         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


                                 3
    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.

                               4
         ....

        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.


                                  5
                              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

                                 6
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

                                 7
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

                                 8
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

                                  9
     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

                                 10
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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