final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Leon County. George S.
Reynolds, III, Judge.
L. C. George, Leslei G. Street, and Cynthia L. Hain, of
Florida Agency for Health Care Administration, Tallahassee,
Cristine M. Russell of Rogers Towers, P.A., Jacksonville,
Sharon Bourassa and Debra Koprowski, Legal Aid Service of
Broward County, Inc., Plantation, for Appellee.
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
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.McClain's
employer subsequently terminated her employment.
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.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."
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
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.
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.
rejected this same argument in Martin Electronics, Inc.
v. Glombowski, 705 So.2d 26 (Fla. 1st DCA
1997). The appellant there argued that the
Hastings rule applied only to orders denying summary
judgment, and not to orders denying motions to ...