Christina Daly, in her official capacity as Secretary of the Florida Department of Juvenile Justice v. Polk County, Florida, and Seminole County, Florida, political subdivisions of the State of Florida

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D17-4509

_____________________________

CHRISTINA DALY, in her official

capacity as Secretary of the

Florida Department of Juvenile

Justice,

Appellant,

v.

MARION COUNTY, FLORIDA, POLK

COUNTY, FLORIDA, and

SEMINOLE COUNTY, FLORIDA,

political subdivisions of the

State of Florida,

Appellees.

_____________________________

On appeal from the Circuit Court for Leon County.

John C. Cooper, Judge.

November 27, 2018

B.L. THOMAS, C.J.

Before us is the culmination of a series of cases regarding

juvenile-detention funding under section 985.686, Florida

Statutes. Appellant, Christina Daly, in her official capacity as

Secretary of the Florida Department of Juvenile Justice, appeals

the trial court’s order granting final summary judgment to

Appellees, Polk County and Seminole County, 1 and ordering the

Department to pay refunds to Appellees for overpayments into the

“Shared County/State Juvenile Detention Trust Fund.” For the

reasons set forth below, we affirm.

Background

Under section 985.686(1), Florida Statutes, “the state and the

counties have a joint obligation” to fund juvenile detention care.

During the fiscal years in question, the legislature divided this

joint obligation according to disposition date, with each

participating county having to pay the costs of detention care for

any juvenile residing in that county “for the period of time prior to

final court disposition.” § 985.686(3), Fla. Stat.

At the beginning of each fiscal year, the Department was

required to estimate each county’s predisposition costs for the

upcoming year and bill that county monthly based on that

estimate. 2 § 985.686(5), Fla. Stat. At the end of the fiscal year,

the Department was required to reconcile the monies paid by each

county throughout the year with that county’s actual costs. Id.

Pursuant to its rules implementing this requirement, the

Department assigned credits toward future payments when

counties overpaid, and assigned debits when counties underpaid.

All funds provided by the counties were deposited into the

Shared Trust Fund, which the legislature created as a “depository

for funds to be used for the costs of juvenile

detention.” § 985.6015(2), Fla. Stat. The only monies deposited

into this Shared Trust Fund were supplied by the counties to

prepay their obligations, and general revenue funds to cover the

costs of fiscally constrained counties.

1 The order also awarded relief to Marion County, who is no

longer a party to this case.

2 “Fiscally constrained” counties are subject to certain

exemptions. As Appellees were not fiscally constrained, those

exemptions and rules are not pertinent here.

2

The Department initially interpreted section 985.686 to

require the counties to pay all detention costs incurred before the

date of the juvenile’s commitment to the Department, as opposed

to the date of the court’s disposition of the juvenile’s case, which

often occurs days before commitment. See Dep’t of Juvenile Justice

v. Okaloosa Cty., 113 So. 3d 1074 (Fla. 1st DCA 2013) (Mem). In

2010, several counties challenged the Department’s rules codifying

this interpretation, arguing that the rules forced the counties to

pay for thousands of days that were the State’s responsibility. Id.

On appeal, this court agreed with the counties, holding that the

plain meaning of section 985.686 did not support the Department’s

interpretation. Id.

The Department then issued a final order denying any

obligation to repay the counties. Pinellas and Broward Counties,

both of whom had overpaid on account of the Department’s

invalidated rules, appealed that final order, and we remanded for

the Department to apply credits over time until the total credit was

applied. Pinellas Cty. v. Florida Dep’t of Juvenile Justice, 188

So. 3d 894 (Fla. 1st DCA 2016); Broward Cty. v. State, Dep’t of

Juvenile Justice, 192 So. 3d 70 (Fla. 1st DCA 2016) (Mem).

Unlike Pinellas and Broward Counties, who could be

remedied with credits toward future prepayments, Appellees opted

out of the cost-sharing system sometime after the years of

overpayment, as permitted by section 985.686(10), Florida

Statutes. The Department denied any obligation to issue refunds

to these counties. In Marion County v. Department of Juvenile

Justice, this Court held that the Department has a duty to

reconcile differences between initial estimates and actual costs,

and that honoring that obligation can require reimbursing

counties for overpayments when credits are not an appropriate

remedy. 215 So. 3d 621, 628 (Fla. 1st DCA 2017).

In 2014, Polk County filed a refund application under

section 215.26, Florida Statutes, the tax refund statute, which

states:

(1) The Chief Financial Officer may refund to the person

who paid same, or his or her heirs, personal

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representatives, or assigns, any moneys paid into the

State Treasury which constitute:

(a) An overpayment of any tax, license, or account due;

(b) A payment where no tax, license, or account is due;

and

(c) Any payment made into the State Treasury in error;

and if any such payment has been credited to an

appropriation, such appropriation shall at the time of

making any such refund, be charged therewith. There are

appropriated from the proper respective funds from time

to time such sums as may be necessary for such refunds.

§ 215.26(1), Fla. Stat. (emphasis added). The Department denied

Polk County’s refund application, asserting that counties are not

“persons” under section 215.26. Polk County then brought an

action against the Department and its Chief Financial Officer, as

permitted by Rule 69I-44.020(3)(b), Florida Administrative Code.

Seminole County filed a similar application.

The Department asserted that it could not issue refunds, as

the Shared Trust Fund consisted of subaccounts, and Appellees’

subaccounts were empty. Appellees presented the deposition

testimony of the Department’s Chief of Staff, who testified as

follows:

Q: Do you keep track of when expenditures are

made from the shared trust fund, how much of the money

deposited by Charlotte County goes toward individual

expenditures?

A: No.

Q: So when bills are coming – when bills come into

the department to be paid, how does the department

determine which fund within the department those bills

are paid out of?

A: It’s paid out of general revenue and the shared

county trust fund.

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....

Q: And if a payment is issued from the shared

county trust fund, that’s not related to a particular

county’s revenue; is that correct?

A: No, no, no.

When asked if the Department kept documents showing

county-specific accounts within the Shared Trust Fund, the Chief

of Staff replied, “They’re accounted against the shared county trust

fund in total, not by county.” He further testified:

Q: Does the department maintain any records

that would allow it to determine what Charlotte County’s

balance is within the trust account on that particular

date?

A: No.

Q: And that’s, again, because the expenditures

are not tracked against what Charlotte County pays into

the trust fund; is that correct?

A: That’s correct, that’s correct.

The Chief of Staff also testified that when the Department issued

refunds to counties in the past, it only assessed whether the

Shared Trust Fund as a whole had sufficient cash for refunds.

The trial court concluded that the evidence “unequivocally

demonstrates that the Department does not maintain

subaccounts, and . . . is unable to attribute funds remaining in the

Shared Trust Fund to an individual county.” The court also found

that the Shared Trust Fund has held funds in excess of $15 million

at the end of each recent fiscal year, and that the Department had

issued refunds in the past under section 215.26, Florida Statutes.

The court granted final summary judgment to Appellees and

ordered the Department to issue refunds in the amounts overpaid.

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Analysis

I. Judicial Authority to Order the Refund

A trial court’s ruling on a motion for summary judgment

posing a pure question of law is reviewed de novo. Major League

Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001).

Section 985.686, Florida Statutes, declares that “the state and

the counties have a joint obligation . . . to contribute to the

financial support of the detention care provided for juveniles.”

§ 985.686(1), Fla. Stat. The statute provides that “[a]ny difference

between the estimated costs and actual costs shall be reconciled at

the end of the state fiscal year.” § 985.686(5), Fla. Stat. In Marion

County, we held that this language requires “more than a

reconciliation on paper.” Marion Cty. 215 So. 3d at 628. “The fact

that the Department’s rules only provide for a forwarding credit

does not delete the statutory requirements that counties are only

responsible for actual costs and the Department has a mandatory

duty to reconcile overpayments.” Id.

Although section 985.686 creates a statutory duty to remedy

overpayments, it contains no appropriation language indicating a

source of monies for refunds. See § 985.686(1), Fla. Stat.; see also

§ 216.011(1)(b), Fla. Stat. (defining an appropriation as “a legal

authorization to make expenditures for specific purposes within

the amounts authorized by law”); State ex rel. Victor Chem. Works

v. Gay, 74 So. 2d 560, 562 (Fla. 1954) (“unless there is some statute

which authorizes a refund or the filing of a claim for refund, money

cannot be refunded or recovered once it has been paid although

levied under the authority of an unconstitutional statute”).

Appellees must therefore rely on section 215.26, Florida Statutes,

to obtain a refund for overpayments made into the State Treasury.

Appellant acknowledges that section 215.26 provides

appropriations to pay refunds, and admits that the statute is a

proper vehicle for tax overpayments, but argues that the statute

affords no relief here, as the overpayments at issue were deposited

into a trust fund. Appellant argues that the matter is therefore

subject to the constraints of section 215.32, Florida Statutes. Cf.

McKendry v. State, 641 So. 2d 45, 46-47 (Fla. 1994) (holding that a

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specific statute on a subject controls over a general statute

covering that subject and others). Section 215.32 states:

Upon the request of the state agency or branch of state

government responsible for the administration of the

trust fund, the Chief Financial Officer may establish

accounts within the trust fund at a level considered

necessary for proper accountability. Once an account is

established, the Chief Financial Officer may authorize

payment from that account only upon determining that

there is sufficient cash and releases at the level of the

account.

§ 215.32(2)(b)1., Fla. Stat. (emphasis added).

We do not agree that section 215.32 negates section 215.26

where a trust fund is involved, as Florida courts have frequently

allowed refunds from trust funds pursuant to section 215.26. See,

e.g., Sarnoff v. Florida Dep’t of Hwy. Safety & Motor Vehicles, 825

So. 2d 351, 357 (Fla. 2002) (approving this Court’s holding that

section 215.26 provides a mechanism to refund overpayments into

the Highway Safety Operating Trust Fund); Amerisure Mut. Ins.

Co. v. Florida Dep’t of Fin. Servs., Div. of Workers’ Compensation,

156 So. 3d 520, 528 (Fla. 1st DCA 2015) (recognizing that a refund

claim for overpayment into the Special Disability Trust Fund “falls

squarely within the ambit of Section 215.26, Florida Statutes”);

Greyhound Lines, Inc. v. Dep’t of Banking & Fin., 443 So. 2d 162,

163 (Fla. 1st DCA 1983) (holding that a claimant was entitled to a

refund for overpayments into the Florida Public Service

Regulatory Trust Fund).

It is undisputed that the Shared Trust Fund has sufficient

cash for refunds, but Appellant argues that there is no money at

the level of Appellees’ accounts within the Shared Trust Fund to

pay the refund. However, the testimony of the Department’s Chief

of Staff confirmed that the Department makes expenditures from

the Shared Trust Fund without regard as to whether the monies

were provided by individual counties. When the Department

issued refunds in the past, it looked only at whether the Shared

Trust Fund as a whole had sufficient cash. Appellant presented

no evidence showing that the Department ever requested the Chief

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Financial Officer to create subaccounts within the Shared Trust

Fund, or that the Chief Financial Officer ever established accounts

at a level smaller than the whole fund. See § 215.32(2)(b)1., Fla.

Stat. (“Upon the request of the state agency . . . , the Chief

Financial Officer may establish accounts within the trust fund at

a level considered necessary for proper accountability.”).

Appellant instead makes a logical assertion that the Shared

Trust Fund must contain subaccounts, even if no evidence of such

exists, as individual accounts would be necessary for the required

reconciliation of costs. We need not discuss why the reconciliation

process does not necessarily require subaccounts, as relevant

testimony refutes the existence of any subaccounts here. See

Carriage Hills Condo., Inc. v. JBH Roofing & Constructors, Inc.,

109 So. 3d 329, 335 (Fla. 4th DCA 2013) (holding that a corporation

may not retract its representative’s testimony with impunity

under Fla. R. Civ. P. 1.310(1)(6)); Cary v. Keene Corp., 472 So. 2d

851, 853 (Fla. 1st DCA 1985) (stating general rule that a party

“may not repudiate or contradict by affidavit his previous

deposition testimony” and noting exception)). Thus, even if

Appellant is correct that section 215.32 limits claims brought

under section 215.26 when there is insufficient cash at the level of

the account, the summary judgment evidence here demonstrates

that the proper account level is the Shared Trust Fund as a whole,

which has sufficient cash to pay refunds. Thus, we hold that

section 215.32 places no constraints here, and that the trial court

did not err in ordering refunds under section 215.26, Florida

Statutes.

II. Separation of Powers

Next, Appellant argues that the trial court interfered with the

legislature’s exclusive power over appropriations. The judicial

branch “must not interfere with the discretionary functions of the

legislative or executive branches of government absent a violation

of constitutional or statutory rights.” Florida Dep’t of Children &

Families v. J.B., 154 So. 3d 479, 481 (Fla. 3d DCA 2015) (quoting

Detournay v. City of Coral Gables, 127 So. 3d 869, 873 (Fla. 3d DCA

2013)). A court interferes with the legislative branch where it

“requir[es] funds to be spent by an executive agency in a manner

not authorized by statute,” or “interfere[s] with an executive

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agency’s discretion in the spending of appropriated funds.” Id.

(emphasis in original) (quoting Dep’t of Children & Families v.

K.R., 946 So. 2d 106, 107-08 (Fla. 5th DCA 2007)).

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. See State ex rel. C.P.O. Mess (Open), U.S.

Naval Station, Key West v. Green, 174 So. 2d 546, 550 (Fla. 1965);

J.B., 154 So. 3d at 481; State Dep’t of Highway Safety & Motor

Vehicles v. Rendon, 957 So. 2d 647, 652 (Fla. 3d DCA 2007)

(affirming a grant of refund under section 215.26, but remanding

to determine which taxpayers qualify for the remedy). 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.

Appellant cites In re Order on Prosecution of Criminal Appeals

by the Tenth Judicial Circuit Public Defender, 561 So. 2d 1130,

1136 (Fla. 1990), for the proposition that the judiciary cannot

compel the State to provide reimbursements. That case involved

a dispute over costs paid by Florida counties for court-appointed

conflict counsel. Id. In Order on Prosecution, however, the

supreme court held that the legislature intended for the counties

to pay the disputed costs, and that the State therefore had no

statutory obligation to reimburse those expenses. Id. at 1137.

Noting that it lacked authority to order the State to pay more than

its statutory obligations, the supreme court could only “strongly

recommend that the legislature . . . provide sufficient funds to

reimburse the counties . . . .” Id. at 1138.

Here, by contrast, it was the State, not the counties, who bore

the statutory obligation to pay post-disposition costs, a portion of

which the counties paid in error. Marion Cty., 215 So. 3d at 627;

Pinellas Cty., 188 So. 3d at 896. Section 985.686 imposes upon the

Department a mandatory duty to reimburse the counties in the

amount of their overpayment. Marion Cty., 215 So. 3d at 628.

Accordingly, the trial court’s order did not violate the separation of

powers, because the order enforces a legislative mandate.

III. Sovereign Immunity

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In Florida, sovereign immunity generally bars any

unconsented action against the State for damages. Rendon, 957

So. 2d at 652. “The immunity of the State of Florida and its

agencies from liability for claims arising under Florida law or

common law is absolute absent a clear, specific, and unequivocal

waiver by legislative enactment.” State, Dep’t of Elder Affairs v.

Caldwell, 199 So. 3d 1107, 1109 (Fla. 1st DCA 2016). Whether a

legislative enactment waives sovereign immunity is a pure

question of law, reviewed de novo. Id. at 1109.

Because section 215.26, Florida Statutes, specifically allows

plaintiffs to obtain refunds from the State, sovereign immunity

does not bar section 215.26 actions, as “the State has consented to

be sued, and the immunity has been waived.” Rendon, 957 So. 2d

at 652; see also McKesson Corp. v. Division of Alcoholic Beverages

& Tobacco, Dep’t of Bus. Reg. of Fla., 496 U.S. 18, 49 n.34 (1990)

(acknowledging that Florida waived immunity to suits brought

under section 215.26).

Appellant argues that although section 215.26 consents to

lawsuits from taxpayers, the statute does not waive immunity to

lawsuits by the State’s own political subdivisions. Section 215.26

allows refunds to be issued “to the person who paid same.”

§ 215.26(1), Fla. Stat. Chapter 215 does not define what

constitutes a “person.” Section 1.01(3), Florida Statutes, which

establishes how Florida Statutes must be generally construed,

defines person to include “individuals, children, firms,

associations, joint adventures, partnerships, estates, trusts,

business trusts, syndicates, fiduciaries, corporations, and all other

groups or combinations.” § 1.01(3), Fla. Stat. (emphasis added).

Courts have interpreted government entities as “persons” under

section 1.01. See Green, 174 So. 2d 546 (holding that a federal

government entity was entitled to a refund under section 215.26);

Limones v. School Dist. of Lee Cty., 111 So. 3d 901, 908 (Fla. 2d

DCA 2013) (“conclud[ing] that the School Board qualifies as a

‘person’ under [the Cardiac Arrest Survival Act]”), rev’d on other

grounds, 161 So. 3d 384 (Fla. 2015).

Because section 1.01(3) declares that “all other groups or

combinations” are “person[s],” and because section 215.26 allows

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refund lawsuits from persons who overpaid into the State

Treasury, we interpret these statutes as waiving immunity to

section 215.26 lawsuits brought by Florida counties. Cf. Klonis v.

State Dep’t of Revenue, 766 So. 2d 1186, 1190 (Fla. 1st DCA 2000)

(holding that separate statutory provisions, “taken together,

clearly demonstrate a legislative intent to allow suits against the

State of Florida and any of its agencies”). Accordingly, sovereign

immunity does not bar relief.

For the foregoing reasons, the trial court’s order granting final

summary judgment to Appellees and ordering the Department to

issue refunds in the amounts overpaid is hereby affirmed.

WINOKUR, J., and KETCHEL, TERRANCE R., Associate Judge,

concur.

_____________________________

Not final until disposition of any timely and

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

9.331.

_____________________________

Pamela Jo Bondi, Attorney General, Blaine H. Winship, Special

Counsel, and William H. Stafford, III, Senior Assistant Attorney

General, Tallahassee, for Appellants.

Gregory T. Stewart, Carly J. Schrader and Heath R. Stokley of

Nabors, Giblin & Nickerson, P.A., Tallahassee, for Appellees Polk

County and Seminole County.

Arthur Bryant Applegate, County Attorney, and Lynn P. Porter-

Carlton, Deputy County Attorney, Sanford, for Appellee Seminole

County.

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