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).


                                              -2-
alleging impairment of liens. See Lee Mem'l Health Sys. v. Progressive Select Ins. Co.,

, 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., 

, 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, 

, 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, 

(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, 

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., 

, 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, 

, 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., 

, 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 

. In that case, the

county charged a registration fee in violation of a statute that expressly prohibited local

governments from imposing such a fee.

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, 

, 1185-86 (Fla. 2017).


                                               -4-
Florida law and a refund of the amount illegally collected. The county argued that

sovereign immunity barred the refund request.

concluded that sovereign immunity did not apply to "the

extraction of funds in violation of a statutory prohibition."

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."

(citing City of Jacksonville v. Jacksonville Mar. Ass'n., 

, 772 (Fla. 1st

DCA 1986) (requiring the city to repay an unconstitutional tax assessed on certain

vessels); Coe v. Broward County, 

, 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, 

(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 

. 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.

              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 

.




                                             -5-
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. 

. 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.

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.

The Fourth District declared that program

"void ab initio" and ruled that the appropriate remedy was dismissal of the ticket.

lawsuit alleged, among other things, unjust

enrichment, and the defendants moved to dismiss the claim based on sovereign

immunity.

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."

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 

).

               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




                                             -6-
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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