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the prior opinion dated June 16, 2021, is withdrawn, and the 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. 
2

I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE 

ORIGINAL COURT ORDER.

MARY ELIZABETH KUENZEL, CLERK
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.
2

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.
3

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.
4

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. 
5

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. 
6

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 
7

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:
8

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 
9

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." 
10

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." 
11

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 
12

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 
13

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.
14

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 nonfinal 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 
15

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 
16

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."). 
17

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 
18

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 
19

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, 
20

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). 
21

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 
22

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).
23

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 
24

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 
25

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 
26

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 
27

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 
28

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").
29

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. 
30

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 
31

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 
32

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. 
33

"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. 
34

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.
35

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. 
36

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 
37

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.
38

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.