Full Opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT TOWN OF SOUTHWEST RANCHES, Appellant, v. SUPREME ORGANICS, LLC, Appellee. No. 4D2025-3556 [September 23, 2026] Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael A. Robinson, Judge; L.T. Case No. 062023CA016498AXXXCE. Alan G. Kipnis and Jacob A. Korman of Government Law Group, PLLC, Fort Lauderdale, for appellant. Scott A. Cole and Francesca M. Stein of Cole, Scott & Kissane, P.A., Miami, for appellee. MAY, J. The Town of Southwest Ranches (“the town”) appeals an order granting a motion to strike its motion for summary judgment. It argues the trial court erred in striking the motion. Because the order is a non-final, non- appealable order, we lack jurisdiction and dismiss the appeal. • The Facts The plaintiff sued the town for fraud and negligent misrepresentation. The trial court issued a Uniform Trial Order in April 2024, providing that motions for summary judgment must be filed and heard no later than 45 days before calendar call. On August 2024, the plaintiff moved for leave to file an amended complaint and filed an amended complaint with three claims against the town. The town filed its answer and affirmative defenses; it did not raise sovereign immunity as an issue. In December 2024, the town filed an unopposed motion for leave to amend its answer and affirmative defenses. In January 2025, the town moved for summary judgment on an issue unrelated to sovereign immunity, which the trial court denied in 2024. The town filed another motion for summary judgment, asserting for the first time that the plaintiff’s claims were barred by sovereign immunity. The trial court reset the calendar call to November 2025. Plaintiff moved to strike the motion for summary judgment as untimely and in violation of the April 2024 Uniform Trial Order. That order required all dispositive motions to be filed and heard no later than 45 days before calendar call. It also provided that all motions, other than motions in limine, not heard before calendar call are deemed abandoned. The town’s new summary judgment motion was filed after the deadline and could not be heard more than 45 days before calendar call. In its motion to strike, the plaintiff argued that sovereign immunity had not been pled as an affirmative defense and should be deemed waived. The town responded by attributing its delayed filing to counsel’s oversight, without explanation. The town asked the court to take judicial notice that the town had not waived its immunity. The town argued the motion was not untimely because sovereign immunity could still be raised in a motion for directed verdict at trial. The town suggested it had filed the summary judgment motion to streamline the issues for trial. The town reminded the court that it had discretion to alter its Uniform Trial Order. The town also argued that sovereign immunity does not have to be pleaded as an affirmative defense. At the hearing on the motion to strike, the plaintiff argued the merits of the sovereign immunity defense were not before the court. The plaintiff maintained that the town’s summary judgment motion was deemed abandoned because it was filed six days after the deadline for dispositive motions in violation of the Uniform Trial Order. The motion was also filed so close to calendar call that it did not allow the plaintiff the full amount of time to respond under rule 1.510 of the Florida Rules of Civil Procedure. The town did not request an extension of time, seek leave to amend, or attempt to show good cause for the late filing. The plaintiff argued the Uniform Trial Order should be enforced to prevent ambush and that it was prejudiced because sovereign immunity had been raised for the first time just before calendar call without giving the plaintiff a meaningful time to respond. 2 The court asked the town to respond solely to the motion to strike. The town agreed the motion was untimely but maintained it was not a normal summary judgment motion. When the court asked why the motion had not been timely filed in accordance with rule 1.510 and the court’s division rules, counsel said, “it didn’t come to us until after it should have” and left them with “egg on [their] face.” But regardless, “the law is still the law” and these claims cannot proceed. The court acknowledged that it fully understood both parties’ positions, but this was a 2023 case, and this issue should not have been raised the day before calendar call. The court entered a written order granting plaintiff’s motion to strike, indicating the town “is not prohibited from raising the affirmative defense of immunity, if properly raised.” The town now appeals the order granting the plaintiff’s motion to strike. • The Analysis The plaintiff argues that sovereign immunity is an affirmative defense that can be waived and the only issue before us is whether the trial court abused its discretion in enforcing deadlines in its trial order. The town argues the order constituted a denial of sovereign immunity. We agree with the plaintiff. Here, the trial court did not expressly “deny a motion that . . . asserts entitlement to sovereign immunity.” Fla. R. App. P. 9.130(a)(3)(F)(iii). It did not rule on the merits of the town’s sovereign immunity claim. It merely declined to hear a late filed summary judgment motion, and it specifically allowed the town to raise the issue at trial. We have been directed to narrowly interpret Rule 9.130. See Abrams v. Waserstein, 349 So. 3d 493, 495 (Fla. 3d DCA 2022) (“The Florida Supreme Court has mandated that we narrowly interpret rule 9.130 so as to ‘restrict the number of appealable nonfinal orders.’”) (quoting Travelers Ins. Co. v. Bruns, 443 So. 2d 959, 961 (Fla.1984)); Jenne v. Maranto, 825 So. 2d 409, 413 (Fla. 4th DCA 2002) (recognizing that piecemeal appeals should be avoided and “[t]he enumerated categories of permissible nonfinal review stated in rule 9.130 must be limited to their plain meaning”). Because the order does not deny a motion that asserts entitlement to sovereign immunity, it is not an order subject to Rule 9.130 of the Florida Rules of Appellate Procedure. In short, this is not a permissible appeal under Rule 9.130. For this reason, we dismiss the appeal. 3 Appeal dismissed for lack of jurisdiction. CIKLIN J., concurs. LOTT, J., dissents with opinion. LOTT, J., dissenting. The Town of Southwest Ranches filed a motion for summary judgment that asserted an entitlement to sovereign immunity. The trial court granted Supreme Organics LLC’s motion to strike the Town’s motion for summary judgment on the grounds that the motion was untimely filed. The majority holds that the trial court’s order is not appealable under Rule 9.130(a)(3)(F)(iii), which provides for immediate appeal of an order that “denies a motion that asserts entitlement to sovereign immunity.” Id. (cleaned up). Respectfully, the order is appealable under the Rule. I dissent, for three reasons. First, what on earth is a motion to strike a motion? Supreme Organics filed a motion to strike the Town’s motion for summary judgment as untimely, which the trial court granted. Florida Rule of Civil Procedure 1.140(f) provides for a motion to strike pleadings, but not other filings like motions. Cf. Motzer v. Tanner, 561 So. 2d 1336, 1338 (Fla. 5th DCA 1990) (“A pleading seeks to frame factual issues for determination. This is the meaning when the term pleading is used in the Rules of Civil Procedure. Motions are not pleadings.” (cleaned up)). In Boswell v. Boswell, 877 So. 2d 829, 830 (Fla. 4th DCA 2004), we held “there was simply no legal basis upon which to strike appellant’s motion for temporary relief.” Similarly, the Fifth District has noted that “motions cannot be directed against other motions” and thus held that “use of a motion to strike [a] motion to dismiss as a sham pleading was improper.” Motzer, 561 So. 2d at 1338. Federal courts have likewise generally rejected the notion of a motion to strike a motion. E.g., Lloyd v. Am. Freedom Distillery, LLC, 2025 WL 2337296, at *1 (M.D. Fla. Aug. 13, 2025) (“Motions to strike other filings (such as other motions, responses, or exhibits) are routinely denied as improper.” (cleaned up)) (collecting authority). Second, even if a motion to strike another motion could be proper in some cases, a court, in substance, can do only two things with a motion. The court can either (1) grant the requested relief, or (2) not grant that 4 relief. 1 We typically call option (2) “denying” the motion. That’s what happened here. The court did not grant the relief requested in the Town’s summary judgment motion, effectively denying the motion. Saying that the trial court’s striking the summary judgment motion somehow did not result in a “denial” of the motion—as that language is used in the rule— elevates form over substance and misapprehends what is happening in the litigation. Cf. Howard v. State, 976 So. 2d 635, 636 (Fla. 5th DCA 2008) (“[F]or purposes of jurisdiction, we will treat an order striking a motion with leave to amend and one denying a motion with leave to amend equivalently.”). Indeed, rather than filing a “motion to strike as untimely,” the usual course for opposing a motion would be to file a “response in opposition” to the motion and argue that the motion should be denied because it is untimely. This would have saved several docket filings and obviated the need to brief two motions. If the trial court agreed that the Town’s summary judgment motion was untimely, the court could have denied that motion as untimely, resulting in the exact same effect as granting Supreme Organics’ motion to strike. In Boswell, when we rejected the notion of a motion to strike a motion, we explained that if the motion were legally insufficient, “the appellant’s motion should have [instead] been denied on its face.” Boswell, 877 So. 2d at 830. Third, although the trial court struck the Town’s summary judgment motion without prejudice to the Town asserting sovereign immunity later in the litigation, Rule 9.130(a)(3)(F)(iii)’s statutory history demonstrates that the trial court’s order is immediately appealable. 2 In Florida Highway Patrol v. Jackson, 288 So. 3d 1179, 1180 (Fla. 2020), our Supreme Court considered whether Rule 9.130(a)(3)(F)(iii)’s then-current version, which only allowed for immediate appeal of orders denying the defense of sovereign immunity “as a matter of law,” allowed for immediate appeal of a summary judgment motion that was denied on the basis of factual disputes which needed to be determined by the 1 The court may, of course, grant the relief requested in part or not grant it in part, but it is still ultimately a binary distinction of granting or not granting. 2 See Scalia and Garner, Reading Law at 256 (Thomson/West 2012) (“[Q]uite separate from legislative history is statutory history—the statutes repealed or amended by the statute under consideration. These form part of the context of the statute . . . [s]o a change in the language of a prior statute presumably connotes a change in meaning.”). 5 factfinder at trial. The Court held the answer was no, because the defense was still available to the defending party down the road. The Court, however, decided contemporaneously to change rule 9.130 to make such orders appealable. See id. at 1186 (“The remedy for the ills that [Appellant] has identified is not to adopt a strained interpretation of the rule, but to change it.”). The Court noted that “[i]n terms of form, the [pre-amendment] rule relies too heavily on the trial court’s articulation of what it has decided,” and “therefore amend[ed] rule 9.130 to expand the availability of appellate review of nonfinal orders denying sovereign immunity.” Id. The Court changed the language, which previously allowed appeals of orders holding “that, as a matter of law, a party is not entitled to sovereign immunity,” to its current form, allowing appeals of orders that “deny a motion that asserts entitlement to sovereign immunity.” In re Amends. to Fla. R. of App. P. 9.130, 289 So. 3d 866, 867 (Fla. 2020) (cleaned up). That is precisely what we have here—an order “deny[ing] a motion that asserts entitlement to sovereign immunity.” That the trial court denied the Town’s summary judgment motion on grounds of timeliness rather than the merits, or that the trial court allowed the Town to assert its sovereign immunity defense at a later time, or that the trial court styled its order as one “striking” rather than “denying” the Town’s summary judgment motion, are all made immaterial by Rule 9.130’s new language. Accordingly, I would find we have jurisdiction under Rule 9.130(a)(3)(F)(iii) and allow the appeal to proceed, including consideration of the question of whether the court erred by denying the Town’s summary judgment motion asserting sovereign immunity as untimely. * * * Not final until disposition of timely-filed motion for rehearing. 6