Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D2025-2124 _____________________________ CRANDALL MEDICAL CONSULTING, LLC, and BRAANDON DAVIS, Appellants, v. JOHN L. GAINEY, as Personal Representative of the Estate of Nazariah Brown, Appellee. _____________________________ On appeal from the Circuit Court for Alachua County. Gloria R. Walker, Judge. October 7, 2026 BILBREY, J. Crandall Medical Consulting, LLC, and its employee, Braandon Davis appeal the nonfinal order denying their joint motion for summary judgment. 1 At issue is 1) whether the Appellants were agents of the State of Florida for purposes of 1 The nonfinal order on appeal is reviewable under rules 9.130(a)(3)(F)(ii) and (F)(iii), Florida Rules of Appellate Procedure because it denies a motion that “asserts immunity under section 768.28(9), Florida Statutes” and “that asserts entitlement to sovereign immunity.” sovereign immunity and 2) whether this question was answerable as a matter of law based on the parties’ record materials in supporting and opposing summary judgment and the governing statutes and case law. Since we answer both questions affirmatively, the order on appeal is reversed with instructions that final judgment be entered for Appellants. “Because of the separation of powers principles that animate the doctrine, and because it provides both immunity from suit and immunity from liability, the Florida Supreme Court instructs that ‘entitlement to sovereign immunity should be established as early in the litigation as possible.’” Fla. Virtual Sch. v. Calfee, 425 So. 3d 78, 82 (Fla. 6th DCA 2025) (quoting Fla. Highway Patrol v. Jackson, 288 So. 3d 1179, 1185 (Fla. 2020)). Early determination of individual or contractor immunity under section 768.28(9)(a), Florida Statutes (2022), is particularly necessary because “if a defendant who is entitled to the immunity granted in section 768.28(9)(a) is erroneously named as a party defendant and is required to stand trial, that individual has effectively lost the right bestowed by the statute to be protected from even being named as a defendant.” Keck v. Eminisor, 104 So. 3d 359, 366 (Fla. 2012). An order denying a motion for summary judgment based on sovereign immunity is reviewed de novo. Nocco v. Wilcox, 414 So. 3d 302, 305 (Fla. 2d DCA 2025). Appellants are two of the defendants named in John Gainey’s twelve-count amended complaint for damages allegedly suffered by Gainey’s nephew, Nazariah Brown. 2 Mr. Brown was a young adult man with complex medical needs. He lived with his mother and other family members until August 18, 2022, when the family lost the lease on their home. The Department of Children and Families became involved with Mr. Brown’s family in May 2022, when the family’s housing situation became precarious. To keep 2 Mr. Brown died while the lawsuit was pending. John Gainey was previously Mr. Brown’s guardian and is now the personal representative for Mr. Brown’s estate. Case number 1D2025-2106 involves similar issues and allegations with the Department of Children and Families claiming sovereign immunity applies to it too. 2 Mr. Brown from becoming homeless, and with his mother’s written consent, Department personnel placed Mr. Brown in a group home on an emergency basis. In August 2022, the Agency for Persons with Disabilities (APD) assumed responsibility for Mr. Brown’s services under chapter 393, Florida Statutes (2022). 3 In his amended complaint, Gainey alleged that Crandall Medical “served as an APD-licensed medical consulting group” responsible for assessing Mr. Brown’s needs, preparing a waiver support coordination plan, and monitoring service providers of Mr. Brown’s services. See § 393.0651, Fla. Stat. And Gainey alleged that Davis was the Crandall Medical employee responsible for preparing Mr. Brown’s waiver support plan and taking actions necessary to protect Mr. Brown’s safety and well-being. Crandall Medical and Davis admitted the allegations. But according to Gainey’s amended complaint, Crandall Medical and Davis failed their duties to provide Mr. Brown with a waiver support coordination plan, failed to monitor Mr. Brown’s condition, failed to see that Mr. Brown’s needs were met, and failed to transfer Mr. Brown to a facility able to meet his needs. Count 10 of the amended complaint alleged that Davis’s performance or non-performance of the Medicare Waiver Services for Mr. Brown violated Mr. Brown’s rights under section 393.13, Florida Statutes (“The Bill of Rights of Persons with Developmental Disabilities”) and subjected Davis to liability under section 393.13(5), Florida Statutes. In count 11, Gainey alleged that Crandall Medical was vicariously liable, under section 393.13(5), for the negligence of its employees resulting from the violation of Mr. Brown’s rights under section 393.13(3) and (4). And in count 12, Gainey alleged that Crandall Medical was negligent in hiring, training, and supervising its employees and 3 APD is an agency “housed within the Department of Children and Families for administrative purposes only.” § 20.197, Fla. Stat. APD is responsible for “providing all services provided to persons with developmental disabilities under chapter 393, including the operation of all state institutional programs . . . established to provide services to persons with developmental disabilities.” § 20.197(3), Fla. Stat. 3 breached its independent duty to ensure that a proper waiver support plan for Mr. Brown was in place. Section 768.28(9)(a), Florida Statutes, states: An officer, employee, or agent of the state or of any of its subdivisions may not be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. But the amended complaint contained no allegations that Crandall Medical or Davis acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Crandall Medical and Davis pleaded their entitlement to sovereign immunity under section 768.28(9)(a), Florida Statutes, as an affirmative defense. In their joint motion for summary judgment, they asserted that they were entitled to judgment as a matter of law as agents of the State of Florida, acting in the scope of their function as contractors performing essential governmental functions under the control or direction of APD. See §§ 393.0651, .066, .0663, Fla. Stat. As agents of State acting through APD, Appellants argued that sovereign immunity under section 768.28(9)(a) rendered them immune from suit for their acts or omissions in providing support coordination services under Florida Medicaid Waiver programs. To support their motion, Crandall Medical and Davis submitted the transcripts of the depositions of both Daniel Crandall, owner and founder of the company, and Davis. The depositions established that they were assigned by APD to Mr. Brown’s case in late October or early November 2022. Davis testified in his deposition that he did not act independently of the assignment by APD, and he had no discretion to reject the assignment. And Davis stated that he provided case coordination only to people referred by APD, used APD forms and templates, 4 completed APD certification and training, and reported his activities through a platform monitored by APD. Gainey did not contest these facts about the process for assignment of and control over the APD services by Crandall Medical and Davis. Instead, to contest their status as agents of APD for purposes of section 768.28(9)(a), Gainey presented the Medicaid Waiver Services Agreement signed by Davis and an APD representative in November 2018. Paragraph II.G. of that Agreement provided that Davis acted “as an independent service provider” and “not as an officer, employee, or agent of APD.” After hearing the parties’ arguments, the trial court stated that “there are just way too many facts in dispute here to grant” the motion. In its written order, the circuit court found: [T]here are too many disputed issues of material facts, including, but not limited to, whether the Agency for Persons with Disabilities (“APD”) controlled Crandall and Davis, whether all services provided by Crandall and Davis were approved by APD, whether all statutory requirements were fulfilled, whether Crandall and Davis operated independently from APD, and whether, given the facts of this case, the exceptions to sovereign immunity apply. Considering the record materials submitted by the parties in support and in opposition to summary judgment under rule 1.510(c), (e)(2), Florida Rules of Civil Procedure, the trial court applied an incorrect legal standard to deny summary judgment. Whether the party being contracted with is an agent of the state turns on the degree of control retained or exercised by the state agency. Stoll v. Noel, 694 So. 2d 701, 703 (Fla. 1997). When analyzing the issue of control, the focus should be on “the right to control, not the actual control . . . .” Villazon v. Prudential Health Care Plan, Inc., 843 So. 2d 842, 846 (Fla. 2003). In a summary judgment proceeding, “[i]f a party fails to . . . properly address another party’s assertion of fact” under rule 1.510(c)(2), “the court may . . . consider the fact undisputed for purposes of the motion.” Fla. R. Civ. P. 1.510(e). 5 “Agency status may be decided as a question of law in those cases where the party opposing summary judgment is unable to point to any conflicting facts or inferences to be drawn from the facts.” Lovelace v. G4S Secure Sols. (USA), Inc., 320 So. 3d 178, 188 (Fla. 4th DCA 2021) (citations omitted). Appellants submitted their depositions supporting their claim to immunity under section 768.28(9)(a) as agents of APD and the degree of control APD retained over their assignment and provision of services. Gainey’s opposition was based only on the language of the Medicaid Waiver Services Agreement, and he did not contest the depositions submitted by Appellants asserting the facts demonstrating APD’s control. For purposes of the Appellants’ immunity due to their status as agents of APD, the contract provision did not preclude Appellants’ status as agents under section 768.28(9). “An ‘express intent regarding agency status is to be considered in deciding the issue, but is not dispositive.’” Lovelace, 320 So. 3d at 188 (quoting G4S Secure Sols. (USA), Inc. v. Morrow, 210 So. 3d 92, 94 (Fla. 2d DCA 2016)). “[A]though ‘express intent regarding agency status is to be considered in deciding the issue’ of control, ‘it is not dispositive.’” Morrow, 210 So. 3d at 94. Gainey’s reliance on the contractual provision making Appellants “independent service providers” did not negate Appellants’ deposition evidence of the degree of APD’s control over their services. In discussing independent contractors, the Florida Supreme Court in Stoll v. Noel stated that “they are not precluded from being agents of the state–thereby entitling them to statutory immunity from suit and liability as provided by section 768.28, Florida Statutes.” 694 So. 2d at 703. The trial court’s finding disputed issues of “whether the Agency for Persons with Disabilities (“APD”) controlled Crandall Medical and Davis, whether all services provided by Crandall Medical and Davis were approved by APD” and “whether Crandall and Davis operated independently from APD,” was unsupported by any admissible evidence submitted by Gainey. See Fla. R Civ. P. 1.510(c). The facts of APD’s control established by the depositions submitted by Appellants were undisputed for purposes of the motion for summary judgment. Fla. R. Civ. P. 1.510(e)(2). Gainey did not dispute that APD is a state agency, that Crandall Medical was a certified service provider for APD with no 6 other business than that assigned and supervised by APD, and that Davis was an employee of APD. Under the law as provided by section 768.28(9)(a) and explained by Lovelace v. G4S Secure Sols. (USA), Inc., 320 So. 3d at 188, Appellants were entitled to summary judgment as a matter of law on their sovereign immunity defense. See also Naso v. Hall, 338 So. 3d 283, 287 (Fla. 4th DCA 2021). 4 The order on appeal is reversed with instructions to enter summary judgment for the Appellants. REVERSED with instructions. M.K. THOMAS and LONG, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ 4 To the extent that Naso and various other cases would apply section 768.28(2) and (5) to allow only limited sovereign immunity to a corporation rather than absolute immunity under section 768.28(9), those cases do not apply to Crandall Medical. Crandall Medical is a Florida limited liability company operating under chapter 621, Florida Statutes. The limited sovereign immunity in section 768.28(5) applies to “[t]he state and its agencies and subdivisions.” Section 768.28(2) defines “state agencies or subdivisions” to include “corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities.” But an LLC such as Crandall Medical is not a corporation under Florida law. See generally chapter 607, Florida Statutes; see also § 607.01401(5), Fla. Stat. (separating corporations from LLC); Olmstead v. F.T.C., 44 So. 3d 76, 78–80 (Fla. 2010) (explaining LLCs and distinguishing them from corporations). 7 Rogelio J. Fontela and Jessica E. Keeler of Dennis, Jackson, Martin, & Fontela, P.A., Tallahassee, for Appellants. David A. Paul, Christine V. Zharvo, and Debora S. Antisdel of Paul Trial Group, Winter Park; Alexis S. Gay and Valentina V. Villalobos of Elite Child Advocacy, PLLC, Tampa; Karen Gievers, Tallahassee, for Appellee John L. Gainey. 8