Florida Rule of Civil Procedure 9.130 governs appeals of non-final orders, and limits such appeals to the few specifically enumerated categories included in the rule. Several of these categories relate to a circuit court’s determination that one of the parties to the litigation is not entitled to various types of statutory immunity.
- Subsection (a)(3)(C)(v) covers decisions related to workers’ compensation immunity
- Subsection (a)(3)(C)(vii) covers decisions related to absolute or qualified immunity in a civil rights claim under federal law
- Subsection (a)(3)(C)(x) covers immunity under Section 768.28(9) Florida Statutes [related to sovereign immunity for individual officers or employees of the state], and
- Subsection (a)(3)(C)(xi) covers decisions related to sovereign immunity.
Each of these subsections includes the qualifying statement that, in order to appeal the determination that a party is not entitled to immunity, the circuit court’s decision must be made “as a matter of law.”
While the language of the rule is certainly clear, the rule’s directive is not always followed by attorneys anxious to rectify a perceived error by a circuit court that cut the legs out from under their immunity defense. Indeed, two recent cases offer a reminder that the inclusion of “as a matter of law” in the quoted subsections of 9.130 is not gratuitous.
In Taival v. Barrett, 41 Fla. L. Weekly D1637 (Fla. 5th DCA July 15, 2016), the defendant, a physician, moved for summary judgment based on sovereign immunity and the trial court denied the motion. The defendant appealed pursuant to Fla. R. App. P. 9.130(a)(3)(C)(x), but the appeal was dismissed for lack of jurisdiction because the order appealed from was an order denying the summary judgment motion, not an order holding that the physician was not, as a matter of law, entitled to sovereign immunity.
Likewise, in Seminole Tribe of Florida v. Schinneller, 197 So. 3d 1216 (Fla. 4th DCA 2016), the Fourth DCA explained that it could “review orders denying immunity under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(xi), but only if they are made as a matter of law.”
These opinions are consistent with numerous other decisions dismissing 9.130 appeals because the order appealed did not state that the immunity determination was made “as a matter of law.” See, e.g., Douglas v. Bronson, 178 So. 3d 552 (Fla. 1st DCA 2015) (dismissing appeal under Rule 9.130(a)(3)(C)(x) because the order did not make the determination that the party was not entitled to immunity as a matter of law); Amcon Builders, Inc. v. Pardo, 120 So. 3d 1254 (Fla. 3d DCA 2013) (dismissing appeal of order denying motion for summary judgment because order did not make a determination as a matter of law that party was not entitled to workers’ compensation immunity); Coastal Bldg. Maintenance, Inc. v. Priegues, 22 So. 3d 148 (Fla. 3d DCA 2009) (dismissing appeal where order “lacked the required designation ‘that, as a matter of law, [the claimant] was not entitled to workers’ compensation immunity’”).
When faced with an order denying immunity that does not clearly reflect that the decision was made “as a matter of law,” a district court may elect to treat the appeal as a petition for certiorari, but only where the order departs from the essential requirements of the law resulting in material injury for the remainder of the proceedings for which there is no adequate remedy on appeal. Under this heightened standard, certiorari review of non-final orders is rarely granted.
The takeaway is that when an immunity defense is available, all efforts should be made to isolate the defense in such a way that it can be adjudicated “as a matter of law.” Even in cases where unresolved facts exist, not all such facts implicate the stated immunity defense. Take care in drafting any order determining that a party is not entitled to statutory immunity and, by all means, include the magic buzzwords “as a matter of law.”