Dept. of Children and Families v. Feliciano

259 So. 3d 957

• Court: District Court of Appeal of Florida
• Decided: November 28, 2018
• Docket: 16-2904
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed November 28, 2018. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D16-2904 Lower Tribunal No. 15-29157 ________________

State of Florida Department of Children and Families, Appellant,

vs.

Yunior Feliciano and Mirelys Morales, etc., Appellees.

An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Gisela Cardonne Ely, Judge.

Marrero & Wydler and Oscar E. Marrero and Lourdes Espino Wydler, for appellant.

Alan D. Sackrin (Hallandale Beach), for appellees.

Before ROTHENBERG, C.J., and SALTER and LUCK, JJ.

SALTER, J. Florida’s Department of Children and Families (“DCF”) appeals a circuit

court’s non-final order denying DCF’s motion to dismiss the complaint filed against

it (and other defendants) by the personal representatives and parents (“Plaintiffs”)

following the tragic drowning of their three year-old son in 2013. The appeal from

that non-final order raises a threshold and debatable issue regarding our jurisdiction.

As detailed below, we are at present constrained to dismiss this appeal for lack of

jurisdiction.

Applicable Rule; Single-Issue Motion and Denial

DCF maintains that we have jurisdiction over this appeal as a category of non-

final orders specifically enumerated in Florida Rule of Appellate Procedure

9.130(a)(3)(C)(xi)—orders which determine “that, as a matter of law, a party is not

entitled to sovereign immunity.” Although the order denied the motion to dismiss

without including grounds1 (words to the effect that, “as a matter of law, DCF is not

entitled to sovereign immunity”), DCF argues that the record demonstrates that

sovereign immunity was the single basis presented for, and the result of, the trial

court’s ruling.

The record discloses that the Plaintiffs asserted only one claim, Count VI,

against DCF. DCF’s motion to dismiss Count VI specified only one basis for

1 When requested to state those specific grounds at the hearing on DCF’s motion, the trial court refused: “No, I don’t need to give you the basis. I’m just letting [Plaintiffs] proceed and it’s denied, period.”

2 dismissal: “This claim must be dismissed with prejudice as DCF is entitled to

sovereign immunity because no statutory or common law duty exists.” The

Plaintiffs alleged in Count VI that DCF was negligent in its inspection of a day care

facility’s swimming pool area at a licensed day care facility that was not owned or

operated by DCF. The Plaintiffs conceded in Count VI that the child who drowned

was not in DCF’s care or custody. DCF’s motion to dismiss did not raise any other

issue, and it provided legal authority supporting dismissal on the basis of sovereign

immunity.

In a memorandum opposing DCF’s motion to dismiss, the Plaintiffs argued

that DCF is not sovereignly immune because Chapters 401 and 402, Florida Statutes

(2013), charge DCF with a statutory duty of care for children in child day care

facilities. At the hearing on DCF’s motion, sovereign immunity was the only issue

before the trial court. The trial court denied the motion to dismiss, but declined to

state in open court or the written order that the basis was the denial of sovereign

immunity. This appeal followed.

This Court’s Opinions

In Citizens Property Insurance Corp. v. Sosa, 215 So. 3d 90 (Fla. 3d DCA

2016), a state-created insurer (Citizens) sought to appeal a trial court order denying

the insurer’s motion to dismiss an insured’s statutory, first-party bad faith claims on

3 grounds of sovereign immunity.2 Citizens contended that the order was an

appealable non-final order under the rule at issue here, Florida Rule of Appellate

Procedure 9.130(a)(3)(C)(xi). We dismissed the appeal for lack of jurisdiction,

because “the order on appeal does not state that the motion to dismiss is denied on

the basis that Citizens lacks sovereign immunity,” and because the trial court did not

reach or rule on that issue. Sosa, 215 So. 3d at 91.

In Miami-Dade County v. Pozos, 242 So. 3d 1152 (Fla. 3d DCA 2017), reh’g

denied, 242 So. 3d 540 (Fla. 3d DCA 2018) (Rothenberg, C.J., dissenting), a divided

panel of this Court considered a county’s appeal from a non-final order denying

summary judgment. The county’s motion was based on a claim of sovereign

immunity, but the trial court’s order denying the motion merely stated that the

motion was denied. No further elaboration was provided in the order. The majority

opinion reviewed the history of Florida Rule of Appellate Procedure

9.130(a)(3)(C)(xi) and the earlier, similarly-worded provision (9.130(a)(3)(C)(v))3

authorizing appeals from non-final orders determining “that, as a matter of law, a

party is not entitled to workers’ compensation immunity.”

2 Citizens’ immunity from such claims was confirmed by the Florida Supreme Court in Citizens Property Insurance Corp. v. Perdido Sun Condominium Ass’n, Inc., 164 So. 3d 663 (Fla. 2015). 3 Before 1996, this subdivision was numbered (vi) within Rule 9.130(a)(3)(C).

4 The majority opinion in Pozos observed that case law interpreting the

workers’ compensation immunity provision in subdivision (v) of Rule

9.130(a)(3)(C) has held uniformly that an order denying summary judgment is not

appealable under the Rule “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.” Pozos, 242 So. 3d at 1155 (original emphasis). The dissenting opinion

in the case, reiterated in its subsequent dissent from the panel’s denial of rehearing

and the Court’s denial of rehearing en banc, urges that a rule change or further

determination by the Florida Supreme Court is necessary to provide recourse to

parties entitled to sovereign immunity but forced to proceed with a lengthy and

expensive defense because the initial order of denial has itself been held by the

district courts of appeal to be immune from review.

Here, as in our more recent opinion addressing Rule 9.130(a)(3)(C)(xi), City

of Coral Gables v. Blanco, 248 So. 3d 1211 (Fla. 3d DCA 2018), our own precedent

requires the dismissal of the appeal. There is pending, however, a petition for review

to the Florida Supreme Court which recognizes that such dismissals are inconsistent

with the original, federal rationale for permitting interlocutory appeals from orders

denying claims of immunity.4

4 As detailed in the First District opinion discussed below, federal courts have followed a more expansive interpretation regarding interlocutory review of orders

5 The First District’s Opinion in Florida Highway Patrol v. Jackson

The First District began its opinion in Florida Highway Patrol v. Jackson, 238

So. 3d 430, 431 (Fla. 1st DCA 2018), with this observation:

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.

The First District certified to the Florida Supreme Court as a question of great

public importance the following question, after observing that “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

denying motions claiming sovereign immunity, applying the United States Supreme Court’s decision in Mitchell v. Forsyth, 472 U.S. 511 (1985).

6 demonstrates that the defendant is entitled to such immunity and was erroneously

required to defend itself.”:

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?

Id. at 437-38.

The Florida Highway Patrol, represented by the Office of the Attorney

General and Solicitor General, has petitioned for discretionary review by the Florida

Supreme Court on the basis of the certified question and the Florida Supreme Court’s

decision in Beach Community Bank, supra. Florida Highway Patrol v. Jackson, No.

SC18-468 (jurisdictional briefing completed May 1, 2018).5

We hazard no guess as to whether the Florida Supreme Court will accept

jurisdiction or, if it does, how it will decide this issue. Pending further guidance on

the question from that Court, or amendment of the applicable rule, we remain

obedient to our own precedent.

Appeal dismissed.

ANY POST-OPINION MOTION MUST BE FILED WITHIN SEVEN DAYS. A RESPONSE TO THE POST-OPINION MOTION MAY BE FILED WITHIN FIVE DAYS THEREAFTER. 5 The Florida Supreme Court has stayed disposition of Miami-Dade County’s petition for review of this Court’s decision in Pozos as a “tag case” pending disposition of the petition in Florida Highway Patrol. Miami-Dade County v. Pozos, No. SC18-1118 (Order entered July 19, 2018).

7 State of Florida Department of Children & Families v. Feliciano and Morales, etc., Case No. 3D16-2904

ROTHENBERG, C.J. (concurring in result only).

This appeal is a clear example of why we should not be interpreting rule

9.130(a)(3)(C)(xi) as requiring a trial court that determines, as a matter of law, that

a party is not entitled to sovereign immunity as a matter of law to explicitly say so

in its order, as the majority in this case, Miami-Dade County v. Pozos, 242 So. 3d

1152 (Fla. 3d DCA 2017), and Citizens Property Insurance Corp. v. Calonge, 246

So. 3d 447 (Fla. 3d DCA 2018), have concluded. In this case, the plaintiff asserted

only one claim against Florida’s Department of Children and Families (“DCF”), and

specified only one basis for dismissal: that DCF was entitled to sovereign immunity

as a matter of law, which, in this case, turns on a question of law, not a question of

fact. When the trial court denied the motion, DCF specifically asked the trial court

to state the basis in its order for its denial of its motion to dismiss. The trial court,

however, refused to do so, stating: “No, I don’t need to give you a basis. I’m just

letting [the plaintiff] proceed and it’s denied, period.”

Although I disagree with the majority’s interpretation of rule

9.130(a)(3)(C)(xi) and its reliance on Citizens Property Insurance Corp. v. Sosa, 215

So. 3d 90 (Fla. 3d DCA 2016), I recognize that we are bound by this Court’s

precedent in Pozos and Calonge. I therefore, concur in result only, and continue to

8 express my disagreement with the opinions issued from our Court upon which I am

now bound. It is my continuing position that this Court’s precedent interpreting rule

9.130(a)(3)(C)(xi) is unsupported by the plain language of the rule, the purpose of

the rule, the relevant case law, and common sense.

This case highlights the problem with this Court’s interpretation of rule 9.130(a)(3)(C)(xi)

The plaintiff alleges in Count IV that DCF was negligent in its inspection of

a day care facility’s swimming pool area at a licensed day care facility that was not

owned or operated by DCF. The plaintiff concedes in Count IV that the child

who drowned was not in DCF’s care or custody. DCF, therefore, argued, and

provided well-settled legal authority supporting its position that it was entitled to

immunity as a matter of law.

In a memorandum opposing DCF’s motion to dismiss, the plaintiff argued that

DCF is not sovereignly immune because Chapters 401 and 402, Florida Statutes

(2013), charge DCF with a statutory duty of care for children in child day care

facilities. Thus, the only issue before the trial court was a question of law. Either

Chapter 401 and/or 402 create a duty of care precluding immunity or they do not.

By denying DCF’s motion to dismiss, based solely on DCF’s claimed immunity, the

trial court has clearly made a legal determination that Chapters 401 and/or 402 apply

and, thus, as a matter of law, DCF is not entitled to sovereign immunity. Thus,

despite the trial court’s refusal to issue an order stating the ground(s) for denying

9 DCF’s motion to dismiss, we should exercise our jurisdiction and resolve the legal

question.

A. Rule 9.130(a)(3)(C)(xi)

Rule 9.130(a)(3)(C)(xi) provides as follows: “Appeals to the district courts

of appeal of non-final orders are limited to those that . . . determine . . . that, as a

matter of law, a party is not entitled to sovereign immunity.” This text does not

contain any words limiting the appeal of non-final orders to those orders that

expressly state that a party is not entitled to sovereign immunity. The word

“determination,” from which the word “determine” derives, simply means “[t]he act

of deciding something officially.” Determination, Black’s Law Dictionary (10th ed.

2014); see also Legally Determined, Black’s Law Dictionary (10th ed. 2014)

(defining “legally determined” as “decided by legal process”); Charter Sch. USA,

Inc. v. John Doe No. 93, 152 So. 3d 657, 661 (Fla. 3d DCA 2014) (concluding, in

the context of analyzing Florida Rule of Civil Procedure 1.550, that “‘determined’

means the point in time when the trial judge, in this case signed an order ruling on

the school’s post-trial motions”). Indeed, if the word “determined” somehow

signified an express statement, then the phrase “expressly determined” would be

redundant. It is therefore clear from the text of rule 9.130(a)(3)(C)(xi) that a party’s

ability to appeal non-final orders under the rule is not as limited as this Court has

10 found, and it is only possible to reach a contrary conclusion by adding language to

the rule.

B. This Court’s interpretation of the rule is in conflict with the purpose of the rule

The purpose behind amending rule 9.130 to include rule 9.130(a)(3)(C)(xi)

was to give meaningful effect to sovereign immunity from suit. This purpose is being

arbitrarily frustrated by treating only those orders expressly denying entitlement to

sovereign immunity as appealable. The Florida Supreme Court has specifically

noted the importance of providing interlocutory review to parties who are entitled to

sovereign immunity from suit but were denied that right at the trial court level. See

Keck v. Eminisor, 104 So. 3d 359, 360 (Fla. 2012).

In Keck, when addressing whether interlocutory review should be available

to defendants to appeal non-final orders denying motions for summary judgment

based on a claim of sovereign immunity under section 768.28(9)(a), Florida Statutes

(2005), the Florida Supreme Court stated the following:

[I]f a defendant who is entitled to the immunity granted in section 768.28(9)(a) is erroneously named as a party defendant and is required to stand trial, that individual has effectively lost the right bestowed by statute to be protected from even being named as a defendant. If orders denying summary judgment based on claims of individual immunity from being named as a defendant under section 768.28(9)(a) are not subject to interlocutory review, that statutory protection becomes essentially meaningless for the individual defendant.

11 Id. at 366 (emphasis added). Thus, the Florida Supreme Court recommended a

change to the rules of appellate procedure to allow for appeals “where an individual

defendant who claims immunity under 768.28(9)(a) is denied that immunity and the

issue turns on a matter of law.” Id. at 369. Specifically, the Court requested that the

Florida Bar Appellate Court Rules Committee consider “whether the categories of

non-final orders in rule 9.130(a)(3) should be expanded to include the denial of any

claim of immunity where the question presented is solely a question of law.” Id.

at 370 (emphasis added). Upon recommendations from the Florida Bar Appellate

Court Rules Committee, the Florida Supreme Court adopted rule 9.130(a)(3)(C)(xi),

which now permits appeals from non-final orders that determine, as a matter of law,

a party is not entitled to sovereign immunity.

In order for a party’s entitlement to sovereign immunity from suit to

constitute an effective protection, the party must have a meaningful ability to assert

its entitlement to sovereign immunity at the very beginning of litigation. To hold

that the non-final order must expressly state that a party is not entitled to sovereign

immunity, where it is otherwise clear that the trial court made such a determination,

would arbitrarily restrict a party’s ability to appeal an adverse ruling regarding its

entitlement to sovereign immunity from suit in circumstances where the trial court

merely issues an unelaborated order denying a motion to dismiss that only raised the

party’s claim to sovereign immunity from suit. To withhold an appellate remedy to

12 a party who is sovereignly immune from suit as a matter of law until the case has

been fully litigated, simply because the trial court has failed or refused, as the trial

court did in this case, to issue an elaborated order, is contrary to and thwarts the very

purpose and intent of the rule change.

C. The case law does not support the majority’s position

The majority cites to two opinions issued by this Court in support of its

position that this Court lacks jurisdiction over the trial court’s unelaborated orders

denying Citizens’ motions to dismiss: Sosa and Pozos. However, in Sosa, the trial

court specifically stated that it was not ruling on sovereign immunity, and in

Pozos, this Court incorrectly relied on Sosa and disregarded a decision by the Florida

Supreme Court which reviewed unelaborated orders denying motions to dismiss

when it was clear that the trial court determined, as a matter of law, that the party

was not entitled to immunity.

(1) Sosa

In Sosa, Citizens moved to strike the bad-faith allegations and to dismiss

and/or strike counts II and III based on its sovereign immunity from bad-faith claims.

Sosa, 215 So. 3d at 91. However, the record in Sosa reflected that the trial court did

not even reach the issue of sovereign immunity when it denied Citizens’ motion

to dismiss. Id. Instead, the trial court abated or stayed any action on those counts

until the issues of coverage and liability were resolved. Id. Because the trial court

13 did not rule on Citizens’ sovereign immunity claim, reliance on that case is,

respectfully, misplaced.

(2) Pozos

The procedural posture in Pozos differs from the instant case. In Pozos,

Miami-Dade County raised the issue of its sovereign immunity in a motion for

summary judgment rather than in a motion to dismiss. Whereas a motion to dismiss

is designed to test the legal sufficiency of the complaint assuming that the alleged

facts are true, Minor v. Brunetti, 43 So. 3d 178, 179 (Fla. 3d DCA 2010), a motion

for summary judgment usually rests on whether the evidence developed in the record

supports only one set of facts that entitles a party to judgment as a matter of law. In

Pozos, this Court found that it lacked jurisdiction because the trial court denied the

County’s motion for summary judgment without specifying whether it determined,

as a matter of law, that the County was not entitled to sovereign immunity or whether

it found that there were “disputed issues of material fact or ongoing discovery that

would render summary judgment premature.” Pozos, 242 So. 3d at 1157.

Additionally, two different issues were argued in Pozos: (1) whether the

County was entitled to summary judgment based on its claim of sovereign immunity;

and/or (2) whether there were material issues of disputed fact as to whether the

County owed the plaintiff a duty of care. Because the trial court issued an

14 unelaborated order, the majority found that it was impossible to determine the trial

court’s reasoning for denying the County’s motion for summary judgment.

D. This Court’s interpretation of the rule is in conflict with decisions by the Florida Supreme Court

(1) Beach Community Bank

This Court’s interpretation of rule 9.130(a)(3)(C)(xi) is in conflict with the

Florida Supreme Court’s interpretation of the rule. In Beach Community Bank v.

City of Freeport, Florida, 150 So. 3d 1111 (Fla. 2014), the Florida Supreme Court

accepted jurisdiction to review the First District Court of Appeal’s decision in City

of Freeport v. Beach Community Bank, 108 So. 3d 684 (Fla. 1st DCA 2013). The

City of Freeport moved to dismiss the complaint based on its immunity from suit.

The trial court issued an order denying the City’s motion to dismiss. A review of

the record before the First District and the Florida Supreme Court reflects that the

order in question merely stated that the City’s “Motion to Dismiss with Prejudice

is denied and Defendant shall file a responsive pleading within 20 days of the

date of this Order.” (emphasis added).

In City of Freeport, the City filed a petition for writ of certiorari to review the

non-final order on the basis that the City was entitled to sovereign immunity as a

matter of law and thus the trial court departed from the essential requirements of law

by denying its motion to dismiss. City of Freeport, 108 So. 3d at 686. The First

15 District agreed with the City, granted the petition, and quashed the order under

review. Id. at 691. On review to the Florida Supreme Court, the original question

was whether the District Court could exercise certiorari jurisdiction to review the

trial court’s non-final order. Beach Cmty. Bank, 150 So. 3d 1112. However,

because the Florida Bar Appellate Court Rules Committee’s proposed amendment

to rule 9.130 was pending before the Florida Supreme Court and the Court concluded

that the “case falls squarely within the new rule amendment,” the Court determined

“that the City should be entitled to the benefit of the new rule.” Id. at 1113.

Specifically, the Court held that the proposed amendment “answers the question that

the City asks this Court to confront in this case. This amendment permits district

courts to review nonfinal orders of decisions determining entitlement to

sovereign immunity where the case involves a pure legal question.” Id.

(emphasis added).

Importantly, although the trial court’s order simply denied the City’s motion

to dismiss and ordered the City to file responsive pleadings within twenty days, and

the order did not include the language that the denial of the motion to dismiss on the

basis of sovereign immunity was a denial as a matter of law, the First District

reviewed the order and determined that the City was entitled to sovereign immunity

and the Florida Supreme Court reviewed the same order and agreed. Beach Cmty.

Bank, 150 So. 3d at 1114. Thus, the Florida Supreme Court quashed the First

16 District’s decision to the extent that it resolved the issue based on certiorari review,

but approved the decision based on the amendment to rule 9.130, id. at 1114-15, and

issued its opinion on the very same day that it approved the amendment to rule 9.130.

Judge Luck, in his concurring opinion, takes issue with reliance on Beach

Community Bank as supporting authority that even though the trial court’s order

does not expressly state that it has determined that the defendant is not entitled to

sovereign immunity as a matter of law, the order may have nevertheless made such

a determination. Judge Luck argues that an appellate court may not look to the

record, and must instead, confine its review to the order itself. And, although the

Florida Supreme Court did exactly the opposite of what he contends the statute

requires, we cannot rely on that fact because the Florida Supreme Court did not

mention that fact in its opinion. In other words, even though: (1) the trial court’s

order states no more than the “Motion to Dismiss with Prejudice is denied and

Defendant shall file a responsive pleading within 20 days of the date of this Order”;

(2) the order did not contain any express language stating that the trial court had

determined as a matter of law the City was not entitled to sovereign immunity; (3)

the First District Court of Appeal reviewed the order and the record and determined

that the City was entitled to sovereign immunity as a matter of law; and (4) the

Florida Supreme Court reviewed the First District Court’s opinion and the record,

which included the trial court’s order, we must ignore that procedural history

17 because it was not mentioned in the Florida Supreme Court’s opinion. However,

taking note of the order on appeal does not require as Judge Luck suggests—digging

through the record. It merely requires a review of the order on appeal. Just because

the order in Beach Community Bank does not support the position taken by the

majority, it cannot be ignored. In fact, I submit that the only way to conclude that

we do not have jurisdiction in the instant case is to ignore the record in this case

and the record and holding in Beach Community Bank. Judge Luck contends we

must ignore the record. I contend we cannot ignore the record, and the Florida

Supreme Court should resolve this question for the appellate courts.

(2) Keck

Although the Florida Supreme Court issued its opinion in Keck prior to the

adoption of rule 9.130(a)(3)(C)(xi), it has not receded from Keck and the Florida

Supreme Court in Keck held that “an order denying summary judgment based on a

claim of individual immunity under section 768.28(9)(a) is subject to interlocutory

review where the issue turns on a question of law.” Keck, 104 So. 3d at 366. In

Keck, the trial court issued an order denying Keck’s motion for summary judgment

based on his claim of immunity. Keck, 104 So. 3d at 362. Keck sought review by

petitioning the First District for a writ of certiorari. Id. The First District concluded

that it lacked certiorari jurisdiction and therefore, it denied the petition without

addressing the merits of the petition. Id. The First District, however, certified a

18 question to the Florida Supreme Court; the Florida Supreme Court accepted

jurisdiction; and the Court rephrased the certified question as follows:

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?

Id. at 363.

In answering the certified question, the Florida Supreme Court noted that in

Tucker v. Resha, 648 So. 2d 1187 (Fla. 1994), the Court had “examined whether to

expand the category of non-final appealable orders to include orders denying

summary judgment based on a qualified immunity claim,” and because of the nature

of the rights involved, interlocutory review must be available to an individual whose

claim of qualified immunity was denied by the trial court. Keck, 648 So. 2d at 364.

The Court specifically noted:

Because qualified immunity of public officials involves immunity from suit rather than a mere defense to liability, we reasoned that immunity from suit is effectively lost if a case is erroneously permitted to go to trial because a trial court’s order denying qualified immunity cannot be reviewed on appeal from a final judgment as the public official cannot be re-immunized if erroneously required to stand trial or face the other burdens of litigation.

Id. at 364 (emphasis in original) (internal quotations omitted) (citing Tucker, 648

So. 2d at 1189). The Florida Supreme Court went on to recognize that in Tucker,

[w]e stressed that if orders denying summary judgment based upon claims of qualified immunity are not subject to interlocutory review,

19 the qualified immunity of public officials is illusory and the very policy that animates the decision to afford such immunity is thwarted. We held that an order denying summary judgment based upon a claim of qualified immunity should be subject to interlocutory review to the extent that the order turns on an issue of law.

Keck, 104 So. 3d at 365 (internal citations and quotations omitted).

The Florida Supreme Court in Keck, therefore, concluded that:

[I]f a defendant who is entitled to the immunity granted in section 768.28(9)(a) is erroneously named as a party defendant and is required to stand trial, that individual has effectively lost the right bestowed by statute to be protected from even being named as a defendant. If orders denying summary judgment based on claims of individual immunity from being named as a defendant under section 768.28(9)(a) are not subject to interlocutory review, that statutory protection becomes essentially meaningless for the individual defendant. For the above reasons, we answer the rephrased question in the negative and hold that an order denying summary judgment based on a claim of individual immunity under section 768.28(9)(a) is subject to interlocutory review where the issue turns on a question of law.

Keck, 104 So. 3d at 366 (emphasis added).

Based on the Florida Supreme Court’s ruling in Keck, Justice Pariente, in her

concurring opinion, recommended that the Florida Bar Appellate Court Rules

Committee submit a proposed amendment, as previously discussed in this opinion,

and that when it addressed the rule amendment, that it do so more broadly to address

interlocutory appeals of immunity claims in a comprehensive manner. Id. at 369.

20 While I recognize that the Florida Supreme Court was addressing individual

immunity under section 768.28(9)(a), rather than sovereign immunity granted under

section 627.351(6)(s), in Keck, Justice Pariente asked the Florida Bar Appellate

Court Rules Committee to address interlocutory appeals of immunity claims in a

comprehensive manner, and rule 9.130(a)(3)(C)(xi) was later amended in direct

response to Justice Pariente’s request. It also makes no sense to treat orders that

deny an individual’s immunity from suit any differently than orders denying an

entity’s immunity from suit. In both instances, the defendant who is entitled to

immunity from suit as a matter of law should not be forced to litigate the plaintiff’s

claims simply because the trial court issues an unelaborated order.

E. Motion for summary judgment v. motion to dismiss

I recognize that the Florida Supreme Court has ruled in Hastings v. Demming,

694 So. 2d 718, 720 (Fla. 1997), and Reeves v. Fleetwood Homes of Florida, Inc.,

889 So. 2d 812, 820 (Fla. 2004), that nonfinal orders denying summary judgment

are not reviewable on appeal unless the trial court’s order explicitly states that the

defense of workers’ compensation immunity is not available to the party as a matter

of law. But that is because whether a party is entitled to workers’ compensation

immunity is almost always a factual issue. See Cinema Beverages of Miami, Inc. v.

Mortimer, 689 So. 2d 276, 277 (Fla. 3d DCA 1995) (“Establishment of workers’

compensation immunity usually requires the employer to bring forth facts from

21 outside the four corners of the complaint, which necessarily requires a motion for

summary judgment.”).

I submit that while an order denying a motion for summary judgment, where

factual issues are at play, needs to make an explicit legal determination, an order

denying a motion to dismiss a complaint against a defendant claiming sovereign

immunity, which is based solely on the four corners of the complaint, need not incant

these magic words to be reviewable on appeal. That is because, by denying the

motion to dismiss, the trial court has denied the defendant’s claim that it is entitled

to sovereign immunity as a matter of law. On a motion to dismiss on a basis of

sovereign immunity, the trial court must accept the allegations pled in the complaint

as true and then make a legal determination whether the defendant is entitled to

immunity from having to defend itself against the claims. By denying the motion to

dismiss, the trial court has thus denied the defendant’s defense that it is immune from

suit as a matter of law, thereby denying a defendant who may be sovereignly immune

the statutory protection to be free from being named a defendant and having to

defend itself from litigation.

F. This Court’s interpretation of the rule leads to an absurd result

Common sense and logic militate against this Court’s interpretation of the

rule. “[T]he rules of construction applicable to statutes also apply to the construction

of rules.” Brown, 715 So. 2d at 243. Thus, “the Court should not interpret a [rule] in

22 a manner resulting in unreasonable, harsh, or absurd consequences.” Fla. Dep’t of

Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So. 2d 1260, 1270 (Fla. 2008). If

a party raises only one argument in a motion to dismiss a complaint, an argument

that requires the trial court to make a legal determination based on the allegations

in the complaint, as opposed to developed or undeveloped factual matters, and the

trial court denies the motion to dismiss, then the trial court has necessarily made a

legal determination as to the legal argument raised in the motion. If that legal

argument was a party’s claim that it is entitled to sovereign immunity from

defending itself from the allegations in the complaint, then the trial court, by denying

the motion, has determined, as a matter of law, that the party is not entitled to

sovereign immunity based on the allegations in the complaint.

In the instant case, whether DCF is entitled to sovereign immunity from suit

involves no disputed factual issues, and the legal question can readily be resolved

by a motion to dismiss as soon as the complaint is filed. Our sister court has raised

a significant concern about parties and trial courts intentionally obfuscating the real

justifications for orders denying a party’s claim for workers’ compensation

immunity. In Martin Electronics, Inc. v. Glombowski, 705 So. 2d 26 (Fla. 1st DCA

1997) (en banc), the First District Court of Appeal held that it lacked appellate

jurisdiction to review a non-final order denying a motion to dismiss. Id. at 27. The

trial court below determined that there were insufficient facts to decide the issue of

23 workers’ compensation immunity, but specifically noted that “[t]his determination

does not mean that this Court may not ultimately be presented with sufficient facts

to determine this issue as a matter of law.” Id. at 28. On appeal, the majority held, in

applying the Florida Supreme Court’s decision in Hastings, that a non-final order

denying a motion to dismiss based on workers’ compensation immunity must

expressly determine, as a matter of law, that workers’ compensation immunity is

unavailable. Id. at 29-30. However, Judge Wolf, specially concurring, raised a

significant concern regarding appeals from orders denying motions to dismiss, as

opposed to orders denying motions for summary judgment, which deny a party’s

claim for immunity, and stated as follows:

In these cases, there can be no disputed facts. The decision concerning the motion must assume that all the facts in the complaint are taken as true and all inferences are drawn in favor of the plaintiff. Thus, the denial of the motion cannot be based on disputed facts, but must constitute a legal ruling on a given set of facts.

Id. at 31-32 (citation omitted).

Judge Wolf’s reasoning is even more persuasive in the instant case. The only

issue before the trial court was whether, based on the allegations in the complaint,

DCF is immune from suit as a matter of law. Unlike a motion for summary

judgment, this legal determination cannot be based upon disputed facts at the

pleading stage on a motion to dismiss. Further, as Judge Wolf aptly notes:

24 As a practical matter, orders denying motions to dismiss or motions for summary judgments will often be drafted by a plaintiff’s attorney or by a trial judge who may be gun-shy of an appeal. We can expect that such orders will simply deny the motion without explanation or be drafted to be ambiguous. Thus, many parties entitled to immunity may be forced to go to trial.

Id. at 31 (Wolf, J., specially concurring) (emphasis added). This last sentence rings

especially true in the instant case. Because DCF is being denied appellate review of

the order at issue in this appeal, it is going to be forced to litigate the plaintiff’s

claims, although, as will be shown infra, it is in fact sovereignly immune from suit.

G. Conclusion as to the issue of jurisdiction

In conclusion, rule 9.130(a)(3)(C)(xi) should not be read to limit appeals to

non-final orders that expressly state that the trial court has determined, as a matter

of law, that a party is not entitled to sovereign immunity because: (1) the plain

meaning of the text of rule 9.130(a)(3)(C)(xi) does not specify that such orders

contain any express language; (2) the purpose of the amendment of rule 9.130 to

include subsection 9.130(a)(3)(C)(xi) was to avoid vitiating the protections of

sovereign immunity from suit by allowing appeals from non-final orders denying a

party’s claim that it is entitled to such immunity; (3) the case law does not require

such an interpretation of the rule; and (4) to conclude otherwise leads to an absurd

construction of rule 9.130(a)(3)(C)(xi), as it arbitrarily forces a party to litigate and

25 defend against a claim from which it has sovereign immunity from suit. 6 As the

Florida Supreme Court has stated, a non-final order will be appealable pursuant to

rule 9.130(a)(3)(C)(xi) if it is clear that the order determines “entitlement to

sovereign immunity where the case involves a pure legal question.” Beach Cmty.

Bank, 150 So. 3d at 1113 (emphasis added).

Accordingly, I respectfully disagree that we lack jurisdiction to review the

unelaborated non-final order denying DCF’s motions to dismiss in the instant case

where it is clear that the trial court rejected, as a matter of law, DCF’s claims that it

is entitled to sovereign immunity.

DCF was entitled to dismissal of Count IV

DCF was entitled to dismissal of Count IV as a matter of law. The trial court’s

refusal to issue an order expressly stating that it was denying DCF’s sovereign

immunity claim “as a matter of law,” and this Court’s position that unelaborated

orders preclude review by this Court, entirely vitiates DCF’s right to be immune

6 Again, none of this is to say that an order denying a party’s claim for sovereign immunity is appealable per se. In some circumstances, if it is possible that there are factual issues in dispute concerning the existence of sovereign immunity, then rule 9.130(a)(3)(C)(xi) does not allow an appeal from a non-final order that does not elaborate the basis for the trial court’s ruling in denying the motion to dismiss. See Pozos, 42 Fla. L. Weekly D418 at *5. Similarly, if it is clear that the trial court did not address the issue of sovereign immunity, such as where the trial court abates its decision as to sovereign immunity, then rule 9.130(a)(3)(C)(xi) does not permit appellate review. Sosa, 215 So. 3d at 91. However, neither of those circumstances are present here.

26 from defending itself throughout a long and expensive litigation process and the

protection rule 9.130(a)(3)(C)(xi) was intended to provide.

The plaintiff alleges in Count IV that DCF was negligent in its inspection of

a day care facility’s swimming pool at a licensed day care facility. In Count IV, the

plaintiff concedes that the day care facility was not owned or operated by DCF and

that the child who drowned was not in DCF’s care or custody. Well-settled Florida

law clearly establishes that, as an inspecting agency who is not an owner or operator

of the day care facility, DCF is sovereignly immune as a matter of law on the very

face of Count IV of the amended complaint.

In Trianon Park Condominium Ass’n v. City of Hialeah, 468 So. 2d 912, 923

(Fla. 1985), the Florida Supreme Court cautioned that “[g]overnments must be able

to enforce laws without creating new duties of care and corresponding tort liabilities

that would, in effect, make the governments and their taxpayers virtual insurers of

the activities regulated.” The Court held that to hold otherwise would result in a

substantial fiscal impact on the governmental entity and thus lead to a decrease of

governmental regulation that is intended to protect the public and enhance the public

welfare. Id.

The day care licensee, not DCF, had the duty to maintain the day care’s

swimming pool and fence in proper order. As the inspecting entity, DCF owed the

27 plaintiff no common law or statutory duty of care, and thus, DCF cannot be held

liable in this action as a matter of law.

A. No Common Law Duty of Care

In Trianon, the Florida Supreme Court held that a city could not be liable to

condominium owners in tort for the allegedly negligent actions of the city’s building

inspectors for the plaintiff’s damages. Trianon, 468 So. 2d at 916. Importantly, the

Court noted that there has never been a common law duty for a governmental entity

or a private individual to enforce the law for the benefit of an individual or a specific

group of individuals. Id. at 919. The Court found that there existed no common

duty of care for the enforcement of a building code, id. at 919, or that the legislature,

which created a general statutory duty to enforce the building code, “evince[d] an

intent to give individual citizens a statutory right of recovery for the government’s

negligent inspection of their property.” Id. at 921-22.

Similarly, in Brown v. Department of Health & Rehabilitative Services, 690

So. 2d 641 (Fla. 1st DCA 1997), the First District Court of Appeal affirmed the trial

court’s order dismissing the claims against HRS (the agency previously named HRS

is now named DCF). In Brown, the plaintiff alleged that HRS had negligently issued

a license to a day care facility while aware that the spouse of the operator was a child

abuser. Based on Trianon, the trial court and the First District concluded that HRS

was immune despite a statutory duty imposed by the Legislature upon HRS to ensure

28 “the care and protection of children in child care facilities.” Brown, 690 So. 2d at

644 (quoting § 402.301(1), Fla. Stat. (1995)) (Van Nortwick, J., dissenting); see also

Dep’t of Children & Family Servs. v. Chapman, 9 So. 3d 676, 684 (Fla. 2d DCA

2009) (holding that DCF owed no common law or statutory duty to private

individuals in the licensing and monitoring of substance abuse counselors).

B. No Statutory Duty of Care

“When the legislature creates a regulatory statute that does not expressly

create a private right of action against the private individuals who are regulated by

the statute, the courts have been cautious about concluding that the statute creates a

private right of action against them.” Chapman, 9 So. 3d at 684 (citing Murphy v.

N. Sinha Corp., 644 So. 2d 983 (Fla. 1994)); Miulli v. Fla. High Sch. Athletic Ass’n,

998 So. 2d 1155 (Fla. 2d DCA 2008). There is nothing in the language of Florida

Administrative Code Rule 65C-20.010, its accompanying enforcement regulation,

or its enabling statutes that provide for an individual private cause of action.

Although the plaintiff contends that Chapters 401 and 402, Florida Statutes, create a

statutory duty of care, these Chapters merely authorize DCF to take appropriate

disciplinary action if a violation occurs. They do not express or imply a private right

of action against DCF for damages. In fact, the First District Court of Appeal

rejected that argument in Brown, 690 So. 2d at 644.

29 Thus, while DCF had a duty to inspect the licensed day care facility and had

the authority to discipline the facility for a violation of a regulation, it owed no

common law nor statutory duty of care to the plaintiff. Further, under Trianon,

compliance of permitting conditions “is an activity found to be within the

enforcement realm of government and not subject to liability.” Brown, 690 So. 2d

at 643. Therefore, assuming all allegations in Count IV to be true, the plaintiff’s

claim against DCF should have been dismissed on the single legal ground asserted—

sovereign immunity.

Conclusion

Based on this Court’s precedent, I am compelled to join the majority in

dismissing the instant appeal on the basis that, because the trial court’s order in

denying DCF’s motion to dismiss Count IV, brought and argued solely on DCF’s

alleged entitlement to sovereign immunity as a matter of law, did not expressly state

that the motion was being denied as a matter of law, we lack jurisdiction. I, however,

disagree with this Court’s interpretation of rule 9.130(a)(3)(C)(xi),

application/inapplication of the law, and conclusion regarding jurisdiction in these

appeals.

There is a need to correct the problem defendants, who may be entitled to

immunity from suit, are facing due to the failure of some trial judges to issue non-

appealable orders either by negligence or design. I urge the Florida Supreme Court

30 and/or the Rules Committee to address and correct this problem. See also Citizens

Prop. Ins. Corp. v. Calonge, 246 So. 3d 447 (Fla. 3d DCA 2018) (Rothenberg, C.J.,

dissenting); Miami-Dade Cty. v. Pozos, 242 So. 3d 1152 (Fla. 3d DCA 2017)

(Rothenberg, C.J., dissenting).

31 LUCK, J., concurring in the result.

In Citizens Property Insurance Corp. v. Calonge, 246 So. 3d 447 (Fla. 3d DCA

2018), we held that “in making our jurisdictional determination” under Florida Rule

of Appellate Procedure 9.130(a)(3)(C)(xi), “we look only to the face of the trial

court’s order and do not penetrate the record with a searchlight to divine whether the

trial court’s undisclosed rationale warrants appellate review.” Id. at 449. Calonge

concluded we did “not have jurisdiction to review the trial courts’ unelaborated non-

final orders denying [the defendant’s] dismissal motions.” Id. The concurring

opinion in this case says that our holding in Calonge is wrong because it is

inconsistent with the text of the rule; in conflict with the purpose of the rule; contrary

to the Florida Supreme Court’s decision in Beach Community Bank v. City of

Freeport; wrongly relies on the Florida Supreme Court cases interpreting rule

9.130(a)(3)(C)(v) dealing with workers’ compensation immunity; and leads to an

absurd result. I will address each of these points and explain why the court got it

right in Calonge.

The Text of Rule 9.130(a)(3)(C)(xi)

The concurring opinion defines and relies on the word “determine” in rule

9.130(a)(3)(C)(xi) but does not discuss any of the other words in the rule. I will.

While “determine,” as the concurring opinion explains, means “deciding something

officially,” rule 9.130(a)(3)(C)(xi) also tells us where the official decision must be

32 made and what the official decision must decide in order to invoke the court’s

interlocutory jurisdiction.

Where. Rule 9.130(a)(3)(C)(xi) says that the determination must be made in

the non-final order. The rule limits “[a]ppeals . . . of non-final orders . . . to those

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

Fla. R. App. P. 9.130(a)(3)(C)(xi). The word “those” in the rule refers to the “non-

final orders.” An interlocutory appeal is allowed only for those non-final orders that

determine, as a matter of law, a party is not entitled to sovereign immunity. The rule

says nothing about the record or transcript as being part of the trial court’s

determination. The rule tells us we must look for the determination in the non-final

order, and nowhere else.

What. Rule 9.130(a)(3)(C)(xi) also tells us what must be in the non-final order

for there to be a limited appeal. The appeal is limited to those non-final orders that

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

The rule refers to the non-final order having this determination, and does not mention

the motion to dismiss, the response, and the hearing transcript, as the concurring

opinion does. An unelaborated order, as we have here and in Calonge, does not

make the necessary determination required by the rule.

Keck v. Eminisor and the Purpose of Rule 9.130(a)(3)(C)(xi)

33 The concurring opinion says that the court’s reading of rule 9.130(a)(3)(C)(xi)

is in conflict with Keck v. Eminisor, 104 So. 3d 359 (Fla. 2012), and the purpose of

rule 9.130(a)(3)(C)(xi). Keck could not tell us anything about rule

9.130(a)(3)(C)(xi)’s language because it was decided two years before the rule was

adopted by the Florida Supreme Court. In re Amends. to Fla. R. App. P. 9.130, 151

So. 3d 1217, 1218 (Fla. 2014) (“[W]e amend Florida Rule of Appellate Procedure

9.130 as reflected in the appendix to this opinion. New language is indicated by

underscoring; deletions are indicated by struck-through type. The amendments shall

become effective January 1, 2015, at 12:01 a.m.”).

In Keck, as the concurring opinion notes, the Florida Supreme Court asked

the bar’s appellate court rules committee to look at whether the list of appealable

non-final orders should be expanded to include those that denied immunity as a

matter of law. 104 So. 3d at 366. The Court did not suggest or mandate that the

committee adopt any specific language.

To the extent Keck says anything about the “purpose” of rule

9.130(a)(3)(C)(xi), statutory purpose or intent cannot be used to override the text of

the statute. See W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So. 3d 1, 9 (Fla. 2012) (“To

discern legislative intent, this Court looks first to the plain and obvious meaning of

the statute’s text, which a court may discern from a dictionary. If that language is

clear and unambiguous and conveys a clear and definite meaning, this Court will

34 apply that unequivocal meaning and not resort to the rules of statutory interpretation

and construction. If, however, an ambiguity exists, this Court should look to the rules

of statutory construction to help interpret legislative intent, which may include the

examination of a statute’s legislative history and the purpose behind its enactment.”

(citations omitted)). The same rules of construction apply to court rules. See Barco

v. School Bd. of Pinellas Cnty., 975 So. 2d 1116, 1121 (Fla. 2008) (“Florida Rules

of Civil Procedure are construed in accordance with the principles of statutory

construction.”)

Chief Judge Rothenberg acknowledged the constraints of this rule of statutory

construction in GEICO Gen. Ins. Co. v. Mukamal, 230 So. 3d 62, 66 (Fla. 3d DCA

2017) (Rothenberg, C.J., specifically concurring), when she wrote:

While section 627.426 is clear and unambiguous, and therefore mandates the result identified by the trial court and the affirmance being issued by this Court, such a result appears, to me, to be contrary to the intent of the statute….

I, therefore, concur with the majority opinion, and write solely to identify what appears to be an unintended consequence of the subject legislation and to invite review by the Florida Legislature.

Even when the results of applying statutory language seems to us to be harsh or

unintended by the body that enacted it, courts are not free to refuse to apply the

statute or rule or to use the statute or rule’s purpose to trump our mandate to follow

the clear and unambiguous statutory language. At most, we can recommend a

revision, as Chief Judge Rothenberg did in GEICO.

35 Beach Community Bank v. City of Freeport

The concurring opinion next says that the court’s reading of rule

9.130(a)(3)(C)(xi) is in conflict with the Florida Supreme Court’s decision in Beach

Community Bank v. City of Freeport, Florida, 150 So. 3d 1111 (Fla. 2014). The

concurring opinion finds a conflict because “[a] review of the record before the First

District and the Florida Supreme Court reflects that the order in question merely

stated that the City’s ‘Motion to Dismiss with Prejudice is denied and Defendant

shall file a responsive pleading within 20 days of the date of this Order.’”

Concurring Op. at 15. For there to be a conflict, however, the conflict must appear

on the face of the Florida Supreme Court’s opinion. See Hardee v. State, 534 So. 2d

706, 708 n.* (Fla. 1988) (“[F]or purposes of determining conflict jurisdiction, this

Court is limited to the facts which appear on the face of the opinion.”). As the

concurring opinion explains, it had to dig through the underlying record before the

district court and Supreme Court to see that the trial court’s order was unelaborated.

That fact goes unmentioned in the Florida Supreme Court’s Beach Community

opinion, and no one who reads the opinion would ever know that the trial court’s

order was unelaborated. In contrast, the fact that the trial court’s orders were

unelaborated is discussed at length in Calonge.

There is also no conflict because Beach Community did not decide the

jurisdictional issue. The Court never discussed whether an unelaborated denial of a

36 motion to dismiss could trigger non-final appeal jurisdiction under rule

9.130(a)(3)(C)(xi). “[A] ruling on the merits of a case in which the court’s

jurisdiction wasn’t challenged or assumed doesn’t constitute precedent on the

question whether the court has jurisdiction over such a case.” Bryan A. Garner et

al., The Law of Judicial Precedent 121 (Thomas Reuters, 2016); see also Ariz.

Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 144 (2011) (“When a potential

jurisdictional defect is neither noted nor discussed in a federal decision, the decision

does not stand for the proposition that no defect existed.”) Lewis v. Casey, 518 U.S.

343, 352 n.2 (1996) (“[W]e have repeatedly held that the existence of unaddressed

jurisdictional defects has no precedential effect.”); Hagans v. Lavine, 415 U.S. 528,

533, n.5 (1974) (“[W]hen questions of jurisdiction have been passed on in prior

decisions sub silentio, this Court has never considered itself bound when a

subsequent case finally brings the jurisdictional issue before us.”); United States v.

L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952) (“Even as to our own judicial

power of jurisdiction, this Court has followed the lead of Chief Justice Marshall who

held that this Court is not bound by a prior exercise of jurisdiction in a case where it

was not questioned and it was passed sub silentio”).

Certainly we should not ignore the record in deciding an appeal. But once an

appeal has been decided, and the court (for whatever reason – maybe the court

missed it; maybe the parties never raised it) does not mention its jurisdiction, we

37 cannot use that silence as precedent for the unmentioned jurisdictional issue in

another appeal. The concurring opinion does not cite a single case that says we can

use a court’s silence about jurisdiction as precedent for jurisdiction because no such

case exists.

The Workers’ Compensation Immunity Cases

Rule 9.130(a)(3) allows for a non-final appeal of an order determining “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). The Florida Supreme Court has read rule

9.130(a)(3)(C)(v) to mean 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.” Reeves v. Fleetwood Homes of Fla., Inc.,

889 So. 2d 812, 821 (Fla. 2004); see also Hastings v. Demming, 694 So. 2d 718, 720

(Fla. 1997). The language of the sovereign immunity non-final appeal rule (rule

9.130(a)(3)(C)(xi)) parallels the workers’ compensation non-final appeal rule (rule

9.130(a)(3)(C)(v)):

Rule 9.130(a)(3)(C)(v): “Appeals to Rule 9.130(a)(3)(C)(xi): “Appeals to the district courts of appeal of non-final the district courts of appeal of non-final orders are limited to those that . . . orders are limited to those that . . . determine . . . that, as a matter of law, a determine . . . that, as a matter of law, a party is not entitled to workers’ party is not entitled to sovereign compensation immunity.” immunity.”

38 It has been argued that Reeves and Hastings are highly distinguishable

because unlike sovereign immunity from suit, workers’ compensation immunity is

an affirmative defense, involving factual issues that typically preclude a motion to

dismiss. I cannot agree because sovereign immunity is also an affirmative defense,

and as with workers’ compensation immunity, dismissal will only be granted if it is

conclusively established on the face of the complaint. Compare Peak v. Outward

Bound, Inc., 57 So. 3d 997, 999 (Fla. 2d DCA 2011) (“Sovereign immunity

generally is an affirmative defense that may justify granting a motion to dismiss only

when the complaint itself conclusively establishes its applicability.” (quotation

omitted)); Sierra v. Associated Marine Institutes, Inc., 850 So. 2d 582, 590 (Fla. 2d

DCA 2003) (“First, as in the case of workers’ compensation immunity, sovereign

immunity generally is an affirmative defense that may justify granting a motion to

dismiss only when the complaint itself conclusively establishes its applicability.”);

Rankin v. Colman, 476 So. 2d 234, 238 (Fla. 5th DCA 1985) (“Although the defense

of sovereign immunity is an affirmative defense, where an affirmative defense

appears on the face of a pleading, it may be argued as a basis for a motion to

dismiss.”), with Ruiz v. Aerorep Grp. Corp., 941 So. 2d 505, 508 (Fla. 3d DCA

2006) (“Although workers’ compensation immunity usually cannot be raised in a

motion to dismiss, an exception exists allowing the defense to be raised in a motion

to dismiss where the defense appears on the face of the complaint.”). Indeed, in

39 Sierra, the district court found workers’ compensation immunity and sovereign

immunity similar for motion to dismiss purposes. There is no legal basis for treating

the two immunities differently.

Here, the concurring opinion says that Hastings and Reeves are

distinguishable because they dealt with “nonfinal orders denying summary

judgment,” while in this case we are reviewing an order denying a motion to dismiss.

The concurring opinion explains “that while an order denying a motion for summary

judgment, where factual issues are at play, needs to make an explicit legal

determination, an order denying a motion to dismiss a complaint against a defendant

claiming sovereign immunity, which is based solely on the four corners of the

complaint, need not incant these magic words to be reviewable on appeal.”

Concurring Op. at 22.

The Florida Supreme Court, unlike the concurring opinion, has not

distinguished between motions for summary judgment and motions to dismiss in

applying its rule that interlocutory appeal jurisdiction is determined from the face of

the nonfinal order. In Reeves, the Court noted that the “lower courts of Florida have

strictly adhered to [its] decision[] in Hastings . . ., 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

40 entitled to present a workers’ compensation immunity defense at trial,” id. at 821,

and approvingly cited these examples:

See, e.g., S. Pan Servs. Co. v. Rodriguez, 771 So. 2d 612, 612 (Fla. 3d DCA 2000) (dismissing appeal from nonfinal order because bare bones order of denial of motion for summary judgment on the ground of workers’ compensation immunity is not subject to review under rule 9.130(a)(3)(C)(vi)); Better Roads, Inc. v. Gonzalez, 744 So. 2d 1123, 1123 (Fla. 2d DCA 1999) (holding no jurisdiction where order simply denied summary judgment without stating reason); Martin Elecs., Inc. v. Glombowski, 705 So. 2d 26, 30 (Fla. 1st DCA 1997) (holding no jurisdiction where order denying motion to dismiss did not contain the specific language required by Hastings); Rinker Materials Corp. v. Holmes, 697 So. 2d 558, 559 (Fla. 4th DCA 1997) (holding no jurisdiction where trial court, on remand, explained that the motion for summary judgment had been denied because there were genuine issues of material fact).

Reeves, 889 So. 2d at 821 (emphasis added).

The citation to Glombowski is telling. There, the trial court denied motions

to dismiss based on workers’ compensation immunity. Glombowski, 705 So. 2d at

28. The district court read Hastings “as clearly precluding a district court from

reviewing the record in making a jurisdictional determination under” the workers’

compensation immunity jurisdiction rule. Id. at 30. Because the trial court’s order

“d[id] not contain the specific language which [was] required by Hastings,” it was

not appealable under rule 9.130. Id. By relying on and describing Glombowski, the

Florida Supreme Court saw no jurisdictional difference between unelaborated orders

that denied motions for summary judgment and those that denied motions to dismiss.

41 At bottom, we cannot read the language in the workers’ compensation

immunity non-final appeal rule differently than the same language in the sovereign

immunity rule, as this court concluded in Miami-Dade County v. Pozos, 242 So.3d

1152 (Fla. 3d DCA 2017) and Calonge. Where the same words and phrases are used

in a rule or statute, we must read them together and give them the same meaning.

See Rollins v. Pizzarelli, 761 So. 2d 294, 298 (Fla. 2000) (“[T]he same meaning

should be given to the same term within subsections of the same statute.”); Goldstein

v. Acme Concrete Corp., 103 So. 2d 202, 204 (Fla. 1958) (“[I]n both the mechanics’

lien statutes (F.S. ch. 84, F.S.A.) and the Workmen’s Compensation Act (Ch. 440)

the lawmakers use similar phrasing in dealing with construction projects. We may

assume that in both chapters they intended certain exact words or exact phrases to

mean the same thing. In a broad sense the chapters are in pari material and should,

to the extent that an understanding of one may aid in the interpretation of the other,

be read and considered together.”); State v. Johnson, 147 So. 254, 256 (Fla. 1933)

(“Chapter 14486, Acts 1929 (Ex. Sess.), and chapter 14776, Acts 1931, both apply

to the Ocean Shore improvement district of Flagler and Volusia counties, have the

same object in view, and contain almost the same language and terms. Such acts are

accordingly in pari materia and must be interpreted and given effect together, and

likewise construed.”); HIP Health Plan of Fla., Inc. v. Griffin, 757 So. 2d 1272, 1273

42 (Fla. 4th DCA 2000) (“As the same language appears in both rules, it should be

interpreted consistently.”).

The Florida Supreme Court had a choice of the language to use when it

adopted rule 9.130(a)(3)(C)(xi). For some categories of non-final appealable orders,

the Court expressly made the orders appealable if they granted or denied relief. See

Fla. R. App. P. 9.130(a)(3)(B) (“Appeals to the district courts of appeal of non-final

orders are limited to those that . . . grant, continue, modify, deny, or dissolve

injunctions, or refuse to modify or dissolve injunctions . . . .”); id. R. 9.130(a)(3)(D)

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

. . . grant or deny the appointment of a receive, and terminate or refuse to terminate

a receivership.”). The Court could have done that here. It could have made

appealable non-final orders denying motions to dismiss based on sovereign

immunity. That would have been consistent with other appealable non-final orders

and taken sovereign immunity outside of the on-the-face-of-the-record cases (i.e.,

Reeves and Hastings).

Instead, the Florida Supreme Court adopted the bar’s proposal to track the

language of the workers’ compensation immunity non-final appeal rule (rule

9.130(a)(3)(C)(v)). The Court used the exact same language save for substituting

“sovereign immunity” for “workers’ compensation immunity.” There is no other

difference.

43 This was a considered choice. After Keck, the Florida Supreme Court waited

two years for the appellate court rules committee to study the referral and for the

proposal to work its way through the bar’s rulemaking process. Even then, the

Florida Supreme Court did not blindly adopt the bar’s proposal. The Court tweaked

rule 9.130(a)(3)(C)(xi) to make clear that it applied only to sovereign immunity and

was not a catch-all for all immunities. See In re Amends. to Fla. R. App. P. 9.130,

151 So. 3d at 1217-18 (“Additionally, the Committee proposes adding new

subdivision (a)(3)(C)(xi) to authorize appeals from nonfinal orders which determine

that, as a matter of law, a party is not entitled to any immunity from suit not otherwise

addressed in this rule. However, because we have concerns that claims pertaining to

immunity as a whole may be too broad, we modify the Committee's proposal to

authorize appeals from nonfinal orders which determine, as a matter of law, that a

party is not entitled to sovereign immunity.” (emphasis added)).

The Florida Supreme Court considered the language it wanted for rule

9.130(a)(3)(C)(xi); it chose to use the same language as the workers’ compensation

immunity non-final appeal rule (rule 9.130(a)(3)(C)(v)); and the Court knew its case

law interpreting rule 9.130(a)(3)(C)(v). This court was correct in Pozos and Calonge

to give the same words in rule 9.130 their same meaning absent an indication to the

contrary from the Florida Supreme Court.

The Absurd Result Doctrine

44 The concurring opinion finally says that the court’s reading of rule

9.130(a)(3)(C)(xi) would lead to an absurd result because the trial court’s denial of

the motion to dismiss based on sovereign immunity “necessarily made a legal

determination as to the legal argument raised in the motion.” Concurring Op. at 24.

The absurd result doctrine does not apply here for three reasons.

First, the absurd result doctrine applies where a statute is ambiguous. The

courts will use the absurdity doctrine to choose one reading over another that results

in absurd consequences. But where, as here, the statute is unambiguous – where the

language of the rule or statute is clear – the Florida Supreme Court has cautioned

against using the absurd result doctrine. See Wright v. City of Miami Gardens, 200

So. 3d 765, 772 (Fla. 2016) (“Some of the district court judges and Wright have

contended that this demonstrates an absurd result that could not have been intended

by the Legislature. We acknowledge that the ‘absurd result’ doctrine is alluring on

these facts, but there is no ambiguity upon which to apply that rule of construction.

. . . Unlike in other cases where the absurd result doctrine has been applied to an

ambiguous statute, here the Legislature specifically removed the language from the

prior statute that would have avoided the result of disqualification.”).

Second, just because a trial court denies a single-issue motion to dismiss does

not mean that the trial court necessarily determined the legal argument raised in that

motion. This case is a good example. The trial court seemed to think it had the

45 discretion to deny the motion to dismiss in order to allow the parties discovery and

to give the trial court another pass at dismissing the case down the line. Here is what

the trial court said at the hearing after the parties were finished with their arguments:

Okay. I am going to deny the motion to dismiss, however, I’m letting both sides, particularly the plaintiff, know that it does not mean that I am – that you’re going to get past summary judgment. That’s a different standard. So you can conduct whatever discovery you need to conduct and then I will look at it. . . . I’m just letting [the plaintiff] proceed and it’s denied, period.

The trial court’s unelaborated order in this case is just as likely a reflection of its

mistaken belief that it had the discretion to deny an otherwise appropriate motion to

dismiss so discovery could proceed. We don’t know because the order doesn’t say

why the motion to dismiss was denied. And because we don’t know, we can’t say

the trial court necessarily determined the sovereign immunity issue.

Third, in Reeves and Hastings, the Florida Supreme Court read the same

language in the workers’ compensation immunity non-final appeal rule as requiring

the trial court to determine on the face of the order that a party, as a matter of law,

was not entitled to sovereign immunity in order to invoke non-final appeal

jurisdiction. The Florida Supreme Court said that it didn’t matter that workers’

compensation immunity was the only issue raised in the motion to dismiss or

summary judgment; if the trial court’s order was unelaborated, we did not have

jurisdiction to review the denial. If that result is not absurd, I don’t see how the same

result in a rule 9.130(a)(3)(C)(xi) case is absurd. Either they both have an absurd

46 result, or neither do, and the Florida Supreme Court has already made that call.

These are not the rare and exceptional circumstances that justify use of the absurdity

doctrine.

The concurring opinion makes some great points about why rule

9.130(a)(3)(C)(xi) should be changed to review denials of sovereign immunity as

early in the appellate process as possible. The Florida Supreme Court currently has

certified questions before it about the proper scope of rule 9.130(a)(3)(C)(xi), Fla.

Agency for Health Care Admin. v. McClain, No. 1D16-474, 2018 WL 1833386, at

*3 (Fla. 1st DCA Apr. 18, 2018) (“We certify the same question of great public

importance to the Florida Supreme Court as we did in Jackson: 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?”), and the appellate court rules committee is

considering a referral to address any potential changes to the rule.

But it is our job to say what the law is, not what we want it to be or what it

should be. In Calonge, and now here, the court correctly applied the current state of

the law for rule 9.130(a)(3)(C)(xi).