CITY OF MIAMI GENERAL EMPLOYEES AND SANITATION EMPLOYEES RETIREMENT TRUST v. RODRIGUEZ (2018)

The defendants below, City of Miami General Employees' and Sanitation Employees' Retirement Trust, et al. (collectively, “the defendants”), appeal from a non-final order which granted their motion to dismiss Counts I and III of the operative complaint, but denied their motion to dismiss Count II. Following our review of the non-final order denying the defendants' motion to dismiss, and the defendants' response to this Court's order to show cause, we dismiss this non-final appeal for lack of jurisdiction.

The defendants moved to dismiss all counts of the plaintiffs' operative complaint, raising several arguments, including sovereign immunity. During the hearing held on the defendants' motion to dismiss, the issue of sovereign immunity, among others, was raised by the defendants' counsel. At the conclusion of the hearing, the trial court took the defendants' motion to dismiss under advisement, and thereafter, the trial court issued a twenty-eight page order granting the defendants' motion to dismiss as to Counts I and III of the operative complaint, but denying the motion to dismiss as to Count II.

Despite the length of the non-final order, the order fails to address the issue of sovereign immunity and there is nothing in the order which reflects that the trial court has ruled on the immunity issue. Thus, this non-final order is not appealable pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(x), which permits the appeal of a non-final order that determines “that, as a matter of law, a party is not entitled to immunity under section 768.28(9), Florida Statutes,” or rule 9.130(a)(3)(C)(xi), which permits the appeal of a non-final order that determines “that, as a matter of law, a party is not entitled to sovereign immunity.” See generally Citizens Prop. Ins. Corp. v. Calonge, 246 So.3d 447, 2018 WL 1832325 (Fla. 3d DCA Apr. 18, 2018); Miami-Dade Cty. v. Pozos, 242 So.3d 1152, 2017 WL 621233 (Fla. 3d DCA Feb. 15, 2017). Accordingly, we dismiss the defendants' appeal of the non-final order as we lack jurisdiction.

Dismissed.

ROTHENBERG, C.J.