DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DOUGLAS A. HARRISON and LAURA RAYBIN MILLER,
Appellants,
v.
KIMARIE STRATOS and SOUTH BROWARD HOSPITAL DISTRICT,
d/b/a Memorial Healthcare System,
Appellees.
No. 4D20-2655
[August 4, 2021]
Appeal of a nonfinal order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Carlos A. Rodriguez, Judge; L.T. Case
No. CACE19-005895.
Michael R. Piper and Christopher J. Stearns of Johnson, Anselmo,
Murdoch, Burke, Piper & Hochman, P.A., Fort Lauderdale, for appellants.
Chris Kleppin of The Kleppin Firm, P.A., Plantation, for appellee
Kimarie Stratos.
PER CURIAM.
Appellants, two members of the Board of Commissioners of the South
Broward Hospital District (d/b/a Memorial Healthcare System) (“the
District”), appeal an order denying their motion to dismiss appellee
Stratos’s amended complaint, claiming they are entitled to statutory
immunity under section 768.28(9)(a), Florida Statutes (2019). The statute
provides state employees immunity from liability for any acts or omissions
committed in the course of their employment unless they “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. (2019). Appellants argue that Stratos’s amended complaint did not
allege bad faith or malicious purpose sufficiently to overcome their
immunity. In the extensive amended complaint, 1 Stratos, who was
1 The amended complaint does not comply with Florida Rule of Civil Procedure
1.110(b): “[a] pleading which sets forth a claim for relief . . . must state a cause
of action and shall contain . . . (2) a short and plain statement of the ultimate
executive vice president and general counsel for the District, alleged that
she was terminated by the Chief Executive Officer of the District after
appellants orchestrated a vote by the Board to terminate her employment
even though the Board had no authority to do so. Stratos alleged that
appellants acted in bad faith and with malicious purpose, because she
refused to support their violations of the Sunshine law and “illegal”
reimbursement requests. The court concluded that the allegations were
sufficient to survive a motion to dismiss but explained that appellants
could plead their claims as affirmative defenses and raise them on
summary judgment. We agree that the allegations of bad faith and
malicious purpose were sufficiently pled to survive the motion to dismiss.
Stratos alleged that appellants acted out of ill will and spite and with
actual malice. See Peterson v. Pollack, 290 So. 3d 102, 108–09 (Fla. 4th
DCA 2020). We therefore affirm without prejudice to appellants raising
the issue as an affirmative defense and for further proceedings.
WARNER, DAMOORGIAN and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
facts showing that the pleader is entitled to relief . . . .” (emphasis added).
However, if a complaint states a cause of action, “it should not be dismissed, but
[the] extraneous portions of the complaint should be treated as surplusage.”
Harrell v. Hess Oil & Chem. Corp., 287 So. 2d 291, 294 (Fla. 1973) (citations
omitted). The amended complaint in this case is 87 pages long and contains 470
numbered paragraphs. There is plenty of “surplusage” in it, which makes it
difficult for both opposing counsel and the courts to discern the issues raised
and the sufficiency of the pleading. Were appellants to file a motion to strike, the
court could “in [its] discretion require [Stratos] to eliminate the dross contained
in [her] lengthy and inartfully drawn [87] page complaint, or to recast [her] initial
complaint.” Cook v. Katiba, 152 So. 2d 504, 507 (Fla. 1st DCA 1963).
2