Citizens Prop. Ins. Corp. v. Calonge, s. 3D16–854
| Decision Date | 18 April 2018 |
| Docket Number | Nos. 3D16–854,3D16–1456,3D16–1459,3D16–1457,3D16–1831,s. 3D16–854 |
| Citation | 246 So.3d 447 |
| Parties | CITIZENS PROPERTY INSURANCE CORPORATION, Appellant/Cross–Appellee, v. Rosa CALONGE, Appellee/Cross–Appellant, and Wilson Imbert and Judy Imbert, Lazaro Gomez Cruz and Judith Carreras Lopez, Francisco Granados and Daisy Granados, and Anthony Calvi, Appellees. |
| Court | Florida District Court of Appeals |
Link & Rockenbach, P.A., and Kara Berard Rockenbach (West Palm Beach), for appellant/cross-appellee.
Barnard Law Offices, L.P., and Andrew C. Barnard, for appellees/cross-appellant.
Before ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.
In these five consolidated appeals, we review virtually identical non-final orders that deny, without elaboration, Appellant Citizens Property Insurance Corporation's ("Citizens") motions to dismiss Appellees'1 claims. While Citizens's dismissal motions assert its sovereign immunity from Appellees' claims, we do not have jurisdiction to review the trial courts' unelaborated non-final orders denying Citizens's dismissal motions. Therefore, we dismiss each of Citizens's appeals.
Citizens sought to dismiss various counts in Appellees' complaints. Citizens argued that these counts, irrespective of how they were couched, constitute disguised, first-party bad faith claims for which Citizens enjoys sovereign immunity under section 627.351(6)(s) of the Florida Statutes and the case of Citizens Property Insurance Corp. v. Perdido Sun Condominium Association, 164 So.3d 663 (Fla. 2015). The trial courts adjudicated each such dismissal motion by entering an unelaborated order that simply denied Citizens's motion.
Citizens appealed each of these non-final orders.
In its initial briefs to this Court, Citizens argues that the trial court erred by denying its dismissal motions; and, because Citizens's dismissal motions were premised upon sovereign immunity claims, the non-final dismissal orders are subject to interlocutory review. See Fla. R. App. P. 9.130(a)(3)(C)(xi). In their answer briefs to this Court, Appellees each assert, among other things, that, because the appealed interlocutory orders are unelaborated, the orders lack the requisite determination to allow appellate review under rule 9.130(a)(3)(C)(xi). We consolidated these appeals because the threshold jurisdictional issue for each appeal is the same: whether we have jurisdiction to review an unelaborated non-final order denying Citizens's motion to dismiss when the motion asserts entitlement to sovereign immunity.
Our appellate jurisdiction to review non-final orders is limited to only those orders specifically scheduled in rule 9.130(a)(3). See Keck v. Eminisor, 104 So.3d 359, 363–64 (Fla. 2012). Citizens relies on rule 9.130(a)(3)(C)(xi) to vest this Court with jurisdiction to hear the otherwise non-reviewable interlocutory orders. This rule reads 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."
In each order on appeal, the trial court states merely that Citizens's motion to dismiss was denied. In none of these orders did the trial court state as a basis for its denial that Citizens was not entitled to the sovereign immunity shield from suit. While the dissent assiduously argues to the contrary, we are constrained by this Court's jurisprudence and the text of the relevant rule to limit our jurisdictional inquiry to the four corners of the appealed order. Put another way, in making our jurisdictional determination, we look only to the face of the trial court's order and do not penetrate the record with a searchlight to divine whether the trial court's undisclosed rationale warrants appellate review. Miami–Dade Cty. v. Pozos, 242 So.3d 1152, 2017 WL 621233 (Fla. 3d DCA Feb. 15, 2017) ; Citizens Prop. Ins. Corp. v. Sosa, 215 So.3d 90 (Fla. 3d DCA 2016).
In Pozos, the plaintiff claimed that the County was liable for personal injuries suffered after plaintiff was shot at a County park. The County filed a summary judgment motion asserting sovereign immunity, and the trial court entered an unelaborated order denying the County's motion. The County appealed this non-final order, arguing that this Court had jurisdiction to review the trial court's unelaborated order because the order impliedly determined, as a matter of law, that the County was not sovereignly immune from Pozos's claim. This Court dismissed the County's appeal for lack of jurisdiction because the trial court's order did not provide an explicit determination on the availability of the immunity defense, and because Florida's district courts are "without authority to make the determination on our own accord." Pozos, 242 So.3d 1152.
In Sosa, which bears some similarity to the instant case, Citizens appealed a non-final order in which the trial court denied Citizens' motion to strike certain bad faith allegations and to dismiss and/or strike certain counts of the complaint. On appeal, Citizens "characterize[ed] the trial court's order as one determining that it is not entitled to sovereign immunity as a matter of law ...." Sosa, 215 So.3d at 91. This Court dismissed the appeal for lack of jurisdiction, again because the trial court's order did not address sovereign immunity specifically. Id.
Both Pozos and Sosa follow Florida Supreme Court jurisprudence dictating that Florida's district courts do not have jurisdiction to review a non-final order addressing immunity unless the order specifically states that the immunity defense is not available. Hastings v. Demming, 694 So.2d 718, 720 (Fla. 1997). While Hastings and its progeny2 involve workers' compensation immunity rather than sovereign immunity, the jurisdictional rules authorizing the interlocutory appeals of orders relating to workers compensation immunity and sovereign immunity are identical in their wording, and therefore are analogous.3 Because the drafters of these two rules chose to employ virtually identical language to define the contours of our interlocutory jurisdiction in the immunity context, we have no difficulty applying case law from workers' compensation immunity jurisprudence to inform our analysis of sovereign immunity jurisdiction. See State v. Hearns, 961 So.2d 211, 217 (Fla. 2007) ()
We do note that Hastings, Reeves and Culver arose from summary judgment determinations, yet the Florida Supreme Court has not distinguished between an order on a motion for summary judgment and an order on a motion to dismiss. Indeed, Reeves cites approvingly to Martin Electronics, Inc. v. Glombowski, 705 So.2d 26, 30 (Fla. 1st DCA 1997), in which the First District held that an unelaborated order deriving from a motion to dismiss and making no specific immunity determination, was not an appealable order. Reeves, 889 So.2d at 821.
Our reading of rule 9.130(a)(3)(C)(xi) —preventing interlocutory review of an unelaborated order—is consistent with the text of the rule, as well as the requirement that we are to construe narrowly the categories of non-final orders subject to interlocutory appeal. Walker v. Fla. Gas Transmission Co., 134 So.3d 571, 572 (Fla. 1st DCA 2014). The presence of the word "determine" in the rule is significant. The "non-final order[ ]" must "determine" that "a party is not entitled to sovereign immunity." Thus, the plain text of the rule requires that, for interlocutory review to be available, the order itself must actually adjudicate the sovereign immunity issue against the allegedly immune party. Nothing in the rule suggests that we may adduce or surmise such a determination by reviewing documents in the record apart from the trial court's written order. Such a search for jurisdiction within the record would lead to imprecise and even presumptuous conclusions. To allow a district court to make its jurisdictional determination by engaging in its own examination of the underlying record essentially would allow the district court to make the sovereign immunity determination in the first instance. Surely, such a search for jurisdiction would undermine the purpose of rule 9.130(a)(3) itself, which is to expressly circumscribe the categories of non-final orders subject to interlocutory review. Pozos, 242 So.3d 1152.
The trial courts' non-final orders below merely said: "Denied." These orders did not determine, as a matter of law, that Citizens is not entitled to sovereign immunity. Therefore, we lack jurisdiction to review the challenged orders under rule 9.130(a)(3)(C)(xi), and dismiss the consolidated appeals.4
Dismissed.
In these five consolidated appeals,5 we are presented with two questions: (1) whether we have appellate jurisdiction to review non-final orders that deny, without elaboration, motions to dismiss that only raise the issue of sovereign immunity from suit; and (2) if we reach the merits, whether the trial court erred by denying Citizens Property Insurance Corporation's ("Citizens") motion to dismiss the breach of contract and declaratory judgment claims pled in the five separate complaints filed by the Appellees, claims from which Citizens argues it is sovereignly immune because they are statutory bad-faith claims. As will be explained more fully below, I would answer both questions in the affirmative, reverse the orders on appeal, and remand with instructions to the trial courts to enter orders granting Citizens' motions to dismiss without prejudice to allow the Appellees to file amended complaints.
After the Appellees allegedly sustained accidental property damage to their real properties, they sued...
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