Florida Agency For Health Care Adm. v. Shirley McClain ( 2018 )


Menu:
  •          FIRST DISTRICT COURT OF APPEAL
    STATE OF FLORIDA
    _____________________________
    No. 1D16-474
    _____________________________
    FLORIDA AGENCY FOR HEALTH
    CARE ADMINISTRATION,
    Appellant,
    v.
    SHIRLEY MCCLAIN,
    Appellee.
    _____________________________
    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.
    4
    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
    5
    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.
    6
    RAY and KELSEY, JJ., concur.
    _____________________________
    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.
    7