NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
LEE MEMORIAL HEALTH SYSTEM, )
)
Appellant, )
)
v. ) Case No. 2D19-4722
)
CHASE HILDERBRAND and )
JAMES WHELPLEY, )
)
Appellees. )
___________________________________)
Opinion filed September 25, 2020.
Appeal pursuant to Fla. R. App. P. 9.130
from the Circuit Court for Lee County;
Alane C. Laboda, Judge.
Hala Sandridge of Buchanan Ingersoll &
Rooney, PC, Tampa; and Elinor Baxter of
The Law Office of Elinor Baxter, P.L.L.C.,
Sarasota, for Appellant.
Joshua D. Ferraro of Lesser, Lesser,
Landy & Smith, West Palm Beach; and
Maria Alaimo of Viles & Beckman, LLC,
Fort Myers, for Appellees.
SILBERMAN, Judge.
Former patients Chase Hilderbrand and James Whelpley filed the
underlying class action complaint against Lee Memorial Health System (Lee Health)
alleging unjust enrichment based on the collection of amounts due for medical bills.
Hilderbrand and Whelpley have not challenged the amounts billed or their obligation to
pay the bills. Instead, they assert that they are entitled to a refund because Lee Health
collected the amounts under a claim of lien statute that was subsequently declared
unconstitutional. In this interlocutory appeal, Lee Health seeks review of an order
denying its motion to dismiss in which it asserted sovereign immunity. We conclude
that the trial court erred in ruling that Lee Health's use of the lien law was an illegal
extraction to which sovereign immunity does not apply.
Hilderbrand and Whelpley filed this lawsuit in September 2015, claiming
that they had received care and treatment at Lee Health for injuries received in motor
vehicle accidents and that Lee Health recorded a hospital claim of lien for each party
based upon the amounts due. The complaint raised a challenge to the constitutionality
of chapter 2000-439, section 18, Laws of Florida, and section 18-37 of the Lee County
Code (the Lien Law), which authorized perfection of a lien against, among other things,
certain judgments, proceeds from lawsuits, and settlement proceeds. The complaint
asserted that the Lien Law violated the prohibition against special laws pertaining to
liens arising from a private contract in article III, section (11)(a)(9), of the Florida
Constitution, and sought declaratory and injunctive relief to that effect, as well as
damages under the Florida Consumer Collection Practices Act1 (FCCPA) and an unjust
enrichment theory. The complaint also requested class action status on behalf of all
persons against whom Lee Health had filed a lien and claimed it was perfected.
In 2017, this court found the Lien Law unconstitutional under article III,
section 11(a)(9) in a case Lee Health had filed against a former patient's insurers
1§§ 559.551-.785, Fla. Stat. (2014).
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alleging impairment of liens. See Lee Mem'l Health Sys. v. Progressive Select Ins. Co.,
230 So. 3d 558, 560, 564 (Fla. 2d DCA 2017). This court affirmed entry of final
summary judgment in favor of the defense, and the Florida Supreme Court affirmed.
See Lee Mem'l Health Sys. v. Progressive Select Ins. Co.,
260 So. 3d 1038, 1045 (Fla.
2018). Hilderbrand and Whelpley then amended their complaint in this action to allege
that Lee Health used the unconstitutional Lien Law to illegally extract payments from
them. The second amended complaint sought damages for unjust enrichment and
continued the class action request but omitted the declaratory judgment and FCCPA
claims.
Lee Health filed a motion to dismiss in which it argued, among other
things, that sovereign immunity barred the unjust enrichment claims. The trial court
referred the motion to dismiss to a magistrate who issued a report and recommendation
that the motion be denied as to sovereign immunity. The magistrate relied on Bill
Stroop Roofing, Inc. v. Metropolitan Dade County,
788 So. 2d 365, 366-67 (Fla. 3d DCA
2001), to conclude that the application of the Lien Law was an illegal extraction to which
sovereign immunity does not apply. The magistrate also found persuasive the Southern
District's decision in Parker v. American Traffic Solutions, Inc., No. 14-CIV-24010,
2015
WL 4755175 (S.D. Fla. Aug. 10, 2015), which relied on Bill Stroop to deny a motion to
dismiss an unjust enrichment action based on a red light ticketing program that had
been declared unconstitutional. The trial court entered an order ratifying and approving
the magistrate's report and recommendation.
The issue of a party's entitlement to sovereign immunity is a legal issue
subject to the de novo standard of review. Plancher v. UCF Athletics Ass'n, 175 So. 3d
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724, 725 n.3 (Fla. 2015). "Article X, section 13 of the Florida Constitution provides
absolute sovereign immunity for the state and its agencies absent waiver by legislative
enactment or constitutional amendment." Ingraham ex rel. Ingraham v. Dade Cty. Sch.
Bd.,
450 So. 2d 847, 848 (Fla. 1984).2
Courts determine whether there is a waiver of sovereign immunity based
on legislative intent. See Citizens Prop. Ins. Corp. v. Perdido Sun Condo. Ass'n,
164
So. 3d 663, 666 (Fla. 2015). Intent can be found when the legislature enacts a statute
expressly waiving sovereign immunity. See, e.g., § 768.28(1), Fla. Stat. (2014) ("[T]he
state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity
for liability for torts, but only to the extent specified in this act."). Intent can also be
found without an express mention of sovereign immunity. See, e.g., Pan-Am Tobacco
Corp. v. Dep't of Corr., 471 So. 2d 4, 5 (Fla. 1984) (holding that the legislature clearly
intended to waive sovereign immunity in legislation authorizing the sovereign to enter
into written contracts because contracts must have mutuality of remedies to be
enforceable).
In Bill Stroop, the Third District concluded that sovereign immunity did not
apply to illegal extractions by government entities.
788 So. 2d at 367. In that case, the
county charged a registration fee in violation of a statute that expressly prohibited local
governments from imposing such a fee.
Id. at 366. Bill Stroop sued on behalf of
contractors who were charged this fee, seeking a declaration that the fee violated
2There
is no dispute that Lee Health qualifies for sovereign immunity as an
independent special district of Florida. See Searcy, Denney, Scarola, Barnhart &
Shipley v. State,
209 So. 3d 1181, 1185-86 (Fla. 2017).
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Florida law and a refund of the amount illegally collected. The county argued that
sovereign immunity barred the refund request.
Id.
The Third District concluded that sovereign immunity did not apply to "the
extraction of funds in violation of a statutory prohibition."
Id. In support of its holding,
the court relied on a line of cases requiring the sovereign to refund illegal taxes or fees
collected as a result of "a county's refusal to obey a direct legislative mandate."
Id. at
367 (citing City of Jacksonville v. Jacksonville Mar. Ass'n.,
492 So. 2d 770, 772 (Fla. 1st
DCA 1986) (requiring the city to repay an unconstitutional tax assessed on certain
vessels); Coe v. Broward County,
358 So. 2d 214, 216 (Fla. 4th DCA 1978) (ordering
the county to refund excess taxes collected in violation of a state statute); City of Miami
Beach v. Jacobs,
315 So. 2d 227 (Fla. 3d DCA 1975) (requiring the city to refund
"unconstitutional 'fireline' fees and charges")).
Here, Lee Health's medical bills are not illegal extractions prohibited by
statute. When the supreme court declared the Lien Law unconstitutional in Progressive
Select, it did not conclude that Lee Health was collecting a fee or tax that was illegally
charged and therefore not owed. See
260 So. 3d 1038. Instead, the supreme court
held that Lee Health could no longer use a hospital claim of lien to collect medical bills it
was legally owed. Id. at 1046.
As stated previously, Hilderbrand and Whelpley do not challenge the
amounts billed or their obligation to pay. And the second amended complaint contains
no allegation that they were billed in violation of any statute or law. Unlike the
government agencies in the cases relied upon in Bill Stroop, this case did not involve "a
county's refusal to obey a direct legislative mandate." Bill Stroop,
788 So. 2d at 367.
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Instead, Lee Health followed the terms of the then-valid Lien Law which authorized the
imposition of a hospital claim of lien against certain judgments and settlement proceeds.
Lee Health operated in good faith under a valid legislative enactment until it was
declared unconstitutional. Thus, the trial court erred in relying on Bill Stroop to conclude
that Lee Health's use of the Lien Law to collect amounts undisputedly owed was an
illegal extraction.
The trial court's ruling similarly finds no support in the Southern District's
decision in Parker.
2015 WL 4755175. In Parker, the plaintiffs challenged the
constitutionality of a red light program based on a Fourth District case finding a similar
red light program to be unconstitutional. Id. at *1-2. The Fourth District had determined
that the red light program violated Florida's Traffic Safety Act by outsourcing the city's
obligation to issue traffic citations. Id. at *1. The Fourth District declared that program
"void ab initio" and ruled that the appropriate remedy was dismissal of the ticket. Id.
The Parker plaintiffs' lawsuit alleged, among other things, unjust
enrichment, and the defendants moved to dismiss the claim based on sovereign
immunity. Id. at *2, *4. The Southern District relied on Bill Stroop to deny the motion to
dismiss because "under Florida law, state actors are not immune from suit for unlawful
monetary extractions." Id. at *4. The court concluded that the plaintiffs had a strong
argument for an illegal extraction based on the allegation "that 'a county's refusal to
obey a direct legislative mandate' resulted in the payment of an illegal fee." Id. (quoting
Bill Stroop,
788 So. 2d at 367).
Unlike in Parker, this case does not involve a payment authorized by a
statute that was declared void ab initio. Instead, it involves the payment of an obligation
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that was owed but collected under a statute that was declared unenforceable decades
thereafter. Unlike the plaintiffs in Parker, Hildebrand and Whelpley do not have an
argument that Lee Health's refusal to comply with a legislative mandate resulted in the
payment of illegal charges. Thus, Parker's narrow holding in reliance on Bill Stroop has
no application here.
In sum, the trial court erred in ruling that Lee Health's imposition of a
hospital claim of lien pursuant to the Lien Law was an illegal extraction to which
sovereign immunity does not apply. Lee Health did not refuse to follow a direct
legislative mandate or ignore an established law prohibiting the very tax or fee
assessed. Instead, Lee Health used what was then a valid law to file a hospital claim of
lien to collect amounts undisputedly owed. Based on the nature of Hilderbrand and
Whelpley's claims, there is no basis for the conclusion that sovereign immunity was
waived. Accordingly, we reverse the order denying Lee Health's motion to dismiss and
remand for dismissal of this action.
Reversed and remanded.
VILLANTI and SLEET, JJ., Concur.
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