Third District Court of Appeal
State of Florida
Opinion filed August 8, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-2161
CONSOLIDATED: 3D17-2158, 3D17-2159, 3D17-2160
Lower Tribunal Nos. 13-29027, 13-29025, 13-25609, & 13-25606
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Jeffrey Key, et al.,
Appellants,
vs.
Caesar V. Almase, et al.,
Appellees.
Appeals from a non-final order from the Circuit Court for Miami-Dade
County, Antonio Arzola, Judge.
Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., and E. Bruce
Johnson and Scott D. Alexander (Ft. Lauderdale), for appellants.
Deutsch Blumberg & Caballero, P.A.; James C. Blecke, for appellees Caesar
V. Almase and Rhodalyn Garcia, etc.; Clark, Fountain, La Vista, Prather, Keen &
Littky-Rubin, LLP, and Julie H. Littky-Rubin (West Palm Beach); Brotman
Nusbaum Ibrahim, and Marc C. Brotman and Joseph N. Nusbaum (Boca Raton),
for appellees Mary Rachelle, etc. and Constantine Azarcon, etc.
Before ROTHENBERG, C.J., and SUAREZ and FERNANDEZ, JJ.
SUAREZ, J.
These four appeals, which we have consolidated, are from a non-final order
denying Appellants’ motion to dismiss Appellees’ Fourth Amended Complaint on
the grounds of individual immunity pursuant to section 768.28(9)(a), Florida
Statutes (2017). Because the order does not make any findings regarding the issue
of immunity, we dismiss the appeals as taken from a non-final, non-appealable
order.
The underlying tort action arises out of a head-on automobile collision that
resulted in four fatalities. The accident allegedly occurred because Sergio Perez,
an Opa-locka police officer, was pursuing Willie Dumel, a crime suspect, in a
high-speed chase down I-95. During the pursuit, Dumel drove in the wrong
direction, resulting in the fatal collision. Appellees (Plaintiffs below) are
representatives of the four deceased.
Appellants (Defendants below) are three City of Opa-locka employees: two
police chiefs (Jeffrey Key and Cheryl Cason) and the City Manager (Kelvin
Baker). They moved to dismiss Appellees’ Fourth Amended Complaint based on
immunity under section 768.28(9)(a), Florida Statutes, which provides in pertinent
part as follows:
(9)(a) No officer, employee, or agent of the state or of
any of its subdivisions shall be held personally liable in
tort or named as a party defendant in any action for any
injury or damage suffered as a result of any act, event, or
omission of action in the scope of her or his employment
or function, unless such officer, employee, or agent acted
in bad faith or with malicious purpose or in a manner
exhibiting wanton and willful disregard of human rights,
safety, or property. . . . The state or its subdivisions shall
not be liable in tort for the acts or omissions of an officer,
employee, or agent committed while acting outside the
course and scope of her or his employment or committed
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in bad faith or with malicious purpose or in a manner
exhibiting wanton and willful disregard of human rights,
safety, or property.
Following a hearing on Appellants’ motion to dismiss, the court entered an order
denying the motion. The order fails to specifically state that Appellants, as a
matter of law, were not entitled to immunity. This appeal follows.
Although an order denying a motion to dismiss is a non-final order and not
typically reviewable on appeal, Florida Rule of Appellate Procedure
9.130(a)(3)(C)(x) allows appeals of non-final orders that determine “that, as a
matter of law, a party is not entitled to immunity under section 768.28(9), Florida
Statutes . . . .” Here, however, the order on appeal makes no such finding.1
Consequently, this Court does not have jurisdiction to review the order, and we are
compelled to dismiss the appeal for lack of jurisdiction. See Hastings v.
Demming, 694 So. 2d 718 (Fla. 1997) (“Nonfinal orders denying summary
judgment on a claim of workers' compensation immunity are not appealable unless
the trial court order specifically states that, as a matter of law, such a defense is not
available to a party.”); Reeves v. Fleetwood Homes of Florida, Inc., 889 So. 2d
1Appellants appear to encourage us to delve into the hearing transcript. Even if we
were authorized to do so, which we are not, the trial court explicitly refrained from
determining the immunity issue:
I'm not saying right now that you are prohibited, you
don't have sovereign immunity. I'm saying that at this
time the four corners of the complaint allege a sufficient
cause of action. That's all I'm saying. You may get it
later. You may get it later in a summary judgment I don't
know.
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812, 821-22 (Fla. 2004) (reaffirming the “well-established rule” in Hastings);
Eagle Arts Acad., Inc. v. Tri-City Elec. Co., Inc., 211 So. 3d 1083 (Fla. 3d DCA
2017) (dismissing an appeal from a non-final order denying a motion to dismiss
because the order did not make any explicit or implicit findings, as a matter of law,
that appellant was not entitled to sovereign immunity); Miami-Dade Cty. v. Pozos,
242 So. 3d 1152 (Fla. 3d DCA 2017) (dismissing the appeal as one taken from a
non-final, non-appealable order because the order “did not declare, make a finding,
or otherwise determine that, as a matter of law, the County was not entitled to
sovereign immunity or immunity under section 768.28(9)”); Tindel v. Kessler, 772
So. 2d 599, 599 (Fla. 5th DCA 2000) (dismissing because the order simply denied
a motion for summary judgment and did not determine, as a matter of law, that
certain immunity defenses were unavailable).
Recently, the First District determined that Hastings and Reeves precluded
appellate review of an order denying summary judgment that did not explicitly
determine, as a matter of law, that the Florida Highway Patrol was not entitled to
sovereign immunity. Florida Highway Patrol v. Jackson, 238 So. 3d 430 (Fla. 1st
DCA 2018). However, the court certified a question of great public importance to
the Florida Supreme Court “regarding the specificity with which a court must deny
an immunity motion ‘as a matter of law’ to permit interlocutory appellate
review[.]” Id. We join our sister district in certifying this question to the Florida
Supreme Court.
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Dismissed.
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