Florida Highway Patrol, etc. v. Lashonta Renea Jackson, etc.

Supreme Court of Florida

____________

No. SC18-468

____________

FLORIDA HIGHWAY PATROL, etc.,

Petitioner,

vs.

LASHONTA RENEA JACKSON, etc.,

Respondent.

January 23, 2020

MUÑIZ, J.

This case is about the meaning of Florida Rule of Appellate Procedure

9.130(a)(3)(C)(xi), which governs the appealability of nonfinal orders denying

sovereign immunity. The decision under review is Florida Highway Patrol v.

Jackson, 238 So. 3d 430 (Fla. 1st DCA 2018). In that decision, the First District

Court of Appeal ruled upon the following question, which the court certified to be

of great public importance:

DOES RULE 9.130[(A)(3)(C)(XI)] 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?

Id. at 438. We have jurisdiction, see art. V, § 3(b)(4), Fla. Const. Our answer to

the certified question is no.

We conclude that the disputed text of rule 9.130(a)(3)(C)(xi) has the same

meaning that this Court has given to the identically worded text of a preexisting

subdivision of rule 9.130. We further conclude, however, that rule 9.130 in its

current form insufficiently protects the interests underlying sovereign immunity.

Therefore, we also explain our decision to amend the rule 9.130 subdivisions

addressing sovereign immunity and comparable government-related immunities

from suit.

BACKGROUND

Article V, section 4(b)(1) of the Florida constitution gives district courts

jurisdiction to review nonfinal orders “to the extent provided by rules adopted by”

this Court. To implement this provision, this Court has adopted Florida Rule of

Appellate Procedure 9.130, which contains an exclusive list of the categories of

nonfinal orders subject to appeal. That list includes nonfinal orders involving four

types of immunity: workers’ compensation immunity; absolute or qualified

immunity in a civil rights claim arising under federal law; immunity under section

768.28(9), Florida Statutes; and sovereign immunity. Although rule 9.130

addresses each type of immunity in a separate subdivision, each subdivision uses

identical jurisdictional language, allowing appeals of “nonfinal orders . . . that . . .

-2-

determine . . . that, as a matter of law, a party is not entitled to [immunity].” This

case is about the meaning of that jurisdictional phrase.

The oldest of the rule 9.130 immunity subdivisions, the one that addresses

workers’ compensation immunity, has been in its current form since 1996. See

Amendments to Fla. Rules of Appellate Procedure, 696 So. 2d 1103, 1127 (Fla.

1996). And in a trio of cases involving the workers’ compensation immunity

subdivision, this Court construed the jurisdictional language that is now at issue.

See Reeves v. Fleetwood Homes of Fla., 889 So. 2d 812 (Fla. 2004); Fla. Dep’t of

Corr. v. Culver, 716 So. 2d 768 (Fla. 1998); Hastings v. Demming, 694 So. 2d 718

(Fla. 1997).

The key holdings of those cases boil down to three related points. First,

“[n]onfinal 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.” Hastings,

694 So. 2d at 720; see also Reeves, 889 So. 2d at 821-22 (“reiterat[ing]” the “well-

established rule” of Hastings). Second, a nonfinal order denying workers’

compensation immunity is not subject to appeal if the trial court bases the denial

on the existence of disputed facts. See Hastings, 694 So. 2d at 720. And third, to

determine the appealability of a nonfinal order under the workers’ compensation

immunity subdivision, the district court is limited to a review of the order itself and

-3-

may not consider the underlying record. See Culver, 716 So. 2d at 768-69. For

convenience, we will refer to these holdings collectively as “the Hastings/Reeves

precedent.”

As mentioned earlier, this Court has included in rule 9.130 additional

subdivisions that address nonfinal orders denying three other types of immunity.

See In re Amendments to Fla. Rule of Appellate Procedure 9.130, 151 So. 3d 1217,

1218 (Fla. 2014) (adding immunity under section 768.28(9) and sovereign

immunity subdivisions); Amendments to Fla. Rules of Appellate Procedure, 696

So. 2d at 1127 (adding absolute or qualified immunity in a civil rights claim arising

under federal law subdivision). Each time it added a new immunity-related

subdivision, the Court used the same jurisdictional language as in the workers’

compensation immunity subdivision. See In re Amendments to Fla. Rule of

Appellate Procedure 9.130, 151 So. 3d at 1218; Amendments to Fla. Rules of

Appellate Procedure, 696 So. 2d at 1127. The sovereign immunity subdivision,

which the Court added to rule 9.130 in 2014, permits the interlocutory appeal of

“nonfinal orders . . . that . . . determine . . . that, as a matter of law, a party is not

entitled to sovereign immunity.” Fla. R. App. P. 9.130(a)(3)(C)(xi).

This Court has taken up only one case involving the sovereign immunity

subdivision: Beach Community Bank v. City of Freeport, 150 So. 3d 1111 (Fla.

2014), decided the same day the Court (in a separate opinion) added that

-4-

subdivision to rule 9.130. See Amendments to Fla. Rules of Appellate Procedure,

696 So. 2d at 1127. The Court had accepted jurisdiction in Beach Community

Bank to address whether the First District could invoke its certiorari jurisdiction to

review a trial court order denying a sovereign immunity-based motion to dismiss.

Applying its then-recent decision in Rodriguez v. Miami-Dade County, 117 So. 3d

400 (Fla. 2013), the Court answered no to that question.

But the Court went on to hold that the trial court’s order was appealable

under the brand new sovereign immunity subdivision of rule 9.130. Without

quoting the text of either that subdivision or the order under review, the 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.” Beach Community Bank, 150 So. 3d at 1113. The Court

ended its opinion by twice stating that the “amendment to rule 9.130 covers this

exact scenario pertaining to a nonfinal order denying a sovereign immunity defense

as a matter of law.” Id. at 1114-15.

FACTS AND PROCEDURAL HISTORY

Against that backdrop, we turn briefly to the facts of this case. Vontavia

Robinson tragically died in a predawn car accident on I-75. The accident occurred

after smoke from a nearby brushfire caused visibility on the interstate suddenly to

deteriorate. Several hours earlier, smoke from the same brushfire had caused two

-5-

other car crashes, leading the Florida Highway Patrol (FHP) to close the interstate

for several hours. Mr. Robinson’s deadly accident happened shortly after FHP had

reopened the interstate.

Lashonta Renea Jackson, the personal representative of Mr. Robinson’s

estate, sued FHP. The complaint alleged that FHP’s reopening and subsequent

monitoring of the interstate were negligent operational decisions. After discovery,

FHP moved for summary judgment, claiming both that it owed Mr. Robinson no

special duty and that its challenged decisions were discretionary and therefore

protected by sovereign immunity.

The trial court held a summary judgment hearing and later issued a brief

order denying FHP’s motion. The relevant portion of the order read: “Disputed

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

of DHSMV’s continued monitoring of the roadway, that prevent the entry of Final

Summary Judgment.” The hearing transcript sheds no additional light on the trial

court’s reasoning.

FHP appealed the nonfinal order to the First District, relying on the

sovereign immunity subdivision of rule 9.130 as the basis for the district court’s

jurisdiction. A panel of the First District voted unanimously to dismiss the appeal.

In a thorough and thoughtful opinion, Judge Winokur concluded that the district

court was “constrained to find that Hastings and Reeves preclude appellate

-6-

review.” Jackson, 238 So. 3d at 436. He reasoned that, under those cases, “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.” Id. at 435. This conclusion is consistent with decisions of the Third

District Court of Appeal that have also carefully examined the issue. See, e.g.,

Citizens Property Ins. Corp. v. Calonge, 246 So. 3d 447 (Fla. 3d DCA 2018);

Miami-Dade County v. Pozos, 242 So. 3d 1152 (Fla. 3d DCA 2017).

Nonetheless, Judge Winokur observed that recent legal developments—

including this Court’s Beach Community Bank decision—suggested that the

Hastings/Reeves precedents “unduly restrict interlocutory appellate review of

orders denying immunity.” Jackson, 238 So. 3d at 436-37. Judge Winokur also

noted “the perceived conflict between Beach Community Bank and prior case law.”

Id. at 438. To address those issues, the panel certified the following as a question

of great public importance:

DOES RULE 9.130[(A)(3)(C)(XI)] 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?

Id.

Our answer to the certified question is no.

-7-

ANALYSIS

The First District’s interpretation of rule 9.130(a)(3)(C)(xi), the sovereign

immunity subdivision, presents a question of law that we review de novo. And

“[o]ur courts have long recognized that the rules of construction applicable to

statutes also apply to the construction of rules.” Brown v. State, 715 So. 2d 241,

243 (Fla. 1998).

The question that divides the parties here is whether the sovereign immunity

subdivision requires an express statement, on the face of the order, that as a matter

of law a party is not entitled to sovereign immunity. Jackson argues that it does.

FHP argues that it does not. According to FHP, the sovereign immunity

subdivision permits the district court to review the record to decide for itself

whether material facts are genuinely in dispute and, if not, whether the trial court

properly denied sovereign immunity.

As we explained earlier, this Court has definitively answered this same

question in the context of interpreting the workers’ compensation immunity

subdivision. Under the Hastings/Reeves precedent, an order that “determines that,

as a matter of law, a party is not entitled to workers’ compensation immunity” is

one that says so on its face. A reviewing court may not attribute a determination to

the trial court’s order based on the district court’s own review of the underlying

record.

-8-

Applying straightforward principles of statutory interpretation, we conclude

that the meaning of the sovereign immunity subdivision’s jurisdictional language is

the same. The prior construction canon teaches that, “when judicial interpretations

have settled the meaning of an existing statutory provision, repetition of the same

language in a new statute indicates, as a general matter, the intent to incorporate its

judicial interpretations as well.” Rowe v. N.H. Motor Transp. Ass’n, 552 U.S. 364,

370 (2008) (quoting Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dabit, 547

U.S. 71, 85 (2006)). This canon is closely related to the interpretive principle that

legal terms can take on an expected, ordinary meaning among the experienced

audience to which such terms are addressed. “[I]f a word is obviously transplanted

from another legal source, whether the common law or other legislation, it brings

the old soil with it.” Felix Frankfurter, Some Reflections on the Reading of

Statutes, 47 Colum. L. Rev. 527, 537 (1947); see also Taggart v. Lorenzen, 139 S.

Ct. 1795, 1801 (2019) (describing and relying on this “longstanding interpretive

principle”).

A typical reader of our appellate rules would be entitled to expect that the

jurisdictional language in the sovereign immunity subdivision bears the same

meaning as the corresponding language in the workers’ compensation immunity

subdivision. The jurisdictional text in each subdivision is identical. The two

subdivisions are component parts of a single rule of procedure. And, long before it

-9-

was included in the text of the sovereign immunity subdivision, the relevant

language had been repeatedly, consistently, and authoritatively interpreted by this

Court, our state’s highest court. Here it is fair to say that the language at issue

“acquired . . . a technical legal sense that should be given effect in the construction

of later-enacted [rules].” Antonin Scalia & Bryan A. Garner, Reading Law 324

(2012).

FHP’s arguments for a contrary interpretation of the sovereign immunity

subdivision are unpersuasive. We will address each in turn, starting with the

argument based on Beach Community Bank—the case that prompted the First

District to pose the certified question and whose facts clearly inspired the wording

of that question.

Precedent. FHP maintains that this Court held in Beach Community Bank

that the appealability of a nonfinal order under the sovereign immunity subdivision

does not depend on whether the order contains an express statement denying

sovereign immunity as a matter of law. That is not a correct description of the

holding in Beach Community Bank. It is true that the Court invoked the then

newly adopted sovereign immunity subdivision to review the order at issue in the

case. And it is also true that the underlying record in the case shows that the order

did not include an express statement denying immunity as a matter of law. But the

Court’s opinion in Beach Community Bank is silent on the interpretive question

- 10 -

that has now been presented to the Court in this case. The Beach Community Bank

opinion does not quote (much less analyze) the text of the sovereign immunity

subdivision; it does not quote or even paraphrase the text of the order under

review; it does not mention the Hastings/Reeves precedent; and it says absolutely

nothing about whether the sovereign immunity subdivision requires an express

statement on the face of the nonfinal order that is being appealed. “Questions

which merely lurk in the record, neither brought to the attention of the court nor

ruled upon, are not to be considered as having been so decided as to constitute

precedents.” Webster v. Fall, 266 U.S. 507, 511 (1925).

FHP makes a related argument that the Hastings/Reeves precedent is not

controlling because workers’ compensation immunity is different from sovereign

immunity. We need not address any differences in the two types of immunity,

however, because that issue is immaterial to our task in this case. Here we must

decide what it means for an order to “determine that, as a matter of law,” a party is

not entitled to immunity. The answer to that question—how to know what an

order “determines”—does not turn on the type of immunity to which the order

relates. Material differences between sovereign and workers’ compensation

immunity might support adopting different rules for each. But any such

differences do not justify giving different meanings to the identical jurisdictional

language that appears in the two subdivisions as written.

- 11 -

Text. FHP next argues that the text of the sovereign immunity subdivision is

unambiguous and that its plain meaning does not support an express statement

requirement. According to FHP, what matters for purposes of jurisdiction under

the sovereign immunity subdivision is what an order functionally does, not what

the order says. We disagree that this functional assessment of an order is what the

text unambiguously requires. On the contrary, even if we were writing on a blank

slate, we would conclude that the better reading of the subdivision’s text favors the

Hastings/Reeves precedent. This is an instance where the literal and ordinary

meanings of the text overlap. The most natural and straightforward way to know

what an order “determines” is to look at what the order says.

This case demonstrates in particularly stark terms the difficulty of accepting

FHP’s textual argument. The trial court’s order here stated that “disputed issues of

material fact . . . prevent the entry of Final Summary Judgment.” FHP would have

us read this order as one that “determines” that, based on undisputed facts, FHP

was not entitled to sovereign immunity. In other words, FHP asks us to conclude

that the trial court’s order here “determines” something directly contrary to what

appears on the face of the order. We believe that it is more reasonable to interpret

the rule’s text as focusing on the trial court’s own understanding and articulation of

its determination—not on how the would-be appellant chooses to characterize the

trial court’s decision.

- 12 -

Contextual indicators in rule 9.130 also cut against FHP’s textual argument.

The sovereign immunity subdivision conditions appealability on the trial court

having denied sovereign immunity based on a particular determination: that, “as a

matter of law,” a party is not entitled to sovereign immunity. By contrast, a

separate subdivision of rule 9.130 authorizes appeals of nonfinal orders that simply

“deny” injunctions. See Fla. R. App. P. 9.130(a)(3)(B). This textual distinction

supports looking for the trial court’s determination on the face of the order. If the

reason for the denial of sovereign immunity is controlling for purposes of

jurisdiction—if a simple denial is not enough—then the appellate court should be

able to identify that reason from the face of the order.

FHP’s interpretation of the sovereign immunity subdivision is also

inconsistent with the overall framework of rule 9.130. Interlocutory appeals of

nonfinal orders are the exception, not the rule. They happen on an expedited

briefing schedule. See Fla. R. App. P. 9.130(e) (allowing only fifteen days for

filing initial brief). Rule 9.130(d) explicitly prohibits transmitting the record to the

appellate court unless ordered. Given these provisions, we cannot interpret the

sovereign immunity subdivision as conditioning the appellate court’s jurisdiction

on a review of the entire record in potentially every case. In fact, FHP’s

interpretation of the rule does not even separate the determination of jurisdiction

from the underlying merits of whether the party is entitled to sovereign immunity

- 13 -

at all. This conflation of the jurisdictional and merits inquiries is inconsistent with

the text and structure of the sovereign immunity subdivision.

Policy. Finally, FHP argues that its interpretation is most consistent with the

sovereign immunity subdivision’s purpose and with sound public policy.

Specifically, FHP claims that interpreting the sovereign immunity subdivision the

way we do diminishes the value of sovereign immunity, exalts form over

substance, and leads to arbitrary and indefensible results. We acknowledge that

some of FHP’s policy-based criticisms have merit. And we agree with FHP’s

claims about the important societal interests underlying sovereign immunity.

Every wrongly denied claim of sovereign immunity prolongs unnecessary

litigation and siphons resources from the government entity’s core mission.

We particularly agree with FHP that an erroneous denial of sovereign

immunity causes injury that cannot be remedied on appeal. In Florida, sovereign

immunity is both an immunity from liability and an immunity from suit. Some

courts have read our opinion in Dep’t of Educ. v. Roe, 679 So. 2d 756 (Fla. 1996),

as holding that sovereign immunity is immunity only from liability. See, e.g.,

Parker v. Am. Traffic Solutions, Inc., 835 F.3d 1363, 1368 (11th Cir. 2016). But

that is an overreading of Roe’s observation that “the benefit of immunity from

liability, should the state ultimately prevail on the sovereign immunity issue, will

not be lost simply because review must wait until after final judgment.” Id. at 759.

- 14 -

Nowhere in Roe did this Court explicitly characterize sovereign immunity as only

an immunity from liability.

The correct understanding of sovereign immunity as including immunity

from suit is set out in this Court’s opinion in Wallace v. Dean, 3 So. 3d 1035 (Fla.

2009). There we “reaffirm[ed] that, in Florida, ‘[g]overnmental immunity derives

entirely from the separation of powers.’ ” Id. at 1045 (quoting Henderson v.

Bowden, 737 So. 2d 532, 538 (Fla. 1999)). We explained that the sovereign

immunity inquiry consists of “whether the governmental entity remains

sovereignly immune from suit notwithstanding the legislative waiver present in

section 768.28, Florida Statutes.” Id. at 1044 (emphasis added). We said that

“sovereign immunity may shield the government from an action in its courts.” Id.

And we observed that “the presence of sovereign immunity does not render the

State’s actions nontortious (it simply means that the State has not consented to suit

in its courts with regard to certain claims).” Id. at 1045. Sovereign immunity in

Florida includes immunity from suit.

We also agree with FHP that, precisely because sovereign immunity

includes immunity from suit, entitlement to sovereign immunity should be

established as early in the litigation as possible. That is especially true in light of

the separation of powers principles that animate the doctrine of sovereign

immunity. Here we note that, in Wallace v. Dean, we explained the distinction in

- 15 -

governmental liability cases between “duty analysis” and the “later inquiry”

whether the government remains sovereignly immune even where a legal duty has

been established. Id. at 1044-45. Courts should not take our Dean analysis

literally to mean that, when presented with a motion for summary judgment

asserting entitlement to sovereign immunity, a court cannot address sovereign

immunity if there are outstanding disputes about the existence of a duty of care.

On the contrary, courts should determine entitlement to sovereign immunity as

early as the record permits.1

Nonetheless, policy considerations and broad statements of purpose cannot

trump the text of the rule. This case ultimately is not about the important ends

furthered by the sovereign immunity subdivision; it is about the particular means

that are embodied in the rule as written. See, e.g., Freeman v. Quicken Loans, Inc.,

566 U.S. 624, 637 (2012) (statutes pursue their purposes by particular means). The

remedy for the ills that FHP has identified is not to adopt a strained interpretation

of the rule, but to change it.

AMENDMENTS TO RULE 9.130

The sovereign immunity subdivision in its current form insufficiently

protects the public and governmental interests served by sovereign immunity.

1. To be clear, we do not require that the trial court conduct a pretrial

evidentiary hearing (with or without a jury) to resolve factual disputes relevant to

sovereign immunity.

- 16 -

Though the rule reflects an understandable concern for the limited resources of

appellate courts, it leaves too great a risk that erroneous denials of sovereign

immunity will go unreviewed until it is too late. In terms of form, the rule relies

too heavily on the trial court’s articulation of what it has decided. And in terms of

substance, the rule is overly deferential to the trial court’s decision whether any

identified factual disputes are actually material to a party’s entitlement to sovereign

immunity. That is the difficult and broadly important question at the heart of many

governmental liability cases, and it is one where an appellate court’s comparative

expertise is particularly great.

In a separate opinion that will be issued together with our decision in this

case, In re Amendments to Fla. Rule of Appellate Procedure 9.130, No. SC19-1734

(Fla. Jan 23, 2020), we therefore amend rule 9.130 to expand the availability of

appellate review of nonfinal orders denying sovereign immunity. We also make

corresponding amendments to the rule 9.130 subdivisions governing immunity in

civil rights claims arising under federal law and immunity under section 768.28(9),

Florida Statutes. Those are immunities from suit that protect interests similar to

the ones underlying sovereign immunity, and they too are under protected by the

existing text of rule 9.130. See Tucker v. Resha, 648 So. 2d 1187, 1189 (Fla. 1994)

(“[T]he qualified immunity of public officials involves ‘immunity from suit rather

than a mere defense to liability.’ ”) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526

- 17 -

(1985)); Keck v. Eminisor, 104 So. 3d 359, 366 (Fla. 2012) (recognizing that

section 768.28(9)(a) protects against “even being named as a defendant”).

CONCLUSION

Having answered no to the certified question, we approve the decision of the

First District. Our decision is without prejudice to FHP to argue sovereign

immunity to the trial court pursuant to this opinion and, if necessary, to seek

interlocutory review under the new version of rule 9.130.

It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, and LAWSON, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,

IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal – Direct

Conflict of Decisions/Certified Great Public Importance

First District - Case No. 1D16-3940

(Alachua County)

Ashley Moody, Attorney General, Britt Thomas, Chief Assistant Attorney General,

Amit Agarwal, Solicitor General, and Christopher J. Baum, Deputy Solicitor

General, Tallahassee, Florida,

for Petitioner

Jack J. Fine, Julie Aleve Fine, and Melissa S. Morris of Fine, Farkash &

Parlapiano, P.A., Gainesville, Florida,

for Respondent

- 18 -

Edward G. Guedes and Eric S. Kay of Weiss Serota Helfman Cole & Bierman,

P.L., Coral Gables, Florida,

for Amici Curiae Florida League of Cities and City of Boca Raton

Frances Guasch De La Guardia of Holland & Knight, LLP, Miami, Florida; and

Miriam Soler Ramos, City Attorney, Coral Gables, Florida,

for Amicus Curiae City of Coral Gables

- 19 -