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.
In particular:
- 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.”
- Of Counsel
Jennifer P. Sommerville is an attorney in the Orlando office of Shutts & Bowen LLP, where she is a member of the Construction Litigation Practice Group. She has over 20 years of experience representing clients in complex commercial ...
Search Blog
Follow Us
Recent Posts
- Florida’s New Statutory Home Warranty: What Home Builders Need to Know
- Orange County Proposes Temporary Suspension Ordinance on New Development Applications
- SECURE 2.0 and Protecting Your Designated Beneficiaries
- Florida Appellate Court Provides Further Guidance Regarding New Summary Judgment Rule
- SEC Adopts New Cybersecurity Rules
- From 😊 to 💼: Can Emojis Create a Legally Binding Contract?
- HB-3: An Overview of ESG Factors Relating to Public Funds Investment and Financial Industry Impacts
- The Live Local Act Part 2 - Affordable Housing Incentives
- Florida's Live Local Act
- Taking an Appeal to Florida’s New Sixth District Court of Appeal? Three Local Rules You Need to Know
Popular Categories
- Business of Real Estate
- Real Estate Law
- Construction
- Construction Litigation
- Development/Land Use
- Landlord-Tenant
- Trusts and Estates
- Appeals
- Contracts
- Litigation
- Litigation (Appellate)
- Business
- Foreclosures
- Florida Government Contracts
- Property Tax
- Estate planning
- Supreme Court
- Conveyances
- Appellate Blog
- Cyber fraud
- Technology
- Lease
- Wealth planning
- Government
- Florida Bid Protests
- Government Contracts
- Business
- Insurance
- Proposal Writing
- Public Bidding
- Public Contracts
- GAO
- Restrictive Covenants
- Grant Writing
- Bid Protest
- Title
- Cybersecurity
- Data Security
- Promissory Notes
- Construction
- Regulatory Compliance
- Liens and encumbrances
- Creditor's Rights
- Government Contracting
- Florida Public Contracts
- Small Business
- Bidding
- Compliance
- Americans with Disabilities Act
- Federal Government Contracting
- Florida Administrative Law
- Public procurement
- Ad Valorem Assessments
- Attorneys' Fees
- Florida Rules of Appellate Procedure
- Florida Procurement
- Bankruptcy
- Eviction
- Mortgages
- Record on Appeal
- Rehearing
- Loan guaranties
- Attorneys' Fees
- Employment and Labor
- Litigation (Labor & Employment)
- Consumer Protection
- Regulation
- Maritime
- Briefing
- Request for Proposal
- Commercial Brokerage
- Bid Writing
- Florida Bidding Strategies
- Renewal
- Florida Public Procurement
- Attorneys' Fees
- Florida County Lands
- Florida Economic Incentive Packages
- Jury Instructions
- Stay
- Certiorari
- email hacking
- Assignment of Contract
- Assignment of Proceeds
- State Government Contracts
- Lis Pendens
- Appellate Jurisdiction - Deadlines
- Federal Rules of Appellate Procedure
- Finality
- Preservation
- Technology
- Evidence
- Expert
- Federal Supply Schedule
- Florida Public Records Law
- Government Vendor
- Mootness
- Public Private Partnership
- Socio-Economic Programs
- Sunshine Law
- Veteran Owned Business
- Homestead
- Partnerships and LLCs
- Standing
Editors
- Of Counsel
- Partner
- Partner
- Partner
- Partner
- Associate
- Partner
- Partner
- Partner
- Partner
- Partner
- Associate
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Of Counsel
- Senior Associate
- Associate
- Partner
- Partner
Archives
- June 2024
- May 2024
- November 2023
- August 2023
- July 2023
- June 2023
- May 2023
- January 2023
- December 2022
- October 2022
- September 2022
- July 2022
- June 2022
- March 2022
- February 2022
- January 2022
- December 2021
- October 2021
- September 2021
- August 2021
- July 2021
- May 2021
- April 2021
- March 2021
- February 2021
- January 2021
- December 2020
- October 2020
- September 2020
- July 2020
- June 2020
- April 2020
- March 2020
- February 2020
- January 2020
- October 2019
- August 2019
- July 2019
- May 2019
- April 2019
- March 2019
- February 2019
- November 2018
- October 2018
- July 2018
- June 2018
- May 2018
- March 2018
- February 2018
- January 2018
- December 2017
- October 2017
- September 2017
- August 2017
- July 2017
- June 2017
- May 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- March 2016