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Filing # 66610360 E-Filed 01/16/2018 05:59:36 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 SECOND AMENDED COMPLAINT.
Defendant Miami-Dade County moves to dismiss Plaintiff Evelyn Fernandez’s Second
Amended Complaint for failing to state a cause of action and sovereign immunity with prejudice.
BACKGROUND
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 Evenlyn 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
1. Accordingly, on December 13, 2016, the County and Fernandez exchanged several promises
to settle the outstanding discipline.
OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-51513 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 (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
parties’ | 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.
41 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
would 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.
2
OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-51515 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. Plaintiff's rescission claim 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. 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.
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 allegations that “Defendant has waived sovereign immunity by entering into an express
written contract attached here as Exhibit ‘B’ and incorporated by reference.” Am. Compl. ¥ 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.
Therefore, Plaintiff's 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
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.
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OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151evident 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.
THE 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
OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-51519 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.
10. On December 28, 2017, Plaintiff filed her Second Amended Complaint. The
Second Amended Complaint contains six new attachments. The first four attachments deal with
various benefits for eligible retired employees. The first is a website printout that details eligibility
requirements for the Florida Retirement System. 2d Am. Compl. Ex. C. The second is a
departmental procedure governing procedures for retirement and recognition for retired police
officers. 2d Am. Compl. Ex. D. The third is a website printout dealing with retiree insurance
benefits. 2d Am. Compl. Ex. E. The fourth is a standard operating procedure (SOP) related to
enrollment in retiree group insurance. 2d Am. Compl. Ex. F. The fifth attachment is 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 attaches 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, does not contain any allegations
sufficient to cure the defects that led to the dismissal of Plaintiff’s prior complaints. Plaintiff does
not address how the doctrine of sovereign immunity and integration clause preclude the Court from
binding the County to an agreement outside the four comers of the contract. Moreover, the
documents that Plaintiff attaches do not actually support her assertion that “retire” means “retire
with all available benefits.” After three attempts, it is clear that Plaintiff cannot allege a breach of
contract or a mutual mistake against Miami-Dade County under the clear terms of the contract and
the doctrine of sovereign immunity
OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151ARGUMENT
L The Complaint is Barred by Sovereign Immunity
A. A Complaint Must Contain Allegations As To How Miami-Dade County
Waived Its 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 Complaint now alleges that the County waived its sovereign immunity by
entering into an express, written agreement. 2d. Am. Compl. § 24. As shown below, however,
Plaintiff's claim still fails because she is attempting to hold the County to terms outside of that
express, written agreement.
B. The Rescission Claim Is, At Most, Based On An Alleged Unwritten
Understanding Between Plaintiff and Miami-Dade County Which Is
Barred By The Doctrine of Sovereign Immunity for Contract Claims
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
6
OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151claims, 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
Following 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,
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OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151in 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
exclusive 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 states
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OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151outlines various benefits that e/igible retirees may receive. 2d. Am. Compl. J 11-14. And Plaintiff
concedes 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. But 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
resignation/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
expressly 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). 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.
And Plaintiff's reference to County documents that are not incorporated into the MOU itself is
specifically barred by the integration clause and the doctrine of sovereign immunity. Plaintiffs
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.
OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151Sovereign 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. By the same token, the breach of contract claim cannot withstand the
application of sovereign immunity because, as explained in the next section, it is not based on the
express language in the written MOU.
I. The Amended Complaint Claim Does Not State a Cause of Action
A. Plaintiff Does Not Actually Allege a Mutual Mistake (Count I)
Even if Plaintiff's claims were not subject to sovereign immunity, they would still not
withstand a motion to dismiss because the Second Amended Complaint does not allege that the
County ever agreed with Fernandez that she was eligible to retire with 25 years of special risk
service 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 Second 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. 2d. Am. Compl. {29
The Amended Complaint does not allege that the County ever agreed or promised that Plaintiff
have 25 years of service as a part of the MOU. Accordingly, Plaintiff does not allege a mutual
agreement or a mutual mistake.
The Second Amended Complaint now also loops 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. Id. {29
But once again, Plaintiff is reaching beyond the express language of the agreement. The MOU
10
OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151states 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.
Moreover, 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 fails as a matter of law. To being with, the
contract itself states that Plaintiff will “resign/retire” from County service not that Plaintiff shall
“retire with full benefits.” Second, the documentation that Plaintiff has submitted does not support
her argument that “retire” means “retire with full benefits and 25 years of special risk service.”
The very documents that she has submitted clearly contemplate 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 deals with health insurance specifically
mentions that retired employees must apply for health insurance and refers to employees receiving
the benefit as “eligible retirees,” clearly demonstrating that not all retirees will be eligible. /d. at
Ex. E, p.2.
Nothing in these documents supports the proposition that Plaintiff advances: the fact that
she submitted a letter stating she was retiring means that the County would not have entered into
11
OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151the settlement agreement unless the County believed Plaintiff would receive full retirement
benefits. To the contrary, because these documents clearly show that not every employee who
retires is entitled to every available benefit, they highlight the absurdity of Plaintiff's position that
employees must always retire with all available retiree benefits. Accordingly, Plaintiff's third and
final attempt to demonstrate a mutual mistake fails.
B. The Breach of Contract Claim Fails Because the Complaint Does Not
Actually Allege a Violation of the Contract (Count Il)
“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 Second 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. 2d Am. Compl. 4§
35, 36.
But these are not breaches because the written contract never required these things. 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 4 2. Nowhere does the MOU guarantee Plaintiff the benefits alleged in the
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. Since the Second Amended Complaint still
12
OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151does not allege that any investigations have resulted in the imposition of discipline, no breach has
been adequately alleged. As such, Count II does not state a cause of action.
CONCLUSION
The Court should dismiss Plaintiff's 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
CERTIFICATE 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 January 16, 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
13
OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151
Preview
Filing # 66610360 E-Filed 01/16/2018 05:59:36 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 SECOND AMENDED COMPLAINT. Defendant Miami-Dade County moves to dismiss Plaintiff Evelyn Fernandez’s Second Amended Complaint for failing to state a cause of action and sovereign immunity with prejudice. BACKGROUND 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 Evenlyn 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 1. Accordingly, on December 13, 2016, the County and Fernandez exchanged several promises to settle the outstanding discipline. OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-51513 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 (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 parties’ | 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. 41 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 would 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. 2 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-51515 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. Plaintiff's rescission claim 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. 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. 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 allegations that “Defendant has waived sovereign immunity by entering into an express written contract attached here as Exhibit ‘B’ and incorporated by reference.” Am. Compl. ¥ 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. Therefore, Plaintiff's 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 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) 375-5151evident 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. THE 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 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-51519 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. 10. On December 28, 2017, Plaintiff filed her Second Amended Complaint. The Second Amended Complaint contains six new attachments. The first four attachments deal with various benefits for eligible retired employees. The first is a website printout that details eligibility requirements for the Florida Retirement System. 2d Am. Compl. Ex. C. The second is a departmental procedure governing procedures for retirement and recognition for retired police officers. 2d Am. Compl. Ex. D. The third is a website printout dealing with retiree insurance benefits. 2d Am. Compl. Ex. E. The fourth is a standard operating procedure (SOP) related to enrollment in retiree group insurance. 2d Am. Compl. Ex. F. The fifth attachment is 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 attaches 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, does not contain any allegations sufficient to cure the defects that led to the dismissal of Plaintiff’s prior complaints. Plaintiff does not address how the doctrine of sovereign immunity and integration clause preclude the Court from binding the County to an agreement outside the four comers of the contract. Moreover, the documents that Plaintiff attaches do not actually support her assertion that “retire” means “retire with all available benefits.” After three attempts, it is clear that Plaintiff cannot allege a breach of contract or a mutual mistake against Miami-Dade County under the clear terms of the contract and the doctrine of sovereign immunity OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151ARGUMENT L The Complaint is Barred by Sovereign Immunity A. A Complaint Must Contain Allegations As To How Miami-Dade County Waived Its 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 Complaint now alleges that the County waived its sovereign immunity by entering into an express, written agreement. 2d. Am. Compl. § 24. As shown below, however, Plaintiff's claim still fails because she is attempting to hold the County to terms outside of that express, written agreement. B. The Rescission Claim Is, At Most, Based On An Alleged Unwritten Understanding Between Plaintiff and Miami-Dade County Which Is Barred By The Doctrine of Sovereign Immunity for Contract Claims 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 6 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151claims, 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 Following 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, 7 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151in 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 exclusive 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 states 8 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151outlines various benefits that e/igible retirees may receive. 2d. Am. Compl. J 11-14. And Plaintiff concedes 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. But 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 resignation/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 expressly 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). 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. And Plaintiff's reference to County documents that are not incorporated into the MOU itself is specifically barred by the integration clause and the doctrine of sovereign immunity. Plaintiffs 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. OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151Sovereign 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. By the same token, the breach of contract claim cannot withstand the application of sovereign immunity because, as explained in the next section, it is not based on the express language in the written MOU. I. The Amended Complaint Claim Does Not State a Cause of Action A. Plaintiff Does Not Actually Allege a Mutual Mistake (Count I) Even if Plaintiff's claims were not subject to sovereign immunity, they would still not withstand a motion to dismiss because the Second Amended Complaint does not allege that the County ever agreed with Fernandez that she was eligible to retire with 25 years of special risk service 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 Second 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. 2d. Am. Compl. {29 The Amended Complaint does not allege that the County ever agreed or promised that Plaintiff have 25 years of service as a part of the MOU. Accordingly, Plaintiff does not allege a mutual agreement or a mutual mistake. The Second Amended Complaint now also loops 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. Id. {29 But once again, Plaintiff is reaching beyond the express language of the agreement. The MOU 10 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151states 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. Moreover, 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 fails as a matter of law. To being with, the contract itself states that Plaintiff will “resign/retire” from County service not that Plaintiff shall “retire with full benefits.” Second, the documentation that Plaintiff has submitted does not support her argument that “retire” means “retire with full benefits and 25 years of special risk service.” The very documents that she has submitted clearly contemplate 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 deals with health insurance specifically mentions that retired employees must apply for health insurance and refers to employees receiving the benefit as “eligible retirees,” clearly demonstrating that not all retirees will be eligible. /d. at Ex. E, p.2. Nothing in these documents supports the proposition that Plaintiff advances: the fact that she submitted a letter stating she was retiring means that the County would not have entered into 11 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151the settlement agreement unless the County believed Plaintiff would receive full retirement benefits. To the contrary, because these documents clearly show that not every employee who retires is entitled to every available benefit, they highlight the absurdity of Plaintiff's position that employees must always retire with all available retiree benefits. Accordingly, Plaintiff's third and final attempt to demonstrate a mutual mistake fails. B. The Breach of Contract Claim Fails Because the Complaint Does Not Actually Allege a Violation of the Contract (Count Il) “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 Second 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. 2d Am. Compl. 4§ 35, 36. But these are not breaches because the written contract never required these things. 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 4 2. Nowhere does the MOU guarantee Plaintiff the benefits alleged in the 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. Since the Second Amended Complaint still 12 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151does not allege that any investigations have resulted in the imposition of discipline, no breach has been adequately alleged. As such, Count II does not state a cause of action. CONCLUSION The Court should dismiss Plaintiff's 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 CERTIFICATE 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 January 16, 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 13 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151