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Filing # 70123469 E-Filed 04/02/2018 04:46:36 PM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
EVELYN FERNANDEZ, GENERAL JURISDICTION DIVISION
Plaintiff, CASE NO.: 17-8126 CA 09 (Echarte)
VS
MIAMI-DADE COUNTY,
Defendant. /
MIAMI-DADE COUNTY’S MOTION TO DISMISS THIRD AMENDED COMPLAINT.
Defendant Miami-Dade County moves to dismiss Plaintiff Evelyn Fernandez’s Third
Amended Complaint for failing to state a cause of action and sovereign immunity WITH
PREJUDICE.
FACTUAL AND PROCEDURAL BACKGROUND
A, THE COMPLAINT
1, On April 5, 2017, Plaintiff Evelyn Fernandez filed a two-count complaint against
Miami-Dade County. Count I requested rescission of a contract between Fernandez and the
County based on an alleged mutual mistake. Count II requested damages for breach of contract.
The contract was attached to the complaint.
2. According to the contract, Fernandez was a Police Lieutenant with the Miami-Dade
Police Department and had multiple disciplinary actions pending against her. Memorandum of
Understanding Between Miami-Dade County and Police Lieutenant Evelyn Fernandez
(hereinafter “MOU”), at 1. Fernandez and the County were “desirous of settling these [disciplinary
actions] and are also desirous of avoiding further legal and administrative proceedings.” MOU at
OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-51511. Accordingly, on December 13, 2016, the County and Fernandez exchanged several promises
to settle the outstanding discipline.
3 Specifically, the County promised (a) to permit Fernandez to utilize her Special
Leave Donation through February 28, 2017, (b) to reimburse Fernandez 12 days of pay that were
forfeited as a result of her discipline, (c) to resolve any pending investigations in which Fernandez
was a subject without imposing discipline, and (d) to release Fernandez’s personally owned
firearm when she became legally permitted to possess it. MOU (f 1, 4, 5, 6. In return, Fernandez
promised (a) to resign or retire from employment with the County effective February 28, 2017 and
provide a letter of resignation or retirement, (b) to waive her right to appeal the disciplines that
had been imposed upon her, (c) to relinquish her Florida law enforcement certification, (d) to not
violate any department policies, and (e) to release all claims against the County. MOU 9 2, 3, 7,
9, 10. The agreement contained an integration clause, stating that “no promise, inducement or
agreement not expressly contained herein has been made, that this MOU constitutes [the
arties’] entire and final understanding with respect to the subject matter of this MOU, and
that the terms of the MOU are contractual and not a mere recital.” WOU { 13 (emphasis
added).
4. In her Complaint, however, Fernandez alleged that, despite the integration clause,
“the parties” selected her retirement date based on information from FRS indicating that Plaintiff
would have 25 years of special risk service, making her eligible for retirement benefits. Compl.
1 9-10. Fernandez further alleged that she would not have entered into the agreement but for this
understanding. /d. However, she did not actually allege that the County promised her that she
would receive retirement benefits as a result of her resignation and the MOU itself does not contain
these alleged understandings. Rather, the MOU spelled out the specific benefits that Plaintiff
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OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151would receive as stated above. Thus, Fernandez did not allege a mutual promise that the parties
failed to reduce to writing necessary to trigger the mutual mistake doctrine.
5 On May 9, 2017, the County moved to dismiss Plaintiff's Complaint. The County
argued that, under the doctrine of sovereign immunity, the County could not be sued except for
violating the terms of an express, written contract. Equitable remedies based on alleged
agreements or understandings that have not been reduced to an express, written contract are barred
by sovereign immunity. Plaintiffs rescission claim based on mutual mistake therefore failed.
Similarly, Plaintiffs breach of contract claim was based on alleged breaches of promises that were
not actually contained in the MOU. The breach of contract claim therefore failed as well
6. The Court heard the Motion to Dismiss on October 17, 2017. The Court found the
motion was “well-taken in all respects.” Hrg. Tr. 10/17/17 at 5:16. Rather than address the merits,
Plaintiff requested leave to amend. The Court granted the motion to dismiss and provided Plaintiff
leave to amend in an order entered October 17, 2017.
B. THE AMENDED COMPLAINT.
7. On November 6, 2017, Plaintiff filed an Amended Complaint seeking the same
relief as the initial Complaint. The Amended Complaint, however, failed to address the bases on
which the Court initially granted dismissal. The Amended Complaint contained a single additional
factual allegation: that “Defendant has waived sovereign immunity by entering into an express
written contract attached here as Exhibit ‘B’ and incorporated by reference.” Am. Compl. 4 19.!
Under the doctrine of sovereign immunity, however, the County’s immunity for contract claims is
waived only to the extent that it agrees to abide by the express terms of the written contract
l In an apparent oversight, the Amended Complaint did not actually attach the MOU;
however Plaintiff filed a Corrected Amended Complaint on December 8, 2017 which attached the
agreement.
3
OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151Therefore, Plaintiffs Amended Complaint still suffered from a fatal defect in that she sought to
bind the County to an understanding outside the four corners of the agreement. Because it was
evident that Plaintiff could not allege a breach of the actual, express written agreement, the County
requested dismissal with prejudice.
8. The Court heard the second Motion to Dismiss on December 18, 2017. During the
hearing, Plaintiff argued that by virtue of the fact that Plaintiff submitted a letter stating she was
“retiring” from Miami-Dade County, despite the fact that she did not have the requisite service to
attain full, immediate retirement benefits, a mutual mistake occurred between Plaintiff and the
County. The Court rejected that argument, noting that the agreement does not specify how the
County or the Florida Retirement System is going to treat Plaintiffs separation from the County
THE COURT: You can retire whenever you want to retire, you may or may not get
benefits but you can retire whenever you want. Right?
THE PLAINTIFF: I think there’s a difference —
THE COURT: She could have retired one day into the job
[THE PLAINTIFF]: The county would not have — they wouldn’t treat it as a
retirement. It would say — they would treat them as honorably served verses
honorably retired.
THE COURT: This [settlement agreement] doesn’t suggest how the county’s
treating it, none of it. She say I’m retiring.
[THE PLAINTIFF]: She asked to retire.
THE COURT: That doesn't say how the county's treating it and that the — the
agreement indicates that Fernandez will resign slash retire at that point effective
February 28, 2017
[THE PLAINTIFF]: Correct. And her -- the letter which is attached in reference as
part of the agreement says she is going to retire. There is a difference in the way
that the county treats you if you retire or resign regarding access to their insurance
plans.
OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151THE COURT: This agreement doesn’t provide how the county’s going to treat it.
Nowhere does it say how the county's going to treat it. [It] Says what the county’s
going to do which they did.
Hrg. Tr. 12/18/17 pp.7-8.
9. The Court dismissed the Amended Complaint on December 18, 2017, providing
Plaintiff with a single additional opportunity to state a cause of action against the County. Order,
Dec. 18, 2017
Gc THE SECOND AMENDED COMPLAINT
10. On December 28, 2017, Plaintiff filed her Second Amended Complaint. The
Second Amended Complaint contained six new attachments. The first four attachments dealt with
various benefits for eligible retired employees. The first was a website printout that detailed
eligibility requirements for the Florida Retirement System. 2d Am. Compl. Ex. C. The second
was a departmental procedure governing procedures for retirement and recognition for retired
police officers. 2d Am. Compl. Ex. D. The third was a website printout dealing with retiree
insurance benefits. 2d Am. Compl. Ex. E. The fourth was a standard operating procedure (SOP)
related to enrollment in retiree group insurance. 2d Am. Compl. Ex. F. The fifth attachment was
a letter disapproving of Plaintiff's request for an exception to the enrollment requirements for the
Retiree Group Insurance program. 2d Am. Compl. Ex. G. Finally, Plaintiff attached several letters
requesting that she contact a Sergeant at the Professional Compliance Bureau to be interviewed
with respect to several complaints against her. 2d Am. Compl. Ex. H.
11. The Second Amended Complaint, however, did not contain any allegations
sufficient to cure the defects that led to the dismissal of Plaintiff's prior complaints. Plaintiff did
not address how the doctrine of sovereign immunity and integration clause precluded the Court
from binding the County to an agreement outside the four corners of the contract. Moreover, the
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OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151documents that Plaintiff attached did not actually support her assertion that “retire” means “retire
with full benefits and 25 years of special risk service.” The very documents that she submitted
clearly contemplated that police officers may retire with less than 25 years of special risk service
and without being eligible for all available benefits. 2d Am. Compl. Ex D p.2 (“The Department
is obligated to process the retirement application as expeditiously as possible and to assist the
individual in receiving a final determination from the Division of Retirement ”) (emphasis
added), /d. at p.4 (“Upon receipt of an FRS application from a full-time employee, or notification
of intent to retire from a police reserve officer with a minimum of six years service . ..”) (emphasis
added); id. Ex. F, p.1 (“there may be extraordinary personal situations which may necessitate an
employee retiring before meeting these [service] requirements”) (emphasis added). The
document that dealt with health insurance specifically mentioned that retired employees must
apply for health insurance and referred to employees receiving the benefit as “eligible retirees,”
clearly demonstrating that not all retirees will be eligible. /d. at Ex. E, p.2.
12. Nothing in these documents supported the proposition that Plaintiff advanced: the
fact that she submitted a letter stating she was retiring means that the County would not have
entered into the settlement agreement unless the County believed Plaintiff would receive full
retirement benefits. To the contrary, because these documents clearly showed that not every
employee who retires is entitled to every available retiree benefit, they highlighted the absurdity
of Plaintiff's position that employees must always retire with all available retiree benefits. Thus,
even if the Court were to overlook both the integration clause and sovereign immunity’s bar on
binding a subdivision of the State of Florida to terms that are not expressed in the written contract,
Plaintiff’s interpretation still failed as a matter of law.
OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-515113. The Court heard the County’s motion to dismiss the Second Amended Complaint
on February 28, 2018. The Court agreed with the County’s position that the documents did not
assist the Plaintiff but elected to again dismiss without prejudice to give plaintiff “a last and fourth
opportunity.” Hrg. Tr. 2/28/18 p.5. The order stated “Plaintiff shall have on final opportunity to
amend.” Order, Feb. 28, 2018
D. THE THIRD AMENDED COMPLAINT
14. Plaintiff filed a Third Amended Complaint on March 11, 2018. The Third
Amended Complaint contains four counts. Count I is the same mutual mistake claim that plaintiff
has failed to properly allege on three previous occasions. Count II is a new claim for rescission
based on a unilateral mistake theory. Count III is a new claim for rescission based on a fraudulent
representation theory. Count IV is the same breach of contract theory that the court has previously
dismissed.”
15 Plaintiff's Third Amended Complaint fails to state a cause of action under any of
the above theories. Counts and I and IV are materially unchanged from the claims that the Court
previously dismissed. The Court should therefore dismiss them again, this time with prejudice.
Counts II and III also fail to state causes of action. As to the new claims, both unilateral mistake
and fraudulent representation require some act by the defendant that mistakenly or fraudulently
incents the plaintiff to enter into the contract. But Plaintiff has continuously alleged that the
information that formed the basis of her decision to enter into the contract came from the Florida
Retirement System—not from Miami-Dade County. In addition, any claim premised upon bad
faith or misrepresentation is beyond the scope of the State’s limited waiver of sovereign immunity.
2 The Third Amended Complaint actually labels the final count as “Count IL” For
the sake of clarity, we will ignore this scrivener’s error and refer to it as Count IV,
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OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151Thus, on her fourth and final attempt, each and every claim Plaintiff raises fails to state a cause of
action and is barred by sovereign immunity. The Third Amended Complaint must now be
dismissed with prejudice.
MEMORDANUM OF LAW.
L Florida’s Fact Pleading Requirements
“Unlike the pleading requirements in the federal courts where notice pleading is the
prevailing standard, the Florida Rules of Civil Procedure require fact pleading.” Ranger Const.
Indus., Ine. v. Martin Companies of Daytona, Inc., 881 So. 2d 677, 680 (Fla. 5th DCA 2004). The
Florida Supreme Court has stated “litigants at the outset of a suit must be compelled to state their
pleadings with sufficient particularity for a defense to be prepared.” Arky, Freed, Stearns, Watson,
Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So. 2d 561, 563 (Fla. 1988). Even
“claim for relief . . . must state a cause of action and shall contain (1) a short and plain statement
of the grounds upon which the court’s jurisdiction depends, unless the court already has
jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain
statement of the ultimate facts showing that the pleader is entitled to relief, and (3) a demand for
judgment for the relief to which the pleader deems himself or herself entitled.” Fla. R. Civ. P
1.110(b) (emphasis added).
Thus, “Florida’s pleading rule forces counsel to recognize the elements of their cause of
action and determine whether they have or can develop the facts necessary to support it, which
avoids a great deal of wasted expense to the litigants and unnecessary judicial effort.”
Agrofollajes, S.A. v. E.1. Du Pont De Nemours & Co., Inc., 48 So. 3d 976, 995 (Fla. 3d DCA 2010)
(quoting Cont'l Baking Co. v. Vincent, 634 So.2d 242, 244 (Fla. 5th DCA 1994)). “In order to
state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader
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OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151is entitled to relief.” MEBA Med. & Benefits Plan v. Lago, 867 So.2d 1184 (Fla. 4th DCA 2004)
(emphasis added).
I. Sovereign Immunity
In Florida, it is well-settled that “sovereign immunity is the rule, rather than the exception.”
City of Orlando v. W. Orange Country Club, Inc., 9 So. 3d 1268, 1272 (Fla. Sth DCA 2009)
(quoting Pan-Am Tobacco Corp. v. Dep't of Corr., 471 So. 2d 4, 4 (Fla. 1984)). Therefore, the
Florida Supreme Court has held that “[i]n suing a county a plaintiff must allege in his complaint
the specific methods by which the county waives its sovereign immunity and that such waiver
must be ‘clear and unequivocal.” Arnold v. Shumpert, 217 So. 2d 116, 120 (Fla. 1968) (citation
omitted); accord Nias v. City of Florida City, 07-22727-CIV, 2008 WL 2332003, at *3 (S.D. Fla.
June 4, 2008) (“Plaintiff must include clear and unequivocal language that the sovereign has
waived its sovereign immunity.”); Schwab v. First Appalachian Ins. Co., 58 F.R.D. 615, 623 (S.D
Fla. 1973) (same). The Third Amended Complaint, like the two previous complaints, alleges that
the County waived its sovereign immunity by entering into an express, written agreement. 3d. Am.
Compl. § 25. As the Court previously found, however, Plaintiff's claims still fails because she is
attempting to hold the County to terms outside of that express, written agreement. And, with the
addition of the fraudulent representation claim, she is also attempting to hold the County liable in
tort in violation of its sovereign immunity.
OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151ARGUMENT
I. THE RESCISSION CLAIM BASED ON MUTUAL MISTAKE FAILS
A. The Mutual Mistake Claim is Based On an Alleged Unwritten
Understanding Between Plaintiff and Miami-Dade County Which Is
Barred By The Doctrine of Sovereign Immunity for Contract Claims
and the Integration Clause
Miami-Dade County’s liability for contract claims is limited to the express terms of a
written agreement. As the Florida Supreme Court explained in County of Brevard v. Miorelli
Engineering, Inc., 703 So. 2d 1049, 1050 (Fla. 1997)
The legislature has explicitly waived sovereign immunity in tort for
personal injury, wrongful death, and loss or injury of property. See § 768.28, Fla.
Stat. (1995). Although no express legislative waiver has been granted for contract
claims, this Court in Pan-Am Tobacco Corp. v. Department of Corrections, 471
So. 2d 4 (Fla. 1984), found an implied waiver of sovereign immunity in contract on
the premise that because the legislature authorized state entities to enter into
contracts, it must have intended such contracts to be valid and binding on both
parties. However, we concluded our opinion by stating:
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.
Id. at 6 (emphasis added).
In Miorelli Engineering, a contractor sued a Florida county for extra work it had performed
after a contract had terminated. The county argued that “the extra work claim was barred by the
doctrine of sovereign immunity because the extra work was outside the terms of the express
contract and no written change orders, as required by the contract, had been issued authorizing the
extra work.” 703 So. 2d at 1050. The Supreme Court agreed, holding that while the State has
waived sovereign immunity for contract claims, it has done so only with respect to “suits on
express, written contracts into which the state agency has authority to enter.” /d. (quoting Pan-
Am Tobacco, 471 So. 2d at 6) (emphasis added). Sovereign immunity bars any claims that are not
based on the express, written terms of a contract. /d. at 1051.
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OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151Following Miorelli Engineering, courts have found that equitable claims, which by
definition are not based on the terms of the written contract, are barred by sovereign immunity.
For example, in Cayenta Canada, Inc. v. Orange County, Florida Bd. of County Com'rs, 2002
WL 34373972 (M.D. Fla. Nov. 20, 2002), the plaintiff brought an unjust enrichment claim against
Orange County. Relying on Miorelli Engineering, the court held that the claim was barred by
sovereign immunity. The court explained that “in Miorelli Engineering, the Florida Supreme
Court held that sovereign immunity precluded recovery of the cost of work that was outside the
scope of a government contract and was performed without a written change order.” Cayenta
Canada, 2002 WL 34373972 at *3 (citing Miorelli Engineering, 703 So. 2d at 1051). Similarly,
in Martinez v. Miami-Dade County., No. 12-23534-CIV, 2014 WL 11878406, at *3 (S.D. Fla. July
15, 2014), the court held that sovereign immunity barred claims for contribution or indemnification
that were not expressly written into the contract.
Plaintiff appears to believe that merely by entering into a written agreement, the County
waived its sovereign immunity in all respects. This is not the law. As the Florida Supreme Court
explained in Miorelli Engineering, sovereign immunity precludes claims against a state agency or
subdivision for matters outside the terms of the express written contract. An agreement with the
state or its subdivisions cannot arise from conduct or even an express oral agreement. See
Miorelli Engineering, 703 So. 2d at 1050. Political subdivisions of the state, such as Miami-Dade
County, are liable only for “suits on express, written contracts into which the state agency has
authority to enter.” Jd. (quoting Pan-Am Tobacco, 471 So. 2d at 6).
Accordingly, even if the Court were to accept Fernandez’s renewed allegations of a mutual
mistake between the County and Fernandez, such allegation could not overcome the County’s
sovereign immunity because, as a political subdivision of the State of Florida, the County’s
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OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151exclusive understanding of the contract is limited to its express provisions. “A mistake is mutual
when the parties agree to one thing and then, due to either a scrivener’s error or inadvertence,
express something different in the written instrument.” Circle Mortgage Corp. v. Kline, 645 So.2d
75, 78 (Fla. 4th DCA 1994). Thus by definition, a mutual mistake arises from an agreement that
is beyond the scope of what is expressly set out in writing. It is an equitable doctrine based on
understandings beyond the four corners of the written document. Such a claim cannot exist against
a political subdivision of the state.
Fernandez does not point to any express contract language making her attainment of 25
years of special risk service a condition of the contract. Her Second Amended Complaint outlines
various benefits that e/igible retirees may receive. 3d. Am. Compl. §§ 11-14. Plaintiff conceded
that the County’s website and other procedures lay out specific guidelines regarding when a retired
employee can receive certain benefits. /d. & Ex. C-F; see also American Seafood, Inc. v. Clawson,
598 So. 2d 273, 274 (Fla. 3d DCA 1992) (holding that exhibits to complaint nullify any allegations
in complaint that contradict exhibits).
The bottom line is that the MOU itself is completely silent regarding whether Plaintiff will
be eligible for various benefits upon her separation from the County. The MOU simply states
“Fernandez will resign/retire from employment with the COUNTY, effective February 28, 2017,
and will provide her letter of resi gnation/retirement as an attachment to the MOU.” MOU] 2. By
its plaint terms, the MOU envisioned either a retirement or a resignation. The MOU specifically
spells out the benefits that Plaintiff is to receive under the agreement but makes no reference to
any retirement benefits that Plaintiff now claims the parties intended her to have
The inclusion of an integration clause, as well as the doctrine of sovereign immunity,
foreclose Plaintiff's argument. The parties agreed that “no promise, inducement or agreement not
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OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151expressly contained herein has been made, that this MOU constitutes their entire and final
understanding with respect to the subject matter of this MOU, and that the terms of the MOU are
contractual and not a mere recital.” /d. § 13 (emphasis added). This clause has the effect of barring
any extrinsic evidence (such as the documents Plaintiff attaches to her complaint or the allegations
regarding her reliance on obtaining 25 years of special risk service) in interpreting the contract.
See Fed. Deposit Ins. Corp. v. Hemmerle, 592 So. 2d 1110, 1113 (Fla. 4th DCA 1991); Allett v.
Hill, 422 So. 2d 1047, 1050 (Fla. 4th DCA 1982); Carlon, Inc. v. Southland Diversified Co., 381
So. 2d 291, 293 (Fla. 4th DCA 1980). Given that the MOU makes no reference (express or
otherwise) to any retirement benefits, Plaintiff's attempt to read such terms into the agreement
contravenes both the integration clause and the doctrine of sovereign immunity. Plaintiff's attempt
to read unenumerated benefits into the MOU is no different than the contractor’s attempt to sue
for work done outside of the agreement in Miorelli Engineering. The express, written contract
waives the County’s immunity up to the express terms in the agreement, and no further. Sovereign
immunity therefore bars an equitable right of action from arising against the County based upon
terms outside the express, written agreement.
In sum, Fernandez’s rescission claim must be dismissed with prejudice because the Florida
legislature has not abrogated the County’s sovereign immunity to suit based on the equitable
doctrine of mutual mistake and the claim, which is based on evidence extrinsic to the agreement,
is barred by the integration clause
B. Plaintiff Does Not Actually Allege a Mutual Mistake
Even if this claim were not barred sovereign immunity and the integration clause, it would
still not withstand a motion to dismiss because the Third Amended Complaint does not allege that
the County ever agreed with Fernandez that she was eligible to retire with 25 years of special risk
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OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151service or for any other retirement benefit for that matter. K/ine, 645 So.2d at 78 (mutual mistake
arises from parties’ inadvertent failure to reduce agreed terms to writing). The Third Amended
Complaint, like its predecessors, alleges that Fernandez would not have entered into the contract
had she known that she had not completed 25 years of special risk service. 3d. Am. Compl. J§ 10,
30. The Amended Complaint does not allege that the County ever agreed or promised that Plaintiff
would have 25 years of special risk service as a part of the MOU. Accordingly, Plaintiff does not
allege a mutual agreement or a mutual mistake.
The Second Amended Complaint looped the breach of contract claim into the rescission
claim by claiming that Plaintiff also would not have retired if she knew that the open investigations
would not be resolved without disciplinary action prior to her retirement. 2d Am. Compl. § 29.
The Third Amended Complaint does likewise. 3d Am. Compl. § 30.3 But once again, Plaintiff is
reaching beyond the express language of the agreement. The MOU states that the investigations
will be resolved “without the imposition of discipline,” MOU 4 5, but does not specify a timeframe
for their resolution. Plaintiff does not allege any unwritten agreement to the contrary and, again,
Plaintiff does not allege that she has been disciplined.
Accordingly, Plaintiffs fourth and final attempt to demonstrate a mutual mistake fails.
IL. PLAINTIFF DOES NOT STATE A CAUSE OF ACTION FOR
UNILATERAL MISTAKE BECAUSE PLAINTIFF DOES NOT ALLEGE
THAT SHE WAS INDUCED BY THE COUNTY (Count IT)
In an action alleging a unilateral mistake, the plaintiff must show “that (1) the mistake was
induced by the party seeking to benefit from the mistake, (2) there is no negligence or want of
3 This is in violation of Fla. R. Civ. P. 1.110(f), which requires that claims founded
on separate transaction be stated in separate counts. However, because it is clear that Plaintiff
cannot state a cause of action under any theory, the Court should overlook this technical pleading
defect and dismiss the entire complaint with prejudice.
14
OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151due care on the part of the party seeking a return to the status quo, (3) denial of release from the
agreement would be inequitable, and (4) the position of the opposing party has not so changed that
granting the relief would be unjust, a unilateral mistake may provide a basis for rescission of a
contract.” Lechuga v. Flanigan’s Enterprises, Inc., 533 So. 2d 856, 857 (Fla. 3d DCA 1988)
(emphasis added)
The Third Amended Complaint does not allege that the plaintiffs mistake was induced by
the County. Rather, alleges that the “contract provided that Plaintiff would retire, thereby
obtaining her retirement benefits... A unilateral mistake occurred as a results of the utilization of
the date February 28, 2017 as Plaintiff's retirement date in the express written contract given the
fact that Plaintiff was determined to be ineligible for retirement and its benefits on that date.” 3d
Am. Compl. J 36 (emphasis added). In dismissing the previous three complaints, the Court has
already determined that the MOU did not promise Plaintiff to any benefits upon her retirement
because the MOU itself does not expressly provide for such benefits. Plaintiff's argument that the
term “retire” means to retire with a full panoply of benefits that are not enumerated in the MOU is
a construction that is barred both by the integration clause and by the doctrine of sovereign
immunity.
Plaintiff s claim of a unilateral mistake fails because she does not allege any act by Miami-
Dade County that induced her to make a mistake. In fact she continues to allege, as she has in all
previously complaints, that the retirement date was based on information supplied by a third party:
the Florida Retirement System. 3rd Am. Compl. { 10 (alleging February 28, 2017 retirement date
was used “[b]ased on [] information provided by the Florida Retirement System”). Plaintiff
cannot allege the first element of a unilateral mistake: an act by the defendant which caused her
to make the mistake. This prong can be satisfied by a statement or misrepresentation—which
15
OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151Plaintiff does not allege—but not by silence or omission. DePrince v. Starboard Cruise Services,
Inc., --- So. 3d ----, 2018 WL 443153, at *7 (Fla. 3d DCA Jan. 17, 2018). Plaintiff also fails to
allege the other elements of a unilateral mistake. But given that Plaintiff has repeatedly alleged—
in four separate complaints—that the basis of the February 28, 2017 date was information provided
a third party (the Florida Retirement System) there is no possibility that this defect can be cured
and dismissal with prejudice is appropriate.
Finally, Plaintiff specifically disclaimed reliance on any inducement from the County in
entering into the agreement. See MOU { 13 (“The PARTIES agree and state that no promise,
inducement, or agreement not expressly contained herein has been made) (emphasis added), see
also Carlon, Ine. v. Southland Diversified Co., 381 So. 2d 291, 293 (Fla. 4th DCA 1980)
(“presentations, negotiations and conversations which precede and accompany the making of a
contract are presumed to have merged in the contract”) (quoting Windowmaster Corporation v.
Jefferson Construction Co., 114 So.2d 626 (Fla. 3rd DCA 1959)). Since the contract does not
allege anywhere or in any way that Plaintiff would obtain 25 years of special risk service on
February 28, 2017, this claim is likewise barred by the disclaimer of any inducement in the MOUR
itself and the doctrine of sovereign immunity.
Tif. =PLAINTIFF’S FRAUD CLAIM IS BARRED BY SOVEREIGN IMMUNITY
AND FAILS TO STATE A CAUSE OF ACTION (COUNT IID)
A. There is No Legal Basis to Hold the County Liable for Representations
by a Third Pari
In an action for fraud, the plaintiff “must allege (1) that [the] defendant made a
representation on which plaintiff was meant to act, (2) that the representation was false and
defendant knew that fact, and (3) that plaintiff relied on the representation to his injury.” Am.
Int'l Land Corp. v. Hanna, 323 So. 2d 567, 569 (Fla. 1975) (emphasis added); accord Assad v.
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OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151Mendell, 511 So. 2d 682, 683 (Fla. 3d DCA 1987) (“In order to state a valid cause of action for
fraudulent misrepresentation the complaint must allege . . . the misrepresentation of a material fact
[by the defendants]” and “that the defendants knew the falsity of the representation”) (emphasis
added) (alternation in original)
The Third Amended Complaint, like each previous complaint, alleges that plaintiff chose
to retire on February 28, 2017 “[b]ased on [] information provided by the Florida Retirement
System’—not Miami-Dade County. 3rd Am. Compl. § 10; see also 3d Am. Compl. Ex. D. p.2
(“The Department is obligated to process the retirement application as expeditiously as possible
and to assist the individual in receiving a final determination from the Division of Retirement,
Department of Administration, State of Florida .. .”) (emphasis added).
The Third Amended Complaint does not provide a factual basis for a fraud claim against
the County. Instead, it alleges that the “contract provided that Plaintiff would retire, thereby
obtaining her retirement benefits... Defendant fraudulently agreed to Plaintiff requesting
retirement despite the fact that Plaintiff was not eligible for Special Risk Service retirement on
February 28, 2017, the date set forth in the MOU.” 3d Am. Compl. § 44 (emphasis added). These
are not allegations of fraud. Rather, they are a regurgitation of the same argument that the Court
has already rejected three times: that the term “retire” means to retire with a full panoply of benefits
that are not enumerated in the MOU, a construction that is barred by both the merger and
integration clause and sovereign immunity
The Third Amended Complaint does not contain any allegation whatsoever that the County
induced Plaintiff to sign the agreement through fraudulent representations about her retirement
benefits. In a similar context, the Third DCA has found allegations of fraud to have “utterly no
legal basis” where the defendant “made no misrepresentations to the plaintiff to induce the plaintiff
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OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151to sign” the contract. Kassier v. Kipnis, 571 So. 2d 54, 55 (Fla. 3d DCA 1990). The fraudulent
representation claim therefore fails as a matter of law.
B. The Fraudulent Representation is Barred by Sovereign Immunity
Even if Plaintiff could state a cause of action for fraudulent representation, it would be
barred by sovereign immunity. Because fraud claims sound in tort, they are not covered by the
limited exception to sovereign immunity for express contract claims found in Pan-Am and are
instead governed by the limited waiver of sovereign immunity for tort claims in Fla. Stat. § 768.28.
County of Brevard vy. Miorelli Eng’g, Inc., 677 So. 2d 32, 34 (Fla. 5th DCA 1996), quashed on
other grounds, 703 So. 2d 1049 (Fla. 1997); see also HTP, Ltd. v. Lineas Aereas Costarricenses,
S.A., 685 So. 2d 1238, 1240 (Fla. 1996) (“fraud in the inducement is an independent tort”); Gandy
y. Trans World Computer Tech. Group, 787 So. 2d 116, 119 (Fla. 2d DCA 2001) (“Common-law
fraud is a tort action.”)
In 1973, Florida partially waived its sovereign immunity in tort when the Florida legislature
enacted Florida Statute section 768.28. In doing so, Florida gave its consent to be sued in certain
tort actions, but “only to the extent specified” in the act. Fla. Stat. § 768.28(1). “[S]tatutes
purporting to waive sovereign immunity must be clear and unequivocal.” Florida Dept. of Transp.
v. Schwefringhaus, 188 So. 3d 840, 846 (Fla. 2016) (quoting Spangler v. Fla. State Tpk. Auth., 106
So.2d 421, 424 (Fla. 1958)). “Waiver cannot be found by inference or implication, and statutes
waiving sovereign immunity must be strictly construed.” Schwefringhaus, 188 So. 3d at 846
Applying these principles, Plaintiff's fraudulent representation claim falls outside of Florida’s
limited waiver of sovereign immunity for torts claims in § 768.28
First, sovereign immunity in tort has only been waived for claims causing “injury or loss
of property, personal injury, or death.” Fla. Stat. § 768.28(1). “Fraud in the inducement causing
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OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151only economic loss does not fit within any of those categories of injury or loss enumerated in the
statute.” County of Brevard, 677 So. 2d at 34. The Third Amended Complaint alleges that Plaintiff
has lost a host of retirement and economic benefits but does not allege personal injury, loss of
property, or death.
Second, “[t]he state or its subdivisions shall not be liable in tort for the acts or omissions
of an officer, employee, or agent... committed in bad faith or with malicious purpose...” Fla.
Stat § 768.28(9)(a). Fraudulent representation is a quintessential bad faith claim and is
categorically barred by sovereign immunity. Parker vy. State of Florida Bd. of Regents ex rel.
Florida State Univ., 724 So. 2d 163, 167-69 (Fla. 1st DCA 1998).
Third, because the fraudulent representation claim sounds in tort, Plaintiff is required to
specifically allege satisfaction of the pre-suit notice requirement of Fla. Stat. § 768.28(6)(a).
“Satisfaction of the Florida notice requirements [set forth in Fla. Stat. § 768.28(6)(a)] is a condition
precedent to maintaining a lawsuit, and the complaint must contain an allegation that such notice
was given.” Diversified Numismatics, Inc. v. City of Orlando, Fla., 783 F. Supp. 1337, 1347 (M.D.
Fla. 1990) (citing Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010, 1022-23
(Fla. 1979) (additional citation omitted); Doe v. G-Star Sch. of the Arts, Inc., No. 16-cv-80446-
BLOOM /Valle, 2016 WL 4625625, at *4 (S.D. Fla. Sept. 6, 2016) (“[A] plaintiff must satisfy the
notice requirements prior to maintaining a lawsuit against a subdivision of the State, ‘and the
complaint must contain an allegation that such notice was given.””); Fletcher v. City of Miami, 567
F. Supp. 2d 1389, 1393 (S.D. Fla. 2008) (same).
Finally, the contact states that no inducements have been made to sign the agreement that
are not expressly contained in the MOU. MOU { 13. This non-reliance language negates any
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OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151claim for fraud in the inducement. See Billington v. Ginn-La Pine Island, Ltd., LLLP, 192 So. 3d
77 (Fla. 5th DCA 2016).
IV. THE BREACH OF CONTRACT CLAIM FAILS (COUNT IV)
A. Plaintiff Does Not Actually Allege a Violation of the Contract
“An adequately pled breach of contract action requires three elements: (1) a valid contract;
(2) a material breach; and (3) damages.” Friedman v. New York Life Ins. Co., 985 So. 2d 56, 58
(Fla. 4th DCA 2008). Here again, the Third Amended Complaint does not allege an actual breach.
It purports to allege two breaches: one, that the County allowed Fernandez to “retire” even after it
was determined that she was not eligible for certain benefits and vo, that the County failed to
resolve the open investigations prior to the date of Fernandez’s retirement. 3d Am. Compl. J§ 51,
52.
These are materially the same allegations that the Court previously dismissed; they are not
actual breaches because the written contract never required these things. As such, the breach of
contract claim cannot withstand the application of sovereign immunity because it is not based on
the express language in the written MOU. Again, the contract does not state that Plaintiffs
retirement would result in any ancillary benefits. Rather, the contract states that Plaintiff “will
resign/retire from employment with the COUNTY, effective February 28, 2017, and will provide
her letter of resignation/retirement as an attachment to this MOU.” MOU 2. Nowhere does the
MOU guarantee Plaintiff the benefits alleged in the Third Amended Complaint.
Second, the MOU did not require that the County “resolve” all open investigations before
Fernandez’s retirement. It simply stated that “[a]ny pending investigations in which
FERNANDEZ is a subject shall be resolved without the imposition of discipline.” MOU 4 5
(emphasis added). No time requirement is expressed. Plaintiff's argument that the language has
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OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151to mean that the investigations will be closed prior to her retirement is erroneous. Plaintiff appears
to forget that agreement was executed on December 13, 2016 but Plaintiff did not separate from
County service until February 28, 2017. Thus, Plaintiff received the benefit of not being
disciplined during this time. In sum, since the Third Amended Complaint still does not allege that
any investigations have resulted in the imposition of discipline, no breach has been adequately
alleged. As such, Count IV does not state a cause of action.
Vv. DISMISSAL SHOULD BE WITH PREJUDICE
The Court has given Plaintiff four opportunities to state a cause of action and has twice
warned Plaintiff that this would her final opportunity to amend. Dismissal should therefore be
with prejudice. See Kohn v. City of Miami Beach, 611 So. 2d 538, 539 (Fla. 3d DCA 1992);
McCuin v. Review Fin. Printers, Inc., 582 So.2d 176 (Fla. 3d DCA 1991) (no abuse of discretion
where trial court precluded plaintiff from filing fourth amended complaint), A/varez v. DeAguirre,
395 So. 2d 213, 217 (Fla. 3d DCA 1981).
CONCLUSION
The Court should dismiss Plaintiff's Third Amended Complaint WITH PREJUDICE.
Respectfully Submitted,
ABIGAIL PRICE-WILLIAMS
Miami-Dade County Attorney
111 N.W. Ist Street
Suite 2810
Miami, FL 33128
By: /s/ Ezra S. Greenberg
Ezra S. Greenberg
Assistant County Attorney
Florida Bar No. 85018
Telephone: (305) 375-5151
Fax: (305) 375-5634
Email: ezrag@miamidade.gov
dmh@miamidade.gov
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OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was electronically
filed with the Florida Court’s E-Filing Portal and was served via e-mail generated by the Florida
Courts E-Filing Portal on April 2, 2018 to:
Teri Guttman Valdes, Esq.
Teri Guttman Valdes, P.A
1501 Venera Avenue, Suite 300
Coral Gables, FL 33146
Tel: (305) 740-9600
Fax: (305) 740-9202
E-mail: tgvaldes@aol.com
Counsel for Plaintiff
/s/ Ezra S. Greenberg
Assistant County Attorney
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OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151
Preview
Filing # 70123469 E-Filed 04/02/2018 04:46:36 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA EVELYN FERNANDEZ, GENERAL JURISDICTION DIVISION Plaintiff, CASE NO.: 17-8126 CA 09 (Echarte) VS MIAMI-DADE COUNTY, Defendant. / MIAMI-DADE COUNTY’S MOTION TO DISMISS THIRD AMENDED COMPLAINT. Defendant Miami-Dade County moves to dismiss Plaintiff Evelyn Fernandez’s Third Amended Complaint for failing to state a cause of action and sovereign immunity WITH PREJUDICE. FACTUAL AND PROCEDURAL BACKGROUND A, THE COMPLAINT 1, On April 5, 2017, Plaintiff Evelyn Fernandez filed a two-count complaint against Miami-Dade County. Count I requested rescission of a contract between Fernandez and the County based on an alleged mutual mistake. Count II requested damages for breach of contract. The contract was attached to the complaint. 2. According to the contract, Fernandez was a Police Lieutenant with the Miami-Dade Police Department and had multiple disciplinary actions pending against her. Memorandum of Understanding Between Miami-Dade County and Police Lieutenant Evelyn Fernandez (hereinafter “MOU”), at 1. Fernandez and the County were “desirous of settling these [disciplinary actions] and are also desirous of avoiding further legal and administrative proceedings.” MOU at OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-51511. Accordingly, on December 13, 2016, the County and Fernandez exchanged several promises to settle the outstanding discipline. 3 Specifically, the County promised (a) to permit Fernandez to utilize her Special Leave Donation through February 28, 2017, (b) to reimburse Fernandez 12 days of pay that were forfeited as a result of her discipline, (c) to resolve any pending investigations in which Fernandez was a subject without imposing discipline, and (d) to release Fernandez’s personally owned firearm when she became legally permitted to possess it. MOU (f 1, 4, 5, 6. In return, Fernandez promised (a) to resign or retire from employment with the County effective February 28, 2017 and provide a letter of resignation or retirement, (b) to waive her right to appeal the disciplines that had been imposed upon her, (c) to relinquish her Florida law enforcement certification, (d) to not violate any department policies, and (e) to release all claims against the County. MOU 9 2, 3, 7, 9, 10. The agreement contained an integration clause, stating that “no promise, inducement or agreement not expressly contained herein has been made, that this MOU constitutes [the arties’] entire and final understanding with respect to the subject matter of this MOU, and that the terms of the MOU are contractual and not a mere recital.” WOU { 13 (emphasis added). 4. In her Complaint, however, Fernandez alleged that, despite the integration clause, “the parties” selected her retirement date based on information from FRS indicating that Plaintiff would have 25 years of special risk service, making her eligible for retirement benefits. Compl. 1 9-10. Fernandez further alleged that she would not have entered into the agreement but for this understanding. /d. However, she did not actually allege that the County promised her that she would receive retirement benefits as a result of her resignation and the MOU itself does not contain these alleged understandings. Rather, the MOU spelled out the specific benefits that Plaintiff 2 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151would receive as stated above. Thus, Fernandez did not allege a mutual promise that the parties failed to reduce to writing necessary to trigger the mutual mistake doctrine. 5 On May 9, 2017, the County moved to dismiss Plaintiff's Complaint. The County argued that, under the doctrine of sovereign immunity, the County could not be sued except for violating the terms of an express, written contract. Equitable remedies based on alleged agreements or understandings that have not been reduced to an express, written contract are barred by sovereign immunity. Plaintiffs rescission claim based on mutual mistake therefore failed. Similarly, Plaintiffs breach of contract claim was based on alleged breaches of promises that were not actually contained in the MOU. The breach of contract claim therefore failed as well 6. The Court heard the Motion to Dismiss on October 17, 2017. The Court found the motion was “well-taken in all respects.” Hrg. Tr. 10/17/17 at 5:16. Rather than address the merits, Plaintiff requested leave to amend. The Court granted the motion to dismiss and provided Plaintiff leave to amend in an order entered October 17, 2017. B. THE AMENDED COMPLAINT. 7. On November 6, 2017, Plaintiff filed an Amended Complaint seeking the same relief as the initial Complaint. The Amended Complaint, however, failed to address the bases on which the Court initially granted dismissal. The Amended Complaint contained a single additional factual allegation: that “Defendant has waived sovereign immunity by entering into an express written contract attached here as Exhibit ‘B’ and incorporated by reference.” Am. Compl. 4 19.! Under the doctrine of sovereign immunity, however, the County’s immunity for contract claims is waived only to the extent that it agrees to abide by the express terms of the written contract l In an apparent oversight, the Amended Complaint did not actually attach the MOU; however Plaintiff filed a Corrected Amended Complaint on December 8, 2017 which attached the agreement. 3 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151Therefore, Plaintiffs Amended Complaint still suffered from a fatal defect in that she sought to bind the County to an understanding outside the four corners of the agreement. Because it was evident that Plaintiff could not allege a breach of the actual, express written agreement, the County requested dismissal with prejudice. 8. The Court heard the second Motion to Dismiss on December 18, 2017. During the hearing, Plaintiff argued that by virtue of the fact that Plaintiff submitted a letter stating she was “retiring” from Miami-Dade County, despite the fact that she did not have the requisite service to attain full, immediate retirement benefits, a mutual mistake occurred between Plaintiff and the County. The Court rejected that argument, noting that the agreement does not specify how the County or the Florida Retirement System is going to treat Plaintiffs separation from the County THE COURT: You can retire whenever you want to retire, you may or may not get benefits but you can retire whenever you want. Right? THE PLAINTIFF: I think there’s a difference — THE COURT: She could have retired one day into the job [THE PLAINTIFF]: The county would not have — they wouldn’t treat it as a retirement. It would say — they would treat them as honorably served verses honorably retired. THE COURT: This [settlement agreement] doesn’t suggest how the county’s treating it, none of it. She say I’m retiring. [THE PLAINTIFF]: She asked to retire. THE COURT: That doesn't say how the county's treating it and that the — the agreement indicates that Fernandez will resign slash retire at that point effective February 28, 2017 [THE PLAINTIFF]: Correct. And her -- the letter which is attached in reference as part of the agreement says she is going to retire. There is a difference in the way that the county treats you if you retire or resign regarding access to their insurance plans. OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151THE COURT: This agreement doesn’t provide how the county’s going to treat it. Nowhere does it say how the county's going to treat it. [It] Says what the county’s going to do which they did. Hrg. Tr. 12/18/17 pp.7-8. 9. The Court dismissed the Amended Complaint on December 18, 2017, providing Plaintiff with a single additional opportunity to state a cause of action against the County. Order, Dec. 18, 2017 Gc THE SECOND AMENDED COMPLAINT 10. On December 28, 2017, Plaintiff filed her Second Amended Complaint. The Second Amended Complaint contained six new attachments. The first four attachments dealt with various benefits for eligible retired employees. The first was a website printout that detailed eligibility requirements for the Florida Retirement System. 2d Am. Compl. Ex. C. The second was a departmental procedure governing procedures for retirement and recognition for retired police officers. 2d Am. Compl. Ex. D. The third was a website printout dealing with retiree insurance benefits. 2d Am. Compl. Ex. E. The fourth was a standard operating procedure (SOP) related to enrollment in retiree group insurance. 2d Am. Compl. Ex. F. The fifth attachment was a letter disapproving of Plaintiff's request for an exception to the enrollment requirements for the Retiree Group Insurance program. 2d Am. Compl. Ex. G. Finally, Plaintiff attached several letters requesting that she contact a Sergeant at the Professional Compliance Bureau to be interviewed with respect to several complaints against her. 2d Am. Compl. Ex. H. 11. The Second Amended Complaint, however, did not contain any allegations sufficient to cure the defects that led to the dismissal of Plaintiff's prior complaints. Plaintiff did not address how the doctrine of sovereign immunity and integration clause precluded the Court from binding the County to an agreement outside the four corners of the contract. Moreover, the 5 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151documents that Plaintiff attached did not actually support her assertion that “retire” means “retire with full benefits and 25 years of special risk service.” The very documents that she submitted clearly contemplated that police officers may retire with less than 25 years of special risk service and without being eligible for all available benefits. 2d Am. Compl. Ex D p.2 (“The Department is obligated to process the retirement application as expeditiously as possible and to assist the individual in receiving a final determination from the Division of Retirement ”) (emphasis added), /d. at p.4 (“Upon receipt of an FRS application from a full-time employee, or notification of intent to retire from a police reserve officer with a minimum of six years service . ..”) (emphasis added); id. Ex. F, p.1 (“there may be extraordinary personal situations which may necessitate an employee retiring before meeting these [service] requirements”) (emphasis added). The document that dealt with health insurance specifically mentioned that retired employees must apply for health insurance and referred to employees receiving the benefit as “eligible retirees,” clearly demonstrating that not all retirees will be eligible. /d. at Ex. E, p.2. 12. Nothing in these documents supported the proposition that Plaintiff advanced: the fact that she submitted a letter stating she was retiring means that the County would not have entered into the settlement agreement unless the County believed Plaintiff would receive full retirement benefits. To the contrary, because these documents clearly showed that not every employee who retires is entitled to every available retiree benefit, they highlighted the absurdity of Plaintiff's position that employees must always retire with all available retiree benefits. Thus, even if the Court were to overlook both the integration clause and sovereign immunity’s bar on binding a subdivision of the State of Florida to terms that are not expressed in the written contract, Plaintiff’s interpretation still failed as a matter of law. OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-515113. The Court heard the County’s motion to dismiss the Second Amended Complaint on February 28, 2018. The Court agreed with the County’s position that the documents did not assist the Plaintiff but elected to again dismiss without prejudice to give plaintiff “a last and fourth opportunity.” Hrg. Tr. 2/28/18 p.5. The order stated “Plaintiff shall have on final opportunity to amend.” Order, Feb. 28, 2018 D. THE THIRD AMENDED COMPLAINT 14. Plaintiff filed a Third Amended Complaint on March 11, 2018. The Third Amended Complaint contains four counts. Count I is the same mutual mistake claim that plaintiff has failed to properly allege on three previous occasions. Count II is a new claim for rescission based on a unilateral mistake theory. Count III is a new claim for rescission based on a fraudulent representation theory. Count IV is the same breach of contract theory that the court has previously dismissed.” 15 Plaintiff's Third Amended Complaint fails to state a cause of action under any of the above theories. Counts and I and IV are materially unchanged from the claims that the Court previously dismissed. The Court should therefore dismiss them again, this time with prejudice. Counts II and III also fail to state causes of action. As to the new claims, both unilateral mistake and fraudulent representation require some act by the defendant that mistakenly or fraudulently incents the plaintiff to enter into the contract. But Plaintiff has continuously alleged that the information that formed the basis of her decision to enter into the contract came from the Florida Retirement System—not from Miami-Dade County. In addition, any claim premised upon bad faith or misrepresentation is beyond the scope of the State’s limited waiver of sovereign immunity. 2 The Third Amended Complaint actually labels the final count as “Count IL” For the sake of clarity, we will ignore this scrivener’s error and refer to it as Count IV, 7 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151Thus, on her fourth and final attempt, each and every claim Plaintiff raises fails to state a cause of action and is barred by sovereign immunity. The Third Amended Complaint must now be dismissed with prejudice. MEMORDANUM OF LAW. L Florida’s Fact Pleading Requirements “Unlike the pleading requirements in the federal courts where notice pleading is the prevailing standard, the Florida Rules of Civil Procedure require fact pleading.” Ranger Const. Indus., Ine. v. Martin Companies of Daytona, Inc., 881 So. 2d 677, 680 (Fla. 5th DCA 2004). The Florida Supreme Court has stated “litigants at the outset of a suit must be compelled to state their pleadings with sufficient particularity for a defense to be prepared.” Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So. 2d 561, 563 (Fla. 1988). Even “claim for relief . . . must state a cause of action and shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the ultimate facts showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief to which the pleader deems himself or herself entitled.” Fla. R. Civ. P 1.110(b) (emphasis added). Thus, “Florida’s pleading rule forces counsel to recognize the elements of their cause of action and determine whether they have or can develop the facts necessary to support it, which avoids a great deal of wasted expense to the litigants and unnecessary judicial effort.” Agrofollajes, S.A. v. E.1. Du Pont De Nemours & Co., Inc., 48 So. 3d 976, 995 (Fla. 3d DCA 2010) (quoting Cont'l Baking Co. v. Vincent, 634 So.2d 242, 244 (Fla. 5th DCA 1994)). “In order to state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader 8 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151is entitled to relief.” MEBA Med. & Benefits Plan v. Lago, 867 So.2d 1184 (Fla. 4th DCA 2004) (emphasis added). I. Sovereign Immunity In Florida, it is well-settled that “sovereign immunity is the rule, rather than the exception.” City of Orlando v. W. Orange Country Club, Inc., 9 So. 3d 1268, 1272 (Fla. Sth DCA 2009) (quoting Pan-Am Tobacco Corp. v. Dep't of Corr., 471 So. 2d 4, 4 (Fla. 1984)). Therefore, the Florida Supreme Court has held that “[i]n suing a county a plaintiff must allege in his complaint the specific methods by which the county waives its sovereign immunity and that such waiver must be ‘clear and unequivocal.” Arnold v. Shumpert, 217 So. 2d 116, 120 (Fla. 1968) (citation omitted); accord Nias v. City of Florida City, 07-22727-CIV, 2008 WL 2332003, at *3 (S.D. Fla. June 4, 2008) (“Plaintiff must include clear and unequivocal language that the sovereign has waived its sovereign immunity.”); Schwab v. First Appalachian Ins. Co., 58 F.R.D. 615, 623 (S.D Fla. 1973) (same). The Third Amended Complaint, like the two previous complaints, alleges that the County waived its sovereign immunity by entering into an express, written agreement. 3d. Am. Compl. § 25. As the Court previously found, however, Plaintiff's claims still fails because she is attempting to hold the County to terms outside of that express, written agreement. And, with the addition of the fraudulent representation claim, she is also attempting to hold the County liable in tort in violation of its sovereign immunity. OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151ARGUMENT I. THE RESCISSION CLAIM BASED ON MUTUAL MISTAKE FAILS A. The Mutual Mistake Claim is Based On an Alleged Unwritten Understanding Between Plaintiff and Miami-Dade County Which Is Barred By The Doctrine of Sovereign Immunity for Contract Claims and the Integration Clause Miami-Dade County’s liability for contract claims is limited to the express terms of a written agreement. As the Florida Supreme Court explained in County of Brevard v. Miorelli Engineering, Inc., 703 So. 2d 1049, 1050 (Fla. 1997) The legislature has explicitly waived sovereign immunity in tort for personal injury, wrongful death, and loss or injury of property. See § 768.28, Fla. Stat. (1995). Although no express legislative waiver has been granted for contract claims, this Court in Pan-Am Tobacco Corp. v. Department of Corrections, 471 So. 2d 4 (Fla. 1984), found an implied waiver of sovereign immunity in contract on the premise that because the legislature authorized state entities to enter into contracts, it must have intended such contracts to be valid and binding on both parties. However, we concluded our opinion by stating: 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. Id. at 6 (emphasis added). In Miorelli Engineering, a contractor sued a Florida county for extra work it had performed after a contract had terminated. The county argued that “the extra work claim was barred by the doctrine of sovereign immunity because the extra work was outside the terms of the express contract and no written change orders, as required by the contract, had been issued authorizing the extra work.” 703 So. 2d at 1050. The Supreme Court agreed, holding that while the State has waived sovereign immunity for contract claims, it has done so only with respect to “suits on express, written contracts into which the state agency has authority to enter.” /d. (quoting Pan- Am Tobacco, 471 So. 2d at 6) (emphasis added). Sovereign immunity bars any claims that are not based on the express, written terms of a contract. /d. at 1051. 10 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151Following Miorelli Engineering, courts have found that equitable claims, which by definition are not based on the terms of the written contract, are barred by sovereign immunity. For example, in Cayenta Canada, Inc. v. Orange County, Florida Bd. of County Com'rs, 2002 WL 34373972 (M.D. Fla. Nov. 20, 2002), the plaintiff brought an unjust enrichment claim against Orange County. Relying on Miorelli Engineering, the court held that the claim was barred by sovereign immunity. The court explained that “in Miorelli Engineering, the Florida Supreme Court held that sovereign immunity precluded recovery of the cost of work that was outside the scope of a government contract and was performed without a written change order.” Cayenta Canada, 2002 WL 34373972 at *3 (citing Miorelli Engineering, 703 So. 2d at 1051). Similarly, in Martinez v. Miami-Dade County., No. 12-23534-CIV, 2014 WL 11878406, at *3 (S.D. Fla. July 15, 2014), the court held that sovereign immunity barred claims for contribution or indemnification that were not expressly written into the contract. Plaintiff appears to believe that merely by entering into a written agreement, the County waived its sovereign immunity in all respects. This is not the law. As the Florida Supreme Court explained in Miorelli Engineering, sovereign immunity precludes claims against a state agency or subdivision for matters outside the terms of the express written contract. An agreement with the state or its subdivisions cannot arise from conduct or even an express oral agreement. See Miorelli Engineering, 703 So. 2d at 1050. Political subdivisions of the state, such as Miami-Dade County, are liable only for “suits on express, written contracts into which the state agency has authority to enter.” Jd. (quoting Pan-Am Tobacco, 471 So. 2d at 6). Accordingly, even if the Court were to accept Fernandez’s renewed allegations of a mutual mistake between the County and Fernandez, such allegation could not overcome the County’s sovereign immunity because, as a political subdivision of the State of Florida, the County’s 11 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151exclusive understanding of the contract is limited to its express provisions. “A mistake is mutual when the parties agree to one thing and then, due to either a scrivener’s error or inadvertence, express something different in the written instrument.” Circle Mortgage Corp. v. Kline, 645 So.2d 75, 78 (Fla. 4th DCA 1994). Thus by definition, a mutual mistake arises from an agreement that is beyond the scope of what is expressly set out in writing. It is an equitable doctrine based on understandings beyond the four corners of the written document. Such a claim cannot exist against a political subdivision of the state. Fernandez does not point to any express contract language making her attainment of 25 years of special risk service a condition of the contract. Her Second Amended Complaint outlines various benefits that e/igible retirees may receive. 3d. Am. Compl. §§ 11-14. Plaintiff conceded that the County’s website and other procedures lay out specific guidelines regarding when a retired employee can receive certain benefits. /d. & Ex. C-F; see also American Seafood, Inc. v. Clawson, 598 So. 2d 273, 274 (Fla. 3d DCA 1992) (holding that exhibits to complaint nullify any allegations in complaint that contradict exhibits). The bottom line is that the MOU itself is completely silent regarding whether Plaintiff will be eligible for various benefits upon her separation from the County. The MOU simply states “Fernandez will resign/retire from employment with the COUNTY, effective February 28, 2017, and will provide her letter of resi gnation/retirement as an attachment to the MOU.” MOU] 2. By its plaint terms, the MOU envisioned either a retirement or a resignation. The MOU specifically spells out the benefits that Plaintiff is to receive under the agreement but makes no reference to any retirement benefits that Plaintiff now claims the parties intended her to have The inclusion of an integration clause, as well as the doctrine of sovereign immunity, foreclose Plaintiff's argument. The parties agreed that “no promise, inducement or agreement not 12 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151expressly contained herein has been made, that this MOU constitutes their entire and final understanding with respect to the subject matter of this MOU, and that the terms of the MOU are contractual and not a mere recital.” /d. § 13 (emphasis added). This clause has the effect of barring any extrinsic evidence (such as the documents Plaintiff attaches to her complaint or the allegations regarding her reliance on obtaining 25 years of special risk service) in interpreting the contract. See Fed. Deposit Ins. Corp. v. Hemmerle, 592 So. 2d 1110, 1113 (Fla. 4th DCA 1991); Allett v. Hill, 422 So. 2d 1047, 1050 (Fla. 4th DCA 1982); Carlon, Inc. v. Southland Diversified Co., 381 So. 2d 291, 293 (Fla. 4th DCA 1980). Given that the MOU makes no reference (express or otherwise) to any retirement benefits, Plaintiff's attempt to read such terms into the agreement contravenes both the integration clause and the doctrine of sovereign immunity. Plaintiff's attempt to read unenumerated benefits into the MOU is no different than the contractor’s attempt to sue for work done outside of the agreement in Miorelli Engineering. The express, written contract waives the County’s immunity up to the express terms in the agreement, and no further. Sovereign immunity therefore bars an equitable right of action from arising against the County based upon terms outside the express, written agreement. In sum, Fernandez’s rescission claim must be dismissed with prejudice because the Florida legislature has not abrogated the County’s sovereign immunity to suit based on the equitable doctrine of mutual mistake and the claim, which is based on evidence extrinsic to the agreement, is barred by the integration clause B. Plaintiff Does Not Actually Allege a Mutual Mistake Even if this claim were not barred sovereign immunity and the integration clause, it would still not withstand a motion to dismiss because the Third Amended Complaint does not allege that the County ever agreed with Fernandez that she was eligible to retire with 25 years of special risk 13 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151service or for any other retirement benefit for that matter. K/ine, 645 So.2d at 78 (mutual mistake arises from parties’ inadvertent failure to reduce agreed terms to writing). The Third Amended Complaint, like its predecessors, alleges that Fernandez would not have entered into the contract had she known that she had not completed 25 years of special risk service. 3d. Am. Compl. J§ 10, 30. The Amended Complaint does not allege that the County ever agreed or promised that Plaintiff would have 25 years of special risk service as a part of the MOU. Accordingly, Plaintiff does not allege a mutual agreement or a mutual mistake. The Second Amended Complaint looped the breach of contract claim into the rescission claim by claiming that Plaintiff also would not have retired if she knew that the open investigations would not be resolved without disciplinary action prior to her retirement. 2d Am. Compl. § 29. The Third Amended Complaint does likewise. 3d Am. Compl. § 30.3 But once again, Plaintiff is reaching beyond the express language of the agreement. The MOU states that the investigations will be resolved “without the imposition of discipline,” MOU 4 5, but does not specify a timeframe for their resolution. Plaintiff does not allege any unwritten agreement to the contrary and, again, Plaintiff does not allege that she has been disciplined. Accordingly, Plaintiffs fourth and final attempt to demonstrate a mutual mistake fails. IL. PLAINTIFF DOES NOT STATE A CAUSE OF ACTION FOR UNILATERAL MISTAKE BECAUSE PLAINTIFF DOES NOT ALLEGE THAT SHE WAS INDUCED BY THE COUNTY (Count IT) In an action alleging a unilateral mistake, the plaintiff must show “that (1) the mistake was induced by the party seeking to benefit from the mistake, (2) there is no negligence or want of 3 This is in violation of Fla. R. Civ. P. 1.110(f), which requires that claims founded on separate transaction be stated in separate counts. However, because it is clear that Plaintiff cannot state a cause of action under any theory, the Court should overlook this technical pleading defect and dismiss the entire complaint with prejudice. 14 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151due care on the part of the party seeking a return to the status quo, (3) denial of release from the agreement would be inequitable, and (4) the position of the opposing party has not so changed that granting the relief would be unjust, a unilateral mistake may provide a basis for rescission of a contract.” Lechuga v. Flanigan’s Enterprises, Inc., 533 So. 2d 856, 857 (Fla. 3d DCA 1988) (emphasis added) The Third Amended Complaint does not allege that the plaintiffs mistake was induced by the County. Rather, alleges that the “contract provided that Plaintiff would retire, thereby obtaining her retirement benefits... A unilateral mistake occurred as a results of the utilization of the date February 28, 2017 as Plaintiff's retirement date in the express written contract given the fact that Plaintiff was determined to be ineligible for retirement and its benefits on that date.” 3d Am. Compl. J 36 (emphasis added). In dismissing the previous three complaints, the Court has already determined that the MOU did not promise Plaintiff to any benefits upon her retirement because the MOU itself does not expressly provide for such benefits. Plaintiff's argument that the term “retire” means to retire with a full panoply of benefits that are not enumerated in the MOU is a construction that is barred both by the integration clause and by the doctrine of sovereign immunity. Plaintiff s claim of a unilateral mistake fails because she does not allege any act by Miami- Dade County that induced her to make a mistake. In fact she continues to allege, as she has in all previously complaints, that the retirement date was based on information supplied by a third party: the Florida Retirement System. 3rd Am. Compl. { 10 (alleging February 28, 2017 retirement date was used “[b]ased on [] information provided by the Florida Retirement System”). Plaintiff cannot allege the first element of a unilateral mistake: an act by the defendant which caused her to make the mistake. This prong can be satisfied by a statement or misrepresentation—which 15 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151Plaintiff does not allege—but not by silence or omission. DePrince v. Starboard Cruise Services, Inc., --- So. 3d ----, 2018 WL 443153, at *7 (Fla. 3d DCA Jan. 17, 2018). Plaintiff also fails to allege the other elements of a unilateral mistake. But given that Plaintiff has repeatedly alleged— in four separate complaints—that the basis of the February 28, 2017 date was information provided a third party (the Florida Retirement System) there is no possibility that this defect can be cured and dismissal with prejudice is appropriate. Finally, Plaintiff specifically disclaimed reliance on any inducement from the County in entering into the agreement. See MOU { 13 (“The PARTIES agree and state that no promise, inducement, or agreement not expressly contained herein has been made) (emphasis added), see also Carlon, Ine. v. Southland Diversified Co., 381 So. 2d 291, 293 (Fla. 4th DCA 1980) (“presentations, negotiations and conversations which precede and accompany the making of a contract are presumed to have merged in the contract”) (quoting Windowmaster Corporation v. Jefferson Construction Co., 114 So.2d 626 (Fla. 3rd DCA 1959)). Since the contract does not allege anywhere or in any way that Plaintiff would obtain 25 years of special risk service on February 28, 2017, this claim is likewise barred by the disclaimer of any inducement in the MOUR itself and the doctrine of sovereign immunity. Tif. =PLAINTIFF’S FRAUD CLAIM IS BARRED BY SOVEREIGN IMMUNITY AND FAILS TO STATE A CAUSE OF ACTION (COUNT IID) A. There is No Legal Basis to Hold the County Liable for Representations by a Third Pari In an action for fraud, the plaintiff “must allege (1) that [the] defendant made a representation on which plaintiff was meant to act, (2) that the representation was false and defendant knew that fact, and (3) that plaintiff relied on the representation to his injury.” Am. Int'l Land Corp. v. Hanna, 323 So. 2d 567, 569 (Fla. 1975) (emphasis added); accord Assad v. 16 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151Mendell, 511 So. 2d 682, 683 (Fla. 3d DCA 1987) (“In order to state a valid cause of action for fraudulent misrepresentation the complaint must allege . . . the misrepresentation of a material fact [by the defendants]” and “that the defendants knew the falsity of the representation”) (emphasis added) (alternation in original) The Third Amended Complaint, like each previous complaint, alleges that plaintiff chose to retire on February 28, 2017 “[b]ased on [] information provided by the Florida Retirement System’—not Miami-Dade County. 3rd Am. Compl. § 10; see also 3d Am. Compl. Ex. D. p.2 (“The Department is obligated to process the retirement application as expeditiously as possible and to assist the individual in receiving a final determination from the Division of Retirement, Department of Administration, State of Florida .. .”) (emphasis added). The Third Amended Complaint does not provide a factual basis for a fraud claim against the County. Instead, it alleges that the “contract provided that Plaintiff would retire, thereby obtaining her retirement benefits... Defendant fraudulently agreed to Plaintiff requesting retirement despite the fact that Plaintiff was not eligible for Special Risk Service retirement on February 28, 2017, the date set forth in the MOU.” 3d Am. Compl. § 44 (emphasis added). These are not allegations of fraud. Rather, they are a regurgitation of the same argument that the Court has already rejected three times: that the term “retire” means to retire with a full panoply of benefits that are not enumerated in the MOU, a construction that is barred by both the merger and integration clause and sovereign immunity The Third Amended Complaint does not contain any allegation whatsoever that the County induced Plaintiff to sign the agreement through fraudulent representations about her retirement benefits. In a similar context, the Third DCA has found allegations of fraud to have “utterly no legal basis” where the defendant “made no misrepresentations to the plaintiff to induce the plaintiff 17 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151to sign” the contract. Kassier v. Kipnis, 571 So. 2d 54, 55 (Fla. 3d DCA 1990). The fraudulent representation claim therefore fails as a matter of law. B. The Fraudulent Representation is Barred by Sovereign Immunity Even if Plaintiff could state a cause of action for fraudulent representation, it would be barred by sovereign immunity. Because fraud claims sound in tort, they are not covered by the limited exception to sovereign immunity for express contract claims found in Pan-Am and are instead governed by the limited waiver of sovereign immunity for tort claims in Fla. Stat. § 768.28. County of Brevard vy. Miorelli Eng’g, Inc., 677 So. 2d 32, 34 (Fla. 5th DCA 1996), quashed on other grounds, 703 So. 2d 1049 (Fla. 1997); see also HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 685 So. 2d 1238, 1240 (Fla. 1996) (“fraud in the inducement is an independent tort”); Gandy y. Trans World Computer Tech. Group, 787 So. 2d 116, 119 (Fla. 2d DCA 2001) (“Common-law fraud is a tort action.”) In 1973, Florida partially waived its sovereign immunity in tort when the Florida legislature enacted Florida Statute section 768.28. In doing so, Florida gave its consent to be sued in certain tort actions, but “only to the extent specified” in the act. Fla. Stat. § 768.28(1). “[S]tatutes purporting to waive sovereign immunity must be clear and unequivocal.” Florida Dept. of Transp. v. Schwefringhaus, 188 So. 3d 840, 846 (Fla. 2016) (quoting Spangler v. Fla. State Tpk. Auth., 106 So.2d 421, 424 (Fla. 1958)). “Waiver cannot be found by inference or implication, and statutes waiving sovereign immunity must be strictly construed.” Schwefringhaus, 188 So. 3d at 846 Applying these principles, Plaintiff's fraudulent representation claim falls outside of Florida’s limited waiver of sovereign immunity for torts claims in § 768.28 First, sovereign immunity in tort has only been waived for claims causing “injury or loss of property, personal injury, or death.” Fla. Stat. § 768.28(1). “Fraud in the inducement causing 18 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151only economic loss does not fit within any of those categories of injury or loss enumerated in the statute.” County of Brevard, 677 So. 2d at 34. The Third Amended Complaint alleges that Plaintiff has lost a host of retirement and economic benefits but does not allege personal injury, loss of property, or death. Second, “[t]he state or its subdivisions shall not be liable in tort for the acts or omissions of an officer, employee, or agent... committed in bad faith or with malicious purpose...” Fla. Stat § 768.28(9)(a). Fraudulent representation is a quintessential bad faith claim and is categorically barred by sovereign immunity. Parker vy. State of Florida Bd. of Regents ex rel. Florida State Univ., 724 So. 2d 163, 167-69 (Fla. 1st DCA 1998). Third, because the fraudulent representation claim sounds in tort, Plaintiff is required to specifically allege satisfaction of the pre-suit notice requirement of Fla. Stat. § 768.28(6)(a). “Satisfaction of the Florida notice requirements [set forth in Fla. Stat. § 768.28(6)(a)] is a condition precedent to maintaining a lawsuit, and the complaint must contain an allegation that such notice was given.” Diversified Numismatics, Inc. v. City of Orlando, Fla., 783 F. Supp. 1337, 1347 (M.D. Fla. 1990) (citing Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010, 1022-23 (Fla. 1979) (additional citation omitted); Doe v. G-Star Sch. of the Arts, Inc., No. 16-cv-80446- BLOOM /Valle, 2016 WL 4625625, at *4 (S.D. Fla. Sept. 6, 2016) (“[A] plaintiff must satisfy the notice requirements prior to maintaining a lawsuit against a subdivision of the State, ‘and the complaint must contain an allegation that such notice was given.””); Fletcher v. City of Miami, 567 F. Supp. 2d 1389, 1393 (S.D. Fla. 2008) (same). Finally, the contact states that no inducements have been made to sign the agreement that are not expressly contained in the MOU. MOU { 13. This non-reliance language negates any 19 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151claim for fraud in the inducement. See Billington v. Ginn-La Pine Island, Ltd., LLLP, 192 So. 3d 77 (Fla. 5th DCA 2016). IV. THE BREACH OF CONTRACT CLAIM FAILS (COUNT IV) A. Plaintiff Does Not Actually Allege a Violation of the Contract “An adequately pled breach of contract action requires three elements: (1) a valid contract; (2) a material breach; and (3) damages.” Friedman v. New York Life Ins. Co., 985 So. 2d 56, 58 (Fla. 4th DCA 2008). Here again, the Third Amended Complaint does not allege an actual breach. It purports to allege two breaches: one, that the County allowed Fernandez to “retire” even after it was determined that she was not eligible for certain benefits and vo, that the County failed to resolve the open investigations prior to the date of Fernandez’s retirement. 3d Am. Compl. J§ 51, 52. These are materially the same allegations that the Court previously dismissed; they are not actual breaches because the written contract never required these things. As such, the breach of contract claim cannot withstand the application of sovereign immunity because it is not based on the express language in the written MOU. Again, the contract does not state that Plaintiffs retirement would result in any ancillary benefits. Rather, the contract states that Plaintiff “will resign/retire from employment with the COUNTY, effective February 28, 2017, and will provide her letter of resignation/retirement as an attachment to this MOU.” MOU 2. Nowhere does the MOU guarantee Plaintiff the benefits alleged in the Third Amended Complaint. Second, the MOU did not require that the County “resolve” all open investigations before Fernandez’s retirement. It simply stated that “[a]ny pending investigations in which FERNANDEZ is a subject shall be resolved without the imposition of discipline.” MOU 4 5 (emphasis added). No time requirement is expressed. Plaintiff's argument that the language has 20 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151to mean that the investigations will be closed prior to her retirement is erroneous. Plaintiff appears to forget that agreement was executed on December 13, 2016 but Plaintiff did not separate from County service until February 28, 2017. Thus, Plaintiff received the benefit of not being disciplined during this time. In sum, since the Third Amended Complaint still does not allege that any investigations have resulted in the imposition of discipline, no breach has been adequately alleged. As such, Count IV does not state a cause of action. Vv. DISMISSAL SHOULD BE WITH PREJUDICE The Court has given Plaintiff four opportunities to state a cause of action and has twice warned Plaintiff that this would her final opportunity to amend. Dismissal should therefore be with prejudice. See Kohn v. City of Miami Beach, 611 So. 2d 538, 539 (Fla. 3d DCA 1992); McCuin v. Review Fin. Printers, Inc., 582 So.2d 176 (Fla. 3d DCA 1991) (no abuse of discretion where trial court precluded plaintiff from filing fourth amended complaint), A/varez v. DeAguirre, 395 So. 2d 213, 217 (Fla. 3d DCA 1981). CONCLUSION The Court should dismiss Plaintiff's Third Amended Complaint WITH PREJUDICE. Respectfully Submitted, ABIGAIL PRICE-WILLIAMS Miami-Dade County Attorney 111 N.W. Ist Street Suite 2810 Miami, FL 33128 By: /s/ Ezra S. Greenberg Ezra S. Greenberg Assistant County Attorney Florida Bar No. 85018 Telephone: (305) 375-5151 Fax: (305) 375-5634 Email: ezrag@miamidade.gov dmh@miamidade.gov 21 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was electronically filed with the Florida Court’s E-Filing Portal and was served via e-mail generated by the Florida Courts E-Filing Portal on April 2, 2018 to: Teri Guttman Valdes, Esq. Teri Guttman Valdes, P.A 1501 Venera Avenue, Suite 300 Coral Gables, FL 33146 Tel: (305) 740-9600 Fax: (305) 740-9202 E-mail: tgvaldes@aol.com Counsel for Plaintiff /s/ Ezra S. Greenberg Assistant County Attorney 22 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151