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Miami-Dade County v. Pozos

Florida Court of Appeals, Third District

June 6, 2018

Miami-Dade County, Appellant,
v.
Noel Pozos, Appellee.

          An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 14-24237 William Thomas, Judge.

          Abigail Price-Williams, Miami-Dade County Attorney, and Eric K. Gressman, Joni A. Mosely and Sabrina Levin, Assistant County Attorneys, for appellant.

          Beckham & Beckham, P.A., and Robert J. Beckham, Jr., and Pamela Beckham, for appellee.

          Before ROTHENBERG, C.J., and SUAREZ and EMAS, JJ.

         ON MOTION FOR REHEARING, CLARIFICATION, OR CERTIFICATION

          PER CURIAM.

         Denied.

          SUAREZ and EMAS, JJ., concur.

          ROTHENBERG, C.J. (dissenting from the denial of the motion for rehearing and rehearing en banc).

         Noel Pozos seeks damages for injuries he sustained as a result of being shot by an unidentified assailant while at a teenager's birthday party at Benito Juarez Park ("the Park") in Homestead, Florida. The one-count complaint alleges that Miami-Dade County ("the County") owned, controlled, maintained, and operated the park; Pozos was an invitee on the premises when he was shot; the County assumed the duty to provide reasonable safety to Pozos; and the County breached that duty by failing to provide reasonable safety measures and security personnel to control, patrol, and guard against dangerous activity and/or to warn Pozos and others of the potential danger.

         The County filed a motion for summary judgment asserting that: (1) the County did not have a duty to prevent the misconduct of third persons or to enforce the law for the benefit of specific individuals; and (2) sovereign immunity bars this action. After conducting an evidentiary hearing, the trial court denied the County's motion for summary judgment.

         The majority concludes that this Court lacks jurisdiction under rule 9.130(a)(3)(C)(xi) to review the trial court's order in the instant case because the trial court "did not declare, make a finding, or otherwise determine that, as a matter of law, the County was not entitled to sovereign immunity or immunity under section 768.29(9)." I agree with the majority that, unless the trial court has determined as a matter of law that the County is not entitled to sovereign immunity, this Court lacks jurisdiction to review the trial court's order denying the County's motion for summary judgment. However: (1) I disagree with the majority's interpretation of rule 9.130(a)(3)(C)(xi); (2) the case law does not support the majority's position; (3) the majority's interpretation of the rule will lead to an absurd result; and (4) the record clearly establishes that sovereign immunity bars this action as a matter of law. Because the trial court's order denying the County's motion for summary judgment constituted a legal determination that the County was not entitled to sovereign immunity, we have jurisdiction to review and to reverse the trial court's order denying the County's motion for summary judgment. I, therefore, respectfully dissent from the majority opinion dismissing the trial court's order for lack of jurisdiction.

         I am additionally writing to address the issuance of orders by some trial judges on motions to dismiss and motions for summary judgment based on sovereign immunity arguments which do not specify the basis for the denial, thereby frustrating the actual purpose behind the amendment to rule 9.130, which was to provide for interlocutory review of non-final orders that determine whether a party is sovereignly immune from suit as a matter of law.

         ANALYSIS

         I. Jurisdiction under rule 9.130(a)(3)(C)(xi)

         I begin with the Florida Supreme Court's direction for interpreting procedural rules. In Strax Rejuvenation & Aesthetics Institute, Inc. v. Shield, 49 So.3d 741, 742 (Fla. 2010), the Florida Supreme Court held that "[p]rocedural rules should be given a construction calculated to further justice, not to frustrate it." (quoting Singletary v. State, 322 So.2d 551, 555 (Fla. 1975)).

         Rule 9.130(a)(3)(C)(xi) provides as follows: "Appeals to the district courts of appeal of non-final orders are limited to those that . . . determine . . . that, as a matter of law, a party is not entitled to sovereign immunity." The majority interprets this rule as including the requirement that an order "expressly" determine entitlement to sovereign immunity, although the word "expressly" does not appear anywhere in the rule. In reaching this interpretation the majority: (1) relies on this Court's opinion in Citizens Property Insurance Corp. v. Sosa, 215 So.3d 90 (Fla. 3d DCA 2016), wherein this Court found it had no jurisdiction to address Citizens' interlocutory appeal because the record unequivocally reflected that the trial court did not even reach the issue of sovereign immunity; (2) avoids addressing the language found in two Florida Supreme Court cases that conflict with the majority's interpretation of the rule; and (3) relies on case law involving workers' compensation immunity, which, as will be discussed in this opinion, differs from sovereign immunity.

         A. Sosa

         In Sosa, Citizens moved to strike the bad-faith allegations in the complaint and to dismiss and/or strike counts II and III based on Citizens' sovereign immunity as a matter of law from bad-faith claims. Sosa, 215 So.3d at 91. However, as this Court noted in its opinion, the record reflected that the trial court did not even reach the issue of sovereign immunity when it denied Citizens' motion to dismiss. Id. Instead, the trial court abated or stayed any action on those counts, and abated any consideration of Citizens' claim of sovereign immunity until the issues of coverage and liability were resolved. Id. Although the wisdom of the trial court's ruling is certainly questionable because sovereign immunity should be addressed at the earliest opportunity, this Court clearly lacked jurisdiction to review the trial court's interlocutory order because the trial court did not consider, much less determine, Citizens' claim of sovereign immunity. Because the trial court did not rule on Citizens' sovereign immunity claim in Sosa, the majority's reliance on Sosa in support of its conclusion is misplaced.

         B. The Florida Supreme Court

         (1) Beach Community Bank

         The majority's interpretation of rule 9.130(a)(3)(C)(xi) is also in conflict with the Florida Supreme Court's interpretation of the rule. In Beach Community Bank v. City of Freeport, Florida, 150 So.3d 1111 (Fla. 2014), the Florida Supreme Court accepted jurisdiction to review the First District Court of Appeal's opinion in City of Freeport v. Beach Community Bank, 108 So.3d 684 (Fla. 1st DCA 2013). The City of Freeport moved to dismiss the complaint based on its sovereign immunity from suit. The trial court issued an order denying the City's motion to dismiss. A review of the record before the First District and the Florida Supreme Court reflects that the order in question merely stated that the City's "Motion to Dismiss with Prejudice is denied and Defendant shall file a responsive pleading within 20 days of the date of this Order." (emphasis added). Importantly, the order denying the motion to dismiss did not state that the trial court had determined, as a matter of law, that the City was not entitled to sovereign immunity.

         The City filed a petition for writ of certiorari to review the non-final order on the basis that the City was entitled to sovereign immunity as a matter of law and thus the trial court departed from the essential requirements of law by denying its motion to dismiss. City of Freeport, 108 So.3d at 686. The First District agreed with the City, granted certiorari relief, and granted the petition. Id. On review to the Florida Supreme Court, the original question was whether the District Court could exercise certiorari jurisdiction to review the trial court's non-final order. Beach Cmty. Bank, 150 So.3d at 1112. However, because the Florida Bar Appellate Court Rules Committee's proposed amendment to rule 9.130 was pending before the Florida Supreme Court and the Court concluded that "this case falls squarely within the new rule amendment, " the Court determined "that the City should be entitled to the benefit of the new rule." Id. at 1113. Specifically, the Court held that the proposed amendment "answers the question that the City asks this Court to confront in this case. This amendment permits district courts to review non-final orders of decisions determining entitlement to sovereign immunity where the case involves a pure legal question." Id. (emphasis added).

         Importantly, although the trial court's order simply denied the City's motion to dismiss, ordered the City to file responsive pleadings within twenty days, and did not include the language that the denial of the motion to dismiss on the basis of sovereign immunity was a denial as a matter of law, the First District nevertheless reviewed the order and determined that the City was entitled to sovereign immunity, and the Florida Supreme Court reviewed the same order and agreed. Beach Cmty. Bank, 150 So.3d at 1114. Thus, the Florida Supreme Court quashed the First District's decision to the extent that it resolved the issue based on certiorari review, but approved the decision based on the amendment to rule 9.130 and issued its opinion on the very same day that it approved the amendment to rule 9.130. Id. at 1114-15.

         (2) Keck

         The Florida Supreme Court's opinion in Keck v. Eminisor, 104 So.3d 359 (Fla. 2012), also suggests that the majority's interpretation of rule 9.130(a)(3)(C)(xi) is incorrect. In Keck, the trial court issued an order denying Keck's motion for summary judgment based on his claim of immunity under section 786.28(9)(a). Keck sought review, but because rule 9.130 had not yet been amended to permit interlocutory appeals of trial court orders denying summary judgment, Keck petitioned the First District for a writ of certiorari. Keck, 104 So.3d at 362. Because the First District concluded that certiorari review was not proper, it denied the petition without addressing the merits of the petition. Id. The First District, however, certified a question to the Florida Supreme Court; the Florida Supreme Court accepted jurisdiction; and the Court rephrased the certified question as follows:

Should review of the denial of a motion for summary judgment based on a claim of individual immunity under section 768.28(9)(a), Florida Statutes, await the entry of a final judgment in the trial court to the extent that the order turns on an issue of law.

Id. at 360-61.

         In answering the certified question, the Florida Supreme Court noted that in Tucker v. Resha, 648 So.2d 1187 (Fla. 1994), the Court had "examined whether to expand the category of non-final appealable orders to include orders denying summary judgment based on a qualified immunity claim, " and because of the nature of the rights involved, the Court concluded that interlocutory review must be available to an individual whose claim of qualified immunity was denied by the trial court. Id. at 364.

         The Court specifically noted that:

Because qualified immunity of public officials involves immunity from suit rather than a mere defense to liability, we reasoned that immunity from suit is effectively lost if a case is erroneously permitted to go to trial because a trial court's order denying qualified immunity cannot be reviewed on appeal from a final judgment as the public official cannot be re-immunized if erroneously required to stand trial or face the other burdens of litigation.

Id. at 364 (internal quotations omitted) (citing Tucker, 648 So.2d at 1189) (emphasis added). The Florida Supreme Court went on to say ...


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