Miami-Dade Cnty. v. Pozos

• Decision Date: 15 February 2017
• Docket Number: No. 3D15–2167,3D15–2167
• Citation: 242 So.3d 1152
• Parties: MIAMI–DADE COUNTY, Appellant, v. Noel POZOS, Appellee.
• Court: Florida District Court of Appeals

242 So.3d 1152

MIAMI–DADE COUNTY, Appellant,

v.Noel POZOS, Appellee.

No. 3D15–2167

District Court of Appeal of Florida, Third District.

Opinion filed February 15, 2017

Abigail Price–Williams, Miami–Dade County Attorney, and Eric K. Gressman, Assistant County Attorney, for appellant.

Beckham & Beckham, P.A., and Robert J. Beckham, Jr., and Pamela Beckham, for appellee.

Before SUAREZ, C.J., and ROTHENBERG and EMAS, JJ.

EMAS, J.

INTRODUCTION

Noel Pozos, the plaintiff below and the appellee here, filed a negligent security action against Miami–Dade County, seeking damages for injuries he sustained as a result of being shot by an unidentified assailant while attending a party at Benito Juarez Park in Miami. The one-count complaint alleged, inter alia, that Miami–Dade County owned and operated the park; that Pozos was an invitee on the premises when he was shot; that the County owed a duty to provide reasonable security; and that the County breached that duty, resulting in injury and damages.

The County filed a motion for summary judgment, asserting that sovereign immunity barred Pozos' action. After conducting an evidentiary hearing, the trial court entered an unelaborated order which stated merely that "the motion for summary judgment is denied." The County has appealed this order. Because the trial court did not determine that, as a matter of law, the County was not entitled to sovereign immunity or immunity under section 768.28(9), Florida Statutes, the County was not authorized to appeal the trial court's order, and we therefore dismiss this appeal as one taken from a nonfinal, nonappealable order.

ANALYSIS

As a general rule, a party may not seek interlocutory review by appeal of a nonfinal order, including an order denying a motion for summary judgment. See, e.g., Mandico v. Taos Const., Inc., 605 So.2d 850, 851 n. 2 (Fla. 1992) ; State, Dep't of Envtl. Prot. v. Garcia, 99 So.3d 539 (Fla. 3d DCA 2011) ; Castillo v. Deutsche Bank Nat. Trust Co., 57 So.3d 965 (Fla. 3d DCA 2011) ; Taggart v. Morgan, 943 So.2d 250 (Fla. 3d DCA 2006). However, Article V, section 4(b) of the Florida Constitution authorizes district courts of appeal to review interlocutory orders of the circuit court "to the extent provided by rules adopted by the supreme court." The Florida Supreme Court has by rule authorized interlocutory appeals from a limited and narrowly-defined class of nonfinal orders. Interlocutory appeals of nonfinal orders in civil cases are restricted to those enumerated in Florida Rule of Appellate Procedure 9.130(a)(3). Keck v. Eminisor, 104 So.3d 359 (Fla. 2012).¹

Rule 9.130(a)(3)(C) provides:

(3) Appeals to the district courts of appeal of non-final orders are limited to those that

...

(C) determine

(i) the jurisdiction of the person;

(ii) the right to immediate possession of property, including but not limited to orders that grant, modify, dissolve or refuse to grant, modify, or dissolve writs of replevin, garnishment, or attachment;

(iii) in family law matters:

a. the right to immediate monetary relief;

b. the rights or obligations of a party regarding child custody or time-sharing under a parenting plan; or

c. that a marital agreement is invalid in its entirety;

(iv) the entitlement of a party to arbitration, or to an appraisal under an insurance policy;

(v) that, as a matter of law, a party is not entitled to workers' compensation immunity;

(vi) whether to certify a class;

(vii) that, as a matter of law, a party is not entitled to absolute or qualified immunity in a civil rights claim arising under federal law;

(viii) that a governmental entity has taken action that has inordinately burdened real property within the meaning of section 70.001(6)(a), Florida Statutes ;

(ix) the issue of forum non conveniens;

(x) that, as a matter of law, a party is not entitled to immunity under section 768.28(9), Florida Statutes ; or

(xi) that, as a matter of law, a party is not entitled to sovereign immunity.

(Emphasis added).

This rule, and its limited categories of orders subject to interlocutory review, must be narrowly construed.

Walker v. Fla. Gas Transmission Co., LLC, 134 So.3d 571 (Fla. 1st DCA 2014). In Travelers Insurance Co. v. Bruns, 443 So.2d 959, 961 (Fla. 1984), the Florida Supreme Court discussed the underlying purpose for the then-recent amendment to rule 9.130 :

The thrust of rule 9.130 is to restrict the number of appealable nonfinal orders. The theory underlying the more restrictive rule is that appellate review of nonfinal judgments serves to waste court resources and needlessly delays final judgment.

And as the First District recognized in Walker, 134 So.3d at 572 :

Our supreme court has "carefully created" each category of non-final order subject to interlocutory review after input and weighing various policy considerations, "such as increased appellate workload and concomitant delay in ... resolution." Citizens Prop. Ins. Corp. v. San Perdido Ass'n, Inc., 104 So.3d 344, 348 (Fla.2012). Accordingly, the categories of non-final orders subject to interlocutory appeal are narrowly construed. Travelers Ins. Co. v. Bruns, 443 So.2d 959, 961 (Fla.1984) ("The thrust of rule 9.130 is to restrict the number of appealable nonfinal orders.")

The relevant subdivision of rule 9.130 authorizes an appeal from a nonfinal order which determines that a party, as a matter of law, is not entitled to sovereign immunity, or is not entitled to immunity under section 768.28(9). Fla. R. App. P. 9.130(a)(3)(C)(x), (xi).

The trial court in this case did not declare, make a finding, or otherwise determine that, as a matter of law, the County was not entitled to sovereign immunity or immunity under section 768.28(9). In fact, and as the dissent acknowledges, the trial court did not make any findings at all. The trial court's order merely "denied" the motion for summary judgment, and contained no explanation, findings of fact, or conclusions of law. Construing the rule narrowly and applying the relevant case law, we are compelled to conclude that this court is without jurisdiction to review this nonfinal order.

Some history is necessary for proper context. In 2012, the Florida Supreme Court addressed the following certified question of great public importance:

Should review of the denial of a motion for summary judgment based on a claim of individual immunity under section 768.28(9)(a), Florida Statutes, await the entry of a final judgment in the trial court to the extent that the order turns on an issue of law?

Keck, 104 So.3d at 360–61.

The Court answered the question in the negative, and requested that the Florida Bar Appellate Court Rules Committee "submit a proposed narrow amendment to rule 9.130 addressing the rule change mandated by this decision." Id. at 366. In compliance with the Court's request, the Appellate Court Rules Committee submitted a proposed amendment to rule 9.130(a)(3), which was adopted by the Florida Supreme Court in 2014. In re Amendments to Florida Rule of Appellate Procedure 9.130, 151 So.3d 1217 (Fla. 2014). The amendment authorized appeals from nonfinal orders which determine that a party, as a matter of law, is not entitled to immunity under section 768.28(9), or is not entitled to sovereign immunity. Fla. R. App. P. 9.130(a)(3)(C)(x), (xi).

Given the recency of these amendments, there is virtually no case law construing or applying these provisions.² However, there is relevant case law construing identical language from an existing provision of rule 9.130, authorizing an appeal from a nonfinal order "that determines... that, as a matter of law, a party is not entitled to workers' compensation immunity." Fla. R. App. P. 9.130(a)(3)(C)(v). Case law interpreting this provision holds uniformly that an order denying summary judgment on the basis of workers' compensation immunity is not appealable under rule 9.130 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.

For example, in Hastings v. Demming, 694 So.2d 718 (Fla. 1997), the Florida Supreme Court set forth what was required to render such a nonfinal order appealable:

Nonfinal orders denying summary judgment on a claim of workers' compensation immunity are not appealable unless the trial court order specifically states that, as a matter of law, such a defense is not available to a party.

Id. at 720 (emphasis added).

The Supreme Court noted that a prior version of this rule³ was susceptible to differing interpretations, resulting in conflicting decisions among the district courts. In 1996, the rule was amended (to its present language) to settle the conflict among the district courts, eliminate confusion in application of the rule, and restore the narrow scope of the rule. As the Supreme Court would later explain in Reeves v. Fleetwood Homes of Florida, Inc., 889 So.2d 812 (Fla. 2004) :

The original version of the amendment [to rule 9.130(a)(3)(C)(vi) ] read: "Review of non-final orders of lower tribunals is limited to those which ... determine ... that a party is not entitled to workers' compensation immunity as a matter of law." In 1996, the section was amended by moving the phrase "as a matter of law" from the end of the provision to the beginning. As explained in the committee notes, this amendment was made to clarify "that this subdivision was not intended to grant a right of nonfinal review if the lower tribunal denies a motion for summary judgment based on the existence of a material fact dispute." Fla. R. App. P. 9.130 (Committee Notes, 1996 Amendment). The amendment occurred due to a number of decisions from the district courts of appeal that had broadly interpreted the rule and had allowed review of nonfinal orders denying summary judgment when the denial was the result of the existence of disputed facts.

Id. at 819 (internal citations and footnote omitted).

In Reeves, the Florida Supreme Court reaffirmed its holding in Hastings, requiring that there be a "determination, on...