Fla. Dep't of Children & Families v. Feliciano

• Decision Date: 28 November 2018
• Docket Number: No. 3D16-2904,3D16-2904
• Citation: 259 So.3d 957
• Court: Florida District Court of Appeals
• Parties: State of Florida DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. Yunior FELICIANO and Mirelys Morales, etc., Appellees.

259 So.3d 957

State of Florida DEPARTMENT OF CHILDREN AND FAMILIES, Appellant,

v.Yunior FELICIANO and Mirelys Morales, etc., Appellees.

No. 3D16-2904

District Court of Appeal of Florida, Third District.

Opinion filed November 28, 2018

Marrero & Wydler and Oscar E. Marrero and Lourdes Espino Wydler, for appellant.

Alan D. Sackrin (Hallandale Beach), for appellees.

Before ROTHENBERG, C.J., and SALTER and LUCK, JJ.

SALTER, J.

Florida's Department of Children and Families ("DCF") appeals a circuit court's non-final order denying DCF's motion to dismiss the complaint filed against it (and other defendants) by the personal representatives and parents ("Plaintiffs") following the tragic drowning of their three year-old son in 2013. The appeal from that non-final order raises a threshold and debatable issue regarding our jurisdiction. As detailed below, we are at present constrained to dismiss this appeal for lack of jurisdiction.

Applicable Rule; Single-Issue Motion and Denial

DCF maintains that we have jurisdiction over this appeal as a category of non-final orders specifically enumerated in Florida Rule of Appellate Procedure 9.130(a)(3)(C)(xi) —orders which determine "that, as a matter of law, a party is not entitled to sovereign immunity." Although the order denied the motion to dismiss without including grounds¹ (words to the effect that, "as a matter of law, DCF is not entitled to sovereign immunity"), DCF argues that the record demonstrates that sovereign immunity was the single basis presented for, and the result of, the trial court's ruling.

The record discloses that the Plaintiffs asserted only one claim, Count VI, against DCF. DCF's motion to dismiss Count VI specified only one basis for dismissal: "This claim must be dismissed with prejudice as DCF is entitled to sovereign immunity because no statutory or common law duty exists." The Plaintiffs alleged in Count VI that DCF was negligent in its inspection of a day care facility's swimming pool area at a licensed day care facility that was not owned or operated by DCF. The Plaintiffs conceded in Count VI that the child who drowned was not in DCF's care or custody. DCF's motion to dismiss did not raise any other issue, and it provided legal authority supporting dismissal on the basis of sovereign immunity.

In a memorandum opposing DCF's motion to dismiss, the Plaintiffs argued that DCF is not sovereignly immune because Chapters 401 and 402, Florida Statutes (2013), charge DCF with a statutory duty of care for children in child day care facilities. At the hearing on DCF's motion, sovereign immunity was the only issue before the trial court. The trial court denied the motion to dismiss, but declined to state in open court or the written order that the basis was the denial of sovereign immunity. This appeal followed.

This Court's Opinions

In Citizens Property Insurance Corp. v. Sosa, 215 So.3d 90 (Fla. 3d DCA 2016), a state-created insurer (Citizens) sought to appeal a trial court order denying the insurer's motion to dismiss an insured's statutory, first-party bad faith claims on grounds of sovereign immunity.² Citizens contended that the order was an appealable non-final order under the rule at issue here, Florida Rule of Appellate Procedure 9.130(a)(3)(C)(xi). We dismissed the appeal for lack of jurisdiction, because "the order on appeal does not state that the motion to dismiss is denied on the basis that Citizens lacks sovereign immunity," and because the trial court did not reach or rule on that issue. Sosa, 215 So.3d at 91.

In Miami-Dade County v. Pozos, 242 So.3d 1152 (Fla. 3d DCA 2017), reh'g denied, 242 So.3d 540 (Fla. 3d DCA 2018) (Rothenberg, C.J., dissenting), a divided panel of this Court considered a county's appeal from a non-final order denying summary judgment. The county's motion was based on a claim of sovereign immunity, but the trial court's order denying the motion merely stated that the motion was denied. No further elaboration was provided in the order. The majority opinion reviewed the history of Florida Rule of Appellate Procedure 9.130(a)(3)(C)(xi) and the earlier, similarly-worded provision (9.130(a)(3)(C)(v) )³ authorizing appeals from non-final orders determining "that, as a matter of law, a party is not entitled to workers' compensation immunity."

The majority opinion in Pozos observed that case law interpreting the workers' compensation immunity provision in subdivision (v) of Rule 9.130(a)(3)(C) has held uniformly that an order denying summary judgment is not appealable under the Rule "unless the trial court's order expressly provides that it is making a determination that, as a matter of law, the party is not entitled to immunity." Pozos, 242 So.3d at 1155 (original emphasis). The dissenting opinion in the case, reiterated in its subsequent dissent from the panel's denial of rehearing and the Court's denial of rehearing en banc, urges that a rule change or further determination by the Florida Supreme Court is necessary to provide recourse to parties entitled to sovereign immunity but forced to proceed with a lengthy and expensive defense because the initial order of denial has itself been held by the district courts of appeal to be immune from review.

Here, as in our more recent opinion addressing Rule 9.130(a)(3)(C)(xi), City of Coral Gables v. Blanco, 248 So.3d 1211 (Fla. 3d DCA 2018), our own precedent requires the dismissal of the appeal. There is pending, however, a petition for review to the Florida Supreme Court which recognizes that such dismissals are inconsistent with the original, federal rationale for permitting interlocutory appeals from orders denying claims of immunity.⁴

The First District's Opinion in Florida Highway Patrol v. Jackson

The First District began its opinion in Florida Highway Patrol v. Jackson, 238 So.3d 430, 431 (Fla. 1st DCA 2018), with this observation:

Immunity from suit is meaningless if a court denies immunity to a party entitled to it, forcing the party to stand trial and appeal the improper denial of immunity. This case concerns our jurisdiction to hear an interlocutory appeal of an order denying immunity to a party claiming entitlement to it. The trial court denied a motion for summary judgment filed by the Florida Highway Patrol (FHP), which had argued, among other things, that it was immune from suit. FHP asserts that we have jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(xi), which permits appellate review of non-final orders that determine "as a matter of law" that a party is not entitled to sovereign immunity. Because the order under review did not explicitly determine, as a matter of law, that FHP was not entitled to sovereign immunity, we dismiss this appeal. But because we perceive an inconsistency between the Florida Supreme Court's decision in Beach Community Bank v. City of Freeport, 150 So.3d 1111 (Fla. 2014), and other cases regarding the specificity with which a court must deny an immunity motion "as a matter of law" to permit interlocutory appellate review, we certify a question of great public importance to the Florida Supreme Court.

The First District certified to the Florida Supreme Court as a question of great public importance the following question, after observing that "It is unclear if the Florida Supreme Court has departed from narrowly interpreting ‘as a matter of law’ to permit appellate review of orders denying sovereign immunity when the record demonstrates that the defendant is entitled to such immunity and was erroneously required to defend itself.":

DOES RULE 9.130 PERMIT AN APPEAL OF A NON-FINAL ORDER DENYING IMMUNITY IF THE RECORD SHOWS THAT THE DEFENDANT IS ENTITLED TO IMMUNITY AS A MATTER OF LAW BUT THE TRIAL COURT DID NOT EXPLICITLY PRECLUDE IT AS A DEFENSE?

Id. at 437-38.

The Florida Highway Patrol, represented by the Office of the Attorney General and Solicitor General, has petitioned for discretionary review by the Florida Supreme Court on the basis of the certified question and the Florida Supreme Court's decision in Beach Community Bank, supra. Florida Highway Patrol v. Jackson, No. SC18-468, 2018 WL 2128958 (jurisdictional briefing completed May 1, 2018).⁵

We hazard no guess as to whether the Florida Supreme Court will accept jurisdiction or, if it does, how it will decide this issue. Pending further guidance on the question from that Court, or amendment of the applicable rule, we remain obedient to our own precedent.

Appeal dismissed.

ANY POST-OPINION MOTION MUST BE FILED WITHIN SEVEN DAYS. A RESPONSE TO THE POST-OPINION MOTION MAY BE FILED WITHIN FIVE DAYS THEREAFTER.

ROTHENBERG, C.J. (concurring in result only).

This appeal is a clear example of why we should not be interpreting rule 9.130(a)(3)(C)(xi) as requiring a trial court that determines, as a matter of law, that a party is not entitled to sovereign immunity as a matter of law to explicitly say so in its order, as the majority in this case, Miami-Dade County v. Pozos, 242 So.3d 1152 (Fla. 3d DCA 2017), and Citizens Property Insurance Corp. v. Calonge, 246 So.3d 447 (Fla. 3d DCA 2018), have concluded. In this case, the plaintiff asserted only one claim against Florida's Department of Children and Families ("DCF"), and specified only one basis for dismissal: that DCF was entitled to sovereign immunity as a matter of law, which, in this case, turns on a question of law, not a question of fact. When the trial court denied the motion, DCF specifically asked the trial court to state the basis in its order for its denial of its motion to dismiss. The trial court, however, refused to do so, stating: "No, I don't need to give you a basis. I'm just letting [the plaintiff] proceed and it's denied, period."

Although I disagree with the majority's interpretation of rule 9.130(a)(3)(C)(xi) and its reliance on Citizens Property Insurance Corp. v. Sosa, 215 So.3d 90 (Fla. 3d DCA 2016), I recognize that we are bound by this Court's precedent in Pozos and Calonge. I therefore, concur in result...