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February 24, 2017 by admin

Appeals — Non-final order — Jurisdiction — Sovereign immunity — Appeal dismissed for lack of jurisdiction because the order on appeal makes no finding as a matter of law with regard to defendant’s entitlement to sovereign immunity

42
Fla. L. Weekly D414a
Top of Form

Appeals
— Non-final order — Jurisdiction — Sovereign immunity — Appeal dismissed
for lack of jurisdiction because, although rules of appellate procedure
authorize appeals of non-final orders that determine, as a matter of law, that
a party is not entitled to sovereign immunity, the order on appeal makes no
finding as a matter of law with regard to defendant’s entitlement to sovereign
immunity, and instead simply determines based on the four corners of the
complaint that the matter may move forward on the allegations

EAGLE
ARTS ACADEMY, INC., Appellant, vs. TRI-CITY ELECTRIC CO., INC., Appellee. 3rd
District. Case No. 3D16-928. L.T. Case No. 15-24559. Opinion filed February 15,
2017. An appeal from a non-final order from the Circuit Court for Miami-Dade
County, Jose M. Rodriguez, Judge. Counsel: Weiss, Handler & Cornwell, P.A.
and William J. Cornwell and Seth A. Kolton (Boca Raton), for appellant. Elder
& Lewis, P.A. and Kerry H. Lewis and David B. Williams, for appellee.

(Before
SUAREZ, C.J., and LAGOA and SALTER, JJ.)

(SUAREZ,
C.J.) Eagle Arts Academy [“EAA”] appeals from a non-final order summarily
denying its motion to dismiss the complaint against it by Tri-County Electric
Company, Inc. We dismiss the appeal for lack of jurisdiction.

Although
Florida Rule of Appellate Procedure 9.130(a)(3)(C)(xi)1 authorizes appeals of non-final
orders that determine, as a matter of law, that a party is not entitled
to sovereign immunity, the order on appeal makes no explicit or implicit
finding as a matter of law that EAA is not entitled to sovereign immunity. Compare
Hastings v. Demming, 694 So. 2d 718 (Fla. 1997) (holding that a final
order denying summary judgment on a claim of workers’ compensation immunity is
not appealable unless the trial court order specifically states that, as a
matter of law, such a defense is not available to a party); Taival v.
Barrett
, 2016 WL 3866113 (Fla. 5th DCA July 2015) (“[A]n order that simply
denies the defendant’s motion [for summary judgment], but does not determine as
a matter of law that summary judgment is improper, is not appealable.”). The
order summarily denying the motion to dismiss and requiring the defendant EAA
to answer is simply and correctly the trial court’s determination that based on
the four corners of the Complaint the matter may move forward on the
allegations. See Lewis v. Barnett Bank of S. Fla., N.A., 604 So.
2d 937, 938 (Fla. 3d DCA 1992) (holding that on a motion to dismiss, the trial
court is necessarily confined to the well-pled facts alleged in the four
corners of the complaint is not authorized to consider any other facts); Barbado
v. Green & Murphy, P.A.
, 758 So. 2d 1173, 1174 (Fla. 4th DCA 2000)
(holding a motion to dismiss tests the legal sufficiency of the complaint and a
court may not go beyond the four corners of the complaint in considering the
legal sufficiency of the allegations).

Dismissed.

__________________

1In
re Amendments to Florida Rule of Appellate Procedure 9.130
,
151 So. 3d 1217 (Fla. 2014).

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*

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