Judge schedules Sept. 13 hearing
Twelfth Judicial Circuit Court Judge Stephen Walker has scheduled a 10 a.m. hearing on Friday, Sept. 13, to hear arguments in response to a July 12 Motion to Dismiss the amended complaint that Laurel Park resident Kelly Franklin filed on July 2, again alleging that Sarasota City Commissioner Kyle Battie defamed her in a Jan. 16 presentation during a commission meeting.
In June, Walker ruled for Battie, citing judicial precedents that Battie’s attorney, Brian Goodrich of the Sarasota firm Bentley Goodrich Kison, had cited in a Motion to Dismiss Franklin’s original lawsuit. The judge’s decision followed an April 30 hearing at the Judge Lynn Silvertooth Judicial Center on Ringling Boulevard in downtown Sarasota.
Goodrich’s new Motion to Dismiss asks that the court take that action this time “with prejudice,” meaning that Franklin could not try another tack in Circuit Court if Judge Walker once again rules for Battie.
In fact, Goodrich points out in his introduction in the new motion that, in his June 12 ruling, Walker “declined to dismiss [Franklin’s lawsuit] with prejudice, noting that while ‘[i]t may be unlikely that [Franklin] will be able to cure the defects [in her original complaint] prudence dictates that dismissal without prejudice is the appropriate course.”
Goodrich writes that the amended complaint “maintains the same cause of action against Commissioner Battie and only minimally modifies the facts on which [Franklin’s] claims are predicated.”
Then Goodrich reprises this section of his February Motion to Dismiss: “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.” Goodrich cited the 1992 Florida Supreme Court decision in Fridovich v. Fridovich as the basis for that assertion.
“It would not matter if Commissioner Battie knew his allegedly defamatory statements were made up out of whole cloth,” Goodrich continued, again citing Fridovich v. Fridovich. “The only question 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.” For the latter argument, Goodrich cites a 2007 Florida Fourth District Court of Appeal case, Cassell v. India.
“Even interpreting Franklin’s allegations in the light most favorable to her,” Goodrich adds, “Franklin’s Amended Complaint must be dismissed with prejudice, as Commissioner Battie acted within the scope of his office at the January 16, 2024 City Commission meeting.”
Goodrich added this line to that section of his new motion: “Further, Franklin does not state a claim for conspiracy or intentional infliction of emotional distress or civil conspiracy.”
Addressing the new details
In the amended complaint, Franklin’s attorney, Richard A. Harrison of Tampa, provided details about Franklin’s community activism and criticism of city actions related to the Corona Cigar Co. in downtown Sarasota. The co-owner of that business, Tanya Borysiewicz — whom Battie has described as half African American and half Scottish — is the person who told the City Commission on Jan. 16 that she had received in the mail what Franklin refers to as the “Hoax Post” that prompted her action against Battie.
That alleged Facebook post combined photos from Franklin’s own Facebook page, showing gorillas she had photographed in Africa with a photo of the September 2023 ribbon cutting for the Corona Cigar Co. The grand opening of the business occurred while Battie was mayor. The photo from that event showed him and Boryswiecz below the heading Franklin had written on her post: “Gorillas in the midst of being gorillas are on my mind.”
After the City Commission’s Jan. 16 agenda was published, Battie asked for what is called a Change to the Order of the Day, to permit him to make a presentation under the heading of Unfinished Business. The agenda item was listed thus: Discussion Re: Civility, Respect and Rhetoric.
Goodrich does address the fact that “Franklin provides some new background on herself and her criticism of Commissioner Battie” in the amended complaint. However, he argues, “Even if construed in the light most favorable to her, these allegations merely imply that Commissioner Battie held some ill will toward Franklin which does not affect the Court’s prior analysis. Again, Commissioner Battie is entitled to absolute immunity even if his comments were motivated by ill will or malice,” as made clear in the Fridovich v. Fridovich opinion.
Further, Franklin’s claim that she is the victim of intentional infliction of emotional distress fails for two reasons, Goodrich contends: She fails to state a cause of action and the “intentional infliction claim is still a mere recasting of her defamation claim.”
In fact, he points out, “Under Florida law, the tort of intentional infliction of emotional distress requires that the conduct be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” He cited the 2008 ruling of the U.S. District Court for the Middle District of Florida in U.S. ex rel. Crenshaw v. Degayner.
Referencing the same ruling, Goodrich continues, “Franklin’s subjective response to the conduct is irrelevant; ‘the conduct must be evaluated on an objective basis.’ ”
Moreover, quoting from the 1995 Florida Fifth District Court of Appeal decision in State Farm Mut. Auto. Ins. Co. v. Novotny, Goodrich writes, “ ‘It is not enough that the intent is tortious or criminal; it is not enough that the defendant intended to inflict emotional distress; and it is not enough if the conduct was characterized by malice or aggravation which would entitle the plaintiff to punitive damages for another tort.’ ”
Goodrich also points out, “ ‘Liability … does not extend to mere insults, indignities, threats, or false accusations,’ ” citing the 1993 ruling of the Florida Fifth District Court of Appeal in Food Lion, Inc. v. Clifford.
Repeating other judicial precedents cited in February
Again, as he did in his February Motion to Dismiss, Goodrich notes in his July 12 filing in the Franklin case, “The purpose of a Motion to Dismiss is to test the legal sufficiency of the pleading.” He cited a 2000 Florida Second District Court of Appeal case, Curtis v. Henderson.
“A court need not accept as true conclusory allegations, conclusions of law, or opinions asserted by the pleader,” Goodrich continues, citing this time the 1943 Florida Supreme Court decision in Am. Can Co. v. City of Tampa.
Goodrich proceeds to point out, “Although not a matter for a motion to dismiss, Franklin’s Amended Complaint and the vast leaps in logic it presents are utterly false. But even accepting Franklin’s factual allegations as true, as the Court must in deciding the [new] Motion to Dismiss, the Amended Complaint fails and must be dismissed with prejudice.”
Citing the 1980 Florida Fourth District Court of Appeal ruling in Mueller v. The Florida Bar, Goodrich adds, “Public officials have absolute immunity from defamation and related claims relating to the scope of their office.” He then quotes part of 2022 Florida Third District Court of Appeal decision in City of Miami v. Rivera: “ ‘In the area of defamation, the rule in Florida is that words spoken or written by public servants in judicial, legislative and executive activities are protected by absolute privilege from liability for defamation.’ ”
Reprising another section of his first Motion to Dismiss, Goodrich continues, “Even assuming Franklin herself did not create the Racist Post, as she alleges, someone did. And someone sent it to the Corona Cigar Company. Franklin does not, and cannot, allege that Commissioner Battie created the Racist Post. Nor does she allege that Commissioner Battie sent it to the Corona Cigar Company.” (With a footnote, Goodrich points out that in her amended complaint, “Franklin concedes that Ms. Borysiewicz forwarded the Racist Post to Commissioner Battie.”)
Goodrich adds that the amended complaint establishes “that a business in the City of Sarasota received the Racist Post (which targeted Commissioner Battie and a minority business owner at a place of public accommodation in the City of Sarasota), the Racist Post was forwarded to Commissioner Battie, and then Commissioner Battie started a conversation regarding discrimination in the City. Even if Commissioner Battie did not have a positive duty to initiate this discussion, it does not matter,” Goodrich writes, citing the 1995 Florida Fourth District Court of Appeal ruling in Goetz v. Noble. That ruling, he points out, “[rejected] the narrow notion that protection applies only to statements made within the scope of the official’s statutory authority or power).”
Referring again to the Jan. 16 presentation, Goodrich contends, “This is squarely within Commissioner Battie’s responsibilities and advances the City’s express objective [stated in Chapter 18, Article 1, of the City Code] to ‘secure for all individuals within the city freedom from discrimination because of age, color, disability, gender, marital status, national origin, race, religion, sexual orientation or veterans status.’ ”