         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).

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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.




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