IRVIN Z. MANN AND STANLEY M. ROBBINS, APPELLANTS,
v.
FRITZ K. GROLOCK, FREDERICK H. WILSEN, AND STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL AND GOVERNMENTAL REGULATION, APPELLEES
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This case involves appeals from orders dismissing tort claims against the Department of Professional Regulation (DPR) and its attorney, Frederick Wilsen. The court affirmed the dismissal and summary judgment, finding Wilsen was protected by prosecutorial immunity.
The trial court should not have dismissed counts against the DPR based on a retroactive application of Section 768.28(9)(a), Florida Statutes. However, the trial court correctly granted summary judgment for Wilsen based on prosecutorial immunity.
[1] Sovereign immunity does not apply retroactively to causes of action accruing before the effective date of Section 768.28(9)(a), Florida Statutes.
[2] Attorneys acting within the scope and course of their employment and without improper motive are entitled to prosecutorial immunity.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In view of the Arney decision, the trial court should not have dismissed the counts of the complaint based on a retroactive application of Section 768.-28(9)(a), Florida Statutes (Supp.1980).”
Establishes that the dismissal against the DPR was based on an incorrect retroactive application of a statute.
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Join FLexlaw to unlock all legal intelligenceAppellants filed tort claims against the DPR and its attorney, Wilsen. The trial court dismissed counts against the DPR based on sovereign immunity an…
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PER CURIAM.
This cause is before us on appeals, consolidated in this court, from orders of the trial court dismissing various counts of a complaint in tort filed against the Department of Professional Regulation (DPR) and Frederick Wilsen, Attorney for DPR, based on sovereign immunity, and granting summary judgment for Wilsen based on prosecutorial immunity. After the decision below in Case No. AO-319, this court rendered its opinion in Arney v. Department of Natural Resources, 448 So. 2d 1041, (Fla. 1st DCA, 1983), which held that Section 768.28(9)(a), Florida Statutes, would not be applied retroactively to causes of action accruing before the effective date of that provision. In view of the Arney decision, the trial court should not have dismissed the counts of the complaint based on a retroactive application of Section 768.-28(9)(a), Florida Statutes (Supp.1980).
However, the trial court correctly determined that prosecutorial immunity applied, relying on the rationale of Mueller v. The Florida Bar, 390 So. 2d 449 (Fla. 4th DCA 1980).
The trial court correctly held, in pertinent part, as follows:
This Court is of the view that the defendant WILSEN was acting within the scope and course of his employment as a staff attorney for the Florida Real Estate Commission and that his actions in filing and prosecuting the complaint against the plaintiffs were in accordance with the responsibilities imposed upon him by his employment. A review of the deposition of Mr. Wilsen does not indicate that he was acting out of any improper motive. This Court is of the view that the actions of Mr. Wilsen are privileged and that he enjoys prosecutorial immunity based on the rationale set forth in the case of Mueller v. The Florida Bar, 390 So. 2d 449, and that therefore the motion for summary judgment should be granted.
Review of the complaint below in the light of Mueller, supra, and the summary-judgment in favor of Wilsen based on prosecutorial immunity, mandates affirmance of both the order of dismissal and the summary final judgment.
BOOTH, WENTWORTH and THOMPSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Mueller v. THE Florida BAR, 390 So. 2d 449 (Fla. 4th DCA 1980)
- Arney v. Dep't OF Natural Res., 448 So. 2d 1041 (Fla. 1st DCA 1983)