AARON BOSSHARDT BOSSHARDT REALTY SERVICES LLC v. DANIEL DROTOS MICHAEL RYALS (2022)

Petitioners seek a writ of certiorari from a trial court's denial of a motion to dismiss a lawsuit based on Florida's Strategic Lawsuits Against Public Participation, or anti-SLAPP statute. § 768.295, Fla. Stat. (2021). We deny the petition because petitioners have not shown a material injury that cannot be corrected on post judgment appeal. In doing so, we agree with the Fourth District's interpretation of Florida Supreme Court precedent that a rule change would be necessary to enable a nonfinal appeal of an order on an anti-SLAPP motion, not a certiorari petition. WPB Residents for Integrity in Gov't, Inc. v. Materio, 284 So. 3d 555, 560 (Fla. 4th DCA 2019).

DENIED.

I concur with the Court's reasoning that we lack certiorari jurisdiction. I write separately to clarify the law in this area.

Florida's anti-SLAPP statute prohibits meritless lawsuits aimed at those exercising “rights of free speech in connection with public issues, and the rights to peacefully assemble, instruct representatives, and petition for redress of grievances.” § 768.295(1), Fla. Stat. (2021). But as recognized by the statute itself, these rights are already protected by the United States and Florida constitutions. § 768.295(3), Fla. Stat. The statute makes three substantive changes to Florida law. First, it entitles a defendant that prevails under the statute to an award of attorney fees and costs. § 768.295(4), Fla. Stat. Second, it provides a defendant sued in violation of the statute to an “expeditious resolution.” Id. And third, if the government is the offending party, the court may award the moving defendant actual damages. Id. To claim these entitlements, the law requires a moving defendant to make two showings: that the action is “without merit” and that it was filed “primarily” because the defendant exercised a protected right. § 768.295(3), Fla. Stat.

Petitioners here ask us to review the trial court's denial of a motion to dismiss based on the anti-SLAPP statute. A motion to dismiss is limited to the four corners of the complaint and focuses on whether the complaint states a cause of action. Florida Carry, Inc. v. University of Florida, 180 So. 3d 137, 148 (Fla 1st DCA 2015) (“In ruling on a motion to dismiss, a trial court must ․ limit its consideration of facts to the four corners of the complaint.”). The anti-SLAPP statute does not create a new, independent basis for dismissal or summary judgment. And it does not modify the court's existing motion to dismiss evaluation or summary judgment procedural process. In this regard, it does not create new burdens, nor does it shift existing ones.

With this understanding, we see that proving an action is “without merit” and filed “primarily” because the defendant exercised a protected right will naturally be difficult in a motion to dismiss looking only to the face of the complaint.

PER CURIAM.

BILBREY and WINOKUR, JJ., concur; LONG, J., concurs with opinion.