Fla. Fish & Wildlife Conservation Comm'n v. Jeffrey

• Decision Date: 15 October 2015
• Docket Number: No. 1D15–1406.,1D15–1406.
• Parties: FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION and Benjamin G. Johnson, individually, Petitioners, v. Timothy JEFFREY, Respondent.
• Court: Florida District Court of Appeals

178 So.3d 460

FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION and Benjamin G. Johnson, individually, Petitioners,

v.Timothy JEFFREY, Respondent.

No. 1D15–1406.

District Court of Appeal of Florida, First District.

Oct. 15, 2015.

Rehearing Denied Nov. 20, 2015.

Pamela Jo Bondi, Attorney General, and Antony D. Constantini, Assistant Attorney General, Tallahassee, for Petitioner Florida Fish and Wildlife Conservation Commission.

Heath R. Stokley and Kerry A. Parsons of Nabors, Giblin & Nickerson, P.A., Tallahassee, and Edward A. Dion, Nabors, Giblin & Nickerson, P.A., Ft. Lauderdale, for Petitioner Benjamin G. Johnson.

Marie A. Mattox and Lisa Lambert of Marie A. Mattox, P.A., Tallahassee, for Respondent.

WETHERELL, J.

The Florida Fish and Wildlife Conservation Commission (FWCC) and FWCC officer Benjamin Johnson petition for certiorari review of the order denying their motions for summary judgment based on sovereign immunity and qualified immunity, respectively. We dismiss FWCC's petition because it failed to establish the irreparable harm necessary to obtain certiorari review, but we grant Officer Johnson's petition in part and quash the challenged order insofar as it denied him qualified immunity from the false arrest claim asserted by Respondent under 42 U.S.C. § 1983.

I. Factual and Procedural Background

This case stems from a dropped cup. Although there is conflicting evidence as to what kind of cup it was¹ and how it was dropped,² it is undisputed that Respondent dropped the cup on the side of a road; that Officer Johnson told him several times to pick it up; and that Respondent refused to pick up the cup, cursed at Officer Johnson, and walked away. It is also undisputed that when Officer Johnson attempted to grab Respondent's arm to stop him from walking away so he could issue him a citation for littering, Respondent pushed Officer Johnson's hand away and started fighting with him. Respondent claimed that he did not know that Officer Johnson was a law enforcement officer because he is blind and Officer Johnson did not identify himself as an officer until the physical altercation was well underway.³ Respondent was arrested and charged with battery on a law enforcement officer and resisting an officer with violence, but the criminal charges were subsequently nol prossed.

After the criminal charges were dropped, Respondent filed suit against FWCC and Officer Johnson, asserting common law claims for negligence (against FWCC), battery (against FWCC and Officer Johnson), false arrest (against FWCC and Officer Johnson), malicious prosecution (against Officer Johnson), and intentional infliction of emotional distress (against Officer Johnson). The suit also included a § 1983 claim against Officer Johnson alleging two separate Fourth Amendment violations: false arrest and excessive use of force. FWCC and Officer Johnson asserted various defenses in their answers, including sovereign immunity and qualified immunity, respectively.

FWCC and Officer Johnson filed motions for summary judgment. FWCC asserted that it was entitled to judgment as a matter of law on the battery and false arrest claims based on the facts asserted by Respondent in his deposition, and it argued that the denial of its motion would be "a denial of sovereign immunity." Officer Johnson asserted that he was entitled to qualified immunity from the § 1983 claims and that the other claims against him failed as a matter of law.

The trial court held a hearing on the motions for summary judgment, and at the conclusion of the hearing, the court orally granted the motions.⁴ However, before the court memorialized its ruling in a written order, Respondent filed a motion for reconsideration in which he argued that summary judgment should be denied because there was a factual dispute as to whether Officer Johnson identified himself as a law enforcement officer before he attempted to detain Respondent as required by section 901.17, Florida Statutes.⁵ The trial court treated the motion as supplemental argument in opposition to the motions for summary judgment, and after a hearing, the court entered an order denying the motions for summary judgment. The order stated in pertinent part:

Defendant Johnson had the right to take action to stop [Respondent] and cite him for littering. However, he was required to do so in a manner which was consistent with the law, including the requirement that he identify himself as a law enforcement officer prior to initiating a physical detention of a potential defendant. The undisputed facts do not establish that Defendant Johnson acted within those parameters, and his failure to do so may ultimately be determined to have caused damage to [Respondent].

Summary Judgment is not appropriate because of the presence of disputed issues of fact which must be resolved at trial.

FWCC appealed the order to this court and Officer Johnson filed a notice of joinder in the appeal. Respondent filed a motion to dismiss the appeal in which he argued that the order was not appealable under Florida Rules of Appellate Procedure 9.130(a)(3)(C)(vii) and (xi) because the immunity claims asserted in the motions for summary judgment were not denied "as a matter of law." After considering the responses filed by FWCC and Officer Johnson, we converted the appeal to a certiorari proceeding. See Fla. R.App. P. 9.040(c) ("If a party seeks an improper remedy, the case shall be treated as if the proper remedy had been sought...."). FWCC and Officer Johnson thereafter filed separate petitions for writ of certiorari seeking review of the trial court's order denying their motions for summary judgment.

II. Analysis

"Certiorari is the proper remedy, in limited circumstances, to review a non-final order that is not subject to appeal under Florida Rule of Appellate Procedure 9.130." AVCO Corp. v. Neff, 30 So.3d 597, 601 (Fla. 1st DCA 2010). However, certiorari is "an extraordinary remedy and should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders." Martin–Johnson, Inc. v. Savage, 509 So.2d 1097, 1098 (Fla.1987).

To obtain a writ of certiorari, the petitioner must establish "(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal." Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004) (quoting Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002) ); see also Keck v. Eminisor, 104 So.3d 359, 364 (Fla.2012). The latter two elements—which are often collectively referred to as "irreparable harm"—are jurisdictional and must be considered first. See Williams v. Oken, 62 So.3d 1129, 1132 (Fla.2011) ; Elms v. Castle Constructors Co., 109 So.3d 1274, 1275 (Fla. 1st DCA 2013) ; Parkway Bank v. Ft. Myers Armature Works, Inc., 658 So.2d 646, 648–49 (Fla. 2d DCA 1995).

A. Irreparable Harm

The mistaken denial of a motion for summary judgment asserting qualified immunity—whether based on a determination of law or an erroneous belief that material issues of fact preclude summary judgment on the issue—results in irreparable harm because qualified immunity is an immunity from suit that is effectively lost if a case is erroneously permitted to go to trial. See Stephens v. Geoghegan, 702 So.2d 517, 525 (Fla. 2d DCA 1997) (explaining that the gravity of a mistaken denial of immunity from suit is the same irrespective of the ground on which the denial was based); see also Tucker v. Resha, 648 So.2d 1187, 1189 (Fla.1994) (explaining that "an order denying qualified immunity is effectively unreviewable 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") (citation and internal quotations omitted). Accordingly, because the challenged order in this case denied Officer Johnson's claim of qualified immunity, he has established the jurisdictional prerequisite of irreparable harm necessary to obtain review of the order. However, as discussed below, Officer Johnson's entitlement to relief from the order depends on whether the order departs from the essential requirements of law.

By contrast, any harm resulting from the erroneous denial of FWCC's motion for summary judgment is not irreparable because, by virtue of the waiver of sovereign immunity in section 768.28, Florida Statutes, FWCC has only limited immunity from the liability that may result from Respondent's suit, not immunity from the suit itself. See Dep't of Educ. v. Roe, 679 So.2d 756, 759 (Fla.1996) (explaining that "forcing the state to wait until a final judgment before appealing the issue of sovereign immunity does not present the same concerns that exist in the area of qualified immunity" because "although the state will have to bear the expense of continuing the litigation, the benefit of immunity from liability, should the state ultimately prevail on the sovereign immunity issue, will not be lost simply because review must wait until after final judgment"); Stephens, 702 So.2d at 527 (dismissing certiorari petition challenging denial of immunity claim by officers sued in their official capacity because such a suit was actually a suit against the municipality that employed the officers and "[t]he material harm, irreparable on postjudgment appeal, that impelled us to exercise our certiorari jurisdiction with regard to the individual defendants ... is simply not present in a suit against a municipality"). Absent irreparable harm, we lack certiorari jurisdiction to review the order denying FWCC's motion for summary judgment and we must dismiss its petition for writ of certiorari. See Elms, 109 So.3d at 1276 n. * (citing Bared & Co. v. McGuire, 670 So.2d 153, 157 (Fla. 4th DCA 1996) ).

In reaching this conclusion, we have not overlooked the decision in O'Brien v. Exposito, 824 So.2d 954 (Fla. 3d DCA 2002), relied on by FWCC. However, ...