         DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                     CITY OF HALLANDALE BEACH,
                              Appellant,

                                    v.

    CAROLANN SHARKEY, individually and as Personal Representative of
                  the Estate of Florence Wagner,
                             Appellee.

                              No. 4D19-730

                           [October 16, 2019]

  Appeal of a nonfinal order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; David A. Haimes, Judge; L.T. Case No.
CACE 17-023301 (08).

   Jennifer Merino, City Attorney, and Andre McKenney, Deputy City
Attorney, Hallandale Beach, for appellant.

  Joshua I. Gornitsky of The Andersen Firm, PC, Fort Lauderdale, for
appellee.

PER CURIAM.

   Appellant, City of Hallandale Beach (City), appeals an order denying its
motion to dismiss appellee’s complaint. The case arises from the City’s
handling of the corpse of appellee’s relative. City argued that the
negligence claim was barred by sovereign immunity. We reverse and
remand the trial court’s order of clarification because it contradicts oral
pronouncements and did not actually determine the immunity issue “as a
matter of law.” Fla. R. App. P. 9.130(a)(3)(C)(xi). 1

1 We recognize that the Florida Supreme Court is currently considering the
following question as one of great public importance:

        DOES RULE 9.130 PERMIT AN APPEAL OF A NON-FINAL ORDER
        DENYING IMMUNITY IF THE RECORD SHOWS THAT THE
        DEFENDANT IS ENTITLED TO IMMUNITY AS A MATTER OF LAW
        BUT THE TRIAL COURT DID NOT EXPLICITLY PRECLUDE IT AS A
        DEFENSE?
    During the hearing the trial court commented that the facts relative to
the City’s “duty” needed to be explored. The trial court signed an order
that day denying the City’s motion to dismiss and referring to the record
for its ruling, noting the court reporter’s presence.

   Subsequently, the City filed a motion to clarify and requested a written
order to reflect that the trial court resolved the sovereign immunity issue
“as a matter of law.” The City did not ask the trial court to revisit its ruling
or reasoning.

    Thereafter, the trial court entered a second order, again referencing its
reasoning as stated on the record, adding that its ruling was “as a matter
of law.” This order, attempting to clarify, is internally inconsistent given
the trial court’s oral comments on the record that disputed factual issues
exist surrounding the City’s duty. See Cajuste v. Herlitschek, 204 So. 3d
80, 83 (Fla. 4th DCA 2016) (determining that when a conflict exists
between the court’s oral pronouncement and its written order, the oral
pronouncement controls); Glick v. Glick, 874 So. 2d 1238, 1241 (Fla. 4th
DCA 2004) (“A trial court’s oral pronouncement must control over a later
written order.”). Consequently, we reverse the trial court’s second order
and remand for further proceedings consistent with this opinion.

   Reversed and remanded.

GROSS, DAMOORGIAN and GERBER, JJ., concur.

                              *         *          *

   Not final until disposition of timely filed motion for rehearing.




Fla. Highway Patrol, a division of Fla. Dep’t of Highway Safety & Motor Vehicles v.
Jackson, 238 So. 3d 430, 438 (Fla. 1st DCA), review granted sub nom. Fla.
Highway Patrol v. Jackson, No. SC18-468, 2018 WL 6818899 (Fla. Dec. 27,
2018).

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