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Filing # 68321058 E-Filed 02/22/2018 12:32:06 PM
IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT, IN AND
FOR MIAMI-DADE COUNTY
EVELYN FERNANDEZ, CASE NO. 2017-008126 CA 09
Plaintiff,
Vv.
MIAMI-DADE COUNTY, FL.
/
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S
MOTION TO DISMISS SECOND AMENDED COMPLAINT
Plaintiff, EVELYN FERNANDEZ, by and through her undersigned counsel and pursuant
to Rule 1.630, FI. R. Civ. P., hereby files this Response to Defendant's Motion to Dismiss
Amended Complaint, and in support thereof states as follows:
1. On December 28, 2017, Plaintiff filed her Second Amended Complaint for
Rescission or, In the Alternative, for Breach of Contract and Damages pursuant to this Court's
Order of December 18, 2017.
2. On January 16, 2018, Defendant filed its Motion to Dismiss Second Amended
Complaint.
3. Defendant asserts that Plaintiff's Second Amended Complaint should be
dismissed because it attempts to bind the County to an “understanding that is outside the four
corners of the agreement’ and that the County has not waived sovereign immunity. For the
reasons that follow, this argument must be rejected.
Memorandum of Law
L Motion to Dismiss Standard of Review
As set forth in Morin v. Florida Power & Light Company, 963 So. 2d 258, 260 (Fla.
3d DCA 2007), “When ruling on a motion to dismiss for failure to state a cause of action,the trial court must ‘treat as true all of the... complaint’s well-pleaded allegations, including
those that incorporate attachments, and to look no further than the...complaint and its
attachments.” (quoting City of Gainesville v. Fla. Dep’t. Of Transp., 778 So. 2d 519,522
(Fla. 1* DCA 2001). In this case, Plaintiff has attached the Memorandum of Understanding,
including her retirement letter and County policies and procedures relating to retirement, to the
amended complaintin accordance with Rule 1.130, FI.R.Civ.P. The documents attached to the
amended complaint, therefore, shall be considered as part of the complaint when ruling on the
County’s motion to dismiss. Bott v. City of Marathon, 949 So. 2d 295 (Fla 3d DCA, 2007).
Furthermore, “[t]he purpose of a motion to dismiss is to test whether a plaintiff has
alleged a good cause of action in the complaint and, therefore, consideration of
defendant's affirmative defenses or the sufficiency of the evidence is irrelevant and
immaterial in deciding a motion to dismiss.” Alexander Hamilton Group v. Leeson, 508 So.
2d 513, 513 (Fla. 4" DCA 1987) citing Parkway General Hospital, Inc. v. Allstate Insurance
Company, 393 So. 2d 1171 (Fla. 3d DCA 1981). Alternatively, should this court determine
that Plaintiff's amended complaint is deficient, leave to amend should be granted to allow the
case to be concluded on its merits. (See e.g., Alvarez v. DeAguirre, 395 So. 2d 213 (3d DCA,
1981))
I Plaintiff's Complaint is not Barred by Sovereign Immunity.
Defendant first argues in its Motion to Dismiss that the complaint is barred by sovereign
immunity and that Plaintiff has failed to allege a waiver of sovereign immunity. Plaintiff,
respectfully disagrees as this issue was explained in Martinez v. Miami-Dade County, 2014 WL
11878406 (S.D. FI. 2014):The Florida legislature has expressly waived sovereign immunity for political
subdivisions in tort for personal injury, wrongful death, and loss or injury of
property. Fla. Stat. §768.28 (2012). Although no express legislative waiver has
been granted for contract claims, the Florida Supreme Court has held an implied
waiver of sovereign immunity in contract action because the legislative, having
authorized state entities to enter into contracts, must have intended such
contracts to be valid or binding on both parties. Cnty. of Brevard v. Miorelly
Eng’g. Inc., 703 So. 2d 1049, 1050 (Fla. 1997). The Florida Supreme Court has
narrowly adhered to these contract policies by determining that sovereign
immunity is only waiver with respect to express, written contracts into which state
agencies have authority to enter. /d.
Further, in Pan-Am Tobacco v. Department of Corrections, 471 So. 2d 4, 5 (1984), the Florida
Supreme Court held “that where the state has entered into a contract fairly authorized by the
powers granted by general law, the defense of sovereign immunity will not protect the state
from the state’s breach of that contract.” Thus, Defendant’s argument that this action is barred
by sovereign immunity must fail as Plaintiff's complaint is based on an express written contract.
Defendant in an effort to pursue this argument, asserts that Plaintiff is attempting to
“hold the County to terms outside of that express, written contract.” Motion to Dismiss, p. 6.
Specifically, Defendant is asserting that Plaintiff's ability to retire with 25 years of special risk
service is not a condition of the contract. On the contrary, a review of the express written
contract includes Plaintiff having the ability to “resign/retire” in paragraph 2 of the Memorandum
of Understanding, which is attached to and incorporated into the Second Amended Complaint.
Plaintiffs retirement letter is incorporated in and specifically referenced as an attachment to the
Memorandum of Understanding. It is dated December 16, 2016, the date of the contract, and
states that she intends to retire effective February 28, 2017. The retirement letter is clearly part
of the written contract at issue in this case. See OBS Company Inc., v. Pace Construction
Corporation, 558 So.2d 404, 406 (Fla.1990) (It is a generally accepted rule of contract law that,
where a writing expressly refers to and sufficiently describes another document, that other
3document, or so much of it as is referred to, is to be interpreted as part of the writing.)
Therefore, Plaintiff's ability to retire was and is part of the express written Memorandum of
Understanding.
Defendant further argues that the MOU “envisioned” either a retirement or resignation
as it included both terms. It is clear from Plaintiffs retirement letter, which is part of the
contract, that the selected course was “retirement.” Attached to and incorporated into the
complaint are Defendant's policies and procedures demonstrating what is contemplated by
retirement as opposed to resignation. Significantly, the police department, in its Standard
Operating Procedures defines a “retired” employee as one who is eligible to receive retirement
benefits upon benefits immediately upon separation. These individuals are noted to have
“honorably retired” while others not eligible are labeled “ honorably served.” This evidence
should be relied on to clarify what it means to “retire” from Defendant’s police department as
was intended in the parties’ contract.
Defendant further argues that any benefits associated with “retirement” are contrary to
the “integration clause”; however, unlike the case cited by the County, Plaintiff's retirement
letter is part of the contract. Thus, she is not suing for something outside the contract. Plaintiff
has demonstrated that she has properly plead her claim for rescission based on mutual
mistake because it is based on the express written language of the contract and its
incorporated attachment.
Furthermore, the express terms of the agreement at issue in this case include
maintaining Plaintiff on the payroll via Special Leave Donations until February 28, 2017 so that
she could retire and receive the corresponding benefits of “retirement” from both the State of
Florida, Florida Retirement System, as well as those afforded by Defendant, Miami-Dade
4County. The date selected by the parties as evidenced by the contract as issue, February 28,
2017, was based on information provided by the Florida Retirement System. It was only after
the effective date of Plaintiff's retirement, February 28, 2017, that it was discovered that while
she had a total of 25 years service, not all of the time was special risk and, therefore, she was
not eligible to retire. The information provided by the Florida Retirement System for the parties’
contract was incorrect. Thus, the contract as written was based on a mutual mistake.
th Plaintiff has Properly a Pled Cause of Action for Mutual Mistake.
Next, the County argues that Plaintiff has failed to state a cause of action for
rescission because she has not alleged that the parties agreed she was eligible to retire
with 25 years special risk service. However, the contract at issue contains her retirement
letter and this is referenced specifically in the contract. Although the contract states
“retire/resign’, the retirement letter attached by the parties demonstrates that the Plaintiff
chose to retire. One of the benefits of entering retirement upon separation (as opposed
to resigning) is the ability to remain on the Defendant’s insurance plan and receive
insurance supplements. Given Plaintiff's serious medical condition as alleged and
documented by the physician’s letter attached to the complaint, it is clear that she would
not have entered into this contract in the absence of the ability to retire. Thus, a mutual
agreement and mistake has been alleged. It should also be noted that the Defendant
places the burden of coordinating retirement and ensuring the retirement date is correct
on the Personnel Management Bureau of its Police Department. (Exhibit D to Second
Complaint.
It is also significant to note that Defendant asserts Plaintiff, “at best’, alleges aunilateral mistake and that this is not a basis for rescission. However, this is not a correct
statement of the law. If it were determined that a unilateral mistake was alleged, there are
circumstances under which that can be a basis for rescission. See DePrince v. Starboard
Cruise Services, 163 So. 3d 586 (Fla. 3d DCA 2015).
WN. Plaintiff has Properly a Pled Cause of Action for Breach of Contract
Mistake.
Finally, the County argues that Plaintiff has not properly pled its alternative claim
alleging breach of contract. Specifically, the County alleges that Plaintiff has not alleged
a breach of the contract. In regard to the County allowing Plaintiff to separate when she
was not eligible to retire, the contract has her retirement letter attached and referenced
therein. There is a significant difference between retiring and resigning. It is axiomatic
that if one is retiring, the consummate benefits would be forthcoming and not need to be
specifically articulated. To interpret the Memorandum of Understanding and attached
retirement letter as having no legal significance in contrary to established law. The plain
language of the contract must be interpreted in a reasonable manner. See Dirico v.
Redland Estates, Inc., 154 So. 3d 355 (Fla. 3d DCA 2014).
In regard to the investigations, the contract states in pertinent part that the parties
are “desirous of settling these and all other claims and are also desirous of avoiding
further legal and administrative pleadings” and that “pending investigations will be
resolved without the imposition of discipline.” The pending investigations, which are
administrative in nature, were to be resolved upon entering into the agreement. Obviously,
the County could not discipline Plaintiff after she had retired and separated from service.
The County did not “resolve” or close these investigations prior to her separation date.Rather, it kept them open after the date of the agreement, her letter of retirement, and her
actual separation. The County’s interpretation of this clause as allowing them to “resolve”
or close the investigation at some later date has no logical basis.
WHEREFORE, it is respectfully requested that this Honorable Court enter an order
denying Defendant's Motion to Dismiss Complaint and order Defendant answer the
Complaint, or in the alternative, allow Plaintiff an opportunity to serve an amended
complaint. Further, that Defendant’s Counterclaim be dismissed.
Respectfully submitted,
TERI GUTTMAN VALDES LLC
Counsel for Plaintiff
1501 Venera Avenue
Suite 300
Coral Gables, Florida 33146
Telephone: (305) 740-9600
Facsimile: (305) 740-9202
/s/ Teri Guttman Valdes
Teri Guttman Valdes
Fla. Bar No. 0010741
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a true and correct copy of the foregoing was sent via
electronic mail this February 22, 2018 to Ezra S. Greenberg, Assistant County Attorney, 111
N.W. 1 Street, Suite 2800, Miami, Florida 33128.
/s/ Teri Guttman Valdes
Teri Guttman Valdes
Fla. Bar No. 0010741
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Filing # 68321058 E-Filed 02/22/2018 12:32:06 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY EVELYN FERNANDEZ, CASE NO. 2017-008126 CA 09 Plaintiff, Vv. MIAMI-DADE COUNTY, FL. / PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS SECOND AMENDED COMPLAINT Plaintiff, EVELYN FERNANDEZ, by and through her undersigned counsel and pursuant to Rule 1.630, FI. R. Civ. P., hereby files this Response to Defendant's Motion to Dismiss Amended Complaint, and in support thereof states as follows: 1. On December 28, 2017, Plaintiff filed her Second Amended Complaint for Rescission or, In the Alternative, for Breach of Contract and Damages pursuant to this Court's Order of December 18, 2017. 2. On January 16, 2018, Defendant filed its Motion to Dismiss Second Amended Complaint. 3. Defendant asserts that Plaintiff's Second Amended Complaint should be dismissed because it attempts to bind the County to an “understanding that is outside the four corners of the agreement’ and that the County has not waived sovereign immunity. For the reasons that follow, this argument must be rejected. Memorandum of Law L Motion to Dismiss Standard of Review As set forth in Morin v. Florida Power & Light Company, 963 So. 2d 258, 260 (Fla. 3d DCA 2007), “When ruling on a motion to dismiss for failure to state a cause of action,the trial court must ‘treat as true all of the... complaint’s well-pleaded allegations, including those that incorporate attachments, and to look no further than the...complaint and its attachments.” (quoting City of Gainesville v. Fla. Dep’t. Of Transp., 778 So. 2d 519,522 (Fla. 1* DCA 2001). In this case, Plaintiff has attached the Memorandum of Understanding, including her retirement letter and County policies and procedures relating to retirement, to the amended complaintin accordance with Rule 1.130, FI.R.Civ.P. The documents attached to the amended complaint, therefore, shall be considered as part of the complaint when ruling on the County’s motion to dismiss. Bott v. City of Marathon, 949 So. 2d 295 (Fla 3d DCA, 2007). Furthermore, “[t]he purpose of a motion to dismiss is to test whether a plaintiff has alleged a good cause of action in the complaint and, therefore, consideration of defendant's affirmative defenses or the sufficiency of the evidence is irrelevant and immaterial in deciding a motion to dismiss.” Alexander Hamilton Group v. Leeson, 508 So. 2d 513, 513 (Fla. 4" DCA 1987) citing Parkway General Hospital, Inc. v. Allstate Insurance Company, 393 So. 2d 1171 (Fla. 3d DCA 1981). Alternatively, should this court determine that Plaintiff's amended complaint is deficient, leave to amend should be granted to allow the case to be concluded on its merits. (See e.g., Alvarez v. DeAguirre, 395 So. 2d 213 (3d DCA, 1981)) I Plaintiff's Complaint is not Barred by Sovereign Immunity. Defendant first argues in its Motion to Dismiss that the complaint is barred by sovereign immunity and that Plaintiff has failed to allege a waiver of sovereign immunity. Plaintiff, respectfully disagrees as this issue was explained in Martinez v. Miami-Dade County, 2014 WL 11878406 (S.D. FI. 2014):The Florida legislature has expressly waived sovereign immunity for political subdivisions in tort for personal injury, wrongful death, and loss or injury of property. Fla. Stat. §768.28 (2012). Although no express legislative waiver has been granted for contract claims, the Florida Supreme Court has held an implied waiver of sovereign immunity in contract action because the legislative, having authorized state entities to enter into contracts, must have intended such contracts to be valid or binding on both parties. Cnty. of Brevard v. Miorelly Eng’g. Inc., 703 So. 2d 1049, 1050 (Fla. 1997). The Florida Supreme Court has narrowly adhered to these contract policies by determining that sovereign immunity is only waiver with respect to express, written contracts into which state agencies have authority to enter. /d. Further, in Pan-Am Tobacco v. Department of Corrections, 471 So. 2d 4, 5 (1984), the Florida Supreme Court held “that where the state has entered into a contract fairly authorized by the powers granted by general law, the defense of sovereign immunity will not protect the state from the state’s breach of that contract.” Thus, Defendant’s argument that this action is barred by sovereign immunity must fail as Plaintiff's complaint is based on an express written contract. Defendant in an effort to pursue this argument, asserts that Plaintiff is attempting to “hold the County to terms outside of that express, written contract.” Motion to Dismiss, p. 6. Specifically, Defendant is asserting that Plaintiff's ability to retire with 25 years of special risk service is not a condition of the contract. On the contrary, a review of the express written contract includes Plaintiff having the ability to “resign/retire” in paragraph 2 of the Memorandum of Understanding, which is attached to and incorporated into the Second Amended Complaint. Plaintiffs retirement letter is incorporated in and specifically referenced as an attachment to the Memorandum of Understanding. It is dated December 16, 2016, the date of the contract, and states that she intends to retire effective February 28, 2017. The retirement letter is clearly part of the written contract at issue in this case. See OBS Company Inc., v. Pace Construction Corporation, 558 So.2d 404, 406 (Fla.1990) (It is a generally accepted rule of contract law that, where a writing expressly refers to and sufficiently describes another document, that other 3document, or so much of it as is referred to, is to be interpreted as part of the writing.) Therefore, Plaintiff's ability to retire was and is part of the express written Memorandum of Understanding. Defendant further argues that the MOU “envisioned” either a retirement or resignation as it included both terms. It is clear from Plaintiffs retirement letter, which is part of the contract, that the selected course was “retirement.” Attached to and incorporated into the complaint are Defendant's policies and procedures demonstrating what is contemplated by retirement as opposed to resignation. Significantly, the police department, in its Standard Operating Procedures defines a “retired” employee as one who is eligible to receive retirement benefits upon benefits immediately upon separation. These individuals are noted to have “honorably retired” while others not eligible are labeled “ honorably served.” This evidence should be relied on to clarify what it means to “retire” from Defendant’s police department as was intended in the parties’ contract. Defendant further argues that any benefits associated with “retirement” are contrary to the “integration clause”; however, unlike the case cited by the County, Plaintiff's retirement letter is part of the contract. Thus, she is not suing for something outside the contract. Plaintiff has demonstrated that she has properly plead her claim for rescission based on mutual mistake because it is based on the express written language of the contract and its incorporated attachment. Furthermore, the express terms of the agreement at issue in this case include maintaining Plaintiff on the payroll via Special Leave Donations until February 28, 2017 so that she could retire and receive the corresponding benefits of “retirement” from both the State of Florida, Florida Retirement System, as well as those afforded by Defendant, Miami-Dade 4County. The date selected by the parties as evidenced by the contract as issue, February 28, 2017, was based on information provided by the Florida Retirement System. It was only after the effective date of Plaintiff's retirement, February 28, 2017, that it was discovered that while she had a total of 25 years service, not all of the time was special risk and, therefore, she was not eligible to retire. The information provided by the Florida Retirement System for the parties’ contract was incorrect. Thus, the contract as written was based on a mutual mistake. th Plaintiff has Properly a Pled Cause of Action for Mutual Mistake. Next, the County argues that Plaintiff has failed to state a cause of action for rescission because she has not alleged that the parties agreed she was eligible to retire with 25 years special risk service. However, the contract at issue contains her retirement letter and this is referenced specifically in the contract. Although the contract states “retire/resign’, the retirement letter attached by the parties demonstrates that the Plaintiff chose to retire. One of the benefits of entering retirement upon separation (as opposed to resigning) is the ability to remain on the Defendant’s insurance plan and receive insurance supplements. Given Plaintiff's serious medical condition as alleged and documented by the physician’s letter attached to the complaint, it is clear that she would not have entered into this contract in the absence of the ability to retire. Thus, a mutual agreement and mistake has been alleged. It should also be noted that the Defendant places the burden of coordinating retirement and ensuring the retirement date is correct on the Personnel Management Bureau of its Police Department. (Exhibit D to Second Complaint. It is also significant to note that Defendant asserts Plaintiff, “at best’, alleges aunilateral mistake and that this is not a basis for rescission. However, this is not a correct statement of the law. If it were determined that a unilateral mistake was alleged, there are circumstances under which that can be a basis for rescission. See DePrince v. Starboard Cruise Services, 163 So. 3d 586 (Fla. 3d DCA 2015). WN. Plaintiff has Properly a Pled Cause of Action for Breach of Contract Mistake. Finally, the County argues that Plaintiff has not properly pled its alternative claim alleging breach of contract. Specifically, the County alleges that Plaintiff has not alleged a breach of the contract. In regard to the County allowing Plaintiff to separate when she was not eligible to retire, the contract has her retirement letter attached and referenced therein. There is a significant difference between retiring and resigning. It is axiomatic that if one is retiring, the consummate benefits would be forthcoming and not need to be specifically articulated. To interpret the Memorandum of Understanding and attached retirement letter as having no legal significance in contrary to established law. The plain language of the contract must be interpreted in a reasonable manner. See Dirico v. Redland Estates, Inc., 154 So. 3d 355 (Fla. 3d DCA 2014). In regard to the investigations, the contract states in pertinent part that the parties are “desirous of settling these and all other claims and are also desirous of avoiding further legal and administrative pleadings” and that “pending investigations will be resolved without the imposition of discipline.” The pending investigations, which are administrative in nature, were to be resolved upon entering into the agreement. Obviously, the County could not discipline Plaintiff after she had retired and separated from service. The County did not “resolve” or close these investigations prior to her separation date.Rather, it kept them open after the date of the agreement, her letter of retirement, and her actual separation. The County’s interpretation of this clause as allowing them to “resolve” or close the investigation at some later date has no logical basis. WHEREFORE, it is respectfully requested that this Honorable Court enter an order denying Defendant's Motion to Dismiss Complaint and order Defendant answer the Complaint, or in the alternative, allow Plaintiff an opportunity to serve an amended complaint. Further, that Defendant’s Counterclaim be dismissed. Respectfully submitted, TERI GUTTMAN VALDES LLC Counsel for Plaintiff 1501 Venera Avenue Suite 300 Coral Gables, Florida 33146 Telephone: (305) 740-9600 Facsimile: (305) 740-9202 /s/ Teri Guttman Valdes Teri Guttman Valdes Fla. Bar No. 0010741 CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing was sent via electronic mail this February 22, 2018 to Ezra S. Greenberg, Assistant County Attorney, 111 N.W. 1 Street, Suite 2800, Miami, Florida 33128. /s/ Teri Guttman Valdes Teri Guttman Valdes Fla. Bar No. 0010741