DRJ Atlantic, LLC D/B/A Hyundai of Jacksonville v. Amir Babadi,Cheryl Yeschenko, State Farm Mutual Automobile Insurance Company and Progressive American Insurance Company

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D2023-2309

LT Case No. 2021-CA-1088

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DRJ ATLANTIC, LLC d/b/a

Hyundai of Jacksonville,

Appellant,

v.

AMIR BABADI, CHERYL

YESCHENKO, STATE FARM

MUTUAL AUTOMOBILE

INSURANCE COMPANY, and

PROGRESSIVE AMERICAN

INSURANCE COMPANY,

Appellees.

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Nonfinal appeal from the Circuit Court for St. Johns County.

Howard M. Maltz, Judge.

Scott A. Cole and Francesca M. Stein, of Cole, Scott & Kissane,

P.A., Miami, for Appellant.

Brian J. Lee, of Morgan & Morgan, Jacksonville, for Appellee,

Amir Babadi.

No Appearance for remaining Appellees.

September 5, 2024

SOUD, J.

Appellant DRJ Atlantic, LLC, d/b/a Hyundai of Jacksonville,

appeals the trial court’s denial of its motion for summary

judgment, which asserted immunity from liability under section

324.021(9)(c)3.a., Florida Statutes (2020). We dismiss the appeal

for want of jurisdiction.

I.

DRJ Atlantic provided a temporary loaner vehicle to its

customer, Cheryl Yeschenko, while her car was to be repaired.

Thereafter, Yeschenko was involved in a car accident with

Appellee Amir Babadi while driving the loaner vehicle. Ultimately,

Babadi filed suit against Yeschenko, DRJ Atlantic, and others for

injuries he claims were caused in the accident.

Pertinent for our purposes, Babadi seeks damages from DRJ

Atlantic under Florida’s common law dangerous instrumentality

doctrine, claiming that DRJ Atlantic is vicariously liable because

it owned the loaner vehicle and voluntarily entrusted it to

Yeschenko who negligently harmed Babadi. DRJ Atlantic filed its

motion for final summary judgment, claiming it was statutorily

immune from liability pursuant to section 324.021(9)(c)3.a.,

Florida Statutes. The trial court denied the motion.

DRJ Atlantic’s notice of appeal followed.

II.

Before we consider the merits of DRJ Atlantic’s arguments,

we must first determine whether we have jurisdiction to review

this case. We do not.

A.

“District courts of appeal shall have jurisdiction to . . . review

interlocutory orders in such cases to the extent provided by rules

adopted by the supreme court.” Art. V, § 4(b)(1), Fla. Const.

Pursuant to this state constitutional grant of authority, the

Florida Supreme Court promulgated Florida Rule of Appellate

Procedure 9.130, identifying those “most urgent” non-final orders

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that may be the subject of interlocutory appeal. See Citizens Prop.

Ins. Corp. v. San Perdido Ass’n, Inc., 104 So. 3d 344, 352 (Fla. 2012)

(quoting Williams v. Oken, 62 So. 3d 1129, 1134 (Fla. 2011)).

By bootstrapping to other claims of immunity for which Rule

9.130 permits interlocutory review, both parties argue that we

have jurisdiction to review the trial court’s order denying DRJ

Atlantic’s statutory immunity claim. Nonetheless, that does not

end our jurisdictional analysis.

Parties before this Court cannot stipulate to jurisdiction

where none exists under Florida law. See Shassian v. Riverwalk

Park, LLC, 365 So. 3d 484, 486 (Fla. 6th DCA 2023) (citing

Cunningham v. Standard Guar. Ins., 630 So. 2d 179, 181 (Fla.

1994)). Florida appellate courts have an independent

responsibility in every case to determine whether we have

jurisdiction. See Medeiros v. Firth, 200 So. 3d 121, 122 (Fla. 5th

DCA 2016). When we do not, we must dismiss the case, even if sua

sponte, for want of jurisdiction. See id.; see also Skybus Jet Cargo,

Inc. v. Aca Int’l, LLC, 365 So. 3d 467, 467 (Fla. 3d DCA 2023).

Here, the trial court’s order denying DRJ Atlantic’s claim of

statutory immunity is not listed in Rule 9.130 as an appealable

non-final order. Regarding claims of immunity, the rule permits

interlocutory review of orders that deny claims of “(i) absolute or

qualified immunity in a civil rights claim arising under federal

law; . . . (ii) immunity under section 768.28(9), Florida Statutes; or

(iii) . . . sovereign immunity.” See Fla. R. App. P. 9.130(a)(3)(F)(i)–

(iii). The statutory immunity afforded to car dealerships under

section 324.021(9)(c)3.a. is not identified by the rule. Thus, because

“[a]ppeals to the district courts of appeal of nonfinal orders are

limited to those” set forth in the rule, see Fla. R. App. P. 9.130(3)

(emphasis added), a reasonable reading of the rule does not permit

us to extend it to include review of the order sub judice.

B.

DRJ Atlantic alternatively requests that we treat its appeal

as a petition for writ of certiorari. Florida Rule of Appellate

Procedure 9.040(c) requires, “If a party seeks an improper remedy,

the cause must be treated as if the proper remedy had been sought;

provided that it will not be the responsibility of the court to seek

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the proper remedy.” (emphasis added). Therefore, because of the

plain requirements of this rule, while we lack appellate

jurisdiction to review this case under Rule 9.130, we consider

whether we have certiorari jurisdiction. Here again, we do not.

1.

Common law certiorari is both a discretionary and

extraordinary writ. It provides an appellate court “the prerogative

to reach down and halt a miscarriage of justice where no other

remedy exists.” Adventist Health Sys./Sunbelt, Inc. v. Machalek,

383 So. 3d 534, 536 (Fla. 5th DCA 2023) (quoting Univ. of Fla. Bd.

of Trs. v. Carmody, 372 So. 3d 246, 251–52 (Fla. 2023)). Certiorari

has never been intended to correct “mere legal error.” See id. at

537.

Certiorari review is not available simply because a challenged

order is not otherwise appealable under Rule 9.130. See Abbey v.

Patrick, 16 So. 3d 1051, 1053 (Fla. 1st DCA 2009). And certiorari

“may not be used to circumvent [Rule 9.130,] which authorizes

appeal from only a few types of non-final orders.” DeSantis v. Fla.

Educ. Ass’n, 313 So. 3d 151, 153 (Fla. 1st DCA 2020) (quotation

marks omitted). Florida appellate courts consistently limit

certiorari review “so as to avoid ‘piecemeal review of nonfinal trial

court orders [that] will impede the orderly administration of

justice.’” Id. (alteration in original) (quoting Jaye v. Royal Saxon,

Inc., 720 So. 2d 214, 215 (Fla. 1998)).

2.

To warrant certiorari relief, DRJ Atlantic must demonstrate

that the order denying its motion for summary judgment (1)

departs from the essential requirements of law, (2) resulting in

material injury for the remainder of the case (3) that cannot be

corrected on post-judgment appeal. See Dep’t of Child. & Fams. v.

State, 380 So. 3d 1263, 1267 (Fla. 5th DCA 2024). The last two

requirements, combined into the concept of “irreparable harm,” are

jurisdictional and must be found to exist before we consider

whether denial of the motion for summary judgment departs from

the essential requirements of law. See id.

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In this case, DRJ Atlantic has failed to demonstrate

irreparable harm. Pertinent here, section 324.021(9)(c)3.a.

provides that, when certain statutory conditions are met, a motor

vehicle dealer providing its service customers with a temporary

loaner vehicle while their car is repaired or serviced “is immune

from any cause of action and is not liable” for harm to others

resulting from the operation of the loaner vehicle “solely by reason

of being the owner of the temporary replacement vehicle.” See §

324.021(9)(c)3.a., Fla. Stat. Importantly, DRJ Atlantic argues that

this statute grants it immunity from liability and makes no

argument that the statute grants it immunity from suit. 1

Generally, parties may not seek certiorari review of non-final

orders denying motions to dismiss or motions for summary

judgment because erroneous denials of such motions may be

remedied on plenary appeal. Univ. of Miami v. Ruiz, 164 So. 3d

758, 763 (Fla. 3d DCA 2015). Consistent with the jurisdictional

framework for certiorari relief, it is only when such wrongful

denials cause irreparable harm that certiorari review is

appropriate. See id.

The Florida Supreme Court has determined that certiorari

does not permit the review of a non-final order denying a movant’s

claim of immunity from liability. See San Perdido Ass’n, Inc., 104

So. 3d at 353. Immunity from liability—which provides a complete

defense to liability—“will not be lost simply because review must

1 Considering the argument advanced by DRJ Atlantic, we

express no opinion as to whether this section grants to a motor

vehicle dealer immunity from liability or complete immunity from

suit altogether. See Rosier v. State, 276 So. 3d 403, 406 (Fla. 1st

DCA 2019) (“An appellate court is ‘not at liberty to address issues

that were not raised by the parties.’” (quoting Anheuser-Busch Co.,

Inc. v. Staples, 125 So. 3d 309, 312 (Fla. 1st DCA 2013))); see also

Bainter v. League of Women Voters of Fla., 150 So. 3d 1115, 1126

(Fla. 2014) (“Basic principles of due process—to say nothing of

professionalism and a long appellate tradition—suggest that

courts . . . ought not consider arguments outside the scope of the

briefing process.” (quotation marks omitted)).

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wait until after final judgment.” Dep’t of Educ. v. Roe, 679 So. 2d

756, 759 (Fla. 1996). 2

[T]his Court has never held that requiring a party

to continue to defend a lawsuit is irreparable harm

for the purposes of invoking the jurisdiction of an

appellate court to issue a common law writ of

certiorari. In fact, . . . to establish the type of

irreparable harm necessary in order to permit

certiorari review, a party cannot simply claim that

continuation of the lawsuit would damage one’s

reputation or result in needless litigation costs. To

2 Importantly, our courts have drawn a sharp distinction

between immunity from liability and immunity from suit, which

prevents a party from becoming involved in a lawsuit altogether.

As our supreme court explained in the context of

qualified immunity—which, like the immunity at

issue in this case, is immunity from suit rather

than a defense to liability—the entitlement to

immunity is effectively lost if a case is erroneously

permitted to go to trial because the party entitled

to the immunity cannot be re-immunized if

erroneously required to stand trial or face the other

burdens of litigation.

Citizens Prop. Ins. Corp. v. San Perdido Ass’n, Inc., 46 So. 3d 1051,

1055 (Fla. 1st DCA 2010) (Wetherell, J., dissenting) (internal

quotation marks omitted); see also Ruiz, 164 So. 3d at 763 (“[W]hen

the motion for summary judgment hinges on the application of a

complete statutory immunity from suit—in contrast to mere

immunity from liability—requiring a party entitled to that

immunity to continue litigating the suit constitutes irreparable

harm in and of itself.”); Bank of Am., N.A. v. De Morales, 314 So.

3d 528, 531 (Fla. 3d DCA 2020) (“Although the expense of

continued litigation is ordinarily not a harm that warrants

certiorari relief, it may lie in cases where the immunity asserted is

from litigation altogether, and not just from liability.”).

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hold otherwise would mean that review of every

non-final order could be sought through a petition

for writ of certiorari.

San Perdido Ass’n, Inc., 104 So. 3d at 353.

As a result, since DRJ Atlantic argues that section

324.021(9)(c)3.a. grants it immunity from liability, the trial court’s

order denying DRJ Atlantic’s motion for summary judgment is not

subject to our certiorari review. Continued involvement in the

litigation, and the expenses associated therewith, does not

constitute irreparable harm permitting certiorari review.

III.

Accordingly, as neither Rule 9.130 nor certiorari vests this

court with jurisdiction to review the trial court’s order denying

DRJ Atlantic’s motion for summary judgment, DRJ Atlantic’s

appeal is DISMISSED.

It is so ordered.

MACIVER and PRATT, JJ., concur.

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Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

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