Tucker v. Resha

Decision Date12 October 1992
Docket NumberNo. 92-1744,92-1744
Parties17 Fla. L. Week. D2388 Katie D. TUCKER, Petitioner, v. Donald George RESHA, Jr., Respondent.
CourtFlorida District Court of Appeals

Brian S. Duffy, McConnaughhay, Roland, Maida, Cherr & McCranie, P.A., Tallahassee, for petitioner.

Richard E. Johnson, Spriggs & Johnson, and William A. Friedlander, Tallahassee, for respondent.


Tucker, the defendant below, petitioned for a writ of common-law certiorari for review of the trial court's order denying Tucker's motion for summary judgment as to Counts IV and VII of respondent Resha's amended and supplemental complaint. As the basis for invoking jurisdiction pursuant to article V, section 4(b), Florida Constitution, and Fla.R.App.P. 9.030(b)(3), Petitioner maintained the trial court's order fulfills the two prerequisites for review by certiorari because 1) it is a departure from the essential requirements of law that will cause material injury to Petitioner throughout the subsequent proceedings below, and 2) a full and adequate remedy by appeal after final judgment is unavailable. See Brooks v. Owens, 97 So.2d 693, 695 (Fla.1957); Harte v. Palm Beach Biltmore Condominium Ass'n, 436 So.2d 444, 445 (Fla. 4th DCA 1983); Boucher v. Pure Oil Co., 101 So.2d 408, 410 (Fla. 1st DCA 1957). As a former public official, Tucker also asserted a substantive federal right not to stand trial, a right established by the United States Supreme Court in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Although Tucker's claim of qualified immunity from suit involves a type of protection that cannot be effectively or adequately restored by an appeal, once it is lost by exposure to trial, see Flinn v. Gordon, 775 F.2d 1551, 1552 (11th Cir.1985), cert. den., 476 U.S. 1116, 106 S.Ct. 1972, 90 L.Ed.2d 656 (1986), we decline to exercise our limited and discretionary jurisdiction because the order does not violate a clearly established principle of law or otherwise depart from the essential requirements of law resulting in a miscarriage of justice. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987); Combs v. State, 436 So.2d 93 (Fla.1983); Chalfonte Devel. Corp. v. Beaudoin, 370 So.2d 58 (Fla. 4th DCA 1979). In contrast with the federal procedural entitlement to interlocutory review of non-final orders denying summary judgment based on qualified immunity, see Mitchell, the applicable Florida laws governing certiorari jurisdiction over non-final orders afford a much narrower scope of relief. Accordingly, the petition for writ of certiorari is denied.

During the time period at issue, Petitioner was Executive Director of the Florida Department of Revenue ("DOR"). Tucker asserted a claim of qualified immunity, which shields from civil liability those governmental officials performing discretionary functions, to the extent "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396, 410 (1982); Green v. Brantley, 941 F.2d 1146, 1148 (11th Cir.1991). Tucker contended that the federal presumptive right not to stand trial or to face the other burdens of litigation established in Harlow and Mitchell affords her the opportunity for immediate review of the non-final order denying summary judgment. See Felder v. Casey, 487 U.S. 131, 151, 108 S.Ct. 2302, 2313-14, 101 L.Ed.2d 123, 146 (1988) (state courts are required under Supremacy Clause to proceed in a manner that protects the substantial federal rights of the parties).


Counts IV and VII involved claims of deprivation of civil rights based on 42 U.S.C., section 1983. Tucker asserted the claim of qualified immunity to support the motion for summary judgment on both counts. The petition relied in large measure on the established federal appellate mechanism for interlocutory review of orders denying summary judgment on the issue of qualified immunity. 42 U.S.C., section 1983, does not address the right of interlocutory review of such non-final orders, but 28 U.S.C., section 1291, provides in part: "The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States." Federal appellate courts construing section 1291 have held that to the extent a federal trial court's denial of a qualified immunity claim on a motion for summary judgment turns on an issue of law, the order is considered an appealable "final decision," notwithstanding the absence of a final judgment. See Mitchell, 472 U.S. at 530, 105 S.Ct. at 2817, 86 L.Ed.2d at 427; Wyatt v. Cole, 504 U.S. ----, 112 S.Ct. 1827, 1832, 118 L.Ed.2d 504 (1992); Rich v. Dollar, 841 F.2d 1558, 1560 (11th Cir.1988).

A thorough review of the applicable state appellate procedural rules has convinced us that Florida does not have a rule analogous to 28 U.S.C., section 1291. Fla.R.App.P. 9.130(g) provides that the rule "shall not preclude initial review of a non-final order on appeal from the final order in the cause." However, because the entitlement asserted by Tucker is immunity from the burden of trial, review following the final order would not afford effective relief. Mitchell; Williams v. City of Albany, 936 F.2d 1256, 1258 (11th Cir.1991). Our independent research corroborates Petitioner's assertion that no other Florida opinion has directly addressed interlocutory review of an order denying summary judgment based on a claim of qualified immunity. Cf. Huffman v. Davis, 571 So.2d 1371 (Fla. 1st DCA 1990) (appellate review of order granting summary judgment in favor of correctional employee in inmate's section 1983 action).

In urging us to expand the scope of interlocutory review of non-final orders in accordance with the principles enunciated in Mitchell and Harlow, Petitioner relied on the merely persuasive authority of the courts of other states that have fashioned relief for civil-rights defendants seeking review prior to trial where qualified immunity defenses were denied. See, e.g., McLin v. Trimble, 795 P.2d 1035 (Okl.1990) (determining Mitchell was mandate to state courts, but stating the Supremacy Clause did not create state appellate court jurisdiction absent another jurisdictional basis, with result that exercise of original jurisdiction was proper); Henke v. Superior Court, 161 Ariz. 96, 775 P.2d 1160 (Ct.App.1989) (although denial of motion to dismiss was non-appealable interlocutory order, jurisdictional relief was granted under the "unusual step" of a special-action petition); Anderson v. City of Hopkins, 393 N.W.2d 363 (Minn.1986) (finding Mitchell analysis to be persuasive, "well-reasoned case that ought to be followed in analogous cases" interpreting state appellate procedural rule, without deciding whether federal decisions and state rule guaranteed right of pretrial appeal of order denying claim that 42 U.S.C., section 1983, suit should be dismissed) (emphasis in original).

Although the cited decisional law of other states is instructive on this issue, we note that the results are by no means uniform for civil-rights defendants claiming qualified immunity. See Henke, 775 P.2d at 1164 n. 5. Some courts have followed the federal example and granted immediate review of non-final orders because appellate review would be futile. See Breault v. Chairman of Bd. of Fire Comm'nrs of Springfield, 401 Mass. 26, 513 N.E.2d 1277, cert. den., 485 U.S. 906, 108 S.Ct. 1078, 99 L.Ed.2d 237 (1987); Anderson. Others have denied relief based on the strict application of state appellate rules excluding such non-final orders from interlocutory review. See Klindtworth v. Burkett, 477 N.W.2d 176 (N.D.1991); Pizzato's, Inc. v. City of Berwyn, 168 Ill.App.3d 796, 119 Ill.Dec. 583, 523 N.E.2d 51 (1988); Noyola v. Flores, 740 S.W.2d 493 (Tex.Ct.App.1987). A third line of decisions afforded yet other avenues than certiorari relief for immediate review. See McLin; Henke.

Under Florida rules, however, an order denying a motion for summary judgment is not an appealable final order. Aetna Casualty & Surety Co. v. Meyer, 385 So.2d 10, 11 (Fla. 3d DCA 1980). Although Fla.R.App.P. 9.030(b)(1) provides for appellate jurisdiction over "non-final orders of circuit courts as prescribed by Rule 9.130," an order denying a motion for summary judgment is not among those non-final orders reviewable pursuant to Rule 9.130. In the absence of an analogous Florida appellate procedural rule, we decline the opportunity to apply the federal procedure affording interlocutory review of the non-final order merely because a qualified immunity claim is involved.

The constitutional law of Florida defines the jurisdictional limits of the district courts of appeal. See Fla. Const. art. V Sec. 4(b). Although we may take notice of Mitchell and its progeny in interpreting the jurisdictional provisions governing this court, Florida law must control. See Klindtworth, 477 N.W.2d at 181 (dismissing interlocutory appeal from order denying summary judgment on qualified immunity claim in section 1983 suit, where state appellate procedural rules provided no jurisdictional basis and court rejected argument that "special nature of immunity defense" justified immediate relief). As we noted in Gadsden County Times, Inc. v. Horne, 382 So.2d 347, 348 (1st DCA), pet. for rev. den., 389 So.2d 1109 (Fla.1980), the "jurisdictional vehicle" in the Mitchell line of decisions was not certiorari, but rather, the interlocutory appeal provision in the federal rules. We find no merit to Petitioner's argument that federal statutory and decisional law has created new state procedural law in Florida, which would in effect entitle Tucker to appeal the non-final order from the decision denying summary judgment. See Ohio Civil...

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