Florida Highway Patrol, a division etc. v. Lashonta Renea Jackson, as Per. Rep. etc. , 238 So. 3d 430 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D16-3940
_____________________________
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.
_____________________________
On appeal from the Circuit Court for Alachua County.
Monica J. Brasington, Judge.
February 23, 2018
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.
1 FHP also argued that no material issue of fact existed to
support a common-law duty of care it owed to Robinson, as
opposed to the general public. Whether a governmental entity
2
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 (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(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.
owes a duty of care to a particular plaintiff is often intertwined
with the question of whether the governmental action is
discretionary and therefore immune from suit, but the issues are
“conceptually distinct.” Wallace v. Dean, 3 So. 3d 1035, 1044 (Fla.
2009). While FHP raised these issues distinctly in its motion, the
trial court found only that “[d]isputed issues of material fact
exist” without specifying whether the disputed issues relate to
the lack-of-duty claim or to the sovereign-immunity claim. We
treat the order as if the court meant to deny the motion on the
immunity ground, because that is the only basis on which FHP
could seek an interlocutory appeal under Rule 9.130.
3
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
2 The first type of order denying immunity that could be
challenged by interlocutory appeal was one denying workers’
compensation immunity, which was authorized two years prior to
Tucker. See Mandico v. Taos Constr., Inc., 605 So. 2d 850 (Fla.
1992); In re Amendments to Fla. Rules of Appellate Procedure,
609 So. 2d 516, 517 (Fla. 1992).
4
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.
5
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; 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 (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. 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; 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
the jury, to make”); Ansley v. Heinrich, 925 F.2d 1339, 1348 (11th
Cir. 1991) (“[Q]ualified immunity is a question of law for the
court to decide preferably on pretrial motions.”). This rule seems
necessary in light of the Court’s observation that immunity “is
effectively lost if a case is erroneously permitted to go to trial.”
Mitchell, 472 U.S. at 526. Requiring a jury to find facts
supporting an immunity claim at trial has this effect. 3 This
3 It is also worth noting that “the Seventh Amendment right
to trial by jury does not apply in actions against the Federal
Government.” Lehman v. Nakshian, 453 U.S. 156, 160 (1981).
Thus, it would be constitutionally permissible for the trial court
to resolve factual issues to determine whether a party is entitled
to sovereign immunity. For instance, the Florida Supreme Court
has ruled that the trial court must decide factual issues involving
“Stand Your Ground” immunity from prosecution. Dennis v.
State, 51 So. 3d 456, 464 (Fla. 2010) (“[W]here a criminal
defendant files a motion to dismiss pursuant to [the Stand Your
6
observation should be remembered when deciding whether a
court has determined an immunity issue “as a matter of law.”
Again, the Supreme Court in Mitchell permitted
interlocutory appeal of an order denying immunity that “finally
and conclusively determines the defendant’s claim of right not to
stand trial on the plaintiff’s allegations,” “to the extent that it
turns on an issue of law.” Mitchell, 472 U.S. at 527, 530. The
Court clarified this rule in Johnson v. Jones, 515 U.S. 304 (1995),
where it ruled that interlocutory appeal is not available when the
trial court determines that factual issues genuinely in dispute
preclude summary judgment. In Johnson, the plaintiff alleged
that police officers used excessive force and beat him. Id. at 307.
The officers moved for summary judgment on the ground that
they were not present at the time of the alleged beating. Id. at
307-08. The trial court denied their motion on the ground that
some evidence supported the plaintiff’s allegations that the
officers were in fact present. Id. at 308. The Supreme Court held
that the order was not appealable because it merely decided “a
question of ‘evidence sufficiency,’ i.e., which facts a party may, or
may not, be able to prove at trial.” Id. at 313.
In contrast, the Supreme Court permitted interlocutory
review in Scott v. Harris, 550 U.S. 372 (2007). The plaintiff in
Scott also alleged that an officer used excessive force, and the
officer moved for summary judgment based on qualified
immunity. Id. at 375-76. The trial court denied the motion,
finding that “there are material issues of fact on which the issue
of qualified immunity turns which present sufficient
disagreement to require submission to a jury.” Id. at 376. In spite
of the trial court’s order that material issues of fact precluded a
ruling on the qualified immunity claim, the Supreme Court found
that the plaintiff’s version of the facts was not supported by the
record, that the issue was therefore a “pure question of law,” and
that summary judgment should have been granted. Id. at 381
n.8. Thus, the Supreme Court has ruled that an order denying
summary judgment, even if based on the existence of “disputed
Ground immunity statute], the trial court should decide the
factual question of the applicability of the statutory immunity”).
7
issues of material fact,” can still be subject to interlocutory
review if the trial court incorrectly ruled that the material facts
were in dispute. See also Plumhoff v. Rickard, 134 S. Ct. 2012(2014) (allowing interlocutory appeal of summary-judgment order
denying qualified immunity, and distinguishing Johnson on the
ground that the disputed issue in Johnson was purely factual).
Florida has taken a much stricter view, compared to federal
courts, of the requirement that an order deny immunity “as a
matter of law” before permitting an interlocutory appeal. In
Hastings v. Demming, 694 So. 2d 718, 720 (Fla. 1997), the court
ruled that an interlocutory appeal of an order denying workers’
compensation immunity was not permitted “unless the trial court
order specifically states that, as a matter of law, such a defense is
not available to a party” (emphasis supplied). Reeves v. Fleetwood
Homes of Florida, Inc., 889 So. 2d 812, 821 (Fla. 2004), reaffirmed
Hastings, and required a “determination, on the face of the order”
that the defendant, as a matter of law, is not entitled to workers’
compensation immunity in order to file an interlocutory appeal.
“The lower courts of Florida have strictly adhered to this Court’s
decisions in Hastings and Culver,[4] determining that a district
court does not have jurisdiction to review a nonfinal order
denying summary final judgment unless the trial court’s order
explicitly states that the defendant will not be entitled to present a
workers’ compensation immunity defense at trial.” Id. (emphasis
supplied).
The “as a matter of law” language appears identically in all
of the subdivisions in Rule 9.130(a)(3)(C) involving orders
denying immunity. Fla. R. App. P. 9.130(a)(3)(C)(v), (vii), (x), and
(xi). As such, all of the subdivisions should be construed
identically. See Miami-Dade County v. Pozos, 42 Fla. L. Weekly
D418, D419 (Fla. 3d DCA Feb. 15, 2017); see also Tindel v.
4 Fla. Dep’t of Corrs. v. Culver, 716 So. 2d 768 (Fla. 1998)
(clarifying Hastings by holding that an appellate court must
determine that the lower court denied immunity from the face of
the order alone, without looking at the record to determine
whether the lower court correctly found that disputed issues of
material fact actually existed).
8
Kessler, 772 So. 2d 599 (Fla. 5th DCA 2000) (applying the
Hastings rule to dismiss an appeal of an order denying qualified
immunity). In short, a defendant in Florida asserting that the
trial court erroneously denied immunity may not appeal unless
the order explicitly states that the defendant is not entitled to
immunity.
Miami-Dade County v. Pozos applies this rule. The county
moved for summary judgment on the ground that sovereign
immunity barred the suit, but the trial court’s order denying the
motion stated only, “the motion for summary judgment is
denied.” 42 Fla. L. Weekly at D418. Applying Hastings and
Reeves, the Pozos court noted that the trial court made no specific
determination that the county was not entitled to immunity, and
dismissed the appeal. Id. at D420. 5 Although the dissenting
opinion argued persuasively that the county was in fact entitled
to sovereign immunity as a matter of law, and that the trial court
therefore erred in denying immunity, it did not address Hastings
and Reeves, on which the majority based its ruling dismissing the
appeal. Id. at D420-425 (Rothenberg, J., dissenting).
Pozos exposes the difficulty with the Hastings rule. Even if
the defendant had been unquestionably entitled to summary
judgment as a matter of law, the trial court’s failure to explicitly
indicate its basis for denial prohibits interlocutory review and
forces a party immune from suit to stand trial. This result is
clearly inconsistent with the oft-stated importance of resolving
immunity matters early in litigation. While the Florida Supreme
Court has demonstrated willingness to expand the reviewability
of orders denying sovereign immunity, the Hastings rule
substantially restricts review. The Hastings rule also permits a
trial court to frustrate a party’s legitimate assertion of immunity
simply by failing to provide reasons for a denial of an immunity
5 See also Eagle Arts Acad., Inc. v. Tri-City Elec. Co., Inc.,
211 So. 3d 1083, 1084 (Fla. 3d DCA 2017) (dismissing the appeal
of an order denying summary judgment based on sovereign
immunity because the order did not find that the defendant was
not entitled to sovereign immunity as a matter of law); Taival v.
Barrett, 204 So. 3d 486 (Fla. 5th DCA 2016) (same).
9
motion. The approach taken by the United States Supreme Court
avoids these pitfalls by permitting interlocutory review of any
order denying immunity that turn on an issue of law, regardless
of whether the order explicitly says so, even when the trial court
finds (erroneously) that disputed issues of material fact exist.
III. Application to this case
The trial court here denied FHP’s motion for summary
judgment on the ground that “[d]isputed issues of material fact
exist, including, but not limited to, the extent and adequacy of
[FHP]’s continued monitoring of the roadway, that prevent the
entry of Final Summary Judgment.” Any dispute related to the
quality of FHP’s monitoring the interstate does not seem to relate
to the question of whether FHP is immune from suit. Instead,
these disputed facts relate to the question of FHP’s negligence,
rather than its immunity from suit.
In this respect, the order under review is similar to the order
in Pozos, in that neither order gives reasons for its denial of the
sovereign-immunity claim, much less rule “explicitly” that the
governmental defendant is not entitled to sovereign immunity as
a matter of law. Like the Pozos court, we are constrained to find
that Hastings and Reeves preclude appellate review. 6
6 FHP’s appeal cannot be treated as a petition for writ of
certiorari. While certiorari petitions have in the past been
routinely used for pretrial review of orders denying immunity,
this avenue has been closed by more recent Florida Supreme
Court decisions. See Citizens Prop. Ins. Corp. v. San Perdido
Ass’n, Inc., 104 So. 3d 344, 355 (Fla. 2012) (holding that “the
district courts do not have jurisdiction to entertain petitions for
certiorari based on a public entity’s claim that it is entitled to
immunity based on the particular facts of the lawsuit brought
against it”); Rodriguez v. Miami-Dade County, 117 So. 3d 400,
405 (Fla. 2013) (“[W]e reiterate that the continuation of litigation
and any ensuing costs, time, and effort in defending such
litigation does not constitute irreparable harm. Thus, the use of
certiorari review is improper in such an instance.”).
10
Without ruling on the merits of this appeal, FHP makes a
sound argument that the trial court erred in finding that issues
of material fact precluded a ruling that it was immune from suit.
But even if this possible error were an issue of law, Hastings and
Reeves still would not permit appellate review. The Reeves court
noted that Rule 9.130 “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.” Reeves, 889 So. 2d at 821 (quoting Fla. R. App. P. 9.130
(Committee Notes, 1996 Amendment)). An erroneous conclusion
that issues of fact exist is not a “matter of law” in this context.
Contra Scott v. Harris, 550 U.S. at 381 n.8 (finding that the
correctness of the trial court’s conclusion that material issues of
fact existed was a “pure question of law” subject to interlocutory
review).
IV. Conflicts in the law
The Florida Supreme Court has given two recent indications
suggesting that the Hastings and Reeves rules unduly restrict
interlocutory appellate review of orders denying immunity. First
is the 2014 amendment expanding the types of non-final orders
denying immunity, including sovereign immunity, that may be
appealed. Given the justification for allowing interlocutory review
of orders denying immunity set forth in Tucker and Keck, a
strong argument can be made that Roe, which held that orders
denying sovereign immunity are unappealable because sovereign
immunity is a defense to liability rather than an immunity from
suit, is no longer good law. 7
Second, in Beach Community Bank, the Florida Supreme
Court’s most recent discussion of the appealability of orders
denying sovereign immunity, the Court permitted interlocutory
appellate review of an order denying immunity without any
7 See also Rodriguez, 117 So. 3d at 410 (Canady, J.,
concurring in result only) (“Once it is legally established that the
statutory waiver of sovereign immunity is inapplicable, the
sovereignly immune entity is both immune from liability and
immune from suit,” and to hold otherwise “fundamentally
degrades the meaning of immunity from suit.”).
11
discussion of whether the order under review “explicitly” stated
that the governmental entity was not entitled to sovereign
immunity as a matter of law. The Court noted only that this
court had concluded that “the City’s claim to sovereign immunity
rested on a pure question of law.” Beach Community Bank, 150
So. 3d at 1113. 8 This approach seems more similar to the United
States Supreme Court’s approach in Scott and Plumhoff than to
the rule stated in Hastings and Reeves. 9 Beach Community Bank
appears to signal a return to the principle of permitting appellate
review of an order denying immunity when the appellate court
can consider the issue without any additional factual
determinations (i.e., a question of law). See Mitchell, 472 U.S. at
530 (holding that the “denial of a claim of qualified immunity, to
the extent that it turns on an issue of law” is subject to
interlocutory review); Tucker, 648 So. 2d at 1190 (“[A]n 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.”); Keck, 104 So. 3d at 370(Pariente, J., concurring) (requesting review for a rule expansion
to permit interlocutory review of “the denial of any claim of
immunity where the question presented is solely a question of
law”). This appears to be the analysis undertaken by Judge
Rothenberg in Pozos when she concluded that the record “clearly
established” the legal question of sovereign immunity. Pozos, 42
Fla. L. Weekly at D420 (Rothenberg, J., dissenting).
8 The Supreme Court was reviewing our decision in City of
Freeport v. Beach Community Bank, 108 So. 3d 684 (Fla. 1st DCA
2013). In our opinion, we stated only that the trial court “denied
the motion to dismiss.” Id. at 687.
9 It is true that Beach Community Bank involved a motion to
dismiss, while Hastings and Reeves, as well as Pozos and this
case, involved a motion for summary judgment. However, this
court has specifically applied Hastings to hold that an order
denying a motion to dismiss that does not determine that the
party is not entitled to immunity is not appealable. Martin Elecs.,
Inc. v. Glombowski, 705 So. 2d 26 (Fla. 1st DCA 1997). As such,
this difference is not relevant to our analysis.
12
CONCLUSION
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 continue to defend itself. If the
Court did not intend to signal a departure, appellate courts will
continue to dismiss interlocutory appeals that will ultimately be
reversed on appeal after trial, and parties will continue to defend
themselves from suits they are “immune” from. Without
clarification, this appeal must be dismissed for lack of
jurisdiction. To address the perceived conflict between Beach
Community Bank and prior case law, we certify the following as a
question of great public importance:
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?
DISMISSED.
LEWIS, J., concurs in result and concurs in certification; BILBREY,
J., concurs in result with opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
BILBREY, J., concurring in result.
I concur in the result reached by Judge Winokur and the
decision to certify a question.
13
“Generally, an appellate court may not review interlocutory
orders unless the order falls within the ambit of non-final orders
appealable to a district court as set forth in Florida Rule of
Appellate Procedure 9.130.” Keck v. Eminisor, 104 So. 3d 359,
363-64 (Fla. 2012). We have previously noted that “the categories
of non-final orders subject to interlocutory appeal are narrowly
construed.” Walker v. Florida Gas Transmission Co., LLC, 134
So. 3d 571, 572 (Fla. 1st DCA 2014), citing Travelers Ins. Co. v.
Bruns, 443 So. 2d 959, 961 (Fla. 1984). The only subsections
potentially applicable here are rule 9.130(a)(3)(C)(x) & (xi), which
provide an appellate court with jurisdiction to hear appeals of
orders which determine as a matter of law that a party is not
entitled to immunity under section 768.28(9), Florida Statutes, or
that a party is not entitled to sovereign immunity.
As Judge Winokur notes, the trial court denied summary
judgment finding disputed issues of facts remain, without
determining whether the Florida Highway Patrol was entitled to
immunity as a matter of law. As cases he cites correctly hold, the
absence of a trial court ruling on immunity as a matter of law
means we lack jurisdiction to consider the appeal. See Miami-
Dade Cnty. v. Pozos, 42 Fla. L. Weekly D418, 2017 WL 621233(Fla. 3d DCA Feb. 15, 2017); Eagle Arts Acad., Inc. v. Tri-City
Elec. Co, Inc., 211 So. 3d 1083 (Fla. 3d DCA 2017); Taival v.
Barrett, 204 So. 3d 486 (Fla. 5th DCA 2016). Dismissal of the
appeal is therefore the correct result. See Douglas v. Bronson,
178 So. 3d 552 (Fla. 1st DCA 2015). I also concur in the decision
to certify a question.
_____________________________
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.
14