Opinion
No. 1D21-605.
04-12-2023
EMERALD COAST UTILITIES AUTHORITY, Appellant, v. THOMAS HOME CORPORATION, A Florida Corporation, Appellee.
Robert O. Beasley , Phillip A. Pugh , and DeWitt D. Clark of Litvak, Beasley, Wilson & Ball, LLP, Pensacola, for Appellant. Todd M. LaDouceur and Rebecca D. Gilliland of Galloway, Johnson, Tompkins, Burr & Smith, P.L.C., Pensacola, for Appellee.
Robert O. Beasley , Phillip A. Pugh , and DeWitt D. Clark of Litvak, Beasley, Wilson & Ball, LLP, Pensacola, for Appellant.
Todd M. LaDouceur and Rebecca D. Gilliland of Galloway, Johnson, Tompkins, Burr & Smith, P.L.C., Pensacola, for Appellee.
M.K. Thomas, J.
Emerald Coast Utilities Authority (ECUA) appeals an order denying its "Motion for Partial Summary Judgment as to Sovereign Immunity Defense." Having determined that we have jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(F)(iii), we affirm.
I. Facts
Thomas Home Corporation (THC) sued ECUA claiming its agents misrepresented the capacity of a sewer lift station. THC alleged it relied on the misrepresentations in deciding to purchase a development property. Yet when THC applied for a permit request to connect the development to the subject sewer station, ECUA denied the permit citing inadequate capacity. In its amended complaint, THC alleged both negligent misrepresentation and negligence, and sought an injunction requiring ECUA to allow connection. THC demands more than $10 million in damages on the development project which it asserts resulted from ECUA's misrepresentations.
In its amended complaint, THC asserts that "ECUA, is a governmental agency designated with regulating water, wastewater, and sanitation services within Escambia County." In its answer, ECUA described its status as follows:
ECUA is an independent special district which was formed by the Florida Legislature. It is further admitted that ECUA provides water, wastewater, and sanitation services in and around defined geographical areas which include portions of Escambia County, Florida. As to all remaining allegations contained in this paragraph, they are denied.
Later, ECUA filed its "Motion for Partial Summary Judgment as to Sovereign Immunity Defense." ECUA asserted:
ECUA is an independent special district created by the Legislature under authority of the Uniform Special District Accountability Act, Fla. Stat. Chap 189. Specifically, it is a local governmental body, corporate and politic, established by Laws of Florida Chapter 92-248, as amended by Chapter 2001-324. As such, ECUA claims sovereign status and is covered by the limited waiver of sovereign immunity established by Fla. Stat. section 768.28.
ECUA did not seek partial summary judgment based on sovereign immunity from suit. Instead, it requested application of the "limited waiver of sovereign immunity" in section 768.28(5), Florida Statutes, which places a cap on liability to pay any judgment in favor of THC at $200,000 "per person." ECUA requested the following relief: "The `per person cap' of section 768.28(5) limits ECUA's exposure in this action to $200,000. A ruling on this issue is appropriate in advance of trial, in order to narrow the issues...." (Emphasis added.)
See § 768.28(5) (limiting the State's liability to $200,000 per person with an aggregate cap of $300,000 for "all ... claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence...").
ECUA also filed amended affirmative defenses, including, but not limited to, the following:
Counts I through IV of Plaintiff's First Amended Complaint fail to state causes of action for negligence or negligent misrepresentation because ECUA, as a governmental entity, has no legally enforceable duty to provide factually accurate information to a private entity such as THC regarding its lift stations.
....
ECUA is an independent special district.... The purported actions and inactions of ECUA involve determinations of the necessary margins for safety to be maintained in the public sewer system and therefore constitute discretionary decisions inherent in the act of governing, for which ECUA cannot be held liable. Accordingly, Plaintiff's claims are barred.
In its summary judgment motion, THC argued: 1) that ECUA is not specifically designated to be sovereign by the legislature; 2) even if ECUA is sovereign, its actions here are operational and not discretionary so it is subject to liability; and 3) if ECUA is an agency for purposes of sovereign immunity, then it must also be one under chapter 120, Florida Statutes ("Administrative Procedure Act" or "APA"), which ECUA has expressly denied and, thus, is estopped from now so declaring. THC also filed a motion to strike ECUA's affirmative defenses which was also set for hearing with the motion for partial summary judgment.
Two prior appeals taken by THC were dismissed (ID20-1940 and ID20-1938) for lack of jurisdiction to review an oral ruling not committed to writing. THC argues that in these earlier appeals ECUA asserted that it was an "agency" but expressly denied being subject to the APA. But because we lacked jurisdiction, the merits of the prior appeals were never reached.
Before the motions hearing, the parties filed extensive memoranda of law. After a several hour hearing, the trial judge emailed the parties addressing ECUA's motion for partial summary judgment, advising that she was denying the motion and requested a proposed order. ECUA's counsel then requested that the court provide an opinion to include the legal basis for the denial to allow immediate appellate review under rule 9.130(a)(3)(F)(iii) (2020). Counsel for THC expressed disagreement with the need for a written opinion. ECUA again reiterated that a written opinion was necessary to explain "how you actually ruled," anticipating issues related to satisfying criteria for interlocutory appeal. Ultimately, the trial judge instructed that an order be prepared to deny the motion because "based upon the specific facts of the case, there are genuine issues of material fact in dispute." An order was prepared and signed by the trial court to this effect. This is ECUA's appeal of the nonfinal order denying its motion for partial summary judgment as to sovereign immunity.
The trial judge heard argument on ECUA's Motion for Summary Judgment as to Counts I-IV of the Amended Complaint, on ECUA's Amended Motion for Summary Judgment as to Measure of Damages, and on THC's motion to strike. At the hearing, the trial judge granted THC's motion to strike ECUA's affirmative defenses and requested a proposed order. She withheld ruling on the remaining motions.
II. Analysis
ECUA argues three points on appeal: 1) the nonfinal order qualifies for interlocutory appeal; 2) the trial court improperly denied its motion asserting entitlement to sovereign immunity; and 3) the trial court erred by not setting its maximum potential liability for tort claims by any one person or entity at $200,000. The initial point is jurisdictional, and the remainder go to the merits of the summary judgment denial. We address each in turn.
Jurisdiction
Our appellate jurisdiction to review nonfinal orders is generally limited to only those orders specifically listed in Florida Rule of Appellate Procedure 9.130(a)(3). See Keck v. Eminisor, 104 So.3d 359, 363-64 (Fla. 2012). ECUA relies on rule 9.130(a)(3)(F)(iii) (2020) to vest this Court with jurisdiction to hear the otherwise non-reviewable order. THC raised no jurisdictional objection to this appeal.
Although THC did not challenge our jurisdiction to review the nonfinal order, we have an independent duty to confirm subject matter jurisdiction. Even if conceded by the parties, the question of a court's jurisdiction is one a court may raise sua sponte. See Escambia Cnty. Sch. Bd. v. Warren, 337 So.3d 496, 498 (Fla. 1st DCA 2022); Gant v. Nat'l Linen, 999 So.2d 1079, 1080 (Fla. 1st DCA 2009). Also, a stipulation or concession to jurisdiction by a defending party over subject matter jurisdiction where none exists is ineffectual. See Polk Cnty. v. Sofka, 702 So.2d 1243, 1245 (Fla. 1997).
This matter comes to us on appeal of a nonfinal order denying ECUA's motion for partial summary judgment. ECUA asserts that as a governmental body, it has sovereign immunity and "is covered by the limited waiver of sovereign immunity" established by section 768.28(5). Thus, the specific jurisdictional question before us is:
Does rule 9.130(a)(3)(F)(iii), as amended, permit an interlocutory appeal of a nonfinal order denying a motion for partial summary judgment that requests only the protection of the limited waiver of sovereign immunity capping damages under section 768.28(5), and not immunity from suit?
Simply stated, does a motion asserting the limited waiver of sovereign immunity and the statutory cap on damages qualify for interlocutory review? Under the plain language of the amended rule and the guidance from our supreme court, we answer the question in the affirmative.
This jurisdictional query is a matter of first impression for this Court. But our colleagues at the Second and Fourth Districts have considered similar issues, albeit applying the pre-2020 version of rule 9.130(a)(3). See Lovelace v. G4S Secure Sols. (USA), Inc., 320 So.3d 178 (Fla. 4th DCA 2021); City of Fort Lauderdale v. Hinton, 276 So.3d 319 (Fla. 4th DCA 2019); S. Fla. Fair & Palm Beach Cnty. Expositions, Inc. v. Joseph, 256 So.3d 875 (Fla. 4th DCA 2018); G4S Secure Sols. (USA), Inc. v. Morrow, 210 So.3d 92 (Fla. 2d DCA 2016).
In Hinton, the Fourth District acknowledged that it had jurisdiction under rule 9.130(a)(3)(C)(xi) (2019) to review nonfinal orders determining "as a matter of law" that a party is not entitled to sovereign immunity. Id. at 324. Yet it concluded that it lacked jurisdiction to review a nonfinal order denying application of the statutory caps in section 768.28(5), finding that the rule was intended to allow interlocutory review of orders denying immunity from suit, and that if the statutory caps applied, then the city was not immune from suit. Id. at 326 (citing Keck, 104 So. 3d at 364-66 (discussing Tucker v. Resha, 648 So.2d 1187 (Fla. 1994))). In further support of its jurisdictional interpretation, the Fourth District cited Florida Fish and Wildlife Conservation Commission v. Jeffrey, 178 So.3d 460, 465 (Fla. 1st DCA 2015), which will be discussed later in detail.
Hinton is readily distinguishable. Here, unlike in Hinton, there is no concession between the parties on the underlying question—whether ECUA is entitled to sovereign status and, thus, subject to immunity protections. Of greater significance, the Fourth District cited to Keck, Tucker and Jeffrey in support of its contention that the Florida Supreme Court intended in its earlier amendments to rule 9.130(a)(3) to restrict interlocutory review to only nonfinal orders denying "immunity from suit." We respectfully disagree and conclude that the context of the opinions and subsequent amendments to the rule inform the intended purpose—a deliberate but disciplined expansion of interlocutory appeals for certain nonfinal orders.
Valuable perspective is gained by considering the playing field when the Keck, Tucker and Jeffrey cases were decided. In 1996, rule 9.130(a)(3) was amended to allow interlocutory appeals of orders regarding workers' compensation immunity and absolute and qualified immunity for civil rights claims under federal law—both providing statutory immunity from suit. See Fla. R. App. P. 9.130(a)(3)(C)(vi), (viii) (1996). When the Keck and Tucker opinions were contemplated, rule 9.130(a)(3) provided no avenue for interlocutory appeal of a nonfinal order denying entitlement to sovereign immunity.
Keck addressed sovereign immunity claims under section 768.28(9)(a), Florida Statutes (2005), which by statutory language provides immunity from suit (unlike section 768.28(5), addressing a limited waiver of sovereign immunity). Thus, a quote from Keck and Tucker addressing immunity from suit should not be misconstrued as our supreme court's declaration as to the purpose of the rule in toto, much less without recognition of later amendments which explicitly suggest the contrary. Since Keck and Tucker, rule 9.130(a)(3) has been expanded multiple times to include additional subsections. See In re Amend. to Fla. Rule of App. Proc. 9.130, 151 So.3d 1217, 1218 (Fla. 2014) (adding immunity under section 768.28(9) and sovereign immunity subdivisions); Amend. to Fla. Rules of App. Proc., 696 So.2d 1103, 1127 (Fla. 1996) (authorizing review of orders determining as a matter of law entitlement to sovereign immunity or entitlement to immunity under section 768.28(9)).
In Jeffrey, this Court accepted jurisdiction of an appeal of a nonfinal order denying a motion for summary judgment on qualified immunity under section 768.28(9), but only after converting the proceedings to certiorari review. 178 So. 3d at 464. The motion for summary judgment asserted immunity from suit (as established by the statute) and the applicable standard of review was that of a certiorari proceeding, considering irreparable harm as one factor. Id. at 464-65. This Court took no position on whether rule 9.130(a)(3) restricted interlocutory review to only those nonfinal orders addressing immunity from suit, as the issue was not before it. No issue of limited sovereign immunity was raised or contemplated—certainly not a limited waiver of sovereign immunity under 768.28(5).
In 2018, the Fourth District in Joseph accepted jurisdiction of an appeal of a nonfinal order denying a motion for partial summary judgment asserting entitlement to sovereign immunity for damages above the statutory caps under section 768.28(5). 256 So.3d 875. However, the opinion is void of jurisdictional comment. As here, the appellant in Joseph did not argue immunity from suit but only entitlement to sovereign immunity for damages beyond the statutory caps, and there was no stipulation between the parties that the appellant was entitled to sovereign status. Yet in Joseph, the trial court issued a substantive order on the appellant's entitlement to sovereign status and analyzed the state's structural power over it. The Fourth District reversed, finding the appellant entitled to limited sovereign immunity.
In Lovelace, 320 So.3d 178, the Fourth District again accepted jurisdiction of a nonfinal order denying a motion for summary judgment as to sovereign immunity. But the opinion does not discuss the basis for jurisdiction.
Joseph is also distinguishable. In Joseph, the Fourth District did not address the basis for accepting jurisdiction of the nonfinal order. Additionally, the trial court's substantive order provided explanation for denial of the motion. The Fourth District undertook review of the record and found reversal was required as a matter of law. In contrast, we have no substantive order and an amended rule to dictate our analysis.
Likewise, the Second District accepted jurisdiction of an interlocutory appeal of a nonfinal order denying entitlement to sovereign immunity in Morrow, 210 So.3d 92. The motion for summary judgment asserted entitlement to sovereign immunity for damages above the statutory caps under section 768.28(5). The opinion is void of jurisdictional comment. Ultimately, based on review of a substantive order and record, the court reversed the denial and found the appellants were entitled to limited sovereign immunity as a matter of law.
Grounded by historical perspective, we now embark on our independent jurisdictional review. We turn to the language of rule 9.130(a)(3). Before the 2020 amendment, rule 9.130(a)(3)(C)(xi) allowed for appeal of nonfinal "orders" that determine "that, as a matter of law, a party is not entitled to sovereign immunity." In 2020, our supreme court declared the need for amendment to rule 9.130(a)(3) in Florida Highway Patrol v. Jackson, 288 So.3d 1179 (Fla. 2020). On the same day, it issued an opinion implementing the amendments. See In re Amend. to Fla. Rule of App. Proc. 9.130, 289 So.3d 866 (Fla. 2020).
In Jackson, our supreme court took up the certified question of whether rule 9.130(a)(3)(C)(xi) permitted an appeal of a nonfinal order denying immunity if the record showed that the defendant was entitled to immunity as a matter of law, but the trial court did not explicitly determine entitlement. 288 So. 3d at 1180. In answering the question in the negative, the court found that the language in subsection (a)(3)(C)(xi) "insufficiently protected the interests underlying sovereign immunity" by requiring the order's denial to explicitly be as a "matter of law." As such, the amendment was necessary to "expand the availability of appellate review of nonfinal orders denying sovereign immunity." Id. at 1186; see also In re Amend. to Fla. Rule of App. Proc. 9.130, 289 So. 3d at 867.
Presently, rather than allowing for the appeal of a nonfinal order that determines "that, as a matter of law, a party is not entitled to sovereign immunity," the 2020 amended rule allows for appeal of a nonfinal order that "den[ies] a motion that asserts entitlement to sovereign immunity." Fla R. App. P. 9.130(a)(3)(F)(iii) (2020) (emphasis added). The amendment did not simply redact the required buzz words "as a matter of law." Instead, our supreme court went further and reworked the subsection by placing focus on the underlying motion as the substantive vehicle to achieve interlocutory review.
This shift was eloquently explained by Judge Scales in Truist Bank v. De Posada, 307 So.3d 824 (Fla. 3d DCA 2020). He noted that under the pre-2020 version,
[w]hen ... we are analyzing whether we have jurisdiction to review a non-final order under rule 9.130(a)(3)(C)— i.e., whether the non-final order has made the requisite determination so as to trigger the rule's applicability—this Court looks to the four corners of the challenged order, not to the arguments made in the underlying motion.
Id. at 826 (citing Citizens Prop. Ins. Corp. v. Calonge, 246 So.3d 447, 449 (Fla. 3d DCA 2018)). Yet Judge Scales went further and discussed the rule as newly amended.
Earlier this year the Florida Supreme Court created a new subdivision (F) to rule 9.130(a)(3) regarding several species of non-final order related to governmental immunity that had previously been included under subdivision 9.130(a)(3)(C). See In re Amendments to Fla. Rule of Appellate Procedure 9.130, 289 So.3d 866 (Fla. 2020); Fla. Highway Patrol v. Jackson, 288 So.3d 1179, 1186 (Fla. 2020). The purpose of this recent amendment to rule 9.130(a)(3), as plainly reflected in the text of subdivision (F), was to include in the schedule of appealable, non-final orders those non-final orders denying motions that sought governmental immunity. Hence, when determining whether a non-final order is reviewable under rule 9.130(a)(3)(F), we now focus on the content of the underlying motion and on as much as the record as necessary. In re Amendments to Fla. Rule of Appellate Procedure 9.130, 289 So. 3d at 867. These recent Supreme Court cases, though, left intact the Florida Supreme Court's holding in Hastings, as well as the analysis we employed in Pozos and Calonge. Our Supreme Court did not alter or amend rule 9.130(a)(3) with regard to other species of appealable, non-final order ... Indeed, the very reason our Supreme Court found it necessary to amend rule 9.130(a)(3) to create subdivision (F) was because it agreed with our analysis that the rule's text permitted appellate review only of orders that, on their face, make the requisite determinations. Fla. Highway Patrol, 288 So. 3d at 1182.
Id. at 826 n.2.
Mindful of our supreme court's reasoning for amending rule 9.130(a)(3) and its new structure and language, we regard our jurisdictional review as twofold. We initially determine whether the order satisfies the procedural framework of the amended rule and then undertake a later inquiry of whether the facts here satisfy the definition of sovereign immunity. This secondary inquiry necessarily encompasses whether "sovereign immunity," within the context of the rule, encompasses anything less than immunity from suit altogether.
The order at issue here denies ECUA's motion that seeks "an order of partial summary judgment determining that Fla. Stat. § 768.28(5) applies to limit ECUA's liability on any judgment that may ultimately be rendered in the case." The motion asserts that ECUA, as a governmental body, has sovereign immunity and is covered by the damages cap. Accordingly, the motion and order requirements of the amended rule are satisfied. We have an order denying a motion that, on its face, asserts entitlement to sovereign immunity. Now, we turn to the more difficult determination of whether the particulars of the case and the specific relief requested by the motion satisfy the definition of "sovereign immunity" within the context of the amended rule.
In his thoughtful analysis in Jackson declaring a need for amendment to rule 9.130(a)(3), now Chief Justice Muñiz seemingly anticipated the need for a primer on the definition of "sovereign immunity" under Florida law. It guides our analysis here. He emphasized that "[i]n Florida, sovereign immunity is both an immunity from liability and an immunity from suit," and that "the sovereign immunity inquiry consists of `whether the governmental entity remains sovereignly immune from suit notwithstanding the legislative waiver present in section 768.28, Florida Statutes.'" 288 So. 3d at 1185 (emphasis added) (quoting Wallace v. Dean, 3 So.3d 1035, 1044 (Fla. 2009)).
As Chief Justice Muñiz clarified, "some courts have read the supreme court's opinion in Dept. of Education. v. Roe, 679 So.2d 756 (Fla. 1996), as holding that sovereign immunity is immunity only from liability." Id. at 1185 (citing Parker v. Am. Traffic Sols., Inc., 835 F.3d 1363, 1368 (11th Cir. 2016)). But this is incorrect. He illustrated the following distinction:
We said that "sovereign immunity may shield the government from an action in its courts." And we observed that "the presence of sovereign immunity does not render the State's actions nontortious (it simply means that the State has not consented to suit in its courts with regard to certain claims.)"
Id. (internal citations omitted) (citing Dean, 3 So. 3d at 1045).
Now, of import here, Chief Justice Muñiz carefully enunciated that courts "should not take our Dean analysis literally to mean that, when presented with a motion for summary judgment asserting entitlement to sovereign immunity, a court cannot address sovereign immunity if there are outstanding disputes about the existence of a duty of care." Id. His reminder highlights the distinct concepts at play— that "the absence of a duty of care renders the defendant nonliable as a matter of law because his, her, or its actions are therefore nontortious vis-a-vis the plaintiff." Dean, 3 So. 3d at 1045. Duty of care is a concept separate and apart from sovereign immunity.
When contemplating the issue of governmental liability under Florida law where governmental entity status has been achieved or conceded, there are two considerations: a duty analysis (which is again conceptually distinct) and then, if necessary, the later inquiry regarding whether the government entity remains sovereignly immune from suit notwithstanding the legislative waiver present in section 768.28. Id. at 1044-45. To wit, if there is no duty of care with respect to the alleged negligent conduct, then there is no governmental liability. If there is no governmental liability, then the issue of whether the sovereign should be immune from suit need not be reached. On the other hand, if a duty of care is owed, it must then be determined whether sovereign immunity bars an action. See id. at 1044. "Under traditional principles of tort law, the absence of a duty of care between the defendant and the plaintiff results in a lack of liability, not application of immunity from suit." Id. (citing Clay Elec. Co-op., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla. 2003)). To close this circle fully, also note that "the presence of sovereign immunity does not render the State's actions nontortious (it simply means that the State has not consented to suit in its courts with regard to certain claims)." Id. at 1045.
If a duty of care is plausibly alleged in a complaint, the next question is "whether the action is barred by sovereign immunity." See Gualtieri v. Pownall, 346 So.3d 84, 88 (Fla. 2d DCA 2022). To determine whether an action is barred by sovereign immunity, "it is necessary to ascertain the character of the allegedly negligent governmental act or omission." Pollock v. Fla. Dep't of Highway Patrol, 882 So.2d 928, 933 (Fla. 2004). "[B]asic judgmental or discretionary governmental functions are immune from legal action, whereas operational acts are not protected by sovereign immunity." Id. (citing Henderson v. Bowden, 737 So.2d 532, 537-38 (Fla. 1999))
Recognizing our review is no longer restricted to the order denying the motion, we look to the underlying motion and to the record. ECUA's motion does not assert immunity from suit. It requests only a limit on damages or, rephrased, "limited sovereign immunity." In THC's response to the motion, it disputes that ECUA is a sovereign entity.
The motion and response do not address whether ECUA has a duty of care to THC. At the motion hearing, THC argued that this issue was yet to be determined based on outstanding disputed issues of material fact.
Now, we address whether ECUA's motion substantively requests entitlement to "sovereign immunity" within the context of the amended rule. The answer lies in whether "sovereign immunity" is defined narrowly as only immunity from suit (foreclosing any trial) or as encompassing something less.
In Plancher v. UCF Athletics Association, Inc., 175 So.3d 724, 726 (Fla. 2015), Justice Polston described section 768.28(5) as not only waiving immunity for tort claims but also setting "a recovery limit." The statute provides a limited liability from damages. See also Lovelace, 320 So. 3d at 185 (declaring 768.28(5) as limiting liability from damages and not a waiver of all sovereign immunity). A repeat of the critical mandate employed in the Dean and Jackson opinions is warranted—"[w]e explained that the sovereign immunity inquiry consists of `whether the governmental entity remains sovereignly immune from suit notwithstanding the legislative waiver present in section 768.28.'" Jackson, 288 So. 3d at 1185 (quoting Dean, 3 So. 3d at 1044). This tiered analysis is required to determine "sovereign immunity." With that established, the cart must not be placed before the horse. Section 768.28(5) is not triggered unless an entity is sovereign and is, therefore, entitled to sovereign immunity. A statute waiving or providing a limited waiver of sovereign immunity does not apply unless an entity has sovereign immunity.
This "limitation of liability" under section 768.28(5) is distinct from the concept of immunity from liability described in Dean, 3 So. 3d at 1044.
A narrow interpretation that the newly amended rule 9.130(a)(3)(F)(iii) allows only interlocutory appeal of nonfinal orders denying sovereign immunity from suit belies the reasoning behind the rule's amendment and the supreme court's rationale for doing so. Further, this restrictive interpretation is inconsistent with the recognition that an entity may be immune from suit for certain causes of action but may be entitled only to a limited waiver of sovereign immunity, requiring piecemeal, inefficient, and bifurcated litigation.
The heading of section 768.28 ("Waiver of sovereign immunity in tort actions; recovery limits; civil liability for damages caused during a riot; limitation on attorney fees; statute of limitations; exclusions; indemnification; risk management programs") is also consistent with the inclusion of orders denying motions for application of the damages cap under rule 9.130(a)(3)(F)(iii). Again, an entity must first be sovereignly immune before that immunity can be waived or limited. The heading of section 768.28 does not announce qualifications for entitlement to sovereign immunity. Rather, by heading, this statute addresses waiver once sovereign immunity attaches.
The two remaining provisions of the new subsection (F) of rule 9.130(a)(3), addressing entitlement to absolute and qualified immunity in civil rights claims under federal law and immunity under section 768.28(9), prohibit the filing of suit or an action against the protected party. But rule 9.130(a)(3)(F)(iii), does not come with such prohibitions. If the supreme court intended for the newly amended rule 9.130(a)(3)(F)(iii) to apply only to orders denying entitlement to sovereign immunity from suit, it could have easily included such language in the rule.
Our interpretation of amended rule 9.130(a)(3)(F) as allowing interlocutory appeal of a nonfinal order denying entitlement to "sovereign immunity" under section 768.28(5) (albeit limited sovereign immunity) is consistent with Jackson. It honors the overall framework of rule 9.130 that "[i]nterlocutory appeals of nonfinal orders are the exception, not the rule." Id. at 1184. Yet it recognizes the importance of broadening the rule, when called for by practical application, to achieve judicial efficiency by rendering decisions, on matters of law at the earliest possible stage of litigation. See e.g., Plancher, 175 So. 3d at 724 (remanding for entry of a judgment corresponding to jury's award of damages but limiting liability pursuant to section 768.28(5)); Zamora v. Fla. Atl. Univ. Bd. of Trs., 969 So.2d 1108 (Fla. 4th DCA 2007) (reversed and remanded for application of damages cap under section 768.28(5) to judgment on jury verdict); State Dep't of Health & Rehab. Servs. v. T.R. ex rel. Shapiro, 847 So.2d 981 (Fla. 3d DCA 2002) (reversed and remanded for new trial on section 768.28(5) damages cap application).
Thus, we hold that this Court has jurisdiction to review a nonfinal order that denies a motion for partial summary judgment that asserts only a limited waiver of sovereign immunity pursuant to the liability caps under section 768.28(5). And as reasoned above, ECUA's motion satisfies the rule's substantive requirement of requesting entitlement to "sovereign immunity." Having accepted jurisdiction of the nonfinal order under rule 9.130(a)(3)(F)(iii), we now consider the merits of the appeal.
Underlying Motion and Record
ECUA appeals the denial of its motion for partial summary judgment. Thus, a de novo standard of review applies. McNair v. Dorsey, 291 So.3d 607, 609 (Fla. 1st DCA 2020).
"Summary judgment is proper `if the pleadings and summary judgment evidence [i.e., affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence] on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'"
Ridenhour v. State, 338 So.3d 473, 475 (Fla. 1st DCA 2022) (quoting Lindsey v. Cadence Bank, N.A., 135 So.3d 1164, 1167 (Fla. 1st DCA 2014)). "[T]he court must draw every possible inference in favor of the party opposing summary judgment." Bowman v. Barker, 172 So.3d 1013, 1015 (Fla. 1st DCA 2015). Summary judgment should not be granted "unless the facts are so crystallized that nothing remains but questions of law." Id. (quoting Moore v. Morris, 475 So.2d 666, 668 (Fla. 1985)). If there is any reasonable possibility of any materially factual disputed issue in a case, then summary judgment is improper. Key v. Trattmann, 959 So.2d 339, 341 (Fla. 1st DCA 2007).
The Florida Supreme Court recently adopted the federal summary judgment standard. See In re Amend. to Fla. R. Civ. P. 1.510, 309 So.3d 192 (Fla. 2020). But the rule amendment does not apply here because it became effective on May 1, 2021 and is prospective. See e.g. 309 So. 3d at 195; Wilsonart, LLC v. Lopez, 308 So.3d 961, 964 (Fla. 2020) (noting that the new change to rule 1.510 is "a prospective rule amendment").
The trial court's order denies ECUA's motion because, "[based] upon the specific facts of the case, there are genuine issues of material fact in dispute." Alone, this supports denial of a motion for summary judgment. Yet the supreme court instructed us to review "as much of the record as is necessary to resolve the question presented in the appeal." In re Amend. to Fla. Rule of App. Proc. 9.130, 289 So. 3d at 867.
ECUA's motion contains a paragraph related to its claim of sovereign status. It asserts that because it is an independent special district and a local government body, it is sovereign and enjoys the protections of 768.28(5). ECUA provides several citations in support of its qualifications to sovereign status. These arguments were repeated at the summary judgment hearing. THC defended the motion in pleadings and at hearing by asserting that ECUA gave no foundation for its declarations, ECUA is not specifically designated to be sovereign in the cited provisions, and whether ECUA's actions were operational and not discretionary go to whether a duty was owed by ECUA, the precursor to sovereign immunity.
"The burden is on the appellant to demonstrate reversible error and present an adequate record for review." JP Morgan Chase Bank v. Combee, 883 So.2d 330, 331 (Fla. 1st DCA 2004) (citing Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979)). In Jackson, the supreme court declared its intention to broaden the scope of allowable nonfinal order appeals. 288 So.3d 1179. However, this allowance does not usurp the applicable standard of review for an appellate court on review of the merits. A developed record is required to demonstrate clear error as a matter of law on appeal of a summary judgment denial.
Mindful of our appellate review parameters under the amended rule, we cannot discern either from the motion or the record that the facts presented to the trial court in connection with the motion for partial summary judgment were so fixed and definite that the court could determine clearly and conclusively that ECUA was entitled to sovereign immunity as a matter of law. The motion and record are simply not developed enough to determine whether the trial court erred as a matter of law when it found that disputed material facts exist and denied ECUA's motion for partial summary judgment. It is not the job of the appellate court when reviewing a summary judgment ruling to unscramble a Rubik's cube. The record must clearly establish error as a matter of law. The record does not do so here.
The trial judge's email communications with the parties' post-motion and hearing further highlight that the denial of the motion is not as a matter of law.
Because ECUA failed to satisfy its burden to demonstrate reversible error on this record, the nonfinal order on appeal is affirmed.
AFFIRMED.
Long, J., concurring with opinion; Rowe, C.J., concurring in result with opinion. Long, J., concurring.
I write to address the timing of the summary judgment claims. Specifically, whether ECUA must wait for a final judgment to be entered against it before it can raise its sovereign immunity claims. The answer is no, and yes. There were two parts to ECUA's motion; ECUA claimed (1) it was a sovereign entity entitled to sovereign immunity and (2) that, because it is a sovereign entity, considering the nature of the claims, its liability is limited to a single payment of $200,000. THC's primary argument in opposition below, and here on appeal, was to challenge the first claim by arguing that ECUA was not a sovereign entity entitled to sovereign immunity. Though much has been made of the second issue (no doubt because that determination is of great practical import to both parties), the principal issue here is whether ECUA is a sovereign entity at all. The trial court denied summary judgment, finding that, at the time, it had insufficient information to determine if ECUA was a sovereign entity. We have unanimously affirmed the trial court's denial on that ground.
I agree with Chief Judge Rowe on the second issue when she concludes that the liability caps will attach automatically if ECUA establishes that it is a sovereign entity. The parties' disputes about the proper application of the liability caps to the facts of this case are not yet ripe—i.e., how the "per person" and "aggregate" liability limits should apply to a potential future judgment given the underlying facts and theories of liability. A particular claim is ripe for adjudication when the facts have fully matured into an existing controversy. See Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) ("A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." (internal quotation omitted)). Here, fully resolving the second issue will first require a judgment on specific claims.
But while the second issue it not yet ripe, the first is. ECUA sought an adjudication on its sovereign status and that question is properly raised prejudgment. In Michigan Millers Mut. Ins. Co. v. Bourke, 607 So.2d 418 (Fla. 1992), the supreme court adjudicated a prejudgment, presuit dispute about an entity's entitlement to claim the benefit of the statutory limited sovereign immunity waiver liability caps. There, an uninsured motorist insurance carrier wished to assert the defense of sovereign immunity on behalf of an underinsured school board. Id. at 420-21. They filed a complaint for declaratory relief before any other lawsuit was filed. Id. at 420. The courts fully adjudicated the question in a prejudgment posture. Id. at 422. If a party can obtain an adjudication of sovereign immunity entitlement without any judgment or suit, surely the question can be adjudicated when it is at issue in a pending action. And here, answering the question of whether ECUA is a sovereign entity will necessarily answer, at least in part, the question of entitlement to the limited liability caps.
Sovereign immunity questions are routinely, and properly, litigated prejudgment. And we have unanimously held here that we have jurisdiction to hear this prejudgment interlocutory appeal. That the Florida Supreme Court has authorized nonfinal appeals for orders that deny motions that assert entitlement to sovereign immunity further shows that this issue can, and often should, be resolved prejudgment.
Rowe, C.J., concurring in result.
I concur with the majority that this Court has jurisdiction to review the nonfinal order denying ECUA's motion for partial summary judgment and that the trial court did not err in denying summary judgment. I write separately to explain that ECUA was not entitled to a pretrial judicial declaration on the application of the statutory caps set out in section 768.28(5)(a), Florida Statutes, to any judgment entered against it.
Florida Rule of Appellate Procedure 9.130(a)(3)(F)(iii) authorizes this Court to review a nonfinal order that denies a motion asserting entitlement to sovereign immunity. ECUA moved for partial summary judgment, claiming sovereign immunity and seeking a declaration from the trial court that its liability to pay any judgment was capped under section 768.28(5). Our jurisdiction is properly invoked because before the trial court could determine whether the statutory caps applied, it had to determine whether (1) ECUA is a governmental entity entitled to sovereign immunity, and (2) ECUA's actions challenged in the lawsuit were operational or discretionary. See § 768.28(2), Fla. Stat. (describing the state agencies or subdivisions subject to the waiver of sovereign immunity under 768.28); Pollock v. Fla. Dep't of Highway Patrol, 882 So.2d 928, 933 (Fla. 2004) ("[B]asic judgmental or discretionary governmental functions are immune from legal action, whereas operational acts are not protected by sovereign immunity."). Those determinations are properly made pretrial by the trial court.
ECUA argued that it was entitled to sovereign immunity because it is an independent special district created by the Legislature under the authority of the Uniform Special District Accountability Act and it is a local governmental body. ECUA asserted that the decisions THC sought to challenge in the lawsuit were discretionary and did not subject ECUA to tort liability. THC disputed that ECUA was a government entity entitled to sovereign immunity. But even if it were, THC contended that ECUA's challenged decisions were operational and subject to tort liability. Based on the limited evidence before it, the trial court correctly concluded that the facts were not sufficiently developed to determine whether ECUA was a government entity entitled to sovereign immunity or whether its actions were operational or discretionary.
But even if the trial court had been able to make those two determinations, which it is most certainly can do pretrial and may yet do with further factual development in this case, ECUA had no right to a separate judicial declaration that section 768.28(5)(a) would limit its liability to pay any judgment entered against it. Section 768.28(5) provides that a sovereign entity will not have to "pay a claim or a judgment by any one person which exceeds the sum of $200,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $300,000."
The statutory caps under section 768.28(5) apply only when three conditions are met. First, a defendant must establish that it is a government entity entitled to immunity. Second, a verdict in excess of the statutory caps must be rendered. See Paushter v. S. Broward Hosp. Dist., 664 So.2d 1032, 1034 (Fla. 4th DCA 1995) (holding that the determination of whether the statutory caps under section 768.28(5) apply is premature until a party obtains a verdict). Third, the trial court must enter a final, executable judgment. See Fla. R. Civ. P. 1.550(a) ("Executions on judgments shall issue during the life of the judgment on the oral request of the party entitled to it or that party's attorney."); State Rd. Dep't v. Crill, 99 Fla. 1012, 128 So. 412, 414 (1930) (defining "a final judgment, order, or decree" as "one that puts an end to the action or cause and leaves nothing to be determined"). Once these conditions are met, the statutory caps apply to the final, executable judgment against the sovereign defendant.
ECUA was not entitled to a judicial declaration on the application of the statutory caps. This is because the statutory caps will apply as a matter of law if ECUA establishes that it is a sovereign entity, a judgment in excess of the caps is rendered against it, and THC seeks to execute on the judgment.
ECUA's pretrial request for a judicial declaration on the application of the statutory caps also ignores that the legislature could expand ECUA's liability to pay a judgment through the claims bill process. Nothing in section 768.28(5) prevents THC from seeking damages and obtaining a judgment against ECUA in an amount that exceeds the statutory caps. See S. Broward Topeekeegeeyugnee Park Dist. v. Martin, 564 So.2d 1265, 1267 (Fla. 4th DCA 1990) ("[T]he mere fact the legislative act places a cap upon the amount of damages recoverable against the governmental entity does not affect the plaintiff's right to a judgment for his full damages. The plaintiff is entitled to recover against the entity the amount of the cap and then report the balance to the legislature by way of a claims bill and recover so much of the balance as the legislature may see fit to award."). Rather, if THC were to obtain an judgment in an amount that exceeded the statutory cap, it could then seek a claims bill to recover the balance. See Gerard v. Dep't of Transp., 472 So.2d 1170, 1172 (Fla. 1985) ("The act does not preclude a claimant from seeking a judgment for an excess sum as a preliminary step to seeking a claims bill."). And the legislature could expand ECUA's liability to pay the excess judgment by separate act. See § 768.28(5), Fla. Stat. (authorizing the use of a claims bill to obtain payment of a judgment that exceeds the statutory immunity caps); Wagner v. Orange Cnty., 960 So.2d 785, 788 (Fla. 5th DCA 2007) ("A claim bill is not an action at law, but rather is a legislative measure that directs the Chief Financial Officer of Florida, or if appropriate, a unit of local government, to pay a specific sum of money to a claimant to satisfy an equitable or moral obligation.").
For these reasons, along with affirming the trial court's decision to deny summary judgment, I would also hold that ECUA had no right to a pretrial judicial declaration that its liability to pay a judgment would be limited by the statutory caps set out in section 768.28(5).