Florida Agency For Health Care Adm. v. Shirley McClain

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D16-474

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FLORIDA AGENCY FOR HEALTH

CARE ADMINISTRATION,

Appellant,

v.

SHIRLEY MCCLAIN,

Appellee.

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On appeal from the Circuit Court for Leon County.

George S. Reynolds, III, Judge.

April 18, 2018

WINOKUR, J.

This case presents again the issue we recently addressed in

Florida Highway Patrol v. Jackson, 43 Fla. L. Weekly D451 (Fla.

1st DCA Feb. 23, 2018). It appears from the record that the lower

tribunal determined that Appellant, Florida Agency for Health

Care Administration, is not entitled to sovereign immunity as a

matter of law in this matter. AHCA appeals under Florida Rule

of Appellate Procedure 9.130(a)(3)(C)(xi), which authorizes

review of non-final orders determining “that, as a matter of law, a

party is not entitled to immunity.” As we explain below, however,

we are constrained to dismiss the appeal because the order

merely denies a motion and does not explicitly, on its face,

determine that AHCA is not entitled to immunity. While AHCA

may obtain an appealable order from the lower tribunal, if the

lower tribunal determines that AHCA is not entitled to sovereign

immunity as a matter of law, the tribunal should explicitly so

rule on the face of its order. That is the only way to vest this

Court with jurisdiction to afford AHCA the interlocutory review

to which it is entitled under Rule 9.130(a)(3)(C)(xi). We again

certify to the Florida Supreme Court the question of great public

importance we certified in Jackson.

BACKGROUND

In 1991, Appellee Shirley McClain was sentenced to two

years in prison with credit for time served and was ordered to pay

$200 in “trust fund monies,” following a violation of probation

stemming from a 1988 felony conviction. In 1992, McClain was

hired as a cook by a health care provider after her release from

prison. In 1999, AHCA conducted a background check pursuant

to chapter 435, Florida Statutes, and found nothing affecting

McClain’s eligibility. In 2012, AHCA conducted another

background check, this time finding that McClain’s 1988

conviction disqualified her from working at a licensed heath care

provider. AHCA notified McClain and informed her that she

could file an application for an exemption pursuant to section

435.07(1)(a), Florida Statutes. Upon receipt of McClain’s

application, AHCA notified her that she had “outstanding unpaid

court sanctions” from her 1991 sentence. McClain paid this

balance, but was then told that she was ineligible for an

exemption, as she had only just completed the sanction imposed. 1

McClain’s employer subsequently terminated her employment.

McClain filed a three-count complaint against AHCA

alleging, inter alia, that the agency was negligent in

characterizing the “trust fund monies” as a “sanction,” resulting

in her ineligibility for an exemption. AHCA filed a motion to

1 In 2012, agencies were permitted to grant exemptions for

felonies if at least three years had elapsed since the applicant

“ha[d] completed or been lawfully released from confinement,

supervision, or sanction for the disqualifying felony.”

§ 435.07(1)(a), Fla. Stat. (2012).

2

dismiss, arguing in part that it was entitled to sovereign

immunity from the action because, even if the monies were not

classified as a sanction, McClain would not be entitled to the

discretionary grant of an exemption. The order on this motion

struck McClain’s claims for punitive damages and reserved

ruling with regard to Count III of the complaint, but otherwise

denied the motion to dismiss Counts I and II without discussion. 2

AHCA appeals pursuant to Rule 9.130(a)(3)(C)(xi), which permits

appeals of non-final orders that determine “that, as a matter of

law, a party is not entitled to sovereign immunity.”

ANALYSIS

In pertinent part, the order appealed rules that “Defendants’

Motion to Dismiss is denied with respect to Count I.” This is not

an appealable final judgment because it merely rules on a

motion. See, e.g., Dedge v. Crosby, 914 So. 2d 1055, 1056 (Fla. 1st

DCA 2005) (holding an order ruling on a motion, but not taking

final action, is not an appealable final order). To be subject to

interlocutory review, the order must satisfy the requirements of

Rule 9.130. “Generally, an appellate court may not review

interlocutory orders unless the order falls within the ambit of

non-final orders appealable to a district court as set forth in

Florida Rule of Appellate Procedure 9.130.” Keck v. Eminisor, 104

So. 3d 359, 363-64 (Fla. 2012). For purposes of Rule

9.130(a)(3)(C)(xi), an order denies sovereign immunity “as a

matter of law” only when the order “specifically states that, as a

matter of law, such a defense is not available to a party.”

Jackson, 43 Fla. L. Weekly at D451 (quoting Hastings v.

Demming, 694 So. 2d 718, 720 (Fla. 1997)). The denial of

immunity must be made on the face of the order and must be

explicit. Id. (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889

So. 2d 812, 821 (Fla. 2004)). See also Miami-Dade Cty. v. Pozos,

2 McClain also included Elizabeth Dudek, then-secretary of

AHCA, as a defendant, in both her individual and official

capacities. The complaint alleged negligence against AHCA and

denial of due process against both AHCA and Dudek individually.

This appeal relates only to the sovereign immunity claim and not

to any claims of individual immunity regarding Dudek.

3

42 Fla. L. Weekly D418 (Fla. 3d DCA Feb. 15, 2017); Eagle Arts

Acad., Inc. v. Tri-City Elec. Co, Inc., 211 So. 3d 1083 (Fla. 3d DCA

2017); Taival v. Barrett, 204 So. 3d 486 (Fla. 5th DCA 2016).

Applying these standards, the order under review is not

appealable. The court wrote only that the “motion to dismiss is

denied.” The face of the order does not “explicitly” find that

AHCA is not entitled to sovereign immunity. Accordingly, we do

not have jurisdiction under Rule 9.130 to review this order.

AHCA argues that the trial court necessarily determined as

a matter of law that it was not entitled to sovereign immunity,

and that the order is therefore appealable. AHCA reaches this

conclusion because, on a motion to dismiss, a trial court must

treat the allegations of the complaint as true. Consequently,

AHCA argues, the trial court could not have based its denial on

the existence of a factual dispute, and necessarily denied the

motion based on a conclusion that it was not entitled to sovereign

immunity as a matter of law.

We rejected this same argument in Martin Electronics, Inc.

v. Glombowski, 705 So. 2d 26 (Fla. 1st DCA 1997). 3 The appellant

there argued that the Hastings rule applied only to orders

denying summary judgment, and not to orders denying motions

to dismiss, which were necessarily decided as a matter of law. We

disagreed:

[I]f an order simply denying a motion for summary

judgment cannot be a determination that a party is not

3 Glombowski, like Hastings and Reeves, involved an order

denying workers’ compensation immunity. Such orders are

appealable if they determine “as a matter of law” that the

defendant is not entitled to immunity. Fla. R. App. P.

9.130(a)(3)(C)(v). The “as a matter of law” language appears

identically in all of the subdivisions in Rule 9.130(a)(3)(C)

involving orders denying immunity. Fla. R. App. P.

9.130(a)(3)(C)(v), (vii), (x), & (xi). “As such, all of the subdivisions

should be construed identically.” Fla. Highway Patrol v. Jackson,

43 Fla. L. Weekly D451 (Fla. 1st DCA Feb. 23, 2018). See also

Pozos, 42 Fla. L. Weekly at D419.

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entitled to workers’ compensation immunity, then

certainly an order which denies a motion to dismiss

does not constitute such a determination. Clearly, the

orders on appeal in these cases do not contain the

specific language which is required by [Hastings].

Id. at 30. AHCA notes that the trial court in Glombowski had

explained that it was “making no definitive determination of the

issue of workers’ compensation immunity,” id., but this fact

makes no difference to the analysis. Because the court here did

not explicitly indicate on the face of the order that it was denying

sovereign immunity as a matter of law, the order is not

appealable. 4

4 AHCA argues that an order on a motion to dismiss

necessarily cannot be based on a factual dispute because such a

motion takes all facts alleged in the complaint to be true. See

Wallace v. Dean, 3 So. 3d 1035, 1042–43 (Fla. 2009). This

observation is true when the motion to dismiss argues that the

complaint fails to state a cause of action. Fla. R. Civ. P.

1.140(b)(6). But when, as here, the motion to dismiss is based on

an affirmative defense, the defendant’s entitlement to the

affirmative defense may require the establishment of facts that

are not contained in the complaint. See, e.g., Mancher v. Seminole

Tribe of Fla., Inc., 708 So. 2d 327, 328-29 (Fla. 4th DCA 1998)

(holding that defendant’s sovereign-immunity argument is “not

amenable to resolution by motion to dismiss because there are

disputed factual questions”); see also Wildflower, LLC v. St.

Johns River Water Mgmt. Dist., 179 So. 3d 369, 373 (Fla. 5th

DCA 2015) (reversing dismissal based on res judicata and lack of

standing as these defenses required factual proof); Chodorow v.

Porto Vita, Ltd., 954 So. 2d 1240, 1242 (Fla. 3d DCA 2007)

(rejecting dismissal based on limitations defense because the

claim was “factually intensive”); Wishnatzki v. Coffman Constr.,

Inc., 884 So. 2d 282, 285 (Fla. 2d DCA 2004) (holding that

dismissal is inappropriate if circumstances suggest plaintiff could

have pled matters to avoid statute of limitations defense);

Patterson v. McNeel, 704 So. 2d 1070, 1072 (Fla. 2d DCA 1997)

(“[A] motion to dismiss should not be granted on the basis of an

affirmative defense . . . unless that defense is established on the

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As we did in Jackson, we recognize that the Florida Supreme

Court, in its most recent decision addressing the appealability of

orders denying immunity, permitted interlocutory appellate

review of an order denying immunity without any discussion of

whether the order under review explicitly stated that the

governmental entity was not entitled to sovereign immunity as a

matter of law. Beach Cmty. Bank v. City of Freeport, 150 So. 3d

1111 (Fla. 2014). The supreme court agreed with us that “the

City’s claim to sovereign immunity rested on a pure question of

law.” Id. at 1113. Beach Community Bank is particularly

noteworthy here because it also involved an order denying a

motion to dismiss rather than an order denying summary

judgment.

CONCLUSION

Based on Beach Community Bank, “it is unclear if the

Florida Supreme Court has departed from narrowly interpreting

‘as a matter of law’ to permit appellate review of orders denying

sovereign immunity when the record demonstrates that the

defendant is entitled to such immunity and was erroneously

required to continue to defend itself.” Jackson, 43 Fla. L. Weekly

at D451. We dismiss the appeal and invite the lower tribunal to

enter an amended order explicitly stating on its face that AHCA

is not entitled to sovereign immunity, if that is the substance of

the lower tribunal’s determination. We certify the same question

of great public importance to the Florida Supreme Court as we

did in Jackson:

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?

DISMISSED.

face of the pleadings.”). An order denying such a motion is not

necessarily ruling that the defendant is not entitled to the

defense; the denial may be based on the lack of factual support

for the defense.

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RAY and KELSEY, JJ., concur.

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Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

_____________________________

Tracy L. C. George, Leslei G. Street, and Cynthia L. Hain, of

Florida Agency for Health Care Administration, Tallahassee, for

Appellant.

Cristine M. Russell of Rogers Towers, P.A., Jacksonville, Sharon

Bourassa and Debra Koprowski, Legal Aid Service of Broward

County, Inc., Plantation, for Appellee.

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