ORDER DENYING MOTION TO DISMISS ON GROUND OF SOVEREIGN IMMUNITY NOT APPEALABLE FOR FAILING TO RULE BASED ON SOVEREIGN IMMUNITY.
City of Miami General Employees’ and Sanitation Employees’ Retirement Trust v. Rodriguez, 43 Fla. L. Weekly D1351 (Fla. 3rd DCA June 13, 2018):
The City of Miami General Employees’ and Sanitation Employees’ Retirement Trust appealed from a non-final order granting its motion to dismiss two counts of plaintiff’s operative complaint, but denying the motion as to the third count.
During the hearing on the motion to dismiss, the issue of sovereign immunity was raised by defendant’s counsel. At the conclusion of the hearing, the trial court took the defendant’s motion to dismiss under advisement, and then issued a 28-page order.
Despite the length of the non-final order, the order failed to address the issue of sovereign immunity. There was also nothing in the order reflecting that the trial court ruled on the immunity issue.
Thus, the non-final order was 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 as a matter of law that a party is not entitled to immunity under section 768.28(9).