Appeals — Sovereign immunity — Denial — Order which merely denied agency’s motion for sovereign immunity without explicitly determining, on its face, that agency was not entitled to immunity as a matter of law is not appealable — Question certified:

FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, Appellant, v. SHIRLEY MCCLAIN, Appellee. 1st District. Case No. 1D16-474. April 18, 2018. On appeal from the Circuit Court for Leon County. George S. Reynolds, III, Judge. Counsel: 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.

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.”

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 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

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.

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. (RAY and KELSEY, JJ., concur.)

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¹In 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).

²McClain 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.

³Glombowski, 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.

⁴AHCA 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 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.