Opinion
No. 90-710.
November 12, 1991. Rehearing Denied January 24, 1992.
Appeal from the Circuit Court, Dade County, Edward N. Moore, J.
Conroy, Simberg Lewis, and Neil Rose, Hollywood, for appellant.
Kluger, Peretz, Kaplan Berlin, Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin Perwin, and Joel Perwin, Miami, and Andrew P. Gold, for appellee.
Before BARKDULL, BASKIN and LEVY, JJ.
Carolyn Hill, individually and as next friend, filed suit on behalf of Antonio Andrews against the City of Opa Locka. The amended complaint alleged that Stacey Hill, the karate instructor employed by the city, while acting within the course and scope of his employment with the city, discharged his handgun towards an assailant and the bullet struck Antonio Andrews. The four count amended complaint alleged: 1) that the city was responsible for Hill's negligence based on the Doctrine of Respondeat Superior; 2) the city was directly negligent; 3) the city negligently hired and retained its employee, Hill; and 4) the city is liable for a claim for loss of filial consortium. The city denied the allegations in the complaint pertaining to negligence and that in fact, Hill was acting within the course and scope of his employment at the time of the incident.
This opinion is not to be construed as indicating any finding that Hill's action in discharging of the firearm was within the scope of his employment with the city. We leave the determination of this question to a later proceeding.
Plaintiff/appellee filed a motion for partial summary judgment as to the two counts predicated on respondeat superior based negligence and loss of filial consortium. After a hearing, the trial court entered on order granting partial summary judgment, finding that there was no genuine issue as to any material fact, and that Carolyn Hill, individually and as next friend of her son, Antonio Andrews, was granted a judgment on liability as a matter of law, on Counts I and IV of the Amended Complaint. This non-final appeal followed.
We dismiss the appeal upon the following authority. Textron Financial Corporation v. Alexander, 582 So.2d 178 (Fla. 3d DCA 1991); Kiser v. Jones, 488 So.2d 554 (Fla. 3d DCA 1986); Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla. 1974). We have not overlooked Paterno v. Fernandez, 569 So.2d 1349 (Fla. 3d DCA 1990); First Inter-Continent Insurance Syndicate, Inc. v. Walker, 578 So.2d 391 (Fla. 3d DCA 1991), but find that the jurisdictional question was not raised in Paterno v. Fernandez, supra, and note this court found jurisdiction not to be lacking when it was raised in First Inter-Continent Insurance Syndicate, Inc. v. Walker, supra.
Appeal dismissed.
LEVY, J., concurs.
I concur with the majority view that the order is not ripe for review; however, I disagree with the majority's apparent decision that the order on appeal does not determine the issue of liability in favor of appellee.
Appellee, Carolyn Hill, did not file an action against Stacey Hill, the City's employee; he is not a defendant. Appellee sought summary judgment as to Counts I (negligence of Opa Locka through Hill) and IV (loss of filial consortium) of the amended complaint. In Count I, appellee alleged that during the course and scope of his employment by the City, Hill breached his duty of care by failing to protect the children at the park and that as a consequence of his actions Antonio Andrews suffered damages. The judgment states that "Carolyn Hill, individually and as next friend of Antonio Andrews, her minor son, is granted a judgment on liability in her favor as a matter of law on Counts I and IV of the Amended Complaint." The City's liability is not dependent on any further determination as to Hill's negligence. Cf. Textron Fin. Corp. v. Alexander, 582 So.2d 178 (Fla. 3d DCA 1991) (where non-final order determined that defendant was vicariously liable for negligence, if any, of other defendant, order does not determine liability); Kiser v. Jones, 488 So.2d 554 (Fla. 3d DCA 1986) (where order determining that defendant was negligent did not determine issue of causation or affirmative defenses the order did not determine liability). Accordingly, the order determines liability in favor of the party seeking affirmative relief. Fla.R.App.R. 9.130(a)(3)(C)(iv).
In the summary judgment motion, appellee contended that Hill's conviction for violation of section 784.05, Florida Statutes (1987), constituted negligence per se, or in the alternative, that Hill was negligent as a matter of law, that the City is vicariously liable for Hill's negligence and that the City's affirmative defenses do not preclude summary judgment.
However, I agree that the interrelated counts, which remain pending in the trial court, render this court without jurisdiction. In City of Miami v. Gates, 393 So.2d 586 (Fla. 3d DCA), review denied, 402 So.2d 608 (Fla. 1981), defendant appealed a non-final order granting summary judgment on liability in favor of plaintiffs. This court stated: "[a]lthough the order did not dispose of all liability issues in the case, the counts involved are separate and distinct from those which remain pending, so as to permit review at this time under Fla.R.App.P. 9.130(a)(3)(C)(iv)." Gates, 393 So.2d at 587 n. 1 (citation omitted). Accord Medical Equip. Rental Co. v. Tarr, 467 So.2d 459 (Fla. 4th DCA 1985). Here, unlike Gates, the pending counts are not separate and distinct from the counts decided in the order on appeal. See Mendez v. West Flagler Family Ass'n, Inc., 303 So.2d 1 (Fla. 1974). For these reasons, the appeal should be dismissed. West Am. Ins. Co. v. Nixon, 489 So.2d 876 (Fla. 4th DCA 1986); but see, Division of Admin., State of Fla. Dept. of Transp. v. Mobile Gas Co., Inc., 427 So.2d 1024 (Fla. 1st DCA), review denied, 437 So.2d 677 (Fla. 1983).