Florida Highway Patrol, a division etc. v. Lashonta Renea Jackson, as Per. Rep. etc.

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D16-3940

_____________________________

FLORIDA HIGHWAY PATROL, a

division of the Florida

Department of Highway Safety

and Motor Vehicles,

Appellant,

v.

LASHONTA RENEA JACKSON, as

personal representative of the

Estate of Vontavia Kiara

Robinson,

Appellee.

_____________________________

On appeal from the Circuit Court for Alachua County.

Monica J. Brasington, Judge.

February 23, 2018

WINOKUR, J.

Immunity from suit is meaningless if a court denies

immunity to a party entitled to it, forcing the party to stand trial

and appeal the improper denial of immunity. This case concerns

our jurisdiction to hear an interlocutory appeal of an order

denying immunity to a party claiming entitlement to it. The trial

court denied a motion for summary judgment filed by the Florida

Highway Patrol (FHP), which had argued, among other things,

that it was immune from suit. FHP asserts that we have

jurisdiction under Florida Rule of Appellate Procedure

9.130(a)(3)(C)(xi), which permits appellate review of non-final

orders that determine “as a matter of law” that a party is not

entitled to sovereign immunity. Because the order under review

did not explicitly determine, as a matter of law, that FHP was not

entitled to sovereign immunity, we dismiss this appeal. But

because we perceive an inconsistency between the Florida

Supreme Court’s decision in Beach Community Bank v. City of

Freeport, 150 So. 3d 1111 (Fla. 2014), and other cases regarding

the specificity with which a court must deny an immunity motion

“as a matter of law” to permit interlocutory appellate review, we

certify a question of great public importance to the Florida

Supreme Court.

BACKGROUND

On January 28, 2012, a brush fire started on Paynes Prairie

Preserve in Alachua County. Near midnight on January 29, 2012,

two traffic crashes occurred, one on I-75 and one on US-441, both

of which included reduced visibility from the fire as a

contributing factor. Both roads were closed due to the crashes

and visibility concerns, and traffic was diverted onto smaller

roads. Several hours later, FHP weighed the safety risks involved

with keeping both roads closed, determined that visibility

conditions had improved, and reopened I-75. Shortly after, the

decedent Vontavia Robinson was driving on I-75 when he was

involved in a fatal multiple-vehicle collision due to a sudden

deterioration in visibility.

Lashonta Renea Jackson, as personal representative of

Robinson’s estate, filed an action against FHP alleging negligence

in the reopening of I-75. FHP filed a motion for summary

judgment asserting that sovereign immunity protected its

discretionary decision to reopen the interstate. The trial court

denied FHP’s motion, finding that disputed factual issues

precluded summary judgment. 1 FHP appeals from this order.

1 FHP also argued that no material issue of fact existed to

support a common-law duty of care it owed to Robinson, as

opposed to the general public. Whether a governmental entity

2

ANALYSIS

I. Appealability of non-final orders denying immunity

Only recently were the rules of appellate procedure amended

to permit interlocutory appeals of orders denying sovereign

immunity. In re Amendments to Fla. Rule of Appellate Procedure

9.130, 151 So. 3d 1217, 1218 (Fla. 2014). In order to understand

how this rule should be applied here, a review of the background

leading to the amended rule is helpful.

In Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), the United

States Supreme Court addressed the pre-trial appealability of an

order denying qualified immunity, which protects public officials

from federal civil-rights claims under certain circumstances. The

Court described such immunity as not simply a defense to

liability, but an immunity from suit, which “is effectively lost if a

case is erroneously permitted to go to trial.” Id. Accordingly,

“denial of a claim of qualified immunity, to the extent that it turns

on an issue of law” is subject to interlocutory review. Id. at 530

(emphasis added).

When the Florida Supreme Court encountered this issue in

state-court suits, it noted that the Florida Rules of Appellate

Procedure at the time did not permit appellate review of non-final

orders denying most types of immunity. Tucker v. Resha, 648 So.

owes a duty of care to a particular plaintiff is often intertwined

with the question of whether the governmental action is

discretionary and therefore immune from suit, but the issues are

“conceptually distinct.” Wallace v. Dean, 3 So. 3d 1035, 1044 (Fla.

2009). While FHP raised these issues distinctly in its motion, the

trial court found only that “[d]isputed issues of material fact

exist” without specifying whether the disputed issues relate to

the lack-of-duty claim or to the sovereign-immunity claim. We

treat the order as if the court meant to deny the motion on the

immunity ground, because that is the only basis on which FHP

could seek an interlocutory appeal under Rule 9.130.

3

2d 1187, 1189 (Fla. 1994). 2 Citing Mitchell, the Court agreed that

qualified immunity is immunity from suit, and not merely a

defense to liability, and that such immunity is lost and cannot be

restored on appeal if one is erroneously required to litigate. Id.

“[I]f orders denying summary judgment based upon claims of

qualified immunity are not subject to interlocutory review, the

qualified immunity of public officials is illusory and the very

policy that animates the decision to afford such immunity is

thwarted.” Id. at 1190. In order to make such immunity real

rather than illusory, the Court requested an amendment to Rule

9.130 providing that “an order denying summary judgment based

upon a claim of qualified immunity is subject to interlocutory

review to the extent that the order turns on an issue of law.” Id.

at 1190 (emphasis added).

Two years after deciding Tucker, the Florida Supreme Court

refused to extend the Tucker rule to governmental claims of

sovereign immunity. Dep’t of Educ. v. Roe, 679 So. 2d 756, 757

(Fla. 1996). The Court stated, “[o]ftentimes, the applicability of

the sovereign immunity waiver is inextricably tied to the

underlying facts, requiring a trial on the merits. Thus, many

interlocutory decisions would be inconclusive and in our view a

waste of judicial resources.” Id. at 758. The Court found that

sovereign immunity, unlike qualified immunity, is not rooted on a

worry of undue influence on public officials, and its applicability

would not have a chilling effect on public officials doing their jobs.

Id. at 759. As such, the benefit of sovereign immunity “will not be

lost simply because review must wait until after final judgment,”

and the Court declined to permit interlocutory appeals of orders

denying sovereign immunity. Id.

The Court later analyzed the individual immunity

protections of section 768.28(9)(a), Florida Statutes, and

2 The first type of order denying immunity that could be

challenged by interlocutory appeal was one denying workers’

compensation immunity, which was authorized two years prior to

Tucker. See Mandico v. Taos Constr., Inc., 605 So. 2d 850 (Fla.

1992); In re Amendments to Fla. Rules of Appellate Procedure,

609 So. 2d 516, 517 (Fla. 1992).

4

determined that this immunity is more similar to qualified

immunity, as described in Tucker, than to sovereign immunity, as

described in Roe. Keck v. Eminisor, 104 So. 3d 359 (Fla. 2012). As

such, the Court held that interlocutory review of orders denying

the immunity protections of section 768.28(9)(a) would be

permitted “where the issue turns on a question of law.” Id. at 366.

In a concurring opinion, a majority of the Court requested a

review as to whether Rule 9.130 should be expanded so that “the

denial of any claim of immunity where the question presented is

solely a question of law” should be subject to interlocutory appeal.

Id. at 370 (Pariente, J., concurring).

After the Florida Bar Appellate Court Rules Committee

proposed an amendment to Rule 9.130(a)(3) in response to the

Court’s request in Keck, the Court adopted two new subdivisions

to the rule, permitting appellate review of non-final orders

determining that “as a matter of law, a party is not entitled to”

immunity under section 768.28(9), or to sovereign immunity. In

re Amendments to Fla. Rule of Appellate Procedure 9.130, 151 So.

3d at 1218; Fla. R. App. P. 9.130(a)(3)(C)(x) and (xi). The Court

did not specify the extent the amended rule abrogated Roe, which

had specifically prohibited interlocutory appeal of orders denying

sovereign immunity.

The Florida Supreme Court addressed the appealability of

an order denying sovereign immunity most recently in Beach

Community Bank v. City of Freeport, decided the same day as the

2014 amendment to Rule 9.130. Our Court had granted a writ of

certiorari after the trial court denied the defendant’s motion to

dismiss based on sovereign immunity. Beach Community Bank,

150 So. 3d at 1112. The supreme court stated that the new

amendment “permits district courts to review nonfinal orders of

decisions determining entitlement to sovereign immunity where

the case involves a pure legal question.” Id. at 1113. The Court

agreed that the defendant’s sovereign immunity claim “rested on

a pure question of law,” which “falls squarely within the new rule

amendment.” Id. However, at no point did the Court discuss the

language of the trial court’s order or whether it specifically

decided that immunity was not an available defense; it simply

found that the issue was a question of law and, thus, within the

ambit of the amendment permitting appellate review.

5

II. Requirement that the challenged order determine that

the party is not entitled to immunity “as a matter of law”

Both federal law and Florida law prohibit interlocutory

appeal of an order denying immunity unless the order determines

as a matter of law that the party is not entitled to immunity. See

e.g., Mitchell, 472 U.S. at 530; Fla. R. App. P. 9.130(a)(3)(C)(v),

(vii), (x), and (xi). In analyzing whether an order has rejected an

immunity claim “as a matter of law,” it is worth noting as a

preliminary matter that the United States Supreme Court has

ruled that immunity questions generally must be resolved by the

court rather than the jury. Hunter v. Bryant, 502 U.S. 224 (1991).

In Hunter, the Court “stressed the importance of resolving

immunity questions at the earliest possible stage in litigation”

after a federal appellate court denied summary judgment and

held that a factual determination should be decided by the trier

of fact. Id. at 227. The Court rejected the lower court’s approach

because it would “routinely place[] the question of immunity in

the hands of the jury. Immunity ordinarily should be decided by

the court long before trial.” Id. at 228; see also Greene v. Reeves,

80 F.3d 1101, 1104 (6th Cir. 1996) (“Hunter established that the

determination of whether qualified immunity applies to an

officer’s judgment as to probable cause is one for the court, not

the jury, to make”); Ansley v. Heinrich, 925 F.2d 1339, 1348 (11th

Cir. 1991) (“[Q]ualified immunity is a question of law for the

court to decide preferably on pretrial motions.”). This rule seems

necessary in light of the Court’s observation that immunity “is

effectively lost if a case is erroneously permitted to go to trial.”

Mitchell, 472 U.S. at 526. Requiring a jury to find facts

supporting an immunity claim at trial has this effect. 3 This

3 It is also worth noting that “the Seventh Amendment right

to trial by jury does not apply in actions against the Federal

Government.” Lehman v. Nakshian, 453 U.S. 156, 160 (1981).

Thus, it would be constitutionally permissible for the trial court

to resolve factual issues to determine whether a party is entitled

to sovereign immunity. For instance, the Florida Supreme Court

has ruled that the trial court must decide factual issues involving

“Stand Your Ground” immunity from prosecution. Dennis v.

State, 51 So. 3d 456, 464 (Fla. 2010) (“[W]here a criminal

defendant files a motion to dismiss pursuant to [the Stand Your

6

observation should be remembered when deciding whether a

court has determined an immunity issue “as a matter of law.”

Again, the Supreme Court in Mitchell permitted

interlocutory appeal of an order denying immunity that “finally

and conclusively determines the defendant’s claim of right not to

stand trial on the plaintiff’s allegations,” “to the extent that it

turns on an issue of law.” Mitchell, 472 U.S. at 527, 530. The

Court clarified this rule in Johnson v. Jones, 515 U.S. 304 (1995),

where it ruled that interlocutory appeal is not available when the

trial court determines that factual issues genuinely in dispute

preclude summary judgment. In Johnson, the plaintiff alleged

that police officers used excessive force and beat him. Id. at 307.

The officers moved for summary judgment on the ground that

they were not present at the time of the alleged beating. Id. at

307-08. The trial court denied their motion on the ground that

some evidence supported the plaintiff’s allegations that the

officers were in fact present. Id. at 308. The Supreme Court held

that the order was not appealable because it merely decided “a

question of ‘evidence sufficiency,’ i.e., which facts a party may, or

may not, be able to prove at trial.” Id. at 313.

In contrast, the Supreme Court permitted interlocutory

review in Scott v. Harris, 550 U.S. 372 (2007). The plaintiff in

Scott also alleged that an officer used excessive force, and the

officer moved for summary judgment based on qualified

immunity. Id. at 375-76. The trial court denied the motion,

finding that “there are material issues of fact on which the issue

of qualified immunity turns which present sufficient

disagreement to require submission to a jury.” Id. at 376. In spite

of the trial court’s order that material issues of fact precluded a

ruling on the qualified immunity claim, the Supreme Court found

that the plaintiff’s version of the facts was not supported by the

record, that the issue was therefore a “pure question of law,” and

that summary judgment should have been granted. Id. at 381

n.8. Thus, the Supreme Court has ruled that an order denying

summary judgment, even if based on the existence of “disputed

Ground immunity statute], the trial court should decide the

factual question of the applicability of the statutory immunity”).

7

issues of material fact,” can still be subject to interlocutory

review if the trial court incorrectly ruled that the material facts

were in dispute. See also Plumhoff v. Rickard, 134 S. Ct. 2012

(2014) (allowing interlocutory appeal of summary-judgment order

denying qualified immunity, and distinguishing Johnson on the

ground that the disputed issue in Johnson was purely factual).

Florida has taken a much stricter view, compared to federal

courts, of the requirement that an order deny immunity “as a

matter of law” before permitting an interlocutory appeal. In

Hastings v. Demming, 694 So. 2d 718, 720 (Fla. 1997), the court

ruled that an interlocutory appeal of an order denying workers’

compensation immunity was not permitted “unless the trial court

order specifically states that, as a matter of law, such a defense is

not available to a party” (emphasis supplied). Reeves v. Fleetwood

Homes of Florida, Inc., 889 So. 2d 812, 821 (Fla. 2004), reaffirmed

Hastings, and required a “determination, on the face of the order”

that the defendant, as a matter of law, is not entitled to workers’

compensation immunity in order to file an interlocutory appeal.

“The lower courts of Florida have strictly adhered to this Court’s

decisions in Hastings and Culver,[4] determining that a district

court does not have jurisdiction to review a nonfinal order

denying summary final judgment unless the trial court’s order

explicitly states that the defendant will not be entitled to present a

workers’ compensation immunity defense at trial.” Id. (emphasis

supplied).

The “as a matter of law” language appears identically in all

of the subdivisions in Rule 9.130(a)(3)(C) involving orders

denying immunity. Fla. R. App. P. 9.130(a)(3)(C)(v), (vii), (x), and

(xi). As such, all of the subdivisions should be construed

identically. See Miami-Dade County v. Pozos, 42 Fla. L. Weekly

D418, D419 (Fla. 3d DCA Feb. 15, 2017); see also Tindel v.

4 Fla. Dep’t of Corrs. v. Culver, 716 So. 2d 768 (Fla. 1998)

(clarifying Hastings by holding that an appellate court must

determine that the lower court denied immunity from the face of

the order alone, without looking at the record to determine

whether the lower court correctly found that disputed issues of

material fact actually existed).

8

Kessler, 772 So. 2d 599 (Fla. 5th DCA 2000) (applying the

Hastings rule to dismiss an appeal of an order denying qualified

immunity). In short, a defendant in Florida asserting that the

trial court erroneously denied immunity may not appeal unless

the order explicitly states that the defendant is not entitled to

immunity.

Miami-Dade County v. Pozos applies this rule. The county

moved for summary judgment on the ground that sovereign

immunity barred the suit, but the trial court’s order denying the

motion stated only, “the motion for summary judgment is

denied.” 42 Fla. L. Weekly at D418. Applying Hastings and

Reeves, the Pozos court noted that the trial court made no specific

determination that the county was not entitled to immunity, and

dismissed the appeal. Id. at D420. 5 Although the dissenting

opinion argued persuasively that the county was in fact entitled

to sovereign immunity as a matter of law, and that the trial court

therefore erred in denying immunity, it did not address Hastings

and Reeves, on which the majority based its ruling dismissing the

appeal. Id. at D420-425 (Rothenberg, J., dissenting).

Pozos exposes the difficulty with the Hastings rule. Even if

the defendant had been unquestionably entitled to summary

judgment as a matter of law, the trial court’s failure to explicitly

indicate its basis for denial prohibits interlocutory review and

forces a party immune from suit to stand trial. This result is

clearly inconsistent with the oft-stated importance of resolving

immunity matters early in litigation. While the Florida Supreme

Court has demonstrated willingness to expand the reviewability

of orders denying sovereign immunity, the Hastings rule

substantially restricts review. The Hastings rule also permits a

trial court to frustrate a party’s legitimate assertion of immunity

simply by failing to provide reasons for a denial of an immunity

5 See also Eagle Arts Acad., Inc. v. Tri-City Elec. Co., Inc.,

211 So. 3d 1083, 1084 (Fla. 3d DCA 2017) (dismissing the appeal

of an order denying summary judgment based on sovereign

immunity because the order did not find that the defendant was

not entitled to sovereign immunity as a matter of law); Taival v.

Barrett, 204 So. 3d 486 (Fla. 5th DCA 2016) (same).

9

motion. The approach taken by the United States Supreme Court

avoids these pitfalls by permitting interlocutory review of any

order denying immunity that turn on an issue of law, regardless

of whether the order explicitly says so, even when the trial court

finds (erroneously) that disputed issues of material fact exist.

III. Application to this case

The trial court here denied FHP’s motion for summary

judgment on the ground that “[d]isputed issues of material fact

exist, including, but not limited to, the extent and adequacy of

[FHP]’s continued monitoring of the roadway, that prevent the

entry of Final Summary Judgment.” Any dispute related to the

quality of FHP’s monitoring the interstate does not seem to relate

to the question of whether FHP is immune from suit. Instead,

these disputed facts relate to the question of FHP’s negligence,

rather than its immunity from suit.

In this respect, the order under review is similar to the order

in Pozos, in that neither order gives reasons for its denial of the

sovereign-immunity claim, much less rule “explicitly” that the

governmental defendant is not entitled to sovereign immunity as

a matter of law. Like the Pozos court, we are constrained to find

that Hastings and Reeves preclude appellate review. 6

6 FHP’s appeal cannot be treated as a petition for writ of

certiorari. While certiorari petitions have in the past been

routinely used for pretrial review of orders denying immunity,

this avenue has been closed by more recent Florida Supreme

Court decisions. See Citizens Prop. Ins. Corp. v. San Perdido

Ass’n, Inc., 104 So. 3d 344, 355 (Fla. 2012) (holding that “the

district courts do not have jurisdiction to entertain petitions for

certiorari based on a public entity’s claim that it is entitled to

immunity based on the particular facts of the lawsuit brought

against it”); Rodriguez v. Miami-Dade County, 117 So. 3d 400,

405 (Fla. 2013) (“[W]e reiterate that the continuation of litigation

and any ensuing costs, time, and effort in defending such

litigation does not constitute irreparable harm. Thus, the use of

certiorari review is improper in such an instance.”).

10

Without ruling on the merits of this appeal, FHP makes a

sound argument that the trial court erred in finding that issues

of material fact precluded a ruling that it was immune from suit.

But even if this possible error were an issue of law, Hastings and

Reeves still would not permit appellate review. The Reeves court

noted that Rule 9.130 “was not intended to grant a right of

nonfinal review if the lower tribunal denies a motion for

summary judgment based on the existence of a material fact

dispute.” Reeves, 889 So. 2d at 821 (quoting Fla. R. App. P. 9.130

(Committee Notes, 1996 Amendment)). An erroneous conclusion

that issues of fact exist is not a “matter of law” in this context.

Contra Scott v. Harris, 550 U.S. at 381 n.8 (finding that the

correctness of the trial court’s conclusion that material issues of

fact existed was a “pure question of law” subject to interlocutory

review).

IV. Conflicts in the law

The Florida Supreme Court has given two recent indications

suggesting that the Hastings and Reeves rules unduly restrict

interlocutory appellate review of orders denying immunity. First

is the 2014 amendment expanding the types of non-final orders

denying immunity, including sovereign immunity, that may be

appealed. Given the justification for allowing interlocutory review

of orders denying immunity set forth in Tucker and Keck, a

strong argument can be made that Roe, which held that orders

denying sovereign immunity are unappealable because sovereign

immunity is a defense to liability rather than an immunity from

suit, is no longer good law. 7

Second, in Beach Community Bank, the Florida Supreme

Court’s most recent discussion of the appealability of orders

denying sovereign immunity, the Court permitted interlocutory

appellate review of an order denying immunity without any

7 See also Rodriguez, 117 So. 3d at 410 (Canady, J.,

concurring in result only) (“Once it is legally established that the

statutory waiver of sovereign immunity is inapplicable, the

sovereignly immune entity is both immune from liability and

immune from suit,” and to hold otherwise “fundamentally

degrades the meaning of immunity from suit.”).

11

discussion of whether the order under review “explicitly” stated

that the governmental entity was not entitled to sovereign

immunity as a matter of law. The Court noted only that this

court had concluded that “the City’s claim to sovereign immunity

rested on a pure question of law.” Beach Community Bank, 150

So. 3d at 1113. 8 This approach seems more similar to the United

States Supreme Court’s approach in Scott and Plumhoff than to

the rule stated in Hastings and Reeves. 9 Beach Community Bank

appears to signal a return to the principle of permitting appellate

review of an order denying immunity when the appellate court

can consider the issue without any additional factual

determinations (i.e., a question of law). See Mitchell, 472 U.S. at

530 (holding that the “denial of a claim of qualified immunity, to

the extent that it turns on an issue of law” is subject to

interlocutory review); Tucker, 648 So. 2d at 1190 (“[A]n order

denying summary judgment based upon a claim of qualified

immunity is subject to interlocutory review to the extent that the

order turns on an issue of law.”); Keck, 104 So. 3d at 370

(Pariente, J., concurring) (requesting review for a rule expansion

to permit interlocutory review of “the denial of any claim of

immunity where the question presented is solely a question of

law”). This appears to be the analysis undertaken by Judge

Rothenberg in Pozos when she concluded that the record “clearly

established” the legal question of sovereign immunity. Pozos, 42

Fla. L. Weekly at D420 (Rothenberg, J., dissenting).

8 The Supreme Court was reviewing our decision in City of

Freeport v. Beach Community Bank, 108 So. 3d 684 (Fla. 1st DCA

2013). In our opinion, we stated only that the trial court “denied

the motion to dismiss.” Id. at 687.

9 It is true that Beach Community Bank involved a motion to

dismiss, while Hastings and Reeves, as well as Pozos and this

case, involved a motion for summary judgment. However, this

court has specifically applied Hastings to hold that an order

denying a motion to dismiss that does not determine that the

party is not entitled to immunity is not appealable. Martin Elecs.,

Inc. v. Glombowski, 705 So. 2d 26 (Fla. 1st DCA 1997). As such,

this difference is not relevant to our analysis.

12

CONCLUSION

It is unclear if the Florida Supreme Court has departed from

narrowly interpreting “as a matter of law” to permit appellate

review of orders denying sovereign immunity when the record

demonstrates that the defendant is entitled to such immunity

and was erroneously required to continue to defend itself. If the

Court did not intend to signal a departure, appellate courts will

continue to dismiss interlocutory appeals that will ultimately be

reversed on appeal after trial, and parties will continue to defend

themselves from suits they are “immune” from. Without

clarification, this appeal must be dismissed for lack of

jurisdiction. To address the perceived conflict between Beach

Community Bank and prior case law, we certify the following as a

question of great public importance:

DOES RULE 9.130 PERMIT AN APPEAL OF A NON-FINAL

ORDER DENYING IMMUNITY IF THE RECORD SHOWS THAT

THE DEFENDANT IS ENTITLED TO IMMUNITY AS A MATTER

OF LAW BUT THE TRIAL COURT DID NOT EXPLICITLY

PRECLUDE IT AS A DEFENSE?

DISMISSED.

LEWIS, J., concurs in result and concurs in certification; BILBREY,

J., concurs in result with opinion.

_____________________________

Not final until disposition of any timely and

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

9.331.

_____________________________

BILBREY, J., concurring in result.

I concur in the result reached by Judge Winokur and the

decision to certify a question.

13

“Generally, an appellate court may not review interlocutory

orders unless the order falls within the ambit of non-final orders

appealable to a district court as set forth in Florida Rule of

Appellate Procedure 9.130.” Keck v. Eminisor, 104 So. 3d 359,

363-64 (Fla. 2012). We have previously noted that “the categories

of non-final orders subject to interlocutory appeal are narrowly

construed.” Walker v. Florida Gas Transmission Co., LLC, 134

So. 3d 571, 572 (Fla. 1st DCA 2014), citing Travelers Ins. Co. v.

Bruns, 443 So. 2d 959, 961 (Fla. 1984). The only subsections

potentially applicable here are rule 9.130(a)(3)(C)(x) & (xi), which

provide an appellate court with jurisdiction to hear appeals of

orders which determine as a matter of law that a party is not

entitled to immunity under section 768.28(9), Florida Statutes, or

that a party is not entitled to sovereign immunity.

As Judge Winokur notes, the trial court denied summary

judgment finding disputed issues of facts remain, without

determining whether the Florida Highway Patrol was entitled to

immunity as a matter of law. As cases he cites correctly hold, the

absence of a trial court ruling on immunity as a matter of law

means we lack jurisdiction to consider the appeal. See Miami-

Dade Cnty. v. Pozos, 42 Fla. L. Weekly D418, 2017 WL 621233

(Fla. 3d DCA Feb. 15, 2017); Eagle Arts Acad., Inc. v. Tri-City

Elec. Co, Inc., 211 So. 3d 1083 (Fla. 3d DCA 2017); Taival v.

Barrett, 204 So. 3d 486 (Fla. 5th DCA 2016). Dismissal of the

appeal is therefore the correct result. See Douglas v. Bronson,

178 So. 3d 552 (Fla. 1st DCA 2015). I also concur in the decision

to certify a question.

_____________________________

Pamela Jo Bondi, Attorney General, and Britt Thomas, Chief

Assistant Attorney General, Tallahassee, for Appellant.

Jack J. Fine and Melissa Susan Sheldon of Fine, Farkash &

Parlapiano, P.A., Gainesville, for Appellee.

14