City of Sweetwater v. Pichardo

• Decision Date: 09 December 2020
• Docket Number: No. 3D20-1229,3D20-1229
• Citation: 314 So.3d 540
• Parties: The CITY OF SWEETWATER, Appellant, v. Richard PICHARDO, Appellee.
• Court: Florida District Court of Appeals

314 So.3d 540

The CITY OF SWEETWATER, Appellant,

v.Richard PICHARDO, Appellee.

No. 3D20-1229

District Court of Appeal of Florida, Third District.

Opinion filed December 9, 2020

Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., and Michael R. Piper (Fort Lauderdale), for appellant.

Mesa Litigation & Legal Consulting, P.A., and Carlos A. Mesa, for appellee.

Before EMAS, C.J., and SCALES and LOBREE, JJ.

SCALES, J.

The City of Sweetwater (the "City") appeals a non-final order that denied its motion to dismiss the appellee Richard Pichardo's third amended complaint. Because a recent amendment to Florida Rule of Appellate Procedure 9.130(a)(3), relating to the appealability of non-final orders in the sovereign immunity context, directs our jurisdictional inquiry to the assertions in the unsuccessful motion – rather than to the order that adjudicates the motion – we are compelled to dismiss the City's appeal for lack of jurisdiction.

I. Background

The City hired appellee Pichardo as a police officer. After he started employment, the City's Mayor allegedly told Pichardo that he had been promoted to Lieutenant. About fifteen months later, the police chief sought to terminate Pichardo. Pichardo asked for the opportunity to resign instead. He was allowed to resign. After he left the City's employ, Pichardo reviewed his personnel file. He alleges that only then did he learn he had not been promoted to Lieutenant. Instead, his file revealed he was a full-time police officer with the rank of acting Lieutenant.

In 2015, Pichardo filed a complaint for negligent misrepresentation in the circuit court, alleging that, but for the Mayor's misinformation, Pichardo would not have resigned; instead, he would have taken advantage of a police officer's procedural protections under the City's collective bargaining agreement and Florida statutes as to his termination. These protections, allegedly, were not available to one with the rank of Lieutenant, but were available to one with the rank of acting Lieutenant.

The operative complaint is the third amended complaint. On June 3, 2020, the City moved to dismiss it on the ground that the City owed no tort duty to Pichardo. The motion came before the trial court for hearing on July 29, 2020, and on the same day, the trial court entered the challenged order denying the City's motion. While the City's motion did not assert entitlement to sovereign immunity, the trial court's otherwise unelaborated order denying the City's motion included the following sentence: "Defendant is not entitled to sovereign immunity as a matter of law."

II. Analysis

While neither party challenged our jurisdiction to review the appealed nonfinal order, we have an independent duty to ensure we have jurisdiction. Bloomgarden v. Mandel, 154 So. 3d 451, 453 (Fla. 3d DCA 2014). Had this appeal been filed prior to the Florida Supreme Court's January 23, 2020 amendment to rule 9.130(a)(3), we likely would have had the jurisdiction to reach the merits of the dispute.¹ Indeed, case law from this Court interpreting the prior rule focused our jurisdictional inquiry on the four corners of challenged order. See Citizens Prop. Ins. Corp. v. Calonge, 246 So. 3d 447, 449 (Fla. 3d DCA 2018) ("[I]n making our jurisdictional determination, we look only to the face of the trial court's order and we do not penetrate the record with a searchlight to divine whether the trial court's undisclosed rationale warrants appellate review."); see also Florida Highway Patrol v. Jackson, 288 So. 3d 1179, 1182-83 (Fla. 2020) (concluding that, under the former version of the rule, when determining whether it has jurisdiction to review a non-final order denying entitlement to sovereign immunity, a district court's inquiry is limited to the face of the order, without regard to the underlying record).

In Jackson, though, after the Florida Supreme Court determined that the prior version of the rule limited the appellate court's jurisdictional inquiry to the face of the order, the Florida Supreme Court announced that it was issuing an opinion amending rule 9.130(a)(3), in order "to expand the availability of appellate review of nonfinal orders denying sovereign immunity." Jackson, 288 So. 3d at 1186. Thus, the Florida Supreme Court contemporaneously issued In re: Amendments to Florida Rule of Appellate Procedure 9.310, 289 So. 3d 866 (Fla. 2020). The amended rule 9.130(a)(3) now reads as follows: "Appeals to the district courts of appeal of nonfinal orders are limited to those that ... deny a motion that ... asserts entitlement to sovereign immunity." Fla. R. App. P. 9.130(a)(3)(F)(iii) (emphasis added). Hence, based on the plain and unambiguous language of the amended rule, our jurisdictional inquiry now focuses not on the challenged order, but rather on the motion that the order adjudicates.

In this case, the...