CITY OF MIAMI BEACH v. FLORIDA GAS TRANSMISSION COMPANY LLC (2020)

ON MOTION FOR REHEARING

We treat the motion for rehearing as one for clarification, withdraw our prior opinion, and issue this one in its stead.

The City of Miami Beach appeals an order granting Florida Gas Transmission Company, LLC's motion for partial summary judgment. Because the order is a non-final, non-appealable order, we dismiss the City's appeal for lack of jurisdiction.

“At the outset, we note that the order does not constitute an appealable final order.” Mid–Continent Cas. Co. v. Flora–Tech Plantscapes, Inc., 225 So. 3d 336, 337–38 (Fla. 3d DCA 2017) (citing Ball v. Genesis Outsourcing Sols., LLC, 174 So. 3d 498, 499 (Fla. 3d DCA 2015); Lidsky Vaccaro & Montes, P.A., v. Morejon, 813 So. 2d 146, 149 (Fla. 3d DCA 2002)). The City agrees but argues that the order is appealable either as one granting immediate possession of property or because it is, in effect, an injunction. See Fla. R. App. P. 9.130(a)(3)(B), (a)(3)(C)(ii).

We find the order under review does not grant immediate possession of property. It confirms Florida Gas can maintain its pipeline—a pipeline that has been in place since 1959. In fact, no one disputes Appellee's right to have its gas pipes in the right of way, but only whether that right is pursuant to easement, permit, franchise, or some combination thereof. Moreover, the trial court's order does not function as an injunction because it does not specifically mandate or prohibit any City action. Cf. Mid–Continent Cas., 225 So. 3d at 339–40 (holding that an order declaring that the insurer had a contractual duty to defend did not operate as an injunction conferring jurisdiction under Rule 9.130(a)(3)(B) because the court did not compel the insurer to defend). The order does not define the parameters of the “easement” that it purports to recognize, and, indeed reserves that determination for a later proceeding. Accordingly, we find the order does not rise to the level either of a grant of immediate possession of property or of an injunction prohibiting the City from undertaking construction in its rights-of-way. In doing so, we express no opinion whether Florida Gas's pipes are in the right of way pursuant to easement, permit, franchise, or some combination thereof. For this reason, we decline to exercise jurisdiction under Florida Rule of Appellate Procedure 9.130.

Dismissed.

PER CURIAM.