Opinion
No. 80-274.
September 24, 1980.
Appeal from the Commission on Ethics, Thomas H. Gregory, Chairman.
James E. Knight, Stuart, and Gaylord A. Wood, Jr., Fort Lauderdale, for appellant.
Jordan Fields, Stuart, for appellee.
This is an appeal from an order of the State of Florida Commission on Ethics denying appellant's motion to tax attorney's fees and costs.
Section 112.317(8), Florida Statutes (1979) provides:
In any case in which the commission determines that a person had filed a complaint against a public officer or employee with a malicious intent to injure the reputation of such officer or employee and in which such complaint is found to be frivolous and without basis in law or fact, the complainant shall be liable for costs plus reasonable attorney's fees incurred by the person complained against. . . . (Emphasis added.)
Appellant contends that the Commission only considered whether there was malicious intent on the part of Mr. Bone individually, and did not address the issue of malicious intent of the corporation. We find this position to be without merit due to the specific finding of the commission that the complaint was not frivolous in law or fact even though it found summarily that there was no probable cause to constitute a violation of the code of ethics. The wording of Section 112.317(8) precludes recovery of fees and costs even if there was a determination of malicious intent of the corporation, without the accompanying finding of frivolity.
AFFIRMED.
DOWNEY, J., and SHARP, G. KENDALL, Associate Judge, concur.
HURLEY, J., concurs specially with opinion.
Since the Commission on Ethics expressly found that the complaint herein was not frivolous or without basis in law or fact, the Court does not reach the Commission's finding that Richard C. Bone acted without malicious intent. I, too, will not delve into that finding but, for future guidance, I believe it is appropriate to point out that when a complaint is filed by a person acting in a representative capacity, as was the case here, any inquiry into malicious intent would have to encompass the mind-set of the sponsoring group or organization; it should not be limited to a consideration of the agent or representative's personal motivation. In the case at bar, the record reflects that the complaint was filed by "Richard C. Bone, Treasurer, representing Mobile Home Park Owners and Dealers of Martin Co., Inc." Furthermore, it is conceded that the association, by duly enacted resolution, authorized Mr. Bone's action. Thus, on the issue of malicious intent, I believe that the commission erred by impermissibly restricting its inquiry to Mr. Bone's motivation as opposed to that of the owners and dealers association.
Second, the Commission erred when it denied appellant, the person complained against, the right to introduce into evidence depositions of various officers and board members of the complainant association. The fact that the deponents were present at the hearing was irrelevant. Fla. Admin. Code Rule 34-10.19(4)(d) states in part:
The Commission shall not allow the introduction into evidence of an affidavit of a person when that person can be called to testify; this shall not preclude the admission of a deposition of such person, however, for any reason permissible in a court of law under the Florida Rules of Civil Procedure.
In turn, Rule 1.330(a)(2), Fla.R.Civ.P., provides:
The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent or a person designated under Rule 1.310(b)(6) or 1.320(a) to testify on behalf of a public or private corporation, partnership or association or governmental agency that is a party may be used by an adverse party for any purpose.
The very same contention was placed before the court in Monsalvatge and Company of Miami, Inc. v. Ryder Leasing, Inc., 151 So.2d 453 (Fla. 3rd DCA 1963). There the trial court had denied the admission of an officer's deposition because the witness was present in the courtroom. The appellate court reversed, finding clear error and noting that "(t)he use of such a deposition is not conditioned upon the availability of the deponent." Id. at 455.
Though I believe these errors are serious, I concur in the opinion of the Court because I conclude that the Commission's threshold finding of nonfrivolousness is founded upon substantial competent evidence which therefore precludes recovery of costs and attorney fees.