FLORIDA HIGHWAY PATROL, a division of the Florida Department of Highway Safety and Motor Vehicles v. LASHONTA RENEA JACKSON, as personal representative of the Estate of Vontavia Kiara Robinson
No. 1D16-3940
FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA
February 23, 2018
WINOKUR, J.
On appeal from the Circuit Court for Alachua County. Monica J. Brasington, Judge.
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
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.
ANALYSIS
I. Appealability of non-final orders denying immunity
Only recently were the rules of appellate procedure amended to permit interlocutory
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. 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
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
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
After the Florida Bar Appellate Court Rules Committee proposed an amendment to
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
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;
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 plaintiffs 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 plaintiffs 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 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).
The “as a matter of law” language appears identically in all of the subdivisions in
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
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
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
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
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
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).
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,
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
BILBREY, J., concurring in result.
I concur in the result reached by Judge Winokur and the decision to certify a question.
“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
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.