42
Fla. L. Weekly D2063aTop of Form

Torts
— Counties — Sovereign immunity — Denial — Appeals — Because the trial
court did not determine that, as a matter of law, county was not entitled to
sovereign immunity or immunity under section 768.28(9), Florida Statutes, the
county was not authorized to appeal trial court’s order denying county’s motion
for summary judgment based on sovereign immunity — Appeal dismissed as one
taken from a nonfinal, nonappealable order — Extensive discussion of court
decisions construing rule 9.130 in the context of appeals from orders regarding
workers’ compensation immunity — Scope of district court’s limited authority
under rule 9.130(a)(3)(xi) is to review whether trial court properly determined
that, as matter of law, a party is not entitled to sovereign immunity

MIAMI-DADE COUNTY, Appellant, v.
NOEL POZOS, Appellee. 3rd District. Case No. 3D15-2167. L.T. Case No. 14-24237.
February 15, 2017. An Appeal from a non-final order from the Circuit Court for
Miami-Dade County, William L. Thomas, Judge. Counsel: Abigail Price-Williams,
Miami-Dade County Attorney, and Eric K. Gressman, Assistant County Attorney,
for appellant. Beckham & Beckham, P.A., and Robert J. Beckham, Jr., and
Pamela Beckham, for appellee.

(Before SUAREZ, C.J., and ROTHENBERG
and EMAS, JJ.)

CORRECTED
OPINION

[Original Opinion at 42 Fla. L. Weekly D418a]

(EMAS, J.)

INTRODUCTION

Noel Pozos, the plaintiff below and
the appellee here, filed a negligent security action against Miami-Dade County,
seeking damages for injuries he sustained as a result of being shot by an
unidentified assailant while attending a party at Benito Juarez Park in Miami.
The one-count complaint alleged, inter alia, that Miami-Dade County owned and
operated the park; that Pozos was an invitee on the premises when he was shot;
that the County owed a duty to provide reasonable security; and that the County
breached that duty, resulting in injury and damages.

The County filed a motion for
summary judgment, asserting that sovereign immunity barred Pozos’ action. After
conducting an evidentiary hearing, the trial court entered an unelaborated
order which stated merely that “the motion for summary judgment is denied.” The
County has appealed this order. Because the trial court did not determine that,
as a matter of law, the County was not entitled to sovereign immunity or
immunity under section 768.28(9), Florida Statutes, the County was not
authorized to appeal the trial court’s order, and we therefore dismiss this
appeal as one taken from a nonfinal, nonappealable order.

ANALYSIS

As a general rule, a party may not
seek interlocutory review by appeal of a nonfinal order, including an order
denying a motion for summary judgment. See, e.g., Mandico v. Taos
Const., Inc., 605 So. 2d 850, 851 n. 2 (Fla. 1992); State, Dep’t of
Envtl. Prot. v. Garcia, 99 So. 3d 539 (Fla. 3d DCA 2011); Castillo v.
Deutsche Bank Nat. Trust Co., 57 So. 3d 965 (Fla. 3d DCA 2011); Taggart
v. Morgan, 943 So. 2d 250 (Fla. 3d DCA 2006). However, Article V, section
4(b) of the Florida Constitution authorizes district courts of appeal to review
interlocutory orders of the circuit court “to the extent provided by rules
adopted by the supreme court.” The Florida Supreme Court has by rule authorized
interlocutory appeals from a limited and narrowly-defined class of nonfinal
orders. Interlocutory appeals of nonfinal orders in civil cases are restricted
to those enumerated in Florida Rule of Appellate Procedure 9.130(a)(3). Keck
v. Eminisor, 104 So. 3d 359 (Fla. 2012).1

Rule 9.130(a)(3)(C) provides:

(3) Appeals
to the district courts of appeal of non-final orders are limited to those that

. . .

(C) determine

(i) the
jurisdiction of the person;

(ii) the
right to immediate possession of property, including but not limited to orders
that grant, modify, dissolve or refuse to grant, modify, or dissolve writs of
replevin, garnishment, or attachment;

(iii) in
family law matters:

a. the right
to immediate monetary relief;

b. the
rights or obligations of a party regarding child custody or time-sharing under
a parenting plan; or

c. that a
marital agreement is invalid in its entirety;

(iv) the
entitlement of a party to arbitration, or to an appraisal under an insurance
policy;

(v) that,
as a matter of law, a party is not entitled to workers’ compensation immunity;

(vi)
whether to certify a class;

(vii)
that, as a matter of law, a party is not entitled to absolute or qualified
immunity in a civil rights claim arising under federal law;

(viii)
that a governmental entity has taken action that has inordinately burdened real
property within the meaning of section 70.001(6)(a), Florida Statutes;

(ix) the
issue of forum non conveniens;

(x)
that, as a matter of law, a party is not entitled to immunity under section
768.28(9), Florida Statutes; or

(xi)
that, as a matter of law, a party is not entitled to sovereign immunity.

(Emphasis added).

This rule, and its limited
categories of orders subject to interlocutory review, must be narrowly
construed. Walker v. Fla. Gas Transmission Co., LLC, 134 So. 3d 571
(Fla. 1st DCA 2014). In Travelers Insurance Co. v. Bruns, 443 So. 2d
959, 961 (Fla. 1984), the Florida Supreme Court discussed the underlying
purpose for the then-recent amendment to rule 9.130:

The thrust
of rule 9.130 is to restrict the number of appealable nonfinal orders. The
theory underlying the more restrictive rule is that appellate review of
nonfinal judgments serves to waste court resources and needlessly delays final
judgment.

And as the First District recognized
in Walker, 134 So. 3d at 572:

Our
supreme court has “carefully created” each category of non-final order subject
to interlocutory review after input and weighing various policy considerations,
“such as increased appellate workload and concomitant delay in . . .
resolution.” Citizens Prop. Ins. Corp. v. San Perdido Ass’n, Inc., 104
So.3d 344, 348 (Fla.2012). Accordingly, the categories of non-final orders
subject to interlocutory appeal are narrowly construed. Travelers Ins. Co.
v. Bruns, 443 So.2d 959, 961 (Fla.1984) (“The thrust of rule 9.130 is to
restrict the number of appealable nonfinal orders.”)

The relevant subdivision of rule
9.130 authorizes an appeal from a nonfinal order which determines that a party,
as a matter of law, is not entitled to sovereign immunity, or is not entitled
to immunity under section 768.28(9). Fla. R. App. P. 9.130(a)(3)(C)(x), (xi).

The trial court in this case did not
declare, make a finding, or otherwise determine that, as a matter of law, the
County was not entitled to sovereign immunity or immunity under section
768.28(9). In fact, and as the dissent acknowledges, the trial court did not
make any findings at all. The trial court’s order merely “denied” the
motion for summary judgment, and contained no explanation, findings of fact, or
conclusions of law. Construing the rule narrowly and applying the relevant case
law, we are compelled to conclude that this court is without jurisdiction to
review this nonfinal order.

Some history is necessary for proper
context. In 2012, the Florida Supreme Court addressed the following certified
question of great public importance:

Should
review of the denial of a motion for summary judgment based on a claim of
individual immunity under section 768.28(9)(a), Florida Statutes, await the
entry of a final judgment in the trial court to the extent that the order turns
on an issue of law?

Keck, 104 So. 3d at 360-61.

The Court answered the question in
the negative, and requested that the Florida Bar Appellate Court Rules
Committee “submit a proposed narrow amendment to rule 9.130 addressing the rule
change mandated by this decision.” Id. at 366. In compliance with the
Court’s request, the Appellate Court Rules Committee submitted a proposed
amendment to rule 9.130(a)(3), which was adopted by the Florida Supreme Court
in 2014. In re Amendments to Florida Rule of Appellate Procedure 9.130,
151 So. 3d 1217 (Fla. 2014). The amendment authorized appeals from nonfinal
orders which determine that a party, as a matter of law, is not entitled to
immunity under section 768.28(9), or is not entitled to sovereign immunity.
Fla. R. App. P. 9.130(a)(3)(C)(x), (xi).

Given the recency of these
amendments, there is virtually no case law construing or applying these
provisions.2 However, there is relevant case law
construing identical language from an existing provision of rule 9.130,
authorizing an appeal from a nonfinal order “that determines. . . that, as a
matter of law, a party is not entitled to workers’ compensation immunity.” Fla.
R. App. P. 9.130(a)(3)(C)(v). Case law interpreting this provision holds uniformly
that an order denying summary judgment on the basis of workers’ compensation
immunity is not appealable under rule 9.130 unless the trial court’s order expressly
provides that it is making a determination that, as a matter of law, the party
is not entitled to immunity.

For example, in Hastings v.
Demming, 694 So. 2d 718 (Fla. 1997), the Florida Supreme Court set forth
what was required to render such a nonfinal order appealable:

Nonfinal
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.

Id. at 720 (emphasis added).

The Supreme Court noted that a prior
version of this rule3 was susceptible to differing
interpretations, resulting in conflicting decisions among the district courts.
In 1996, the rule was amended (to its present language) to settle the conflict
among the district courts, eliminate confusion in application of the rule, and
restore the narrow scope of the rule. As the Supreme Court would later explain
in Reeves v. Fleetwood Homes of Florida, Inc., 889 So. 2d 812 (Fla.
2004):

The
original version of the amendment [to rule 9.130(a)(3)(C)(vi)] read: “Review of
non-final orders of lower tribunals is limited to those which . . . determine .
. . that a party is not entitled to workers’ compensation immunity as a matter
of law.” In 1996, the section was amended by moving the phrase “as a matter of
law” from the end of the provision to the beginning. As explained in the
committee notes, this amendment was made to clarify “that this subdivision 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.”
Fla. R. App. P. 9.130 (Committee Notes, 1996 Amendment). The amendment occurred
due to a number of decisions from the district courts of appeal that had
broadly interpreted the rule and had allowed review of nonfinal orders denying
summary judgment when the denial was the result of the existence of disputed
facts.

Id. at 819 (internal citations and footnote omitted).

In Reeves, the Florida
Supreme Court reaffirmed its holding in Hastings, requiring that there
be a “determination, on the face of the order” that the defendant, as a matter
of law, is precluded from asserting workers’ compensation immunity. Id.
at 821.

The Florida Supreme Court’s holding
in Hastings — that nonfinal 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 — has been faithfully followed by all the district
courts, including this court. See, e.g., Reeves, 889 at So. 2d at
821 (observing that “[t]he lower courts of Florida have strictly adhered to
this Court’s decisions in Hastings and [Florida Department of
Corrections v.] Culver, [716 So. 2d 768 (Fla. 1998)] 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 worker’s compensation
immunity defense at trial”); Amcon Builders, Inc. v. Pardo, 120 So. 3d
1254 (Fla. 3d DCA 2013); Coastal Bldg. Maint., Inc. v. Priegues, 22 So.
3d 148 (Fla. 3d DCA 2009); Southern Pan Servs. Co. v. Rodriguez, 771 So.
2d 612 (Fla. 3d DCA 2000); Peoplease Corp. v. Schroeder, 57 So. 3d 910
(Fla. 1st DCA 2011); Footstar Corp. v. Doe, 932 So. 2d 1272 (Fla. 2d DCA
2006); Rinker Materials Corp. v. Holmes, 697 So. 2d 558 (Fla. 4th DCA
1997).

All of this background is pertinent
because the Florida Supreme Court, in adding subdivisions (x) and (xi) to the
list of appealable nonfinal orders, adopted the identical language it approved
in its 1996 amendment to nonfinal orders regarding entitlement to workers’ compensation
immunity (subdivision (v)). The Florida Supreme Court’s adoption of this
identical language cannot be regarded as accidental. When the Supreme Court
added subdivisions (x) and (xi) to the list of nonappealable orders, it was
obviously aware of the language it had previously utilized in authorizing
appeals from workers’ compensation immunity orders. The only logical conclusion
is that, by using the identical language of the existing rule, and knowing how
that language had been construed by Florida courts, the Florida Supreme Court
intended that these two new provisions would be construed and applied in like
fashion. See Charter Sch. USA, Inc. v. John Doe No. 93, 152 So.
3d 657, 659 n. 2 (Fla. 3d DCA 2014) (recognizing that court rules are construed
using the same principles of construction that apply to statutes). See also
Dickinson v. Davis, 224 So. 2d 262 (Fla. 1969) (holding that the
Legislature is presumed to know the existing law when a statute is enacted, and
in reenacting a statute, the Legislature is presumed to be aware of
constructions placed upon it by the court); Fla. Dep’t of Children &
Families v. F.L., 880 So. 2d 602, 609 (Fla. 2004)(holding that “[t]he
Legislature is presumed to know the judicial constructions of a law when
amending that law, and the Legislature is presumed to have adopted prior
judicial constructions of a law unless a contrary intention is expressed”).

CONCLUSION

Applying the decisions of the
Florida Supreme Court, and our own court, in construing rule 9.130 in the context
of appeals from orders regarding workers’ compensation immunity,4 we conclude that the County is not
authorized to appeal, and this court is without jurisdiction to review, the
trial court’s order denying the motion for summary judgment.

The scope of our limited authority
under rule 9.130(a)(3)(xi) is to review whether the trial court properly
“determine[d]. . . that, as a matter of law, a party is not entitled to
sovereign immunity.” This court does not have the authority to determine
in the first instance whether, as a matter of law, the County is
entitled to sovereign immunity. But that is, in essence, what the dissenting
opinion proposes to do, given the complete absence of any indication in the
order below that the trial court in fact determined that, as a matter of law,
the County was not entitled to sovereign immunity or immunity under section
768.28(9).5

It may well be that the trial court
denied the motion for summary judgment for reasons distinct from the merits of
the immunity question, including the existence of disputed issues of material
fact or ongoing discovery that would render summary judgment premature at this
juncture. The parties could have, but did not, seek clarification or otherwise
request that the trial court expressly state in its order whether it determined
that, as a matter of law, the County was not entitled to sovereign immunity or
immunity under section 768.28(9). Failing that, we are left in the untenable
position of trying to ascertain the trial court’s rationale. This, however, is
not our role, and we may not presume or infer jurisdiction under these
circumstances.

Appeal dismissed as one taken from a
nonfinal, nonappealable order. (SUAREZ, C.J., concurs.)

__________________

1We note parenthetically that a party
may seek certiorari review of a nonfinal order not otherwise appealable under
rule 9.130(a)(3). See Fla. R. App. P. 9.100(a); 9.130(a)(1).

2The only
reported cases construing these newly-adopted amendments are Citizens
Property Insurance Corp. v. Sosa, 41 Fla. L. Weekly D2660 (Fla. 3d DCA Nov.
30, 2016) and Taival v. Barrett, 204 So. 3d 486 (Fla. 5th DCA 2016),
both released after oral argument was held in the instant case.

In Sosa, another panel of our
court rejected the argument that the order under review was appealable as a
nonfinal order that determined Citizens was not entitled to sovereign immunity:
“Here, the trial court’s order fails to state that, as a matter of law,
sovereign immunity is not available to Citizens. As such, the trial court’s
order is not appealable pursuant to Rule 9.130(a)(3)(C)(xi).” Sosa, 41
Fla. L. Weekly D2600.

In Taival, the defendant
filed a motion for summary judgment, asserting that she was sovereignly immune
from suit under section 768.28(9). The trial court entered an order that simply
denied the motion. The Fifth District dismissed the appeal for lack of
jurisdiction, holding: “As we have previously explained, an 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.” Taival,
204 So. 3d at 487 (citations omitted).

3The
pre-1996 version of rule 9.130(a)(3)(C)(v)(which at the time was numbered as
(vi)) provided:

(3) Review
of non-final orders of lower tribunals is limited to those that

. . . .

(C)
determine

. . . .

(vi) that
a party is not entitled to workers’ compensation immunity as a matter of law.

4Additional
support can be found in cases construing the scope of an appeal from a nonfinal
order under rule 9.130(a)(3)(C)(vii), authorizing an appeal from a nonfinal
order which “determines . . . that, as a matter of law, a party is not entitled
to absolute or qualified immunity in a civil rights claim arising under federal
law.” Consistent with cases construing the workers’ compensation immunity
provision, courts have held that the order is appealable only if it expressly
determines that, as a matter of law, the party is not entitled to absolute or
qualified immunity. See, e.g., Tindel v. Kessler, 772 So. 2d 599
(Fla. 5th DCA 2000); Vermette v. Ludwig, 707 So. 2d 742 (Fla. 2d DCA
1997).

5The
dissent opines, at *33: “I recognize that unless it can be determined as a
matter of law that either the County had no duty or it is immune from suit,
this Court lacks jurisdiction to review the trial court’s order. . . .”
(Emphasis added.) This statement erroneously implies that either the trial
court or this court can make such a determination. However, rule
9.130(a)(3) requires the trial court to make such a determination. This
court’s duty (and the scope of our authority under the rule) is to review the
propriety of the trial court’s determination. In the absence of such a
determination by the trial court, this court is without jurisdiction to review
this nonfinal order, and most certainly without authority to make the
determination on our own accord.

__________________

(ROTHENBERG, J.) Noel Pozos seeks
damages for injuries he sustained as a result of being shot by an unidentified
assailant while at a teenager’s birthday party at Benito Juarez Park (“the
Park”) in Homestead, Florida. The one-count complaint alleges that Miami-Dade
County (“the County”) owned, controlled, maintained, and operated the park;
Pozos was an invitee on the premises when he was shot; the County assumed the
duty to provide reasonable safety to Pozos; and the County breached that duty
by failing to provide reasonable safety measures and security personnel to
control, patrol, and guard against dangerous activity and/or to warn Pozos and
others of the potential danger.

The County filed a motion for
summary judgment asserting that: (1) the County did not have a duty to prevent
the misconduct of third persons or to enforce the law for the benefit of
specific individuals; and (2) sovereign immunity bars this action. After
conducting an evidentiary hearing, the trial court denied the County’s motion
for summary judgment. Because the evidence clearly establishes that sovereign
immunity bars this action as a matter of law, the trial court was required to
grant the County’s motion for summary judgment. I, therefore, respectfully
dissent from the majority opinion affirming the trial court’s order denying the
County’s motion for summary judgment.

JURISDICTION

In Rodriguez v. Miami-Dade County,
117 So. 3d 400, 402 (Fla. 2013), the Florida Supreme Court found that the
appellate courts lacked jurisdiction to review, by a petition for writ of
certiorari, a trial court’s order denying a motion to dismiss on sovereign
immunity grounds where the governmental entity claiming the immunity has failed
to demonstrate irreparable harm and where there exists material issues in
dispute. The Court also reiterated its position that irreparable harm is not
shown simply because the governmental entity must continue to litigate the matter
despite its claim of immunity. Id. at 405. A majority of the Court,
however, requested that the Florida Bar Appellate Court Rules Committee (“the
Rules Committee”) propose an amendment to Florida Rule of Appellate Procedure
9.130 to expand the list of appealable non-final orders to include denials of
any claim of immunity where the question presented is solely a question of law.
Id. at 405. In response, the Rules Committee proposed, and the Florida
Supreme Court adopted, rule 9.130(a)(3)(c)(xi), which now permits such appeals.
We, therefore, have jurisdiction to entertain this appeal, as the question
presented is whether the County is immune from suit as a matter of law.

ANALYSIS

Based on my review of the trial
court’s comments during the evidentiary hearing conducted by the trial court,
it is necessary to reiterate that when addressing the issue of governmental
tort liability under Florida law, the court’s “duty analysis is conceptually
distinct from any later inquiry regarding whether the governmental entity
remains sovereignly immune from suit notwithstanding the legislative waiver
present in section 768.28, Florida Statutes.” Wallace v. Dean, 3 So. 3d
1035, 1044 (Fla. 2009) (footnote omitted). The analysis, therefore, consists of
two-prongs. “If no duty of care is owed with respect to alleged negligent
conduct, then there is no governmental liability, and the question of whether
the sovereign should be immune from suit need not be reached.” Pollock v.
Fla. Dep’t of Highway Patrol, 882 So. 2d 928, 932 (Fla. 2004); see also
Breaux v. City of Miami Beach, 899 So. 2d 1059, 1063 (Fla. 2005) (noting
that “[i]n cases involving governmental tort liability, we generally determine
whether the defendant owes a duty of care to the plaintiff before we address
whether the governmental entity is immune from liability”); Clay Elec.
Coop., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003) (identifying
“duty of care” as the first required element of a negligence claim); Henderson
v. Bowden, 737 So. 2d 532, 535 (Fla. 1999) (“A threshold matter is whether
the [defendant] had a duty to act with care toward the decedents . . . .”).
“[T]he absence of a duty of care between the defendant and the plaintiff
results in a lack of liability, not application of immunity from suit.” Wallace,
3 So. 3d at 1044 (emphasis in original). In other words, the absence of a duty
of care renders the defendant nonliable as a matter of law, and the trial court
does not need to address whether the governmental entity is sovereignly immune
from suit. Wallace, 3 So. 3d at 1045.

However, it is important to remember
that the analysis is a two-prong analysis, and thus, even where the plaintiff
has established the existence of the governmental entity’s duty of care towards
the plaintiff, sovereign immunity may still shield the government from legal
action and liability. Wallace, 3 So. 3d at 1044; see also Henderson,
737 So. 2d at 535 (“Assuming a duty is owed, we must then determine whether
sovereign immunity bars an action for an alleged breach of that duty.”); Kaisner
v. Kolb, 543 So. 2d 732, 734 (Fla. 1989) (“[C]onceptually, the question of
the applicability of . . . immunity does not even arise until it is determined
that a defendant otherwise owes a duty of care to the plaintiff and thus would
be liable in the absence of such immunity.”) (quoting Williams v. State,
664 P.2d 137, 139 (1983)).

Unfortunately, the trial court in
the instant case did not appreciate the need to perform this two-step analysis,
and either focused solely on the duty prong or conflated the two separate
prongs of the analysis. See Wallace, 3 So. 3d at 1045 (noting
that in Miami-Dade County v. Fente, 949 So. 2d 1101, 1103-05 (Fla. 3d
DCA 2007), and in Seguine v. City of Miami, 627 So. 2d 14, 17 (Fla. 3d
DCA 1993), this Court conflated the issue of whether the government owed a duty
of care to the plaintiff with the separate and distinct issue of whether the
doctrine of sovereign immunity shields the government from tort liability); see
also City of Belle Glade v. Woodson, 731 So. 2d 797 (Fla. 4th
DCA1999) (similarly conflating duty of care with sovereign immunity). Although
the trial court’s order reflects a failure to perform this two-prong analysis,
the record demonstrates that the County established under the second prong of
the analysis that as a matter of law it is sovereignly immune from suit. I
would therefore reverse the trial court’s order.

A. Duty of Care

Under the two-prong analysis, the
County is immune from liability if the County establishes either that it
owed Pozos no duty of care or the County demonstrates that it is
sovereignly immune from suit. I will, therefore, address each prong separately
in this dissent. In Trianon Park Condominium Ass’n v. City of Hialeah,
468 So. 2d 912 (Fla. 1985), the Florida Supreme Court issued a comprehensive
opinion addressing the duty of care prong of the analysis, and articulated a “
‘rough,’ general guide concerning the type of activities that either support or
fail to support the recognition of a duty of care between a governmental actor
and an alleged tort victim.” Wallace, 3 So. 3d at 1047. To summarize,
the Trianon Court made the following findings.

1. First,
“for there to be governmental tort liability, there must be either an
underlying common law or statutory duty of care with respect to the alleged
negligent conduct. For certain basic judgmental or discretionary governmental
functions, there has never been an applicable duty of care.” Trianon,
468 So. 2d at 917 (internal citations omitted).

2. Second,
“the enactment of the statute waiving sovereign immunity did not establish any
new duty of care for governmental entities.” Id. Thus, governmental
entities have the identical duties of care as private persons do. Id.

3. Third,
“there is not now, nor has there ever been any common law duty for either a
private person or a governmental entity to enforce the law for the benefit of
an individual or a specific group of individuals. In addition, there is no
common law duty to prevent the misconduct of third persons.” Id. at 918

4. Fourth,
“under the constitutional doctrine of separation of powers, the judicial branch
must not interfere with the discretionary functions of the legislative or
executive branches of government absent a violation of constitutional or
statutory rights.” Id. at 918. Specifically, the Court held that
“[j]udicial intervention through private tort suits into the realm of
discretionary decisions relating to basic governmental functions would require
the judicial branch to second guess the political and police power decisions of
the other branches of government and would violate the separation of powers
doctrine.” Id. at 918.

5. Lastly,
“certain discretionary functions of government are inherent in the act of
governing and are immune from suit. It is ‘the nature of the conduct, rather
than the status of the actor,’ that determines whether the function is the type
of discretionary function which is, by its nature, immune from tort liability.”
Id. at 918 (internal citations omitted).

The Florida Supreme Court’s finding
that “certain discretionary functions of government are inherent in the act of
governing and are immune from suit” is, perhaps, the most difficult finding to
apply, especially since the demarcation between discretionary and other
executive or administrative decisions must be determined on a case-by-case
basis. Trianon, 468 So. 2d at 918. Thus, the Court set forth a list of
criteria to assist the courts when determining whether the governmental conduct
eminates from the discretionary planning or judgment phase of government, which
is not subject to tort liability, or during the operational phase of
government. If the governmental conduct or decision was operational, tort
liability may attach if there exists either a common law or statutory
duty of care and there exists no sovereign immunity for the governmental
conduct or decision. Id.

The four categories regarding
governmental functions are as follows:

I. Legislative,
Permitting, Licensing, and Executive Officer Functions.

Clearly,
the legislature, commissions, boards, city councils, and executive officers, by
their enactment of, or failure to enact, laws or regulations, or by their
issuance of, or refusal to issue, licenses, permits, variances, or directives,
are acting pursuant to basic governmental functions performed by the
legislative or executive branches of government. The judicial branch has no
authority to interfere with the conduct of those functions unless they violate
a constitutional or statutory provision. There has never been a common law duty
establishing a duty of care with regard to how these various governmental
bodies or officials should carry out these functions. These actions are
inherent in the act of governing.

II. Enforcement
of Laws and Protection of the Public Safety.

How a
governmental entity, through its officials and employees, exercises its
discretionary power to enforce compliance with the laws duly enacted by a
governmental body is a matter of governance, for which there never has been a
common law duty of care. This discretionary power to enforce compliance with
the law, as well as the authority to protect the public safety, is most notably
reflected in the discretionary power given to judges, prosecutors, arresting
officers, and other law enforcement officials, as well as the discretionary
authority given fire protection agencies to suppress fires. This same
discretionary power to enforce compliance with the law is given to regulatory
officials . . . .

The lack
of a common law duty for exercising a discretionary police power function must,
however, be distinguished from existing common law duties of care applicable to
the same officials or employees in the operation of motor vehicles or the
handling of firearms during the course of their employment to enforce
compliance with the law. In these latter circumstances there always has been a
common law duty of care and the waiver of sovereign immunity now allows actions
against all governmental entities for violations of those duties of care.

III. Capital
Improvement and Property Control Functions.

As this
Court has made clear in prior cases, there is no liability for the failure of a
governmental entity to build, expand, or modernize capital improvements such as
buildings and roads. . . . On the other hand, once a governmental entity builds
or takes control of property or an improvement, it has the same common law duty
as a private person to properly maintain and operate the property.

IV. Providing
Professional, Educational, and General Services.

Providing
professional, educational, and general services for the health and welfare of
citizens is distinguishable from the discretionary power to enforce compliance
with laws passed under the police power of this state. These service
activities, such as medical and educational services, are performed by private
persons as well as governmental entities, and common law duties of care clearly
exist. Whether there are sufficient doctors provided to a state medical
facility may be a discretionary judgmental decision for which the governmental
entity would not be subject to tort liability. Malpractice in the rendering of
specific medical services, however, would clearly breach existing common law
duties and would render the governmental entity liable in tort.

Trianon, 468 So. 2d at 919-921 (italics in original; internal
citations omitted).

In Wallace, the Florida
Supreme Court explained that the activities listed in Category I pertain to the
public at large, and thus they do not support a duty of care towards individual
plaintiffs. Id. at 1047. The same is true for activities falling within
Category II, unless it can be shown that the governmental actor owed the
alleged tort victim a “special duty of care.” Id. at 1047-48. On the
other hand, Category III and IV activities generally may subject the government
to liability. Id. at 1048.

The law as it relates to the duty of
care prong when addressing the issue of governmental tort liability may,
therefore, be summarized as follows. To establish governmental tort liability,
there must be an underlying common law or statutory duty of care; there is no
common law duty to enforce the law for the benefit of individuals or groups of
individuals or to prevent the misconduct of third person; there is no duty of
care for certain basic judgmental or discretionary governmental functions
absent a special duty of care owed to the tort victim; and once the
governmental entity builds, improves, or takes control of property, it has the
same common law duty as a private person to properly maintain and operate the
property.

B. Sovereign Immunity

As stated earlier, even where a duty
is owed, sovereign immunity may bar an action for an alleged breach of that
duty, see Pollock 882 So. 2d at 932-33; Henderson, 737 So.
2d at 535; Kaisner, 543 So. 2d at 734, because in Florida, “governmental
immunity derives entirely from the doctrine of separation of powers, not from a
duty of care or from any statutory basis.” Kaisner, 543 So. 2d at 737.

When addressing the test for
determining when a governmental entity enjoys sovereign immunity, the Florida
Supreme Court held “that the separation-of-powers provision present in article
II, section 3 of the Florida Constitution requires that ‘certain
[quasi-legislative] policy-making, planning or judgmental governmental
functions cannot be the subject of traditional tort liability.’ ” Wallace,
3 So. 3d at 1053 (quoting Commercial Carrier Corp. v. Indian River Cnty.,
371 So. 2d 1010, 1020 (Fla. 1979)). On the other hand, decisions made at the
operational level — decisions or actions implementing policy, planning, or
judgmental governmental functions — generally do not enjoy sovereign immunity.
Commercial Carrier, 371 So. 2d at 1021. “Planning level functions are
generally interpreted to be those requiring basic policy decisions, while
operational level functions are those that implement policy.” Id.
(footnote omitted).

While nearly every endeavor involves
some level of discretion, it is the governmental quasi-legislative discretion
exercised at the policy-making or planning level which is protected from tort
liability. Wallace, 3 So. 3d at 1053; Yamuni, 529 So. 2d at 260.
Thus, in addition to the five basic principles identified by the Florida
Supreme Court in Trianon, which have been listed at the beginning of
this analysis, the Court recognized that “there were areas of government
activity where orthodox tort liability stops and the act of governing begins, .
. . as well as the distinct principle of law . . . which makes not actionable
in tort certain judgmental decisions of governmental authorities which are inherent
in the act of governing.” Trianon, 468 So. 2d at 918 (internal citations
and quotation marks omitted). Further, “certain discretionary governmental
functions remain immune from tort liability . . . because certain functions of
coordinate branches of government may not be subjected to scrutiny by judge or
jury as to the wisdom of their performance.” Id. (internal citations and
quotation marks omitted).

C. Applying the Law to the
Instant Case

The trial court’s order denying the
County’s motion for summary judgment provides this Court with absolutely no
guidance. The order does not contain the basis for the trial court’s ruling,
perform even a perfunctory analysis, indicate whether there were any material
factual issues in dispute or factual issues generally reserved for the trier of
fact, or specify which of the prong(s) of the analysis the County failed to
establish.

Because the duty of care prong
involves resolution of factual issues, which the trial court failed to address,
and the record reflects potential disputed material factual issues as to
whether the County owed Pozos a legal duty of care, my analysis is focused on
the sovereign immunity prong, which if established by the County as a matter of
law, required the grant of summary judgment in its favor. That is because even
if the trial court were to have found that the County owed Pozos a duty of care
or that there were material facts in dispute or facts that needed to be
resolved by the jury as to duty, if the County’s conduct, actions, or decisions
were as a result of its discretionary policy-making or planning function, then
it is sovereignly immune from suit as a matter of law.

The record reflects the following.
On August 24, 2012, Eli Salgado purchased a Miami-Dade County Park Foundation
membership for $149. This membership included a coupon book containing several
promotional items, including two tickets to the zoo, a 50% discount coupon for
golf, and a coupon for the use of a park shelter without payment of the
requisite rental fee. Along with Salgado’s membership and the coupon booklet,
Salgado was given a copy of the Park’s rules and regulations to be followed
when renting a facility at the Park. These rules contained a section regarding
when permits and off-duty officers are required and provided notice to Salgado
that it was his responsibility to obtain the correct permit(s) and to hire
off-duty police officers under certain circumstances. For example, these rules
provided that when a D.J., live music, or speakers are going to be used, the person
renting the facility or hosting the event at the Park must obtain a broadcast
permit and hire and pay for off-duty police officers. Depending on the type or
size of the party or event, other permits are required, and again, Salgado must
hire off-duty police officers to provide security for the event. Specifically,
the rules and regulations provided that if Salgado was expecting over a certain
number of guests, then he would be required to hire two off-duty police
officers and obtain a special events permit. The rules and regulations
additionally stated that the Park’s employees would not be responsible for
providing any of these items.

When Salgado rented a shelter at the
Park for his September 22, 2012 birthday party, he simply asked to rent the
shelter and used the free rental coupon contained in his membership coupon
booklet. He did not advise anyone that he was going to hire a D.J., and he did
not obtain any permits or hire any off-duty police officers. Instead, he
procured two private security officers to provide security at the party.

The only Park employee present for
this after-hours private party was Diogenes Martin, a part-time Park Service
Aide, whose responsibilities were to clean the restrooms and the Park before
and after an event and to keep the area clean and change the trash bags during
the event. Also present was a teenage volunteer who was helping Martin that
night. Victor Jenkins, the Goulds South Dade Zone Manager who is responsible
for managing seventeen parks for Miami-Dade County Parks and Recreation,
testified in his deposition that the County has only budgeted for twenty-seven
park security officers to service all of the recreational facilities throughout
the County. These officers are directed to mainly patrol the beaches and marinas
on the weekends. Because the County does not provide security at these private
parties and events, it requires the patron renting a park facility to contact
the police department and hire off-duty officers for certain events.

Martin testified in his deposition
that he performed his duties as required on the night of the party. He made
sure the restrooms and area were clean, the trash was properly disposed of, and
the trash bags were changed when the cans became full. He explained that
Salgado was celebrating his eighteenth birthday, and the party consisted of
mostly sixteen-to-eighteen-year-olds who were eating, dancing, and just having
a good time. Salgado’s parents were present, and there were also two large men
wearing “Security” T-shirts present who appeared to be patrolling the area and
providing security for the party. He did not see anyone using drugs, fighting,
or having a confrontation with anyone. Everything was calm and everyone seemed
to be having a good time when all of a sudden, at around 10:00 or 10:30 p.m.,
he heard shots fired. As soon as he realized that some of the kids had been
shot, he called 911 and then called his supervisor.

Inga Portilla, a Park Manager,
confirmed that Park Service Aides are only responsible for maintenance within
the Park. They do not provide security, do not check to see if the renter has
obtained the required permits, are not trained in crime prevention, and are not
authorized to “police” the area. She also confirmed that after Salgado paid his
membership fee, a booklet was sent to his house containing the rental coupon
and a copy of the Park’s rules and regulations. These rules and regulations are
also posted at the Park. Portilla explained that “once we rent the facility . .
. we don’t have anything to do with direct involvement of the parties,” and
that it was Salgado’s responsibility to follow the rules, obtain the necessary
permits, and hire off-duty police officers if he was having a party that
required off-duty police officers, as “[w]e are not responsible for the party.”

Pozos presented no evidence to
refute any of the above referenced evidence. The affidavit/statement provided
by Salgado, the renter and host of the party, does not refute the testimony of
the park employees or the physical evidence. Salgado did not dispute that he
had received a copy of the Park’s rules and regulations related to rentals of
the Park’s facilities. He merely states that when he rented the pavilion
he was not advised that he needed to hire off-duty officers and that he did
not recall if anyone had asked him how many people he expected would be
attending the party.

Therefore, the unrefuted evidence
supports the legal conclusion that the County made a discretionary
policy/planning decision to allow patrons of its parks to rent its facilities
for private parties or events. Relying on its legislative/permitting/licensing
authority, the County enacted certain rules and regulations governing the
rental and use of its parks and the park’s facilities. Based on the County’s
limited resources, it exercised its discretion to assign only twenty-seven
officers to the Parks and Recreation Department to service all of the parks,
beaches, and County-owned recreational areas located throughout the county and
to direct those officers to primarily patrol the public beaches and marinas on
the weekends, rather than directing them to patrol and monitor private parties
being held in public parks. The County, therefore, included certain
restrictions and requirements within its enacted rules and regulations and
rental agreements, which the party or event host was required to follow. Among
other things, these rules and regulations required the renter to go to the
police department and (1) obtain a broadcast permit if using a D.J., live
music, or sound equipment; (2) obtain a special event permit if over 200 guests
were expected to attend; and (3) hire off-duty police officers under each of
these scenarios. The rules and regulations and the rental agreement specified
that the County’s park employees would not be responsible for the failure to
meet any of these requirements.

When Salgado purchased his Park
membership, he was sent a copy of these rules and regulations. Salgado,
however, did not abide by these rules and regulations when he used his free
coupon to rent a pavilion for his birthday party. Although he had a D.J. and
sound equipment at the party, he did not obtain a broadcast permit or hire
off-duty police officers from the police department. Whether he was
additionally required to obtain a special event permit and hire off-duty police
officers based on the number of guests he expected to attend is unclear because
the evidence does not reflect whether Salgado expected so many people to attend
and whether there were more than 200 guests at the party. This issue is
nevertheless irrelevant because, based on Salgado’s use of a D.J. and sound
equipment, he was required to hire two off-duty police officers anyway.
However, instead of obtaining the necessary permit(s) and hiring off-duty
police officers, Salgado hired two private-duty security officers.

Whether Salgado’s failure to follow
the County’s rules and regulations was the proximate cause of the shooting
during his party is, however, not the issue before us. Setting aside the
question of whether the County even had the duty to protect Salgado’s invitees
against the unlawful conduct of a third party during Salgado’s party at the
Park, the County was sovereignly immune from tort liability as a matter of law.
As stated earlier, that is because if the County demonstrated that either
it did not owe the plaintiff a duty of care or the County’s decision,
omission, or conduct was as a result of its quasi-legislative discretionary
policy or planning decision, the County would be sovereignly immune from tort
liability. Wallace, 3 So. 3d at 1044; Henderson, 737 So. 2d at
535; Kaiser, 543 So. 2d at 734; Trianon, 468 So. 2d at 917-21.

Because the County’s decisions were
quasi-legislative discretionary policy or planning decisions it is sovereignly
immune from suit and thus, it was entitled to summary judgment as a matter of
law. This conclusion is supported by prior decisions from the Florida Supreme
Court, this Court, and our sister courts.

For example, in Delgado v. City
of Miami Beach, 518 So. 2d 968 (Fla. 3d DCA 1988), this Court affirmed the
trial court’s order granting the City of Miami Beach’s motion for summary
judgment after concluding that the City of Miami Beach was protected from
liability under the doctrine of sovereign immunity as a matter of law. Delgado
was injured when someone in the crowd ignited fireworks which struck and burned
Delgado’s leg while he was attending a concert and a fireworks display
sponsored by the City of Miami Beach. Delgado claimed that the City of Miami
Beach, which had sponsored the event, breached its duty by failing to prohibit
the attendees from possessing and detonating their own fireworks. This Court,
however, concluded that the City of Miami Beach’s “actions fell within the
planning-level, discretionary function of government, for which no liability
attaches.” Id. at 969. Specifically, this Court held that “[t]he manner
in which a city, through its police officers, exercises discretionary authority
to enforce compliance with the laws and protect the public safety, falls
squarely within the city’s power to govern. Accordingly, the city is protected
under the doctrine of sovereign immunity.” Id. (citing Trianon, Commercial
Carrier, and other cases).

As in Delgado, the County’s
actions in the instant case — not assigning officers to patrol or be present
at private parties or events held in its public parks, but to, instead, require
those who rent its park facilities to obtain permits and hire off-duty officers
under certain circumstances — was a discretionary planning and/or policy decision.
It was a governmental decision made in the exercise of its discretionary
authority regarding the manner in which compliance and enforcement of the law
and the protection of the public would be effectuated. How the County notified
those who rented its park facilities of their obligations and responsibilities
was also a planning/policy discretionary governmental decision. Because parks
such as Benito Juarez Park were “un-manned” parks with only part-time
maintenance employees in attendance, the County, in the exercise of its
discretion, put into place a policy requiring the County to notify each
individual who purchased a Park membership or rented a Park facility by
providing him/her with a copy of the Park’s rules and regulations. The
unrefuted evidence in this case is that these rules and regulations were sent
to the Salgado’s home along with his coupon book after he purchased his Park
membership. Because these decisions fell squarely within the County’s power to
govern, they are protected as a matter of law under the doctrine of sovereign
immunity.

The decisions of the County
regarding where and how to deploy its available manpower (sworn police
officers) is a discretionary or planning function. And, as the Florida Supreme
Court stated in Trianon, “under the constitutional doctrine of
separation of powers, the judicial branch must not interfere with the
discretionary functions of the legislative or executive branches of government
absent a violation of constitutional or statutory rights.” Trianon, 468
So. 2d at 918. “While sovereign immunity is a silent issue here, we ought not
lose sight of the fact that inherent in the right to exercise police powers is
the right to determine strategy and tactics for the deployment of those
powers.” Wong v. City of Miami, 237 So. 2d 132, 134 (Fla. 1970); see
also Commercial Carrier, 371 So. 2d at 1020 (quoting Wong,
237 So. 2d at 134):

The sovereign authorities ought to be left free to exercise
their discretion and choose the tactics deemed appropriate without worry over
possible allegations of negligence. Here officials thought it best to withdraw
their officers. Who can say whether or not the damage sustained by petitioners
would have been more widespread if the officers had stayed . . . .

The majority contends that because
the trial court simply denied the County’s motion for final summary judgment,
this Court lacks jurisdiction to review that ruling. I respectfully disagree.

I recognize that unless it can be
determined as a matter of law that either the County had no duty or it is
immune from suit, this Court lacks jurisdiction to review the trial court’s
order denying the County’s motion for summary judgment. This Court has
jurisdiction in this case because there are no disputed issues of fact as to
the immunity prong, and thus the County is immune from suit as a matter of law.
The County’s decisions as to: how many officers to employ and allocate to
patrol the County’s recreational facilities; whether to rent its facility for
the use of a private party or function; what rules and regulations should be
adopted for that purpose; and the responsibilities and duties to be borne by
the renter, are all quasi-legislative discretionary policy/planning decisions.
Thus, the County is immune from suit, and therefore, was entitled to summary
judgment as a matter of law.

The majority contends that, because
the trial court’s order does not articulate the basis for its ruling, there
could have been a number of reasons why the trial court denied the County’s
motion for summary judgment. For example, the majority posits that there may
have been disputed issues of material fact precluding summary judgment. While I
agree that the record may support a finding that there are disputed issues of
material fact as to the duty prong, there were, however, no disputed issues of
material fact as to the immunity prong, and therefore the determination as to
whether the County is sovereignly immune from suit is a legal determination,
not a factual determination in this case.

The majority opinion also cites to
two cases in footnote 2 in support of its position that this Court lacks
jurisdiction to review the order denying the County’s motion for summary
judgment on the basis of sovereign immunity. The first case is Citizens
Property Insurance Corp. v. Sosa, 41 Fla. L. Weekly D2660 (Fla. 3d DCA Nov.
30, 2016). Sosa, however, is distinguishable.

First, the order appealed in Sosa
was an order denying Citizen’s motion to strike or dismiss Counts II and III of
the complaint, not from an order denying a motion for summary judgment. Second,
this Court specifically noted that the transcript of the hearing on the motion
to dismiss revealed that the trial court did not reach or rule on the issue of
immunity when it denied Citizen’s motion to dismiss. Third, the motion to
dismiss was only being denied until a coverage determination was made. Under
these circumstances, this Court concluded that the order was not a reviewable
non-final order.

In contrast, the issue of sovereign
immunity was squarely before the trial court in the instant case; the motion
before the trial court was not a motion to dismiss, but rather, was a motion
for summary judgment based on sovereign immunity; and the trial court did not
simply defer or abate its ruling — it decided the issue based on the factual
record before it. The parties in the instant case presented evidence and made
arguments relating to both the duty and sovereign immunity prongs of the
County’s immunity from suit argument. While there were disputed issues of fact
regarding the duty prong, there were no disputed issues of fact as to the
sovereign immunity prong. And the undisputed facts as to the sovereign immunity
prong established that the County is sovereignly immune from suit. Thus, the
trial court erred as a matter of law by denying the County’s motion for summary
judgment, and this Court has jurisdiction to review that order.

The second case cited by the
majority in footnote 2 is Taival v. Barrett, 204 So. 3d 486 (Fla. 5th
DCA 2016). The one paragraph opinion provides little direction but, based on
the parentheticals following the citations in the body and footnotes in the
opinion, it appears that, unlike the case before this Court, there were
disputed issues of fact.

I also disagree with the majority’s
interpretation of rule 9.130(a)(3)(C)(xi). In 2012, the Florida Supreme Court
was presented with a certified question of great public importance in Keck
v. Eminisor, 104 So. 3d 359, 360 (Fla. 2012), which it rephrased as
follows:

Should
review of the denial of a motion for summary judgment based on a claim of
individual immunity under section 768.28(9)(a), Florida Statutes, await the
entry of a final judgment in the trial court to the extent that the order
turns on an issue of law?

(emphasis added). The Florida
Supreme Court answered the certified question in the negative and requested an
amendment to rule 9.130 to reflect the rule change “mandated by this decision.”
Id. at 366. Thereafter, rule 9.130 was amended to add subsections (x)
and (xi).

(3) Appeals to the district courts of appeal of non-final
orders are limited to those that

. . . .

(C) determine

. . . .

(x) that, as a matter of law, a party is not entitled to
immunity under section 768.28(9), Florida Statutes; or

(xi) that, as a matter of law, a party is not entitled to
sovereign immunity.

In reaching its decision in Keck,
the Florida Supreme Court specifically noted that:

[I]f a
defendant who is entitled to the immunity granted in section 768.28(9)(a) is
erroneously named as a party defendant and is required to stand trial, that
individual has effectively lost the right bestowed by statute to be protected
from even being named as a defendant. If orders denying summary judgment based
on claims of individual immunity from being named as a defendant under section
768.28(9)(a) are not subject to interlocutory review, that statutory protection
becomes essentially meaningless for the individual defendant.

For the
above reasons, we answer the rephrased question in the negative and hold that
an order denying summary judgment based on a claim of individual immunity under
section 768.28(9)(a) is subject to interlocutory review where the issue
turns on a question of law.

Keck, 104 So. 3d at 366 (emphasis added).

Of particular note is the fact that,
although the First District Court of Appeal had not addressed whether Keck was
entitled to the immunity provided under section 768.28(9)(a) because it
believed it had no authority to review the trial court’s order in an
interlocutory appeal, the Florida Supreme Court reviewed the record itself and
made that determination. Keck, 104 So. 3d at 366-67. Ultimately, the
Court concluded that based on the undisputed material facts, Keck was entitled
to immunity under section 768.28(9)(a). Id. at 366-67.

As in Keck, I have reviewed
the record and the record reflects that based on the undisputed material facts,
the County is entitled to immunity as a matter of law. Because the material
facts relevant to the sovereign immunity prong of the analysis were undisputed,
the determination as to whether the County is sovereignly immune “turns on a
question of law” thus subjecting the trial court’s denial of the County’s
motion for summary judgment reviewable on interlocutory appeal. Id. at
366.

CONCLUSION

The determination of whether a
governmental entity is immune from liability involves a two-prong analysis: (1)
whether the governmental entity owed the plaintiff a duty of care; and (2)
whether sovereign immunity bars the actions based on an alleged breach of that
duty. If the governmental entity establishes either that it owed no duty
to the plaintiff or it was entitled to sovereign immunity, it is
entitled to summary judgment.

Although the trial court’s order
merely denies the County’s motion for summary judgment, the failure to specify
the basis for that denial is not fatal because, even if the County owed the
plaintiff a duty of care, or there was a material factual dispute as to the
issue of duty (which was not addressed in my analysis), the County is immune
from suit as a matter of law because it established the second prong of the
analysis — that the County’s decisions in this case were discretionary,
quasi-legislative, planning, or policy decisions. The trial court therefore
erred by denying the County’s motion for summary judgment. Accordingly, I would
reverse the order on appeal and remand for entry of an order granting summary
judgment in favor of the County.

I believe that the majority has
erred by focusing its analysis on the deficiency of the trial court’s order.
Although the trial court’s order merely denies the County’s motion for summary
judgment without elaboration, by issuing such an order, it is denying the
County’s claim of sovereign immunity, which, based on the record before it,
clearly established the County’s immunity from suit. The majority opinion has,
however, concluded that because the trial court’s order does not specify the
grounds for its denial, review of that order is premature and constitutes a
non-appealable non-final order. Thus, based on the majority opinion, it appears
that the County is not precluded from filing a new appeal after obtaining an
order in which the trial court makes actual findings regarding the sovereign
immunity prong of the analysis.

* * *