ENGLEWOOD COMMUNITY HOSPITAL, INC., SARASOTA DOCTORS HOSPITAL, INC. v. SARASOTA COUNTY, VENICE HMA, LLC

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

SARASOTA DOCTORS HOSPITAL, INC., and ENGLEWOOD COMMUNITY

HOSPITAL, INC.,

Appellants,

v.

SARASOTA COUNTY and SARASOTA COUNTY PUBLIC HOSPITAL

DISTRICT,

Appellees.

VENICE HMA, LLC, d/b/a VENICE REGIONAL MEDICAL CENTER,

Appellant,

v.

SARASOTA COUNTY and SARASOTA COUNTY PUBLIC HOSPITAL

DISTRICT,

Appellees.

Nos. 2D2022-4019, 2D2022-4020

CONSOLIDATED

July 31, 2024

Appeals from the Circuit Court for Sarasota County; Andrea McHugh,

Judge.

Stephen A. Ecenia, J. Stephen Menton, and Jennifer F. Hinson of

Rutledge Ecenia, P.A., Tallahassee, for Appellants Sarasota Doctors

Hospital, Inc., and Englewood Community Hospital, Inc.

Geoffrey D. Smith and Stephen B. Burch of Smith & Associates,

Melbourne, for Appellant Venice HMA, LLC, d/b/a Venice Regional

Medical Center.

Frederick J. Elbrecht, County Attorney, and Karl A. Senkow, Chief

Deputy County Attorney, Office of the County Attorney, Sarasota;

Raymond T. Elligett, Jr., and Amy S. Farrior of Buell & Elligett, P.A.,

Tampa, for Appellee Sarasota County.

David A. Wallace of Bentley Goodrich Kison P.A., Sarasota, for Appellee

Sarasota County Public Hospital District.

ATKINSON, Judge.

In two separate appeals,1 Sarasota Doctors Hospital, Inc.,

Englewood Community Hospital, Inc., and Venice HMA, LLC, d/b/a

Venice Regional Medical Center, (collectively, the Hospitals) appeal the

trial court's final judgment in favor of Sarasota County (the County) and

the Sarasota County Public Hospital District (the District). Following a

nonjury trial, the trial court concluded that the County's sovereign

immunity barred the Hospitals' declaratory judgment claims alleging that

the County was obligated to reimburse them for the cost of providing

indigent care pursuant to a special act of the Florida Legislature. While

we agree with the trial court that the Hospitals failed to prove that they

complied with the terms of the special act for purposes of obtaining

reimbursement, we disagree that sovereign immunity bars their claims

under the special act's indigent care provision. Therefore, we affirm in

1 We previously consolidated these appeals for record and panel

purposes. We now consolidate the two appeals for purposes of this

opinion.

2

part and reverse in part the trial court's final judgment and remand for

entry of a corrected final judgment consistent with this opinion.2

Background

This case previously came before the court in an extraordinary writ

proceeding, in which we explained the genesis of this dispute.

In 2003 the Florida Legislature repealed numerous

special and local acts enacted between 1949 and 2000 and

recodified them as a single Special Act that recreated and

provided for the governing of the Sarasota County Public

Hospital District (District). See ch. 2003-359, § 2, Laws of

Fla. Under the Special Act, the District, an "independent

special district" contiguous with Sarasota County, is governed

by a Hospital Board (Board). Charter § 1. Every month, the

Board is authorized to certify to the Sarasota Board of County

Commissioners (BOCC) a list of medically indigent persons

treated by Board-managed (i.e., public) hospitals during the

previous month, together with the itemized charges for those

persons' care. Charter § 8(9). Within forty-five days the

BOCC "shall" remit to the Board the amount requested. Id.

The statute authorizes the Board to impose up to two mils of

an ad valorem tax throughout the county. Charter § 8(8).

The statute includes private hospitals within its ambit

as well. Thus, upon appropriate certification,

[t]he said Board of County Commissioners shall in

like manner reimburse any other hospital in

Sarasota County, approved by the State Board of

Health, for hospital services rendered to medically

indigent persons as herein defined, upon like

certification by such hospital and at such rates as

shall not exceed those prescribed for such patients

by hospitals owned and operated by said Hospital

Board.

Charter § 8(9).

2 We affirm the portion of the final judgment in favor of the District

on the sole basis that, by the time of trial, the Hospitals no longer had a

pending claim against the District.

3

Some three years before the Special Act's 2003

recodification, the BOCC had adopted as a county ordinance

the special and local acts described above. See Code of

Ordinances of Sarasota County, ch. 4, art. II, § 4-24(i), -31,

adopted Sept. 13, 2000. The county ordinance and the

Special Act are virtually identical in content, including the

sequence of their presentation.

In 2011, the Hospitals filed complaints against Sarasota

County and the District seeking declaratory relief pursuant to

chapter 86, Florida Statutes. The Hospitals alleged that the

County had been collecting ad valorem taxes as imposed by

the Board but had been refusing to pay their submitted

requests for reimbursements under the Special Act, which the

Hospitals had begun issuing in late 2008 or early 2009,

according to the respective complaints. They sought a

declaration to determine their rights under the Special Act, to

declare that the County is obligated to reimburse them for

indigent hospital services, to declare that the County is

obligated to reimburse the Hospitals for their prior invoices,

and to grant any other relief the circuit court deemed

appropriate. The County raised various affirmative defenses,

including sovereign immunity, and several counterclaims,

including a challenge to the constitutionality of the Special

Act.

Sarasota Cnty. Pub. Hosp. Dist. v. Venice HMA, LLC, 325 So. 3d 334,

337–38 (Fla. 2d DCA 2021) (footnotes omitted).

Initially, the trial court agreed with the County and the District and

entered summary judgment declaring that the Special Act's indigent care

provision violated the Florida Constitution's prohibition against special

laws granting a privilege to a private corporation. See art. III, § 11(a)(12),

Fla. Const. On appeal, this court also agreed, see Venice HMA, LLC v.

Sarasota County, 198 So. 3d 23, 31 (Fla. 2d DCA 2015), but the Florida

Supreme Court did not, see Venice HMA, LLC v. Sarasota County, 228 So.

3d 76, 84 (Fla. 2017) (holding that the Special Act's indigent care

provision did not unconstitutionally grant a privilege to a private

corporation because the special law, which by definition only operates in

4

a specific subdivision of the State, applies to all hospitals (public and

private) in Sarasota County).

On remand, the County and the District attempted two more times

to obtain summary judgment but on the ground that sovereign immunity

barred the Hospitals' claims. On both attempts, the trial court declined

to enter summary judgment due to the existence of genuine issues of

material fact. After the denial of its second attempt at summary

judgment on sovereign immunity grounds, the County petitioned this

court for a writ of prohibition in which it argued that the trial court was

exceeding its jurisdiction in light of the County's claimed immunity. This

court denied the petition due to the existence of a factual dispute and

also concluded that the County was not entitled to certiorari relief. See

Sarasota Cnty. Pub. Hosp. Dist., 325 So. 3d at 343–45, 347 (reasoning

that "there is a sharp factual dispute that precludes relief in prohibition"

and concluding that the County did not demonstrate irreparable harm or

a departure from the essential requirements of law to warrant certiorari

relief).

The parties proceeded to a nonjury trial, following which the trial

court entered the final judgment under review in this appeal. The trial

court concluded that the Florida Supreme Court's decision in the prior

appeal, although the law of the case, did not preclude the County from

asserting sovereign immunity as a defense. The trial court further

concluded that sovereign immunity barred the Hospitals' claims because

there was no valid waiver of immunity, whether through a general law

passed by the legislature or by means of an express, written contract.

Finally, the trial court concluded that even if the Hospitals had proven

that an express, written contract existed such that sovereign immunity

had been waived, the Hospitals did not prove their entitlement to

5

reimbursement for their prior invoices they submitted to the County

because they had not complied with the terms of the Special Act's

indigent care provision.

Analysis

We review the trial court's factual findings for competent

substantial evidence and its legal conclusions de novo. See Wootton v.

Iron Acquisitions, LLC, 338 So. 3d 425, 427 (Fla. 2d DCA 2022) ("When a

decision in a non-jury trial is based on findings of fact from disputed

evidence, it is reviewed on appeal for competent, substantial

evidence. . . . However, where a trial court's conclusions following a non-

jury trial are based upon legal error, the standard of review is de novo."

(quoting Jasser v. Saadeh, 91 So. 3d 883, 884 (Fla. 4th DCA 2012))); see

also Lee Mem'l Health Sys. v. Hilderbrand, 304 So. 3d 58, 60 (Fla. 2d

DCA 2020) ("The issue of a party's entitlement to sovereign immunity is a

legal issue subject to the de novo standard of review." (citing Plancher v.

UCF Athletics Ass'n, 175 So. 3d 724, 725 n.3 (Fla. 2015))); SC Mota

Assocs. Ltd. P'ship v. Mota Pizza Rustica Corp., 358 So. 3d 823, 826 (Fla.

3d DCA 2023) ("Whether the law of the case doctrine applies is a

question of law, and therefore our standard of review is de novo."

(quoting Pompano Masonry Corp. v. Anastasi, 125 So. 3d 210, 212 (Fla.

4th DCA 2013))).

I.

The Hospitals first argue that the trial court erred because the

Florida Supreme Court's decision in the prior appeal foreclosed the

County's sovereign immunity defense under the law of the case doctrine.

"The doctrine of the law of the case requires that questions of law

actually decided on appeal must govern the case in the same court and

the trial court, through all subsequent stages of the proceedings." Fla.

6

Dep't of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla. 2001). The doctrine

does not apply here because the supreme court did not decide any issue

regarding sovereign immunity in the prior appeal. See Venice HMA, 228

So. 3d at 83–84, 84 n.4 (holding the Special Act's indigent care provision

did not violate article III, section 11(a)(12) of the Florida Constitution, did

not unconstitutionally violate the County's home-rule powers, and was

not void for vagueness). That the supreme court concluded the Special

Act is constitutional on specified grounds has no bearing on whether

sovereign immunity protects the County from liability under the Special

Act. And there is nothing in the supreme court's decision or the record

before us to indicate that the supreme court even implicitly considered

sovereign immunity in deciding the other constitutional questions. Cf.

Juliano, 801 So. 2d at 106 ("Additionally, the law of the case doctrine

may foreclose subsequent consideration of issues implicitly addressed or

necessarily considered by the appellate court's decision."). As such, the

Hospitals' law of the case argument fails.

II.

The Hospitals correctly argue in the alternative that sovereign

immunity did not bar their claims. They assert that sovereign immunity

is either not applicable or was waived. There are two generally

recognized ways in which sovereign immunity may be waived, thereby

providing consent for the sovereign to be sued.3 First, under the

constitution, the legislature may enact a general law expressly waiving

3 Although not a waiver, another scenario exists in which sovereign

immunity does not apply. The doctrine does not bar claims based on the

federal or state constitutions. See Dep't of Revenue v. Kuhnlein, 646 So.

2d 717, 721 (Fla. 1994) ("Sovereign immunity does not exempt the State

from a challenge based on violation of the federal or state constitutions,

because any other rule self-evidently would make constitutional law

subservient to the State's will.").

7

sovereign immunity. Art. X, § 13, Fla. Const. ("Provision may be made by

general law for bringing suit against the state as to all liabilities now

existing or hereafter originating."); see Am. Home Assurance Co. v. Nat'l

R.R. Passenger Corp., 908 So. 2d 459, 472 (Fla. 2005) ("[A]ny waiver of

sovereign immunity must be clear and unequivocal." (first citing Manatee

County v. Town of Longboat Key, 365 So. 2d 143, 147 (Fla. 1978); and

then citing Rabideau v. State, 409 So. 2d 1045, 1046 (Fla. 1982))).

Second, there is no sovereign immunity when a state entity enters into

an express, written contract that the legislature authorized the state

entity to enter into by general law. See Pan-Am Tobacco Corp. v. Dep't of

Corr., 471 So. 2d 4, 5–6 (Fla. 1984) ("We therefore hold that where the

state has entered into a contract fairly authorized by the powers granted

by general law, the defense of sovereign immunity will not protect the

state from action arising from the state's breach of that contract."); see

also Fla. Dep't of Transp. v. Schwefringhaus, 188 So. 3d 840, 844 (Fla.

2016) (describing Pan-Am Tobacco as having "found an implied waiver of

sovereign immunity for contract claims"); Town of Gulf Stream v. Palm

Beach County, 206 So. 3d 721, 726 (Fla. 4th DCA 2016) ("Sovereign

immunity may be waived only by general law or by express contract.").

The County trains its focus on the issue of waiver, arguing that the

"threshold question" is whether the County ever entered into an express,

written contract with the Hospitals. Arguing it did not, the County

asserts that the absence of a contract supports its position that

sovereign immunity was never waived and, consequently, that the

judgment must be affirmed. But before determining whether sovereign

immunity has been waived, it must be determined whether sovereign

immunity applies to the cause of action in the first place. Answering that

question in the negative, we decline to reach the question of whether

8

there was an express written contract that served as a waiver of

sovereign immunity.

The determination of whether sovereign immunity applies to the

Hospitals' claims requires an analysis of the types of causes of action to

which the government is immune under the doctrine of sovereign

immunity. Sovereign immunity does not bar any and all suits against a

government entity or officer. It bars suit against the sovereign and

shields the sovereign from liability for sovereign action. However, when

the gravamen of the complaint is that the governmental actor is acting in

derogation of its legal authority or failing to act in spite of a legal

mandate requiring action on the part of the governmental entity or

officer—that its conduct is ultra vires—sovereign immunity is not a bar

to such a claim. The government does not enjoy immunity from suit or

liability in such a scenario because the cause of action is not based upon

liability of the sovereign; rather, the cause of action is premised on a

theory that the governmental actor's conduct is ultra vires and therefore

he or she is not being sued in the capacity of a sovereign but rather as a

rogue governmental actor which must be compelled to conform its

conduct to the prescriptions of the law. In other words, sovereign

immunity does not apply because the suit is not against the sovereign at

all. A government entity, merely by virtue of being a government entity,

is not acting in all places and all times as a sovereign without regard to

the nature and circumstances of its actions. "Political entities only have

sovereign immunity where they are sovereign . . . ." Joiner v. Pinellas

County, 279 So. 3d 860, 866 (Fla. 2d DCA 2019); see also id. at 867

(Casanueva, J., concurring) ("In my view, the analysis of this issue turns

in part on whether, as a matter of law, the asserting county, Pinellas

County, is operating as a sovereign in this instance."). And, relevant

9

here, political entities and governmental actors only have sovereign

immunity when they are acting as a sovereign—and do not enjoy such

immunity when they are not.

By recognizing that sovereign immunity is not applicable to every

type of suit that could be brought against a governmental entity, this

court breaks no new ground. Rather, the concept that sovereign

immunity does not apply to causes of action premised upon a

governmental actor's ultra vires conduct is not revolutionary but rather

finds its origins in the decisional law recognizing the common law

doctrine of sovereign immunity and assessing its boundaries. For

example, the United States Supreme Court has long recognized that a

suit to enforce a government official's actions that are beyond the express

authority conferred upon him or her by statute is not a suit against the

sovereign that is barred by sovereign immunity.

There may be, of course, suits for specific relief against

officers of the sovereign which are not suits against the

sovereign. . . . [W]here the officer's powers are limited by

statute, his actions beyond those limitations are considered

individual and not sovereign actions. The officer is not doing

the business which the sovereign has empowered him to do or

he is doing it in a way which the sovereign has forbidden. His

actions are ultra vires his authority and therefore may be

made the object of specific relief.

Larson v. Domestic & Foreign Com. Corp., 337 U.S. 682, 689 (1949); see

also Dugan v. Rank, 372 U.S. 609, 620–22 (1963) (noting a "general rule"

that a suit is "against the sovereign" if "the judgment sought would

expend itself on the public treasury or domain, or interfere with the

public administration" or "if the effect of the judgment would be 'to

restrain the Government from acting, or to compel it to act' " but then

noting an exception to the general rule for "action by officers beyond their

statutory powers" in which "the officer's action 'can be made the basis of

10

a suit for specific relief against the officer as an individual' " (first quoting

Land v. Dollar, 330 U.S. 731, 738 (1947); then quoting Larson, 337 U.S.

at 704; and then citing and quoting Malone v. Bowdoin, 369 U.S. 643,

647 (1962))).4 In other words, when a governmental actor exceeds the

authority expressly conferred upon it by law, that entity or person is no

longer acting as the sovereign, and as a result, an action premised on

grounds that such authority has been exceeded is not deemed an action

against the sovereign to which sovereign immunity applies. See Houston

v. Ormes, 252 U.S. 469, 472 (1920). "[A] suit brought by the person

entitled to the performance of the duty against the official charged with

its performance is not a suit against the government." Id.; see also

Minnesota v. Hitchcock, 185 U.S. 373, 386 (1902) (describing that "cases

in which officers of the United States are sued, in appropriate form, to

compel them to perform some ministerial duty imposed upon them by

law, and which they wrongfully neglect or refuse to perform," "would not

4 Courts have recognized that Congress codified the principles

expressed in Larson and Dugan as applied to certain defendants and

actions, see 5 U.S.C. § 702 (1976), but in so doing neither expanded

sovereign immunity nor abrogated the Larson framework as it applies to

cases not covered by the statute—leaving unaltered the conception of

sovereign immunity which excludes from its ambit those suits against

governmental officers acting "ultra vires of statutorily delegated

authority" or in violation of the Constitution because they "are not suits

against the sovereign." See E.V. v. Robinson, 906 F.3d 1082, 1090–93

(9th Cir. 2018) (citing Larson, 337 U.S. at 689–90) (explaining that "since

1976 federal courts have looked to § 702 . . . to serve the purposes of the

[Larson exceptions] in suits against federal officers" but recognizing that

the court has "consistently applied the Larson framework" where section

702 does not apply (alteration in original) (quoting E.E.O.C. v. Peabody

Western Coal Co., 610 F.3d 1070, 1085 (9th Cir. 2010)))); Made in the

USA Found. v. United States, 242 F.3d 1300, 1308 n.20 (11th Cir. 2001)

(noting that § 702 did not apply but that the "Larson–Dugan exception

permits suits to go forward alleging that a government's official's actions

were unconstitutional or beyond statutory authority").

11

be deemed suits against the United States within the rule that the

government cannot be sued except by its consent"); cf. Neapolitan

Enters., LLC v. City of Naples, 185 So. 3d 585, 593 (Fla. 2d DCA 2016)

(rejecting a municipality's separation of powers defense because the

plaintiff "alleged that the [city official] engaged in an ultra vires act" and

explaining that "[a] municipality 'engages in an "ultra vires" act when it

lacks the authority to take the action under statute or its own governing

laws' " (quoting Liberty Counsel v. Fla. Bar Bd. of Governors, 12 So. 3d

183, 191–92 (Fla. 2009))).

Sovereign immunity was part of the English common law that has

been adopted by the Florida Legislature. See Am. Home Assurance Co.,

908 So. 2d at 471; see also § 2.01, Fla. Stat. (2011). Predicated on the

principle that "the King can do no wrong," the doctrine provides that "a

sovereign cannot be sued without its own permission," Am. Home

Assurance Co., 908 So. 2d at 471, and affords "both an immunity from

liability and an immunity from suit," Fla. Highway Patrol v. Jackson, 288

So. 3d 1179, 1185 (Fla. 2020). In Florida, the State is the sovereign, see

Univ. of Fla. Bd. of Trs. v. Rojas, 351 So. 3d 1167, 1170 (Fla. 1st DCA

2022) ("Outside of claims brought under the federal or state

constitutions, sovereign immunity bars suit against the State."), but the

State's sovereign immunity also extends to its subdivisions, see Manatee

County, 365 So. 2d at 147.

It should come as no surprise that causes of action such as

mandamus and quo warranto have comfortably coexisted in the common

law with the doctrine of sovereign immunity. See, e.g., City of Bradenton

v. Johnson, 989 So. 2d 25, 26 (Fla. 2d DCA 2008) ("[M]andamus is a

common law remedy to enforce an established legal right by compelling a

public officer or agency to perform a legally required ministerial duty."

12

(first citing Smith v. State, 696 So. 2d 814, 815 (Fla. 2d DCA 1997); and

then citing Plymel v. Moore, 770 So. 2d 242, 246 (Fla. 1st DCA 2000)));

Maloy v. Seminole County, 264 So. 3d 370, 372 (Fla. 5th DCA 2019)

("Mandamus is a common law remedy used to enforce an established

legal right by compelling a person in an official capacity to perform an

indisputable ministerial duty required by law." (quoting Poole v. City of

Port Orange, 33 So. 3d 739, 741 (Fla. 5th DCA 2010))). Properly

understood, petitions for writs of mandamus and quo warranto are "not

suits against the sovereign." Larson, 337 U.S. at 689. And a writ of

mandamus, "a recognized remedy to require a public official, who is

clothed with the authority, to discharge his duty," see Alexander v. City

of Coral Gables, 745 So. 2d 1004, 1005 (Fla. 3d DCA 1999) (quoting City

of Miami Beach v. Sunset Islands 3 & 4 Prop. Owners Ass'n, 216 So. 2d

509, 511 (Fla. 3d DCA 1968)), fits snugly within that category of cases

not subject to sovereign immunity because the gravamen of the action is

that the respondent's actions or inactions are undertaken in defiance of

the sovereign—that is, the government actor "is not doing the business

which the sovereign has empowered him to do or he is doing it in a way

which the sovereign has forbidden," Larson, 337 U.S. at 689. It stands to

reason, therefore, that courts would recognize that sovereign immunity

cannot serve as a defense to such a claim. Cf. Acad. for Positive

Learning, Inc. v. Sch. Bd. of Palm Beach Cnty., 359 So. 3d 767, 772 (Fla.

4th DCA 2023) (Levine, J., concurring specially) ("[T]he action of the

school board in the distribution of the funds raised by the 2018

referendum is the type of ministerial action that is not subject to the

defense of sovereign immunity."); Simmat v. U.S. Bureau of Prisons, 413

F.3d 1225, 1234 (10th Cir. 2005) ("[A]pplication of the mandamus

remedy to require a public official to perform a duty imposed upon him

13

in his official capacity is not limited by sovereign immunity."); Wash.

Legal Found. v. U.S. Sentencing Comm'n, 89 F.3d 897, 901 (D.C. Cir.

1996) ("If a plaintiff seeks a writ of mandamus to force a public official to

perform a duty imposed upon him in his official capacity, however, no

separate waiver of sovereign immunity is needed."); Beale v. Blount, 461

F.2d 1133, 1137 (5th Cir. 1972) ("The remedy of mandamus directed

against an agency has been regarded as an exception to the doctrine that

suits may not be maintained against the United States without its

consent." (citing Clackamas County v. McKay, 219 F.2d 479 (D.C. Cir.

1954), vacated as moot, 349 U.S. 909 (1985))); Heath v. O'Malley, No. 05-

61976-civ, 2006 WL 6617128, at *3 (S.D. Fla. Feb. 6, 2006)

("Significantly, application of the mandamus remedy to require a public

official to perform a duty imposed upon him in his official capacity is not

limited by sovereign immunity.").

Consistent with above cited case law enunciating the longstanding

principles confining the ambit of sovereign immunity, case law

illustrating the historical conception of the mandamus writ further

explains why sovereign immunity cannot be a defense to a mandamus

proceeding. "The power which the court exercises by the writ of

mandamus to compel a public officer to correctly perform the ministerial

duties pertaining to his office and which by law he is required to perform

. . . rests in the sovereign power of the state, and is confided to the

judicial branch of the government." State ex rel. Peacock v. Latham, 170

So. 475, 479 (Fla. 1936) (quoting State ex rel. Knott v. Haskell, 72 So.

651, 651 (Fla. 1916)). Mandamus is better understood not as a suit

against the sovereign but rather a suit brought by the sovereign to

require a governmental actor—not the sovereign itself—to perform a duty

the official is indisputably required to perform.

14

The modern writ of mandamus may be defined as a

command issuing from a common-law court of competent

jurisdiction, in the name of the state or sovereign, directed to

some corporation, officer, or inferior court, requiring the

performance of a particular duty therein specified . . . .

. . . It seems, originally, to have been one of that large

class of writs or mandates, by which the sovereign of England

directed the performance of any desired act by his subjects,

the word 'mandamus' in such writs or letters missive having

doubtless given rise to the present name of the writ.

Mandamus, Black's Law Dictionary (11th ed. 2019) (quoting James L.

High, A Treatise on Extraordinary Legal Remedies § 2, at 5–6 (1884)).

While petitions for writ of mandamus were historically brought in the

name of the State, the supreme court has since dispensed with that

formality for the enforcement of a private right, reasoning that in such

cases "the State is not a necessary party, and all proceedings should be

conducted in the name of the actual parties in interest." Fla. Indus.

Comm'n v. State ex rel. Orange State Oil Co., 21 So. 2d 599, 600–01 (Fla.

1945) (citing State ex rel. Davis v. Atl. Coast Line R.R. Co., 116 So. 48, 50

(Fla. 1928)).

For similar reasons, sovereign immunity would not shield a

government actor from a petition for quo warranto. The term "quo

warranto" means "by what authority." Fla. House of Reps. v. Crist, 999

So. 2d 601, 607 (Fla. 2008). A writ of quo warranto is a common law

remedy to determine "whether a state officer or agency has improperly

exercised a power or right derived from the State." Id.; see also Whiley v.

Scott, 79 So. 3d 702, 708 (Fla. 2011) (framing the issue in a quo

warranto proceeding as "whether the Governor has overstepped his

constitutional authority"); State ex rel. Landis v. Prevatt, 148 So. 578,

579 (Fla. 1933) (describing "the nature of quo warranto [a]s a common-

law remedy"); 65 Am. Jur. 2d Quo Warranto § 1 ("[Quo warranto] directs

15

the defendant to show by what authority he or she is acting."). The very

question asserted in a quo warranto proceeding is whether a state officer

has exceeded his or her authority, necessarily implicating the concept of

a governmental actor whose conduct is ultra vires. See, e.g., Detzner v.

Anstead, 256 So. 3d 820, 823 (Fla. 2018) (reversing a writ of quo

warranto issued to the secretary of state because "Florida law is clear

that the Secretary has the authority and duty to place proposed

amendments on the ballot"); Crist, 999 So. 2d at 603 ("We hold that the

Governor does not have the constitutional authority to bind the State to

a gaming compact that clearly departs from the State's public policy by

legalizing types of gaming that are illegal everywhere else in the state.").

Mandamus and quo warranto proceedings involve what is alleged to

be conduct beyond the authority expressly conferred by law on a

governmental actor, whose ultra vires conduct has brought it outside the

protection from suit and liability enjoyed by the sovereign. They are

"suits for specific relief against officers of the sovereign[,] which are not

suits against the sovereign" itself to which sovereign immunity could

apply. Larson, 337 U.S. at 689.

More recent decisional law recognizes these concepts in other

circumstances. These cases perpetuate similar treatment of a class of

actions to which sovereign immunity is not a bar because the claims are

not brought against the sovereign for liability arising from its sovereign

actions but rather against derelict government actors premised upon

ultra vires conduct in derogation of legal mandates that govern their

authority. For example, declaratory judgment actions are not barred by

sovereign immunity if the gravamen of the claim concerns a matter

otherwise not protected by sovereign immunity. See, e.g., Kohl v. Blue

Cross & Blue Shield of Fla., Inc., 988 So. 2d 654, 657, 659 (Fla. 4th DCA

16

2008) (rejecting argument that sovereign immunity barred an action for

declaratory relief of insurance rights "because th[e] suit is predicated on

a contractual breach" and contract actions are not barred by sovereign

immunity (citing Pan-Am Tobacco, 471 So. 2d at 5)); Kempfer v. St. Johns

River Water Mgmt. Dist., 475 So. 2d 920, 924 (Fla. 5th DCA 1985)

(concluding that an action for declaratory relief to construe an easement

granted to a state agency was not barred by sovereign immunity); cf.

Neapolitan Enters., LLC, 185 So. 3d at 593 ("Declaratory judgment

actions regarding ultra vires acts are recognized as to private actors and

as to local governments." (first citing Beau Monde, Inc. v. Bramson, 446

So. 2d 164, 166–67 (Fla. 2d DCA 1984); then citing Nat'l Rifle Ass'n of

Am., Inc. v. City of S. Miami, 812 So. 2d 504, 505–06 (Fla. 3d DCA 2002);

and then citing Town of Lauderdale-by-the-Sea v. Meretsky, 773 So. 2d

1245, 1249 (Fla. 4th DCA 2000))).

Another example is when a government collects an unauthorized

tax or fee. Because the funds were collected in violation of a "direct

legislative mandate," sovereign immunity will not shield a government

from a claim seeking a refund of those funds. See Bill Stroop Roofing, Inc.

v. Metropolitan Dade County, 788 So. 2d 365, 367–68 (Fla. 3d DCA 2001)

(rejecting sovereign immunity as a defense to "a county's refusal to obey

a direct legislative mandate" through the collection of fees in derogation

of a statute); Parker v. Am. Traffic Sols., Inc., No. 14-civ-24010, 2015 WL

4755175, at *4 (S.D. Fla. Aug. 10, 2015) ("[U]nder Florida law, state

actors are not immune from suit for unlawful monetary extractions."); cf.

Lee Mem'l Health Sys., 304 So. 3d at 61–62 (holding the trial court erred

in refusing to apply sovereign immunity because "Lee Health did not

refuse to follow a direct legislative mandate" but rather collected funds

under a statute "that was declared unenforceable decades thereafter").

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And conversely, when a direct legislative mandate requires a

governmental entity to spend money but it refuses to do so, such

mandate remains enforceable, and there is no reason to conclude that

actions premised upon a violation of such legal directive are barred by

sovereign immunity. See Daly v. Marion County, 265 So. 3d 644, 649

(Fla. 1st DCA 2018) ("Although the judiciary may not instruct an agency

to exercise its discretionary spending, a court has authority to order an

agency to comply with a legislative mandate requiring funds to be spent

in a particular way. Otherwise, there could be no remedy if a state

agency refused to comply with the legislature's authority to appropriate

funds for a specific purpose." (emphasis in original) (citations omitted));

Acad. for Positive Learning, Inc., 359 So. 3d at 773–74 (Levine, J.,

concurring specially) (reasoning that even in the context of "illegally

retained monies" as opposed to "illegally extracted monies," "the refusal

of the school board to follow a direct legislative mandate of a ministerial

action subjects it to claims that are not barred by sovereign immunity").

The same underlying justification as for mandamus and quo

warranto proceedings applies to those cases concerning a government's

unlawful extraction or retention of funds or failure to pay funds that it is

required by law to pay. See, e.g., Houston, 252 U.S. at 473 ("In the

present case it is conceded, and properly conceded, that payment of the

fund in question to the defendant Sanders is a ministerial duty, the

performance of which could be compelled by mandamus."); Sandegren v.

State ex rel. Sarasota Cnty. Pub. Hosp. Bd., 397 So. 2d 657, 659 (Fla.

1981) (holding a county had a ministerial duty to fund mental health

programs that was enforceable through mandamus); Bd. of Cmm'rs of

Escambia Cnty. v. Bd. of Pilot Cmm'rs of Port of Pensacola, 42 So. 697,

703 (Fla. 1906) ("When an expenditure by a county is authorized by a

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valid law, and the correctness of the amount due by the county is

ascertained and approved as the laws directs, there being no question as

to bona fides, it is the duty of the county commissioners to audit,

approve, and pay the same, and such payment may be enforced by

mandamus."); Maloy, 264 So. 3d at 371 (affirming trial court's issuance

of a writ of mandamus compelling the clerk of a county to invest surplus

funds as directed by the board of county commissioners); Bd. of Cnty.

Comm'rs Broward Cnty. v. Parrish, 154 So. 3d 412, 414, 416 (Fla. 4th

DCA 2014) (affirming trial court's issuance of a writ of mandamus

compelling the board of county commissioners to fully fund an operation

budget). Whether enforceable by mandamus, declaratory judgment, quo

warranto, or other procedural vehicle, in actions premised upon conduct

by a governmental actor in defiance of the legal strictures that govern its

authority—for example, directives or prohibitions imposed by a "direct

legislative mandate," Bill Stroop Roofing, 788 So. 2d at 367–68—the

governmental respondent's ultra vires conduct takes it out of the ambit

of the immunity it would enjoy if it had been acting as the sovereign.

Consequently, such actions are not barred by sovereign immunity

because they are "for specific relief against officers of the sovereign which

are not suits against the sovereign." Larson, 337 U.S. at 689.

The only meaningful rebuttal the County lodges to the Hospitals'

cited authorities is pointing out that the underlying statutes at issue in

those decisions were general laws, not special laws. See, e.g., Sandegren,

397 So. 2d at 659 (affirming writ of mandamus that compelled

performance of a ministerial funding obligation under chapter 394,

Florida Statutes (1977)); Bill Stroop Roofing, 788 So. 2d at 366–68

(reversing the trial court's application of sovereign immunity to a "direct

legislative mandate" set forth in section 489.113(4)(a), Florida Statutes

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(1994)); see also Arnold v. Shumpert, 217 So. 2d 116, 120 (Fla. 1968)

("[W]aiver of a county's sovereign immunity cannot be accomplished by

local law."). While it is true that the statutes at issue in those decisions

were general laws, there has been no law cited for the proposition that

only general laws may be enforced by mandamus whereas special laws

cannot or for the proposition that only direct legislative mandates from

general laws can be enforced whereas direct legislative mandates from

special laws cannot. Moreover, the cited cases that address sovereign

immunity were decided based on the doctrine's inapplicability, not a

waiver, so whether a general law was involved is immaterial. See, e.g.,

Bill Stroop Roofing, 788 So. 2d at 368 ("Thus we conclude that our

governments are required to refund taxes and fees illegally exacted, and

the doctrine of sovereign immunity is inapplicable thereto." (emphasis

added) (footnotes omitted)).

It is against this backdrop of the common law of sovereign

immunity that Florida's constitution provides that the legislature may

enact "general law for bringing suit against the state as to all liabilities

now existing or hereinafter originating." Art. X, § 13, Fla. Const; see

Manatee County, 365 So. 2d at 147 (agreeing with the argument of the

county that sovereign immunity applies "unless the Legislature provides

otherwise by general law"). If an action seeking to enforce a government

actor's departure from the authority expressly conferred upon it by a

direct legislative mandate or other law is not a "suit[] against the

sovereign," Larson, 337 U.S. at 689, then it logically follows that the

action is not a "suit against the state" within the meaning of our

constitution so as to implicate sovereign immunity.

From case law such as that discussed herein, it can also be gleaned

what was understood to constitute a "liabilit[y]," as that term is used in

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the constitution, see art. X, § 13, Fla. Const, such that under the

common law of sovereign immunity it could not form the basis of a

lawsuit against the sovereign—that is, that for which sovereign immunity

would be a viable defense but for the waiver contemplated in the

constitution. In other words, decisional law in the variety of different

contexts identified herein reflects that it is not a "liabilit[y]" for purposes

of sovereign immunity to require the government to act within the scope

of the authority conferred upon it by law and to comply with the legal

mandates imposed upon it. See id.

An instructive illustration of what is a liability for purposes of

sovereign immunity can be found when considering government tort

liability. The legislature, recognizing that governmental acts giving rise

to tort liability are within the ambit of sovereign immunity, enacted

section 768.28, Florida Statutes, which provides a limited waiver of

sovereign immunity for tort claims. See § 768.28(1), Fla. Stat. (2011) ("In

accordance with s. 13, Art. X of the State Constitution, the state, for

itself and for its agencies or subdivisions, hereby waives sovereign

immunity for liability for torts, but only to the extent specified in this

act."). And even then, tort liability has only been partially waived for the

government's "operational" decisions—those that "implement policy"—as

the government remains completely immune from tort liability for its

"planning" decisions—those that are "discretionary" and require "basic

policy decisions." See Com. Carrier Corp. v. Indian River County, 371 So.

2d 1010, 1021–22 (Fla. 1979). Either way, both operational and

planning decisions are those to which sovereign immunity applies as to

any resulting tort liability, unless the decision at issue falls within the

scope of the statutory waiver in section 768.28. On this point, Venice

HMA misplaces reliance on the distinction between operational decisions

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that implement policy and discretionary planning decisions that create

policy. Mistakenly conflating the concept of "ministerial duties" and

"operational acts" in its brief, Venice HMA compounds its error by

presuming that sovereign immunity is inapplicable to both. But

operational decisions are within the ambit of sovereign immunity just as

are discretionary planning decisions. See id. In other words, contrary to

Venice HMA's argument, cases asserting tort liability arising from the

operational decisions of a state defendant are permitted not because they

are actions to which sovereign immunity does not apply but rather

because the sovereign immunity that would apply has been waived by

statute. And the reason sovereign immunity is not a defense to a

mandamus petition or, as in this case, a suit brought to enforce a direct

legislative mandate is not because they are based on nonoperational

decisions; rather, it is because they are not tort claims at all but rather

are among the types of action for which a waiver of sovereign immunity is

not necessary because it does not apply in the first place.

Sovereign immunity does apply to the types of governmental

actions giving rise to tort liability because a tort claim is seeking redress

for conduct that breaches the general duty of care but which was being

undertaken within the scope of the government actor's official charge in

accordance with the authority conferred upon it by law. In other words,

a tort claim is not asserting that the government actor is acting outside

his or her legal authority, failing to comply with a direct legislative

mandate, or failing to perform a ministerial duty. When he or she

committed the tortious action, the government actor was acting under

the auspices of his or her role as an agent of the sovereign, undertaking

authorized duties not in contravention of the legal limits of his or her

power and not failing to act in defiance of a clear legislative mandate.

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Rather, the theory in a tort case is that the government actor breached

the general duty of care, giving rise to liability on the part of the

sovereign because the actions caused harm to the plaintiff. For example,

if a government employee, within the scope of his duties, collides his

vehicle into a pedestrian, the gravamen of the negligence complaint is not

that the driver was ignoring a legislative mandate or that his conduct

was outside his legal authority to act. To the contrary, the government

actor was within his authority, for example, to drive a truck through the

city park to inspect the playground equipment or empty the waste bins.

But the government is liable because the governmental actor, while

carrying out his duty under the law, breached the duty of care he and

any other human being driving an automobile owes to pedestrians, which

caused harm to the plaintiff. That is liability that is protected by

sovereign immunity that must be waived under the constitutional

provision that allows "suits against the state as to all liabilities" to be

allowed by "general law." See art. X, § 13, Fla. Const.; cf. Larson, 337

U.S. at 689–90 ("The officer is not doing the business which the sovereign

has empowered him to do or he is doing it in a way which the sovereign

has forbidden. . . . It is important to note that in such cases the relief

can be granted, without impleading the sovereign, only because of the

officer's lack of delegated power. A claim of error in the exercise of that

power is therefore not sufficient." (emphasis added)).

That a claim for breach of an express, written contract constitutes

a liability for which sovereign immunity would otherwise apply absent

the judicially implied waiver makes sense for similar reasons. See Pan-

Am Tobacco, 471 So. 2d at 5–6; see also Schwefringhaus, 188 So. 3d at

844. Like tort claims, the focus of a contract claim is not that the

government was acting ultra vires but rather that the government

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breached the terms of a contract. Operating within legislatively conferred

authority to enter into contracts, a governmental entity's exercise of that

authority might give rise to new duties—performance obligations under

the terms of a contract—the violation of which gives rise to liability that

would otherwise be protected by sovereign immunity absent the judicially

implied waiver. As it is for lawsuits asserting tort liability, breach of

contract claims against the government are not premised on the theory

that the defendant was acting ultra vires or failing to act in defiance of a

legislative mandate. Rather, liability was created by violation of the

obligations of a contract just as liability arose when a governmental tort

defendant breached the general duty of care.

Here, as in Bill Stroop Roofing, the gravamen of the Hospitals'

complaint is that the County has violated a direct legislative mandate in

the Special Act by refusing to reimburse them for the cost of providing

medical care to indigent persons. It cannot be reasonably susceptible to

question that the legislature expressly conferred a mandatory duty upon

the County under the Special Act's indigent care provision. If the

Hospitals submit certified lists with the required information, then the

County

shall, within 45 days after the receipt of such certified list of

medically indigent patients with the hospital charges, make

remittance . . . of the sum total of the amount shown on the

certified list to be the amount owing . . . for the hospital

services and care rendered to the medically indigent persons

during the month embraced in said certification.

Ch. 2003-359, § 8(9), at 6, Laws of Fla. (emphasis added). The Special

Act describes the County's duty in mandatory terms (that the County

"shall . . . make remittance" of money), describes how the County is

supposed to fulfill that duty (by paying the amount shown on the

certified list), and describes when the County is supposed to fulfill that

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duty (within forty-five days of its receipt of the certified list). Id.; see also

Sanders v. City of Orlando, 997 So. 2d 1089, 1095 (Fla. 2008) ("The word

'shall' is mandatory in nature."). The gravamen of the Hospitals' claims

is that the County, in defiance of a legal mandate requiring action, is

failing to act—that the governmental defendant's inaction is ultra vires,

and therefore it is not being sued in the capacity of a sovereign but

rather as a derelict governmental actor which must be compelled to

conform its conduct to the prescriptions of the law. The Hospitals' claim

to enforce the County's refusal to comply with the Special Act is therefore

not a suit premised on liability of the sovereign, and sovereign immunity

does not shield the County from that cause of action. Accordingly, the

trial court erred by declaring in its final judgment that the County's

sovereign immunity bars the Hospitals' claims under the Special Act's

indigent care provision as a matter of law.

III.

On the other hand, competent substantial evidence supports the

trial court's determination that the Hospitals did not prove that they were

entitled to reimbursement for the prior invoices they began submitting to

the County in 2008. Although the trial court erroneously concluded that

sovereign immunity barred the Hospitals' claims, the trial court further

concluded that even if the Hospitals had established that an express,

written contract existed between the parties, the Hospitals' performance

did not mirror the terms of the Special Act to constitute acceptance by

performance. Therefore, even though we need not reach contract-specific

issues for the purpose of the waiver of sovereign immunity, we have

sufficient factual findings from the trial court for our appellate review

regarding the Hospitals' compliance with the terms of the Special Act.

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The trial court found numerous reasons why the Hospitals did not

comply with the terms of the Special Act. We address only the trial

court's finding that the Hospitals' certified lists did not contain "itemized

charges for the hospital services and care for each of said medically

indigent persons," a reason sufficient to support the trial court's

conclusion that the Hospitals were not entitled to reimbursement for the

prior invoices they submitted to the County.

As can be discerned from their briefs, the Hospitals raise two

arguments for why they met the "itemized charges" requirement. First,

they argue that their certified lists contained "the total charges

associated with each separate patient." That is true, but that is not what

the Special Act requires. The Special Act requires "itemized charges for

the hospital services and care" of each medically indigent patient. Ch.

2003-359, § 8(9), at 6, Laws of Fla. (emphasis added). In other words,

the certified lists must itemize the charges for each service rendered to a

particular patient, not aggregate all of the charges into a single, total

number per patient.

Second, the Hospitals argue that they provided "detailed billing

statements containing breakdowns of the charges associated with each

patient's hospital stay" to the County during discovery. But the Special

Act requires the certified lists to be submitted by the fifteenth day of the

month that follows the month in which the treatment to the medically

indigent persons was provided. Id. For example, if the Hospitals seek

reimbursement for treatment provided to medically indigent persons in

April, the certified list must be submitted by May 15. Because the

Hospitals did not timely submit certified lists containing "itemized

charges for the hospital services and care" of each patient, the trial

court's conclusion that they failed to comply with the terms of the

26

Special Act for purposes of obtaining reimbursement of their invoices is

supported by competent substantial evidence and must be affirmed.

Affirmed in part; reversed in part; remanded with instructions.

MORRIS and BLACK, JJ., Concur.

Opinion subject to revision prior to official publication.

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