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.
ROTHENBERG, C.J., and SUAREZ and EMAS, JJ.
MOTION FOR REHEARING, CLARIFICATION, OR CERTIFICATION
and EMAS, JJ., concur.
ROTHENBERG, C.J. (dissenting from the denial of the motion
for rehearing and rehearing en banc).
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.
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.
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.
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.
Jurisdiction under rule 9.130(a)(3)(C)(xi)
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
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
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.
The Florida Supreme Court
Beach Community Bank
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.
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).
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.
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.
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.
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
Id. at 364 (internal quotations omitted) (citing
Tucker, 648 So.2d at 1189) (emphasis added). The
Florida Supreme Court went on to say ...