SARASOTA COUNTY v. VENICE HMA, LLC, D/B/A VENICE REGIONAL MEDICAL CENTER AND SARASOTA DOCTORS HOSPITAL, INC.

DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT

SARASOTA COUNTY PUBLIC HOSPITAL
DISTRICT and SARASOTA COUNTY,

Petitioners,

v.

VENICE HMA, LLC, D/B/A VENICE
REGIONAL MEDICAL CENTER,
SARASOTA DOCTORS HOSPITAL, INC.,
and ENGLEWOOD COMMUNITY
HOSPITAL,

Respondents.

No. 2D19-3745

September 29, 2021

BY ORDER OF THE COURT:

Petitioners' motion for rehearing is granted to the extent that

the prior opinion dated June 16, 2021, is withdrawn, and the

attached opinion is issued in its place. The only alteration is the

deletion of part of a sentence on page 4. Respondents' response to

Petitioners' motion, which indicated no objection to this alteration,

is noted. No further motions for rehearing will be entertained.
I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE
ORIGINAL COURT ORDER.

MARY ELIZABETH KUENZEL, CLERK

2
 DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT

SARASOTA COUNTY PUBLIC HOSPITAL
DISTRICT AND SARASOTA COUNTY,

Petitioners,

v.

VENICE HMA, LLC, D/B/A VENICE
REGIONAL MEDICAL CENTER,
SARASOTA DOCTORS HOSPITAL, INC.,
AND ENGLEWOOD COMMUNITY
HOSPITAL,

Respondents.

No. 2D19-3745

September 29, 2021

Petition for Writ of Prohibition to the Circuit Court for Sarasota
County; Maria Ruhl, Judge.

Raymond T. Elligett, Jr., and Amy S. Farrior of Buell and Elligett,
P.A., Tampa; and Frederick J. Elbrecht of Office of the County
Attorney, Sarasota, for Petitioner, Sarasota County.

David A. Wallace of Bentley Law Firm, P.A., Sarasota, for Petitioner,
Sarasota County Public Hospital District.

Geoffrey D. Smith, Susan C. Smith, Timothy B. Elliott, and Corinne
T. Porcher of Smith and Associates, Melbourne, for Respondent,
Venice, HMA, LLC d/b/a Venice Regional Medical Center.
Stephen A. Ecenia, J. Stephen Menton, Gabriel F. V. Warren, and
Jennifer F. Hinson of Rutledge Ecenia, P.A., Tallahassee, for
Respondents, Sarasota Doctors Hospital, Inc., and Englewood
Community Hospital, Inc.

LUCAS, Judge.

After years of litigation between the plaintiffs below, Venice

HMA, Sarasota Doctors Hospital (Doctors Hospital), and Englewood

Community Hospital, Inc. (Englewood) (collectively, the "Hospitals"),

and the defendant below, Sarasota County (County), over whether

the County is statutorily obligated to reimburse the Hospitals for

the costs of providing indigent care, the County sought summary

judgment on its sovereign immunity defense. The circuit court

denied the County's motion for summary judgment. The County

then filed a petition for a writ of prohibition before this court,

arguing that the circuit court's denial of its motion constitutes an

unwarranted exercise of subject matter jurisdiction in violation of

the County's immunity. We have considered the County's

arguments carefully, but we must deny its petition.

I.

2
 The essential dispute before us is straightforward: who is

responsible to pay for indigent health care at the Hospitals since

2008? Resolving that question, though, requires consideration of

various state statutes, county ordinances, and the course of

conduct between these parties.

In 2003 the Florida Legislature repealed numerous special and

local acts enacted between 1949 and 2000 and recodified them as a

single Special Act that recreated and provided for the governing of

the Sarasota County Public Hospital District (District). See ch.

2003-359, § 2, Laws of Fla. Under the Special Act, the District, an

"independent special district" contiguous with Sarasota County, is

governed by a Hospital Board (Board). Charter § 1.1 Every month,

the Board is authorized to certify to the Sarasota Board of County

Commissioners (BOCC) a list of medically indigent persons treated

by Board-managed (i.e., public) hospitals during the previous

month, together with the itemized charges for those persons' care.

1 Section 3 of chapter 2003-359, Laws of Florida, is the actual
re-formation of the older laws. Within section 3, the legislature
used an internal numbering system for the Charter, beginning with
section 1. References to Charter § #(#) refer to the Charter section
number, within section 3 of the session law.

3
Charter § 8(9). Within forty-five days the BOCC "shall" remit to the

Board the amount requested. Id. The statute authorizes the Board

to impose up to two mils of an ad valorem tax throughout the

county. Charter § 8(8).

The statute includes private hospitals within its ambit as well.

Thus, upon appropriate certification,

[t]he said Board of County Commissioners shall in like
manner reimburse any other hospital in Sarasota
County, approved by the State Board of Health, for
hospital services rendered to medically indigent persons
as herein defined, upon like certification by such hospital
and at such rates as shall not exceed those prescribed for
such patients by hospitals owned and operated by said
Hospital Board.

Charter § 8(9).
Some three years before the Special Act's 2003 recodification,

the BOCC had adopted as a county ordinance the special and local

acts described above.2 See Code of Ordinances of Sarasota County,

ch. 4, art. II, § 4-24(i), -31, adopted Sept. 13, 2000. The county

2 In its filings before us, the County suggests that its
ordinance adopting the Special Act was "merely" a ministerial act
that had no real legal significance. We reject that dismissive view of
what this local legislative act was—an almost verbatim adoption of
the Special Act by Sarasota County.

4
ordinance and the Special Act are virtually identical in content,

including the sequence of their presentation.

In 2011, the Hospitals filed complaints against Sarasota

County and the District seeking declaratory relief pursuant to

chapter 86, Florida Statutes. The Hospitals alleged that the County

had been collecting ad valorem taxes as imposed by the Board but

had been refusing to pay their submitted requests for

reimbursements under the Special Act, which the Hospitals had

begun issuing in late 2008 or early 2009, according to the

respective complaints.3 They sought a declaration to determine

their rights under the Special Act, to declare that the County is

obligated to reimburse them for indigent hospital services, to

3 Specifically, Doctors Hospital and Englewood alleged that
beginning in December 2008 and continuing each subsequent
month, they submitted invoices to the County for hospitalization
charges incurred in treating medically indigent persons under the
Special Act. Doctors Hospital claims that it had submitted invoices
for more than $41 million from December 2008 to date, and
Englewood alleged that it submitted invoices for more than $18
million. Venice HMA alleged that beginning in February 2009 and
in each subsequent month it submitted invoices to the County for
hospitalization charges incurred in treating medically indigent
persons under the Special Act. Its invoices from 2009 to December
2010 total $32 million. The sum of the Hospitals’ invoices, we are
informed, now exceeds half a billion dollars.
5
declare that the County is obligated to reimburse the Hospitals for

their prior invoices, and to grant any other relief the circuit court

deemed appropriate. The County raised various affirmative

defenses, including sovereign immunity, and several counterclaims,

including a challenge to the constitutionality of the Special Act.

In 2012, the County and District jointly sought summary

judgment, focusing solely on their argument that the Special Act

violated the Florida Constitution's provision against special laws

that grant a privilege to a private corporation. See art. III, §

11(a)(12), Fla. Const. The trial court granted the joint motion and

entered judgment in favor of the County and the District. This

court affirmed and issued an opinion in which we held that the

Special Act did indeed grant an unconstitutional special privilege

not shared by hospitals elsewhere in the state. See Venice HMA,

LLC v. Sarasota County, 198 So. 3d 23, 24 (Fla. 2d DCA 2015). On

review, the Florida Supreme Court reversed this court. See Venice

HMA, LLC v. Sarasota County, 228 So. 3d 76 (Fla. 2017). The

supreme court explained that the relevant entities for comparison,

for purposes of article III, section 11(a)(12), were hospitals located

in Sarasota County. Id. at 82 ("Because the special law only applies

6
to Sarasota County, we must limit our comparisons to Sarasota

County."). Since all hospitals within the county were granted the

same reimbursement privilege, the reimbursement provision of the

Special Act was not unconstitutional. Id. at 84.

After the case was remanded back to the circuit court, the

County tried a new tack. In April of 2018, the County filed another

motion for summary judgment, this time arguing that although the

Special Act may be constitutional it could not be lawfully enforced

against the County. The County argued that only a general law

(which, it contended, the Special Act is not) or an "express written

contract" could waive the County's sovereign immunity. The

Hospitals countered that the Special Act, when read together with

separate legislation, effectively waived sovereign immunity.

Further, the Hospitals argued that the enactment of the Special Act,

when considered in conjunction with their providing indigent

healthcare services in reliance upon the Special Act's payment

directions, created an express contract that could be enforced

notwithstanding the County's claim of sovereign immunity. After a

hearing, the circuit court entered an order denying the motion on

August 3, 2018. In its order, the circuit court observed:

7
 It is undisputed that the County has previously
reimbursed hospitals in Sarasota County for the
provision of indigent care. There are genuine issues of
material fact in dispute relative to the facts and
circumstances surrounding these past payments as well
as whether the County has historically reimbursed
hospitals, including those operated by the District or any
of the Plaintiffs, for costs of indigent care under the
Special Act.

As cited in the Plaintiff's Response, if Defendants
truly believed that the instant action was barred by
sovereign immunity, they would have pursued dismissal
or summary judgment on that basis prior to spending
over six years litigating their counterclaims and
participating in protracted appeals. The County
acknowledged in their Motion, citing Fla. Highway Patrol
v. Jackson, [238 So. 3d 430] (Fla. 1st DCA [] 2018), that
"Sovereign immunity is immunity from suit, not just
liability and should be expeditiously addressed to prevent
unnecessary litigation time and expense." The fact that
the County and District expended "litigation time and
expense" in pursuing their counterclaims all the way to
the Florida Supreme Court begs against finding now that
the instant claim i[s] barred by sovereign immunity.

The case proceeded with limited discovery. The County

renewed its motion for summary judgment, arguing that there was

no general law or written contract waiving sovereign immunity.

Addressing the circuit court's apparent concern that past

reimbursement constituted waiver, the County conceded that it had

made prior reimbursement payments but argued that those

8
payments did not waive sovereign immunity; again, according to the

County, only a general law or a written contract could do so.

And again, on September 10, 2019, the circuit court denied

the County's renewed motion for summary judgment.

It is clear to the [c]ourt that summary judgment cannot
be entered on this basis, as there remains considerable
dispute as to material facts. It appears to the [c]ourt that
the County is, indeed, attempting to "recycle" its
previously argued claim of sovereign immunity. In
particular, there remain[] genuine disputes as to previous
payments made by the County to the private hospitals
and as to which legislative authority authorized the
previous payments.

The County now urges our court to prohibit the circuit court

from allowing the case to be litigated any further.

II.

Our path through the parties' arguments begins,

unfortunately, in rather tall weeds. It does so because the County's

choice of extraordinary writs, prohibition, has a complicated history

with respect to the defense of sovereign immunity.4 So we have

fashioned our analysis in two parts.

4 An added misfortune is that much of this analysis is likely no
longer pertinent. As of January 23, 2020, Florida Rule of Appellate
Procedure 9.130(a)(3) was amended to include nonfinal orders that
"deny a motion that . . . asserts entitlement to sovereign immunity."
9
 In this part of the opinion, we will examine what the writ of

prohibition is, what it is used for, and why the courts have been

circumspect about extending its reach to address nonfinal orders.

We will canvas how the courts have construed immunity claims in

the context of prohibition—which is, admittedly, a less than clear

area of jurisprudence. In part III of the opinion, we will change the

focus to consider the merits of the petition in the framework of

certiorari. We ultimately conclude that the County is not entitled to

relief in either prohibition or certiorari.

A.

"Prohibition is an extraordinary writ, a prerogative writ,

extremely narrow in scope and operation, by which a superior

court, having appellate and supervisory jurisdiction over an inferior

court . . . may prevent such inferior court or tribunal from

exceeding jurisdiction or usurping jurisdiction over matters not

See In re Amendments to Fla. Rule of Appellate Procedure 9.130, 289
So. 3d 866, 867 (Fla. 2020) (adopting rule 9.130(a)(3)(F)(iii)). We,
however, are constrained to view the County’s challenge through an
extraordinary writ because the version of rule 9.130(a)(3) in effect
when the circuit court entered the subject order and the County
filed its petition only authorized appeals of nonfinal orders that
determined "as a matter of law, a party is not entitled to sovereign
immunity."
10
within its jurisdiction." English v. McCrary, 348 So. 2d 293, 296

(Fla. 1977). The writ is "very narrow in scope, to be employed with

great caution and utilized only in emergencies. . . . It is preventive

and not corrective in that it commands the [the lower tribunal] not

to do the thing which the supervisory court is informed the lower

tribunal is about to do." Id. at 296-97.

As its name implies, a writ of prohibition bars any further

action by a lower tribunal. Rich v. State, 311 So. 3d 126, 129 (Fla.

2d DCA 2020) ("When an appellate court issues a writ of prohibition

to a lower tribunal, it means just that: the court below will be

prohibited from acting further."). Restraining a court from

exercising its constituted power to consider a claim or defense—that

is, taking an unresolved case away from a court—is not an act that

should be taken lightly in our system of adjudication. Prohibition

was never meant to be a substitute for appellate review. See Fla.

Dep't of Trans. v. Miami-Dade Cnty. Expressway Auth., 298 So. 3d

1261, 1263 (Fla. 1st DCA 2020) ("[A] writ of prohibition is not

warranted where there is an adequate remedy at law . . . and

should not be used in place of an appeal." (citing Pullins v.

Candelaria, 291 So. 3d 168, 169 (Fla. 1st DCA 2020))). In other

11
words, "[p]rohibition lies to prevent an inferior tribunal from acting

in excess of jurisdiction but not to prevent an erroneous exercise of

jurisdiction." English, 348 So. 2d at 297; see also PPI, Inc. v. Fla.

Dep't of Bus. & Pro. Regul., Div. of Pari-Mutuel Wagering, 917 So. 2d

1020, 1022 (Fla. 1st DCA 2006) (citing English for this proposition).

Since circuit courts are intended to be courts of general

jurisdiction, "nothing is intended to be outside their jurisdiction

except that which clearly and specially appears so to be." English,

348 So. 2d at 297 (emphasis added). In keeping with its narrow

purpose (and its powerful repercussions) the extraordinary writ of

prohibition has historically been invoked only when it could be said

an "emergency" has arisen. Id. ("Prohibition will be invoked only in

emergency cases to forestall an impending present injury where

person seeking writ has no other appropriate and adequate legal

remedy." (citing Joughin v. Parks, 147 So. 273 (Fla. 1933))).

Our supreme court has been somewhat circumspect about the

use of prohibition to address immunity claims. For example, in

Mandico v. Taos Construction, Inc., 605 So. 2d 850, 854 (Fla. 1992),

the Florida Supreme Court receded from its earlier decision in

Winn-Lovett Tampa v. Murphree, 73 So. 2d 287 (Fla. 1954), and in

12
so holding clarified that not every question over immunity

automatically implicates an emergency issue of circuit court

jurisdiction. In Murphree, 73 So. 2d at 288, an employer sought

prohibition after the circuit court denied its motion to dismiss an

employee's personal injury claim on the basis of workers'

compensation immunity. According to the employer, the circuit

court was without jurisdiction to consider the claim. Id. The

Mandico court acknowledged that Murphree had held as much but

then stated that Murphree constituted "an unwarranted extension of

the principle of prohibition." Mandico, 605 So. 2d at 854. The

court went on to explain that the use of prohibition in Murphree

was unwarranted because "[a] person has a right to file a personal

injury action in circuit court, and the court has jurisdiction to

entertain the suit." Id. The employer's assertion of workers'

compensation immunity was an affirmative defense, and its validity

could only be determined in the course of the litigation. Id. The

circuit court had jurisdiction to decide that question, even if it

decided the question wrongly. Id. Thus, the Mandico court found

that prohibition could not be used to raise the defense of workers'

compensation immunity. Id.

13
 Some twenty years later, the Florida Supreme Court issued

two opinions on the same day addressing the use of common law

writs to review nonfinal orders involving claims of sovereign

immunity. See Keck v. Eminisor, 104 So. 3d 359 (Fla. 2012);

Citizens Prop. Ins. Corp. v. San Perdido Ass'n, 104 So. 3d 344 (Fla.

2012). In San Perdido, 104 So. 3d at 345, the court considered

whether an appellate court should review a nonfinal order denying

a claim of sovereign immunity in a bad faith action against Citizens

Property Insurance Corporation, a state-created entity. The court

noted that the issue arose "in the context of the broader question of

when appellate courts should use common law writs to review non-

final orders involving claims of immunity" and whether the court

should expand the list of appealable nonfinal orders. Id. The San

Perdido court did not resolve that broader issue but concluded that

"a writ of prohibition is not available to challenge a non-final order

denying a motion to dismiss based on a claim of sovereign

immunity where sovereign immunity has been partially waived." Id.

at 346.

In reaching this decision, the court observed "that non-final

orders in the course of trial court proceedings are generally

14
reviewed on appeal at the conclusion of the case." Id. at 348.

Certain nonfinal orders, however, may be immediately appealable

under rule 9.130, and in limited circumstances, "a party may use a

petition for certiorari to seek review of a non-final order not

otherwise appealable." Id. With that backdrop, the court then

addressed whether Citizens could seek review of a nonfinal order

denying its motion to dismiss through a writ of prohibition. Id. at

349. Looking, in part, to its decisions in Department of Education v.

Roe, 679 So. 2d 756 (Fla. 1996), and Mandico, the San Perdido

court concluded that "[b]ased on a review of our case law, the plain

answer to that question is no." San Perdido, 104 So. 3d at 349.

Because the trial court had jurisdiction to determine the question of

sovereign immunity, prohibition was unavailable. Id. at 351.

In Keck, 104 So. 3d at 360-61, the court considered the

rephrased question of great public importance of whether an

appellate court could review a nonfinal order denying a transit

authority trolley driver's motion for summary judgment based on a

claim of individual immunity under section 768.28(9)(a), Florida

Statutes (2005). Because such an order did not fall under the

existing version of rule 9.130, the First District had considered the

15
issue in certiorari and denied the petition without reaching its

merits. Id. at 362. The Florida Supreme Court took an entirely

different approach. The court eschewed consideration of the case

through any extraordinary writ and instead proceeded to review the

merits of the dispute as it would under rule 9.130.5 Since the only

issue to be resolved—whether the employee's company was a "state

agenc[y] or subdivision[]" under section 768.28(2)—was an issue of

law, the court in Keck determined that the individual employee was

entitled to sovereign immunity and quashed the First District's

opinion. Id. at 369.

In a separate concurrence in Keck, Justice Pariente observed

that appellate courts had been using extraordinary writs to address

5 In the Keck opinion, the court requested the appellate rules
committee to craft an amendment to rule 9.130 to reflect what it
had just held, id. at 366, similar to what it had done when it
reviewed the denial of summary judgment on a claim of qualified
immunity in Tucker v. Resha, 648 So. 2d 1187, 1190 (Fla. 1994)
("Thus, we answer the certified question in the affirmative and hold
that an order denying summary judgment based upon a claim of
qualified immunity is subject to interlocutory review to the extent
that the order turns on an issue of law. Because this holding will
require a change in the Florida Rules of Appellate Procedure, we
request the Florida Bar Appellate Court Rules Committee to submit
a proposed amendment that will address the rule change mandated
by this decision.").
16
different types of immunity claims in a somewhat inconsistent

manner. Id. at 369. That was probably a fair assessment of the

state of the law. See generally Jefferson v. State, 264 So. 3d 1019,

1023 (Fla. 2d DCA 2018) (distinguishing "Stand Your Ground"

immunity rulings that are determined on the merits, which are

reviewed through prohibition, versus claimed procedural errors,

which are reviewed in certiorari); Seminole Tribe of Fla. v. Ariz, 67

So. 3d 229, 232 (Fla. 2d DCA 2010) (granting a petition for writ of

prohibition because the petitioner established it was entitled to

tribal sovereign immunity); Seminole Tribe of Fla. v. McCor, 903 So.

2d 353, 357–59 (Fla. 2d DCA 2005) (using a writ of certiorari to

review the denial of a motion to dismiss involving tribal sovereign

immunity); Brevard County v. Morehead, 181 So. 3d 1229, 1232-33

(Fla. 5th DCA 2015) (issuing prohibition to address a claim of

sovereign immunity); Miami–Dade County v. Rodriguez, 67 So.3d

1213, 1216-19 (Fla. 3d DCA 2011) (issuing a writ of certiorari to

review the denial of a motion to dismiss on sovereign immunity

defense), quashed by Rodriguez v. Miami-Dade County, 117 So. 3d

400, 402 (Fla. 2013) (holding that the sovereign immunity claim "is

not reviewable by the appellate courts through a petition for writ of

17
certiorari because there is no irreparable harm and because there

are essential facts in dispute"); Fuller v. Truncale, 50 So. 3d 25, 27–

28 (Fla. 1st DCA 2010) (using a writ of certiorari to review the

denial of a motion to dismiss involving judicial immunity); Citizens

Prop. Ins. Corp. v. San Perdido Ass'n, 46 So. 3d 1051, 1053 (Fla. 1st

DCA 2010) (concluding that a writ of certiorari was improper to

review the denial of a motion to dismiss involving sovereign

immunity); Citizens Prop. Ins. v. La Mer Condo. Assoc., 37 So. 3d

988, 988 (Fla. 5th DCA 2010) (issuing prohibition because "Citizens

is immune from first-party bad faith claims pursuant to sections

627.351(6)(r)1. and 624.155(1)(b)1., Florida Statutes"), disapproved

by Citizens Prop. Ins. Corp. v. San Perdido Ass'n, 104 So. 3d 344,

351 (Fla. 2012) (disapproving of La Mer to the extent that it "used

the vehicle of a writ of prohibition to review a claim of sovereign

immunity where a limited waiver of sovereign immunity applies").

On one occasion, our court granted a prohibition petition to

prevent a circuit court from hearing a case that implicated a Native

American Tribe's tribal immunity. See Ariz, 67 So. 3d at 232. In

Ariz, we stated that since the Tribe had established tribal sovereign

immunity "the trial court [was] without subject matter jurisdiction

18
in this matter." Id. Our opinion in Ariz did not purport to lay down

a binding rule that every claim of any kind of immunity implicated

a want of subject matter jurisdiction that could be addressed in

prohibition. Accord Mandico, 605 So. 2d at 853-54.

Indeed, prior to the Ariz opinion, our court had reviewed tribal

immunity orders through certiorari. See McCor, 903 So. 2d at 357

("We have previously exercised our common law certiorari

jurisdiction to review a trial court order denying a motion to dismiss

where the motion was based on the assertion that the trial court

lacked subject matter jurisdiction because the suit was barred by

tribal sovereign immunity." (first citing Seminole Tribe of Fla. v.

Houghtaling, 589 So. 2d 1030, 1031 (Fla. 2d DCA 1991), then citing

Seminole Police Dep't v. Casadella, 478 So. 2d 470, 471 (Fla. 4th

DCA 1985))).6 In McCor, we found that certiorari jurisdiction was

6 Interestingly, McCor included a "cf." citation to Miccosukee
Tribe of Indians v. Napoleoni, 890 So. 2d 1152, 1153-54 (Fla. 1st
DCA 2004), a First District opinion that had addressed tribal
sovereign immunity through prohibition. McCor, 903 So. 2d at 357.
McCor appeared to reject that approach as the very next sentence
following that citation was: "Certiorari jurisdiction exists in this
context because the inappropriate exercise of jurisdiction by a trial
court over a sovereignly-immune tribe is an injury for which there is
no adequate remedy on appeal." Id. McCor also likened tribal
sovereign immunity to qualified immunity in civil rights cases,
19
available to review the trial court's order because the inappropriate

exercise of jurisdiction (as opposed to a lack of jurisdiction) was an

injury for which there was no adequate remedy on appeal when

sovereign immunity "involve[d] 'immunity from suit rather than a

mere defense to liability' " and would be lost if the case were

erroneously permitted to go to trial. Id. at 358 (quoting Tucker v.

Resha, 648 So. 2d 1187, 1189 (Fla. 1994)).

In sum, different courts have considered different claims of

immunity through different writs. The County asserts, almost as if

it were an axiom, that prohibition is the appropriate vehicle to

review the denial of summary judgment on its sovereign immunity

defense. In our view, the case law is more nuanced.

B.

But we need not lay down a definitive pronouncement on this

issue today because, as explained below, there is a sharp factual

dispute that precludes relief in prohibition. See Mandico, 605 So.

2d at 854 (a writ of prohibition is not appropriate "to test the

though only for the limited point that both defenses involved
immunity from suit rather than a "mere defense to liability." Id. at
357-58 (quoting Tucker, 648 So. 2d at 1189).
20
correctness of a lower tribunal's ruling on jurisdiction where the

existence of jurisdiction depends on controverted facts that the

inferior tribunal has jurisdiction to determine"); Godfrey v. Reliance

Wholesale, Inc., 68 So. 3d 930, 932 (Fla. 3d DCA 2011) ("Unless the

petitioner can show, however, that (1) there are no disputed facts

and (2) the circuit court lacked subject matter jurisdiction, a writ of

prohibition is unavailable."); Nolet v. State, 920 So. 2d 1214 (Fla.

1st DCA 2006) (denying prohibition where there was a disputed

material fact over the validity of a criminal defendant's waiver of her

right to speedy trial).

1.

In response to the County's claimed sovereign immunity, the

Hospitals have argued that the enactment of chapter 2003-359,

Laws of Florida, and chapter 4, article II, sections 4-24(i) and 4-31

of the Sarasota County Code of Ordinances, combined with their

provision of services and remittance of bills in reliance thereon,

created an express contract between the County and the Hospitals.

As they correctly point out, a governmental entity can be deemed to

have waived its sovereign immunity when it enters into an express

contract with another party. See Pan-Am Tobacco Corp. v. Dep't of

21
Corrs., 471 So. 2d 4, 5 (Fla. 1984) ("We therefore hold that where

the state has entered into a contract fairly authorized by the powers

granted by general law, the defense of sovereign immunity will not

protect the state from action arising from the state's breach of that

contract."); see also Fla. Dep't of Transp. v. Schwefringhaus, 188 So.

3d 840, 846 (Fla. 2016) ("[W]e find that the breach-of-contract

principles in Pan-Am prohibit the DOT from using sovereign

immunity to avoid suit for its breach of the crossing agreement.").

The County does not dispute the Hospitals' legal contention,

but rather whether the facts of this case can implicate it. According

to the County, because there is no "express written contract"

between these parties, there was no waiver of its sovereign

immunity.7 Since the Hospitals "never produced an express written

contract" in the course of discovery, the County maintains it is

7 The County and the Hospitals acknowledge that Florida law
does not generally recognize waiver of sovereign immunity through
implied contracts, whether in law or in fact. See Brevard v. Miorelli
Eng’g, 703 So. 2d 1049, 1050 (Fla. 1997) ("We would also
emphasize that our holding here is applicable only to suits on
express, written contracts into which the state agency has statutory
authority to enter." (quoting Pan-Am Tobacco, 471 So. 2d at 6)); City
of Ft. Lauderdale v. Israel, 178 So. 3d 444, 447-48 (Fla. 4th DCA
2015).
22
entitled to summary judgment as a matter of law. What the County

seems to imply in its phrasing of its argument is that without a

unified, finalized, typed, paginated document, signed by the parties

in a suitable place (or something to that effect), there can be no

enforceable express contract.

But that is an overly crimped view of what makes an express

contract. While express contracts are frequently set forth in that

kind of manner, they do not have to be. See Waite Dev., Inc. v. City

of Milton, 866 So. 2d 153, 155 (Fla. 1st DCA 2004) ("Where an

agreement is arrived at by words, oral or written, the contract is

said to be 'express.' " (quoting Com. P'ship 8098 Ltd. P'ship v. Equity

Contracting Co., 695 So. 2d 383, 385 (Fla. 4th DCA 1997))); Barakat

v. Broward Cnty. Hous. Auth., 771 So. 2d 1193, 1195 (Fla. 4th DCA

2000) (enforcing employment contract against Broward County

Housing Authority that was created through a Broward County

Housing Resolution); Ransom v. Fernandina Beach Chamber of

Com., 752 So. 2d 118, 119 (Fla. 1st DCA 2000) (recognizing breach

of unilateral contract claim against golf tournament contest

sponsors who refused to award a pickup truck prize to a contestant

who shot a hole-in-one); A & M Eng'g Plastics, Inc. v. Energy Saving

23
Tech., Co., 455 So. 2d 1124, 1125 (Fla. 4th DCA 1984) (finding that

contract for plastic parts and molding comprised of a written

quotation and subsequent shipments); Williams v. Cordis Corp., 30

F.3d 1429, 1432 (11th Cir. 1994) ("[A] 'pension plan is a unilateral

contract which creates a vested right in those employees who accept

the offer it contains by continuing in employment for the requisite

number of years.' " (quoting Hurd v. Ill. Bell Tel. Co., 234 F.2d 942,

946 (7th Cir. 1956))).

Here, the Hospitals claim that the County's sovereign

immunity was waived by an express contract formed through the

enactment of a special act of legislation and the subsequent

incorporation of that statute as a county ordinance, coupled with

the Hospitals' provision of indigent healthcare services and

remittance of bills. That may be a somewhat unique manner of

forming an express contract, but it is certainly not unheard of. In

Waite, 866 So. 2d at 154, a developer brought a breach of contract

claim against a city based upon the city's enactment of an

ordinance adopting the developer's annexation petition. The

annexation petition and ordinance required the city to provide water

and sewer lines to the developer's property; after furnishing the

24
lines to the first phase of the property's development, the city

indicated it would not do so for the second phase. Id. The circuit

court dismissed the complaint based on the city's claim of sovereign

immunity. Id. at 155. The First District reversed and provided a

succinct summary of how express contracts may be made: " 'Where

an agreement is arrived at by words, oral or written, the contract is

said to be 'express.' ' . . . Several writings may constitute a valid

and binding written contract when they evidence a complete

meeting of the minds of the parties and an agreement upon the

terms and conditions of the contract." Id. (quoting Com. P'ship 8098

Ltd., 695 So. 2d at 385).

We cannot agree that what the Hospitals allege to be a

contract—written, legislative enactments directing remuneration to

private hospitals in exchange for services—would be beyond the ken

of what Florida law would recognize for purposes of waiving

sovereign immunity. Cf. Nowlin v. Nationstar Mortg., LLC, 193 So.

3d 1043, 1045 (Fla. 2d DCA 2016) ("A contract is made when the

three elements of contract formation are present: offer, acceptance,

and consideration." (quoting 11 Fla. Jur.2d Contracts § 25 (2016))).

At bottom, then, the circuit court was not faced with a pure

25
question of law, but whether a potentially valid express contract

was, in fact, formed. There was a disputed question of material fact

on that issue, and that precluded summary judgment. See

generally Buck-Leiter Palm Ave. Dev., LLC v. City of Sarasota, 212

So. 3d 1078, 1081-82 (Fla. 2d DCA 2017) (reversing summary

judgment where there were factual disputes as to whether an initial

redevelopment agreement was enforceable); Turton v. Singer Asset

Fin. Co., 120 So. 3d 635, 640 (Fla. 4th DCA 2013) ("The core issue

in this case is whether the transmission of the Plan to Turton

constituted a continuing offer to avoid Turton's resignation and

whether Turton's continued employment was a continuing

acceptance of the offer. Because the intent of the parties is in

question, this case cannot be properly disposed of by summary

judgment."); Smith v. Royal Auto. Grp., Inc., 675 So. 2d 144, 152

(Fla. 5th DCA 1996) ("The question of whether or not the parties'

negotiations produced a binding agreement is a question of intent,

which in turn is a question of fact.").

2.

Moreover, the County's claim of a prohibition "emergency"

rings hollow in this case. The County waited nearly six years to

26
bring its claim of sovereign immunity for the circuit court's

consideration. The County engaged in extensive, protracted

litigation on other issues before advancing sovereign immunity as a

purported jurisdictional bar. Such a prolonged delay on the part of

the County belies what prohibition has historically demanded: an

emergency that requires immediate intervention from a superior

tribunal. See L.T. v. State, 296 So. 3d 490, 496 (Fla. 1st DCA 2020)

(observing that prohibition should be employed with "great caution"

and "invoked only in emergency cases to forestall an impending

present injury" where there is "no other appropriate and adequate

legal remedy." (first quoting State ex rel. Turner v. Earle, 295 So. 2d

609, 611 (Fla. 1974), then quoting English, 348 So. 2d at 297)).

Issuing a writ of prohibition would not be an appropriate exercise of

our extraordinary writ jurisdiction under the facts of this case. See

Topps v. State, 865 So. 2d 1253, 1257 (Fla. 2004) ("Since the nature

of an extraordinary writ is not of absolute right, the granting of

such writ lies within the discretion of the court.").8

8 The parties do not suggest we should apply the current
version of rule 9.130 retroactively to obtain jurisdiction, and given
the Florida Supreme Court’s direction in In re Amendments to
Florida Rule of Appellate Procedure 9.130, 289 So. 3d at 867—that
27
 In sum, we conclude the County is not entitled to a writ of

prohibition. But because we recognize the jurisprudence

surrounding the intersection between extraordinary writs and

sovereign immunity remains less than clear, and in the interest of

providing a full review of the County's arguments, we will also

consider its claims in certiorari.

III.

"It is well settled that to obtain a writ of certiorari, there must

exist '(1) a departure from the essential requirements of the law, (2)

resulting in material injury for the remainder of the case (3) that

cannot be corrected on postjudgment appeal.' " Reeves v. Fleetwood

Homes of Fla., 889 So. 2d 812, 822 (Fla. 2004) (quoting Bd. of

Regents v. Snyder, 826 So. 2d 382, 387 (Fla. 2d DCA 2002)). "The

last two elements are jurisdictional and must be analyzed before the

court may even consider the first element." High Five Prods., Inc. v.

the amendment "shall become effective immediately upon the
release of this opinion [January 23, 2020]"—we would decline to do
so if they had. Cf. Love v. State, 286 So. 3d 177, 188 (Fla. 2019)
(observing that "Stand Your Ground" statute’s procedural
amendment only applied prospectively, in part, because "the
legislation on its face is plainly forward-looking").
28
Riddle, 286 So. 3d 890, 890 (Fla. 2d DCA 2019) (quoting Gift of Life

Adoptions v. S.R.B., 252 So. 3d 788, 790 (Fla. 2d DCA 2018)).

The Florida Supreme Court squarely addressed the issue of

certiorari jurisdiction over sovereign immunity defenses in

Rodriguez v. Miami-Dade County, 117 So. 3d 400 (Fla. 2013). In

Rodriguez, a business owner sued Miami-Dade County when he was

shot four times by a police officer responding to a burglary alarm at

the owner's business. Id. at 402. The trial court denied the

county's motion for summary judgment, but the Third District

Court of Appeal held that the county was entitled to sovereign

immunity and quashed the trial court's order through a writ of

certiorari. Id. at 403. The supreme court in Rodriguez emphasized

"the extremely narrow scope of a district court's ability to use its

certiorari jurisdiction to address a non-final order where the trial

court denied the defendant's claim that the suit was barred by

sovereign immunity." Id. at 404.

Consistent with our recent holdings in Citizens and Keck,
we reiterate that the continuation of litigation and any
ensuing costs, time, and effort in defending such
litigation does not constitute irreparable harm. Thus, the
use of certiorari review is improper in such an instance.

29
Id. at 405. The Rodriguez court concluded that the Third District

could not review the merits of Miami-Dade County's sovereign

immunity defense in certiorari. Id. at 408-09; see also Beach Cmty.

Bank v. City of Freeport, 150 So. 3d 1111, 1112-13 (Fla. 2014)

(reaffirming that certiorari was not an appropriate basis to review

the denial of a city's motion to dismiss on the basis of sovereign

immunity but addressing the merits under amended rule 9.130(a)

because the availability of sovereign immunity turned on an issue of

law).

Bound by the Florida Supreme Court's directions in Rodriguez

and City of Freeport, we would similarly conclude that the denial of

the County's motion for summary judgment in this case does not

constitute irreparable harm of the type that would entitle the

County to a writ of certiorari. See also Fla. Fish & Wildlife

Conservation Comm'n v. Jeffrey, 178 So. 3d 460, 465 (Fla. 1st DCA

2015) ("By contrast, any harm resulting from the erroneous denial

of FWCC's motion for summary judgment is not irreparable

because, by virtue of the waiver of sovereign immunity in section

768.28, Florida Statutes, FWCC has only limited immunity from the

liability that may result from the Respondent's suit, not immunity

30
from the suit itself."). But following the example of the court in City

of Freeport, we will nevertheless consider whether the denial of

summary judgment in this case constitutes a departure from the

essential requirements of law.

Simply put, it does not. As we discussed at length in part

II(B), there are genuine, material disputed facts in this record over

whether a contract was formed and whether the County waived its

sovereign immunity. As such, the circuit court's denial of the

County's motion for summary judgment did not depart from the

essential requirements of law. See, e.g., Ondrey v. Patterson, 884

So. 2d 50, 55 (Fla. 2d DCA 2004) (denying certiorari petition

because there was a disputed issue of material fact that precluded

summary judgment on correction officer's claim of qualified

immunity); Stephens v. Geoghegan, 702 So. 2d 517, 525 n.4 (Fla.

2d DCA 1997) ("[W]hen a court denies summary judgment in the

face of disputed issues of material fact, it commits no legal error, let

alone a departure from the essential requirements of law."); Butler v.

Dowling, 750 So. 2d 674, 675 (Fla. 4th DCA 1999) (denying

certiorari petition where the testimony of the arrestee/plaintiff

created a dispute as to whether the arresting police officer would be

31
entitled to qualified immunity from an excessive force claim); Dep't

of Health & Rehab. Servs. v. Miller, 413 So. 2d 96, 96 (Fla. 1st DCA

1982) (recognizing that the court has entertained petitions for writs

of certiorari to review interlocutory orders concerning sovereign

immunity but declining to issue the writ because "there may be

factual matters which remain to be developed at trial bearing on the

issue of sovereign immunity").

We would deny the County's petition if we were to exercise our

certiorari jurisdiction.

IV.

We conclude that the facts of this case do not warrant a writ of

prohibition. Under Rodriguez and City of Freeport, we would decline

to exercise our certiorari jurisdiction to reach the County's claims.

Even if we had certiorari jurisdiction, we would not find that the

circuit court departed from the essential requirements of law when

it denied the County's motion for summary judgment on the ground

of sovereign immunity. In our view, the circuit court was quite

correct to deny the County's motion for summary judgment on this

record.

32
 "Oftentimes, the applicability of the sovereign immunity waiver

is inextricably tied to the underlying facts, requiring a trial on the

merits." Dep't of Educ. v. Roe, 679 So. 2d 756, 758 (Fla. 1996). So

it is with the case at bar.

Petition denied.

SILBERMAN, J., Concurs specially with opinion.
ATKINSON, J., Concurs in result.

33
SILBERMAN, Judge, Specially concurring.

With one exception, I concur in Judge Lucas's majority

opinion. The majority opinion correctly observes that both

prohibition and certiorari have been used, somewhat inconsistently,

as avenues for review of sovereign immunity issues. And the

opinion properly concludes that genuine issues of material fact

remain in dispute and that the County has failed to establish

entitlement to relief by way of prohibition or certiorari. However, I

do not join in part II.B.2 of the opinion which asserts that the

County's "prohibition 'emergency' rings hollow" due to the County's

failure to have the trial court resolve the immunity issue in the first

instance. Majority op. at 26.

While the County asserted sovereign immunity in its answer to

the complaints, the County (together with the District) initially

sought and obtained summary judgment on the basis that the

Special Act was unconstitutional. This court affirmed, but the

Florida Supreme Court reversed. See Venice HMA, LLC v. Sarasota

County, 228 So. 3d 76, 84 (Fla. 2017). When the case returned to

the trial court for further proceedings, the County then moved for

summary judgment based on sovereign immunity.

34
 The County may have been better advised to first seek a

determination of the immunity issue rather than a determination of

the constitutionality of the Special Act. But once the trial court

ruled against the County on the immunity issue, the County was

entitled to review of that decision. And while prohibition is a limited

remedy, it has not been eliminated as a remedy for a trial court's

acting in excess of its jurisdiction over a sovereign that is immune

from suit.

I recognize that in English v. McCrary, 348 So. 2d 293, 297

(Fla. 1977), the Florida Supreme Court stated that "[p]rohibition will

be invoked only in emergency cases to forestall an impending

present injury where person seeking writ has no other appropriate

and adequate legal remedy." But the "emergency" at issue was the

exclusion of the press from a court proceeding. Id. at 295. The

court observed that "[p]rohibition lies to prevent an inferior tribunal

from acting in excess of jurisdiction but not to prevent an erroneous

exercise of jurisdiction." Id. at 297. In holding that the case did not

warrant the issuance of a writ of prohibition, the court focused on

the fact that the situation was not one "where the trial court was

exceeding its jurisdiction or was without jurisdiction." Id. at 299.

35
Rather, the case involved at most "a possible abuse of discretion."

Id.

In the present case there is no dispute that the trial court had

jurisdiction to determine whether sovereign immunity barred

further proceedings against the County, including whether the

County had waived its immunity. Had the court determined that

the County established its immunity, the court's jurisdiction over

the County would have come to an end unless this court, on review,

concluded that the trial court's determination was incorrect. And,

after resolving any factual disputes, had the trial court erroneously

concluded that the County was not entitled to immunity, then

review in this court by petition for writ of prohibition would be

entirely proper to prevent the trial court "from acting in excess of

jurisdiction." Id. at 297.

The County's decision to seek a ruling on its constitutionality

challenge enabled the trial court to exercise its jurisdiction to

consider that challenge. However, the County's failure to first seek

a ruling as to sovereign immunity did not establish the trial court's

unbridled jurisdiction over the County, particularly where the trial

court did not determine any issue of waiver. Thus, an erroneous

36
denial of sovereign immunity would not alleviate the nature of the

"emergency" because the trial court would be exercising jurisdiction

that it does not have over a sovereign that is immune from suit.

And prohibition remains as a recognized remedy when a trial court

exercises jurisdiction over a sovereign that is entitled to immunity

from suit. See, e.g., Seminole Tribe of Fla. v. Ariz, 67 So. 3d 229,

232 (Fla. 2d DCA 2010); Brevard County v. Morehead, 181 So. 3d

1229, 1233 (Fla. 5th DCA 2015).

Thus, while I do not agree with the majority opinion that the

" 'emergency' rings hollow," majority op. at 26, I nevertheless agree

that the County has not established entitlement to relief by way of

extraordinary writ because factual issues remain to be resolved in

the trial court.

37
ATKINSON, Judge, Concurring in result.

I agree that the petition should be denied, but I would treat it

as one for a writ of certiorari and deny it for the reasons explained

in part II.B.1. of Judge Lucas's opinion.

Opinion subject to revision prior to official publication.

38