevard in downtown Sarasota.
On April 2, attorney Harrison formally filed a notice that the April 9 depositions had been cancelled and would be scheduled “for a later date.”
Franklin’s allegations and Battie’s arguments
On Feb. 12, Franklin’s attorney filed her complaint against Battie, who is African American, contending that he “intentionally, knowingly, and maliciously planned and orchestrated a vile accusation of racism against [Franklin], a Caucasian woman, and then plotted to level his false charges in the most public, high-profile way available to him: from the dais of the Sarasota City Commission in a public meeting.”
The lawsuit arose over Battie’s Jan. 16 presentation during a regular City Commission meeting of an alleged Facebook post that was attributed to Franklin. It included a photo of him, while he was mayor last year, as well as Tanya Borysiewicz, co-owner of the Corona Cigar Co. on North Lemon Avenue, under the heading, “Gorillas in the midst of being gorillas are on my mind.”
In December 2022, Franklin had posted photos of gorillas on her own Facebook page with the same heading; she had taken the photos on a trip to Africa with her husband, Ron Kashden, she pointed out.
Although Battie never named Franklin during his presentation — which focused on racism in the city and the need for civility — her face and name were visible on the crumpled paper that he displayed on the overhead projector; everyone in the City Commission Chambers on Jan. 16 and those watching the meeting online easily could make out her name and image.
Battie Identified Borysiewicz as half Scottish and half African American. He also called Borysiewicz forward during his presentation, so she could explain that the paper had been mailed to her at the Corona Cigar Co., but her assistant initially had balled it up and thrown it away before reconsidering and showing it to Borysiewicz.
Subsequently, Franklin emailed the city commissioners to assert that she had not created such a post, calling it a hoax.
Later during the meeting, Mayor Liz Alpert talked about Franklin’s statement that the alleged Facebook post appeared to be “a mash-up between two different posts [Franklin] did.”
In Goodrich’s response to Franklin’s complaint, on behalf of Battie, Goodrich cited several judicial precedents as the basis for his assertion that the case should be dismissed.
For example, referring to a 1992 Florida Supreme Court ruling, Goodrich wrote, “As a public official, Commissioner Battie possesses absolute immunity from defamation claims (and related torts) relating to his scope of office. It would not matter if Commissioner Battie defamed Franklin, if he acted with ill will, or if he acted maliciously.”
“It would not matter if Commissioner Battie knew his allegedly defamatory statements were made up out of whole cloth,” Goodrich added. “The onlyquestion that matters for purposes of evaluating Commissioner Battie’s entitlement to absolute immunity is whether Commissioner Battie’s statements made at the January 16, 2024 City Commission meeting were within the scope of his office.” With the latter statement, Goodrich cited the 2007 decision of the Florida Fourth District Court of Appeal in Cassell v. India.
Referencing the Cassell ruling, Goodrich pointed out that it is up to the court to determine whether “an alleged defamatory statement is absolutely privileged. … In answering this question, the court is to broadly define and liberally construe an official’s ‘scope of office.’ ” As stated in the Cassell decision, Goodrich continued, “An official’s scope of office is ‘not confined to those things required of the officer, but rather extends to all matters which he is authorized to perform.’ ”
Further, Goodrich wrote, “Absolute privileges are important. The Florida Supreme Court has explained why [the emphasis is his]:
“These ‘absolute privileges’ are 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 un 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. Therefore the privilege, or immunity, is absolute and the protection that it affords is complete. It is not conditioned upon the honest and reasonable belief that the defamatory matter is true or upon the absence of ill will on the part of the actor.’ ”