Fla. Highway Patrol v. Jackson

• Decision Date: 23 February 2018
• Docket Number: No. 1D16–3940,1D16–3940
• Citation: 238 So.3d 430
• Parties: FLORIDA HIGHWAY PATROL, A DIVISION OF the FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellant, v. Lashonta Renea JACKSON, as personal representative of the Estate of Vontavia Kiara Robinson, Appellee.
• Court: Florida District Court of Appeals

238 So.3d 430

FLORIDA HIGHWAY PATROL, A DIVISION OF the FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellant,

v.Lashonta Renea JACKSON, as personal representative of the Estate of Vontavia Kiara Robinson, Appellee.

No. 1D16–3940

District Court of Appeal of Florida, First District.

February 23, 2018

Pamela Jo Bondi, Attorney General, and Britt Thomas, Chief Assistant Attorney General, Tallahassee, for Appellant.

Jack J. Fine and Melissa Susan Sheldon of Fine, Farkash & Parlapiano, P.A., Gainesville, for Appellee.

Winokur, J.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.

BACKGROUND

On January 28, 2012, a brush fire started on Paynes Prairie Preserve in Alachua County. Near midnight on January 29, 2012, two traffic crashes occurred, one on I–75 and one on US–441, both of which included reduced visibility from the fire as a contributing factor. Both roads were closed due to the crashes and visibility concerns, and traffic was diverted onto smaller roads. Several hours later, FHP weighed the safety risks involved with keeping both roads closed, determined that visibility conditions had improved, and reopened I–75. Shortly after, the decedent Vontavia Robinson was driving on I–75 when he was involved in a fatal multiple-vehicle collision due to a sudden deterioration in visibility.

Lashonta Renea Jackson, as personal representative of Robinson's estate, filed an action against FHP alleging negligence in the reopening of I–75. FHP filed a motion for summary judgment asserting that sovereign immunity protected its discretionary decision to reopen the interstate. The trial court denied FHP's motion, finding that disputed factual issues precluded summary judgment.¹ FHP appeals from this order.

ANALYSIS

I. Appealability of non-final orders denying immunity

Only recently were the rules of appellate procedure amended to permit interlocutory appeals of orders denying sovereign immunity. In re Amendments to Fla. Rule of Appellate Procedure 9.130 , 151 So.3d 1217, 1218 (Fla. 2014). In order to understand how this rule should be applied here, a review of the background leading to the amended rule is helpful.

In Mitchell v. Forsyth , 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the United States Supreme Court addressed the pre-trial appealability of an order denying qualified immunity, which protects public officials from federal civil-rights claims under certain circumstances. The Court described such immunity as not simply a defense to liability, but an immunity from suit, which "is effectively lost if a case is erroneously permitted to go to trial." Id. Accordingly, "denial of a claim of qualified immunity, to the extent that it turns on an issue of law " is subject to interlocutory review. Id. at 530, 105 S.Ct. 2806 (emphasis added).

When the Florida Supreme Court encountered this issue in state-court suits, it noted that the Florida Rules of Appellate Procedure at the time did not permit appellate review of non-final orders denying most types of immunity. Tucker v. Resha , 648 So.2d 1187, 1189 (Fla. 1994).² Citing Mitchell , the Court agreed that qualified immunity is immunity from suit, and not merely a defense to liability, and that such immunity is lost and cannot be restored on appeal if one is erroneously required to litigate. Id. "[I]f orders denying summary judgment based upon claims of qualified immunity are not subject to interlocutory review, the qualified immunity of public officials is illusory and the very policy that animates the decision to afford such immunity is thwarted." Id. at 1190. In order to make such immunity real rather than illusory, the Court requested an amendment to Rule 9.130 providing that "an order denying summary judgment based upon a claim of qualified immunity is subject to interlocutory review to the extent that the order turns on an issue of law ." Id. at 1190 (emphasis added).

Two years after deciding Tucker , the Florida Supreme Court refused to extend the Tucker rule to governmental claims of sovereign immunity. Dep't of Educ. v. Roe , 679 So.2d 756, 757 (Fla. 1996). The Court stated, "[o]ftentimes, the applicability of the sovereign immunity waiver is inextricably tied to the underlying facts, requiring a trial on the merits. Thus, many interlocutory decisions would be inconclusive and in our view a waste of judicial resources." Id. at 758. The Court found that sovereign immunity, unlike qualified immunity, is not rooted on a worry of undue influence on public officials, and its applicability would not have a chilling effect on public officials doing their jobs. Id. at 759. As such, the benefit of sovereign immunity "will not be lost simply because review must wait until after final judgment," and the Court declined to permit interlocutory appeals of orders denying sovereign immunity. Id.

The Court later analyzed the individual immunity protections of section 768.28(9)(a), Florida Statutes, and determined that this immunity is more similar to qualified immunity, as described in Tucker , than to sovereign immunity, as described in Roe . Keck v. Eminisor , 104 So.3d 359 (Fla. 2012). As such, the Court held that interlocutory review of orders denying the immunity protections of section 768.28(9)(a) would be permitted "where the issue turns on a question of law." Id. at 366. In a concurring opinion, a majority of the Court requested a review as to whether Rule 9.130 should be expanded so that "the denial of any claim of immunity where the question presented is solely a question of law" should be subject to interlocutory appeal. Id. at 370 (Pariente, J., concurring).

After the Florida Bar Appellate Court Rules Committee proposed an amendment to Rule 9.130(a)(3) in response to the Court's request in Keck , the Court adopted two new subdivisions to the rule, permitting appellate review of non-final orders determining that "as a matter of law, a party is not entitled to" immunity under section 768.28(9), or to sovereign immunity. In re Amendments to Fla. Rule of Appellate Procedure 9.130 , 151 So.3d at 1218 ; Fla. R. App. P. 9.130(a)(3)(C)(x) and (xi). The Court did not specify the extent the amended rule abrogated Roe , which had specifically prohibited interlocutory appeal of orders denying sovereign immunity.

The Florida Supreme Court addressed the appealability of an order denying sovereign immunity most recently in Beach Community Bank v. City of Freeport , decided the same day as the 2014 amendment to Rule 9.130. Our Court had granted a writ of certiorari after the trial court denied the defendant's motion to dismiss based on sovereign immunity. Beach Community Bank , 150 So.3d at 1112. The supreme court stated that the new amendment "permits district courts to review nonfinal orders of decisions determining entitlement to sovereign immunity where the case involves a pure legal question." Id. at 1113. The Court agreed that the defendant's sovereign immunity claim "rested on a pure question of law," which "falls squarely within the new rule amendment." Id. However, at no point did the Court discuss the language of the trial court's order or whether it specifically decided that immunity was not an available defense; it simply found that the issue was a question of law and, thus, within the ambit of the amendment permitting appellate review.

II. Requirement that the challenged order determine that the party is not entitled to immunity "as a matter of law"

Both federal law and Florida law prohibit interlocutory appeal of an order denying immunity unless the order determines as a matter of law that the party is not entitled to immunity. See e.g., Mitchell , 472 U.S. at 530, 105 S.Ct. 2806 ; Fla. R. App. P. 9.130(a)(3)(C)(v), (vii), (x), and (xi). In analyzing whether an order has rejected an immunity claim "as a matter of law," it is worth noting as a preliminary matter that the United States Supreme Court has ruled that immunity questions generally must be resolved by the court rather than the jury. Hunter v. Bryant , 502 U.S. 224, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). In Hunter , the Court "stressed the importance of resolving immunity questions at the earliest possible stage in litigation" after a federal appellate court denied summary judgment and held that a factual determination should be decided by the trier of fact. Id. at 227, 112 S.Ct. 534. The Court rejected the lower court's approach because it would "routinely place[ ] the question of immunity in the hands of the jury. Immunity ordinarily should be decided by the court long before trial." Id. at 228, 112 S.Ct. 534 ; see also Greene v. Reeves , 80 F.3d 1101, 1104 (6th Cir. 1996) (" Hunter established that the determination of whether qualified immunity applies to an officer's judgment as to probable cause is one for the court, not...