City of Miami General Employees' and Sanitation Employees' Retirement Trust v. Rodriguez

246 So. 3d 567

• Court: District Court of Appeal of Florida
• Decided: June 13, 2018
• Docket: 17-2802
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed June 13, 2018. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D17-2802 Lower Tribunal No. 14-7997 ________________

City of Miami General Employees' and Sanitation Employees' Retirement Trust, et al., Appellants,

vs.

Jose Rodriguez, et al., Appellees.

An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Michael A. Hanzman, Judge.

Klausner, Kaufman, Jensen & Levinson, and Robert D. Klausner, Adam P. Levinson, and Paul A. Daragjati (Plantation), for appellants.

No appearance for appellees.

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

ROTHENBERG, C.J. The defendants below, City of Miami General Employees’ and Sanitation

Employees’ Retirement Trust, et al. (collectively, “the defendants”), appeal from a

non-final order which granted their motion to dismiss Counts I and III of the

operative complaint, but denied their motion to dismiss Count II. Following our

review of the non-final order denying the defendants’ motion to dismiss, and the

defendants’ response to this Court’s order to show cause, we dismiss this non-final

appeal for lack of jurisdiction.

The defendants moved to dismiss all counts of the plaintiffs’ operative

complaint, raising several arguments, including sovereign immunity. During the

hearing held on the defendants’ motion to dismiss, the issue of sovereign

immunity, among others, was raised by the defendants’ counsel. At the conclusion

of the hearing, the trial court took the defendants’ motion to dismiss under

advisement, and thereafter, the trial court issued a twenty-eight page order granting

the defendants’ motion to dismiss as to Counts I and III of the operative complaint,

but denying the motion to dismiss as to Count II.

Despite the length of the non-final order, the order fails to address the issue

of sovereign immunity and there is nothing in the order which reflects that the trial

court has ruled on the immunity issue. Thus, this non-final order is not appealable

pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(x), which permits

the appeal of a non-final order that determines “that, as a matter of law, a party is

2 not entitled to immunity under section 768.28(9), Florida Statutes,” or rule

9.130(a)(3)(C)(xi), which permits the appeal of a non-final order that determines

“that, as a matter of law, a party is not entitled to sovereign immunity.” See

generally Citizens Prop. Ins. Corp. v. Calonge, 43 Fla. L. Weekly D855 (Fla. 3d

DCA Apr. 18, 2018); Miami-Dade Cty. v. Pozos, 42 Fla. L. Weekly D418 (Fla. 3d

DCA Feb. 15, 2017). Accordingly, we dismiss the defendants’ appeal of the non-

final order as we lack jurisdiction.

Dismissed.