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Florida Agency for Health Care Administration v. McClain

Florida Court of Appeals, First District

April 18, 2018

Florida Agency for Health Care Administration, Appellant,
v.
Shirley McClain, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Leon County. George S. Reynolds, III, Judge.

          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.

          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 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, 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 ...


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