City of Miami v. Jose R. Alvarez

• Court: District Court of Appeal of Florida
• Decided: October 1, 2025
• Docket: 3D2024-2022
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed October 1, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D24-2022 Lower Tribunal No. 23-3393-CA-01 ________________

City of Miami, Appellant,

vs.

Jose R. Alvarez, Appellee.

An Appeal from a non-final order from the Circuit Court for Miami-Dade County, David C. Miller, Judge.

Shubin Law Group, P.A., and John K. Shubin and Katherine R. Maxwell and Hannah P. Stevenson, for appellant.

AXS Law Group, PLLC, and Jeffrey W. Gutchess and Samuel Jacob Etkin Kramer, for appellee.

Before FERNANDEZ, LOGUE 1 and BOKOR, JJ.

1 Judge Logue did not participate in oral argument. BOKOR, J.

The City of Miami appeals an order denying its motion to dismiss a civil

conspiracy claim. We have jurisdiction. Fla. R. App. P. 9.130(a)(3)(F)(ii)-(iii).

The City moved for dismissal on two bases: first, the City alleges that the

plaintiff failed to provide notice of the claim within three years of accrual, as

required by section 768.28(6)(a), Florida Statutes. Second, the City asserts

sovereign immunity under section 768.28(9)(a). As explained below, the

allegations in the operative complaint, which we must accept as true for

purposes of this analysis, hinge on the malicious, intentional, bad faith acts

of the City’s employees. Because the City cannot be liable for malicious,

intentional, or bad faith acts of its employees under section 768.28(9)(a), we

reverse and remand for dismissal with prejudice as to the City.2

I. BACKGROUND

Jose Alvarez sued the City of Miami, former City Attorney Victoria

Mendez, her husband, Carlos Morales, and Morales’s real estate company,

Express Homes, alleging a conspiracy to defraud Alvarez and take

possession of his family home. Alvarez alleges that after the City informed

2 It appears from the operative complaint and the date of the notice Alvarez might have failed to provide the City with notice within three years of claim accrual as required by section 768.28(6)(a), Florida Statutes. Because we find the action to be barred under section 768.28(9)(a), we decline to address the issue of the timeliness of the presuit notice.

2 him of a code violation on the property, he contacted then-City Attorney

Mendez for assistance. Mendez then referred Alvarez to Morales and

Express Homes. According to Alvarez, Morales overrepresented the severity

of the violations and the estimated remediation costs and recommended that

Alvarez sell the property at a reduced price. Morales, through Express

Homes, then purchased the property, remodeled it, cured the violations, and

resold the property at a large markup. All these acts relied on an alleged

nebulous conspiracy involving Mendez, Morales, and several City

employees to fast-track permit approvals and waive applicable fines with the

purpose of enriching Morales, his company Express Homes, and Mendez.

The City previously moved to dismiss due to sovereign immunity and

failure to comply with the presuit notice requirements of section 768.28(6).

The trial court initially denied dismissal, but we reversed and remanded for

dismissal without prejudice based on the lack of presuit notice. See City of

Miami v. Alvarez, 390 So. 3d 248, 250 (Fla. 3d DCA 2024). After the

dismissal without prejudice, Alvarez filed the operative third amended

complaint, asserting one count of fraud against Moralez and Express Homes

and one count of civil conspiracy against all defendants, including the City.

The conspiracy claim alleges that Mendez “acted in bad faith, with malicious

purpose, and in willful disregard” of Alvarez’s property rights by referring him

3 to Express Homes “with the intent to personally profit, through her husband’s

company, from the sale of the home.”

The City again moved to dismiss the conspiracy claim, with prejudice,

based on untimely notice and sovereign immunity. The trial court summarily

denied the motion without explanation. This appeal followed.3

II. STANDARD OF REVIEW

We review de novo a trial court’s ruling on a motion to dismiss based

on sovereign immunity. See, e.g., Dist. Bd. of Trs. of Miami Dade Coll. v.

Verdini, 339 So. 3d 413, 417 (Fla. 3d DCA 2022). For purposes of a motion

to dismiss, “we are bound to accept as true the well-pled allegations of the

Complaint.” Mendez, 390 So. 3d at 253.

III. ANALYSIS

Sovereign immunity for the state, its agencies, and subdivisions,

including municipalities, is governed by section 768.28, Florida Statutes. The

function of that statute is not to “establish any new duty of care for

governmental entities,” but solely to “waive that immunity which prevented

recovery for breaches of existing common law duties of care.” Trianon Park

Condo. Ass’n, Inc. v. City of Hialeah, 468 So. 2d 912, 917 (Fla. 1985).

3 Mendez separately appealed the denial of dismissal as to the claims against her, which we affirmed. See Mendez v. Alvarez, 390 So. 3d 251 (Fla. 3d DCA 2024).

4 Section 768.28(9)(a) sets forth the scope of the statutory waiver of sovereign

immunity and both an employee’s and a sovereign entity’s corresponding

liability for a tort suit:

An officer, employee, or agent of the state or of any of its subdivisions may not 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. . . . The exclusive remedy for injury or damage suffered as a result of an act, event, or omission of an officer, employee, or agent of the state or any of its subdivisions or constitutional officers shall be by action against the governmental entity, or the head of such entity in her or his official capacity, or the constitutional officer of which the officer, employee, or agent is an employee, unless such act or omission was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. The state or its subdivisions are not 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.

(emphasis added).

It is against that factual background that we conduct our sovereign

immunity inquiry. Such “inquiry consists of whether the governmental entity

remains sovereignly immune from suit notwithstanding the legislative waiver

present in section 768.28, Florida Statutes.” Fla. Highway Patrol v. Jackson,

288 So. 3d 1179, 1185 (Fla. 2020) (emphasis and quotation omitted). The

5 issue of sovereign immunity should be resolved “as early in the litigation as

possible.” Id.

The City can only be sued and held liable for acts or omissions of

officers, employees, or agents acting within the scope of their employment—

and even then, only where the acts were not “committed in bad faith or with

malicious purpose or in a manner exhibiting wanton and willful disregard of

human rights, safety, or property.” The operative complaint explicitly and

repeatedly alleges that Mendez “acted in bad faith, with malicious purpose,

and in willful disregard of . . . Alvarez’s property rights.” The sole claim

against the City alleges that Mendez—the only City employee named in the

complaint—acted in bad faith or with malicious purpose and in willful

disregard of the plaintiff’s rights by conspiring with the other defendants to

defraud the plaintiff of his home. The allegations conclusively refute the City’s

liability. The complaint alleges actions taken in bad faith and for a malicious

purpose. Such allegations include Mendez exploiting her position of trust and

fraudulently referring Alvarez to her husband’s company with the intent to

“personally profit.” It further alleges that Mendez and her husband induced

Alvarez to rely on their representations about the home “so that [Morales]

could purchase the home and make a profit.” And it claims that the purpose

of these acts was “all to enrich Mendez and Morales.” The complaint does

6 not allege any specific act by the City, intentional or otherwise, except for the

sending of the original code enforcement notice that prompted Alvarez to

contact Mendez on his own initiative.

The complaint similarly fails to allege facts that could support liability

for civil conspiracy involving the City. The elements of civil conspiracy include

“(a) an agreement between two or more parties, (b) to do an unlawful act or

to do a lawful act by unlawful means, (c) the doing of some overt act in

pursuance of the conspiracy, and (d) damage to plaintiff as a result of the

acts done under the conspiracy.” Raimi v. Furlong, 702 So. 2d 1273, 1284

(Fla. 3d DCA 1997). Thus, “an actionable conspiracy requires an actionable

underlying tort or wrong.” Id. The agreement element of civil conspiracy is

defined as “an express or implied agreement of two or more persons to

engage in a criminal or unlawful act.” Charles v. Fla. Foreclosure Placement

Ctr., LLC, 988 So. 2d 1157, 1160 (Fla. 3d DCA 2008) (quotation omitted).

And this is the kicker: the agreement to engage in fraud would itself be a bad

faith, malicious act, done with willful disregard of Alvarez’s property rights.

The alleged conspiracy here was founded on the predicate offense of fraud,

which itself is an intentional tort requiring a knowing and deliberate

misrepresentation of fact. See, e.g., Palafrugell Holdings, Inc. v. Cassel, 825

So. 2d 937, 939 (Fla. 3d DCA 2001); First Interstate Dev. Corp. v. Ablanedo,

7 511 So. 2d 536, 539 (Fla. 1987) (“[I]ntentional misconduct is a necessary

element of fraud. Indeed, to prove fraud, a plaintiff must establish that the

defendant made a deliberate and knowing misrepresentation designed to

cause, and actually causing detrimental reliance by the plaintiff.”). The

allegations presented fall squarely within the express exception to the waiver

of sovereign immunity under section 768.28(9)(a).

Our sister court’s decision in Hall v. Knipp, 982 So. 2d 1196 (Fla. 1st

DCA 2008), provides more guidance. There, the First District affirmed the

dismissal with prejudice of a complaint against the Florida Department of

Corrections where the amended complaint also named an individual

corrections officer as a defendant. The First District held that “because the

amended complaint alleges the correctional officer acted in bad faith,”

sovereign immunity applied as a matter of law to the claims against the

department. Id. at 1197. Relying on McGhee v. Volusia County, 679 So. 2d

729, 733 (Fla. 1996), the court agreed that because the complaint directly

alleged that the officer was acting outside the scope of his employment, and

because the court was required to accept the allegations of the complaint as

true, the claim necessarily fell under the ambit of sovereign immunity under

section 768.28(9)(a). Id. at 1198; see also McGhee, 679 So. 2d at 733 (“In

any given situation either the agency can be held liable under Florida law, or

8 the employee, but not both.”); Kirker v. Orange County, 519 So. 2d 682, 684

(Fla. 5th DCA 1988) (“The very need to allege and prove willful, wanton or

malicious conduct to sustain an action against the [employee] makes the

case non-actionable against the county . . . .”).

Alvarez focuses on the fact that some of the acts alleged in the

complaint may be within the scope of Mendez’s job functions and therefore

within the ambit of possible municipal liability. But that ignores the statutory

language of section 768.28(9)(a), in which acting outside of one’s job

functions is but one of several disjunctive prohibitions on municipal liability.

The City is “not liable in tort for acts or omissions of an officer, employee, or

agent” provided such act or omission is “committed while acting outside the

course and scope of his or her 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.” § 768.28(9)(a), Fla. Stat. (emphasis

added); see also Sparkman v. McClure, 498 So. 2d 892, 895 (Fla. 1986)

(explaining that “or” triggers a disjunctive reading such “that alternatives

were intended”); Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 119 (2012) (explaining in the context of the

conjunctive/disjunctive canon that “or” joins a disjunctive list of prohibitions

that is violated by any single prohibited act “when the disjunctive or is used

9 after a word such as not or without”). The allegations need trigger only one

of the disjunctive prohibitions. Here, the allegations of bad faith, and the

malicious, willful, conspiratorial acts of Mendez and other City employees in

disregard of Alvarez’s property rights trigger two or more of the statutory

prohibitions on municipal liability.

Finally, the complaint fails to allege negligence by city officials that

could form liability on behalf of the City for negligent acts, separate from the

putative bad-faith fraudulent scheme. As to the employees and officers apart

from Mendez, the complaint alleges: “Upon information and belief, some City

employee, acting at the direction of some senior City official, deleted or

otherwise destroyed the notes and photographs that [the code inspector] had

took” and that “[u]pon information and belief, City officials failed to oppose

the waiver to assist Morales in profiting from the purchase of the Alvarez

home.” These allegations are reincorporated into the civil conspiracy count

against all defendants, including the City. Further, the complaint alleges that

“[t]he City of Miami, its officials, the then City Attorney Victoria Mendez, and

her subordinates, the Assistant City Attorney, and Code Enforcement

Officers and officials have all conspired with Morales and Express Homes

. . . all to enrich Mendez and Morales.”

10 The plain and unambiguous language of the operative complaint

alleges an intentional, malicious conspiracy between the former City

Attorney, her husband, and various city employees to effect a fraudulent

scheme to defraud the homeowner and enrich private individuals. The

complaint practically tracks the language of the statutory exception for

liability under section 768.28(9)(a). The legislature has expressly declined to

waive sovereign immunity for these acts. We note, however, that this court

has permitted the claims to proceed against Mendez, consistent with the

statutory scheme. See Mendez, 390 So. 3d at 254 (“Because the Complaint

sufficiently alleges that Mendez acted in bad faith or with malicious purpose

or in a manner exhibiting wanton and willful disregard of Alvarez’s property,

we affirm the trial court’s order denying Mendez’s motion to dismiss.”); see

also § 768.28(9)(a), Fla. Stat.

IV. CONCLUSION

The operative complaint seeks relief from the City on a claim of civil

conspiracy. The complaint alleges intentional, malicious acts by Mendez and

other City employees in furtherance of such conspiracy. We are bound to

accept the factual allegations of the complaint as true for purposes of a

motion to dismiss. The factual allegations and the elements of civil

conspiracy refute any possible claim of negligence that could ground

11 municipal liability under section 768.28(9)(a). The trial court therefore erred

in denying the City’s motion to dismiss. We reverse and remand for dismissal

with prejudice as to the claim against the City.

Reversed and remanded with instructions.