Torts — Settlement agreements — Appeals — Non-final orders — Order denying defendant’s motion to enforce settlement agreement is a non-final, non-appealable order where order did not determine, as a matter of law, that settlement agreement never existed

NANCY POWELL and RALEIGH POWELL, Appellants, v. MILDREDA WOODARD, Appellee. 1st District. Case No. 1D19-3008. June 24, 2020. On appeal from the Circuit Court for Duval County. Adrian G. Soud, Judge. Counsel: Dara M. Reed and Michael D. McCoy of Cole, Scott, & Kissane, P.A., Jacksonville, Alexandra Valdes of Cole, Scott, & Kissane, P.A., Miami, and Julia G. Miller of Law Offices of M.K. Toma, Jacksonville, for Appellants. Thomas E. Duffy, Jr. of Terrell Hogan, Jacksonville, for Appellee.

(MAKAR, J.) In this personal injury case, the trial court denied the defendants’ motion to enforce an alleged settlement agreement between plaintiff, Mildreda Woodward, and Geico Insurance. The defendants, who indirectly represent the insurer’s interest, seek review on the jurisdictional basis that the ruling is an appealable non-final order determining “that, as a matter of law, a settlement agreement is unenforceable, is set aside, or never existed.” Fla. R. App. P. 9.130(a)(3)(C)(ix) (2020). The panel, on its own motion, asked the parties to address at oral argument the effect, if any, of Florida Highway Patrol v. Jackson, 288 So. 3d 1179 (Fla. 2020), which analyzed the meaning of the phrase “as a matter of law” in the context of Rule 9.130.

In Jackson, the supreme court held that the phrase “as a matter of law,” textually and as construed in its past cases interpreting that phrase, means that the trial court’s order on its face must contain an express finding that a party is not entitled to sovereign immunity to fall within then-existing Rule 9.130, which included four types of immunity provisions in separate sections of the rule.* Each provision limited appellate review to non-final orders in which a trial court “determines” whether immunity exists “as a matter of law,” such that an order to be reviewable must make an express determination on its face that immunity does not exist “as a matter of law” based on undisputed fact. 288 So. 3d at 1182-83. An order that fails to make such a determination, requiring an appellate court to resort to its own review of the record for support, does not meet the requirements of Rule 9.130. Id. at 1182 (“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.”).

In this case, the parties did not stipulate to or agree upon the existence of facts that would show, as a matter of law, whether the alleged settlement agreement existed or not. Instead, the trial court held a lengthy and detailed hearing on the motion to enforce settlement agreement (120 pages of transcripts over two days), scrutinizing the evidence/testimony and assessing the legal arguments of counsel. His two-page order denying relief was to the point: the record shows a “unique, extraordinary and tortured pre-suit history” that led to the conclusion that the “parties did not reach a mutual assent on the material, essential terms of any purported settlement,” such that the defendants’ motion was denied.

Based on Jackson‘s requirement that an order must make an express determination based on undisputed facts that immunity does not exist to establish jurisdiction, we conclude that the trial court’s order in this case did not “determine” “as a matter of law” that “a settlement agreement . . . never existed” under Rule 9.130(a)(3)(C)(ix), such that jurisdiction is lacking. We in no way denigrate the trial court’s admirable effort to unscramble the tortured factual history he confronted and devote careful attention to the legal issues as to the enforceability of purported settlement agreements. And we in no way suggest how the enforceability issue is handled on remand. Based on Jackson, however, we are constrained to conclude that we lack jurisdiction to review the non-final order denying the motion to enforce settlement in this case.

DISMISSED. (WOLF and NORDBY, JJ., concur.)

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*The rule was revised by the supreme court in light of Jackson to make it easier for governmental bodies to obtain interlocutory review of sovereign paper writer immunity decisions. See Fla. Highway Patrol v. Jackson, 288 So. 3d 1179, 1186 (Fla. 2020) (“The sovereign immunity subdivision in its current form insufficiently protects the public and governmental interests served by sovereign immunity.”); In re Amendments to Fla. Rule of Appellate Procedure 9.130, 289 So. 3d 866, 867 (Fla. 2020) (expanding the “availability of appellate review of nonfinal orders denying sovereign immunity, denying immunity in civil rights claims arising under federal law, and denying immunity under section 768.28(9), Florida Statutes” by, in part, eliminating the phrase “as a matter of law.”).