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Filing # 64473169 E-Filed 11/21/2017 12:30:39 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 AMENDED COMPLAINE
Defendant Miami-Dade County moves to dismiss Plaintiff Evelyn Fernandez’s Amended
Complaint for failing to state a cause of action and sovereign immunity.
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 Il 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 Evenly 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) 375-51543. 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 $9 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 {ff 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.” MOU { 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.
49-10. Fernandez further alleged that she would not have entered into the agreement but for this
understanding. Id. 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. Thus, Fernandez did not allege a mutual promise that the parties
failed to reduce to writing necessary to trigger the mutual mistake doctrine.
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. Plaintiffs rescission claim therefore failed. Similarly, Plaintiff's 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, fails to address the bases on
which the Court initially granted dismissal. The Amended Complaint contains 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 suffers from a fatal defect in that she seeks to bind
' In an apparent oversight, the Amended Complaint did not actually attach the MOU,
which warrants dismissal under Fla. R. Civ. P. 1.130(a). See Contractors Unlimited, Inc. v.
Nortrax Equip. Co. Se., 833 So. 2d 286, 288 (Fla. 5th DCA 2002) (“A complaint based on a written
instrument does not state a cause of action until the instrument or an adequate portion thereof, is
attached to or incorporated in the complaint.”). However, because the MOU was attached to the
initial Complaint, the County now attached it to this motion as Exhibit A and requests that the
Court address the merits and issue a final order of dismissal.
3
OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151the County to an understanding that is outside the four comers of the agreement. It is now evident
that Plaintiff cannot allege a breach of the actual, express written agreement and dismissal with
prejudice is therefore warranted.
ARGUMENT
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. 5th 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 “[iJn 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 y. City of Florida City, 07-22727-ClV, 2008 WL 2332003, at *3 (8.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. Am. Compl. ¥ 19. 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.
OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (306) 375-5151B, 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
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.
Jd. 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. Jd. 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.
5
OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (308) 375-5151For 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 be 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,
6
OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (308) 375-5151express 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 Amended Complaint states that “[t]he
contract provided that Plaintiff would retire, thereby obtaining her retirement benefits, including
the Defendant’s group retiree health insurance and supplemental payments for her health insurance
as well as participate in Defendant’s life insurance for retirees.” Am. Compl. {[ 22, In fact, the
MOU states no such thing. 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 4 2. By its plaint terms, the MOU
envisioned either a retirement or a resignation. Moreover, the MOU makes no reference to any
benefits that Plaintiff would receive upon her separation from County service. The inclusion of
an integration clause, as well as the doctrine of sovereign immunity, foreclose such an
interpretation. 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.” Jd. { 13 (emphasis added). Given that the MOU makes no reference (express
or otherwise) to any retirement benefits, Plaintiffs attempt to read such terms into the agreement
contravenes both 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
7
OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5154for 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 bar 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.
Ti, The Amended Complaint Claim Does Not State a Cause of Action
A. Plaintiff Does Not Actually Allege a Mutual Mistake (Count 1)
Even if Plaintiff's claims were not subject to sovereign immunity, they would still not
withstand a motion to dismiss because the 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.
Kline, 645 So.2d at 78 (mutual mistake arises from parties’ inadvertent failure to reduce agreed
terms to writing), The Amended Complaint, like its predecessor, alleges that Fernandez would
not have entered into the contract had she known that she had not completed 25 years of special
risk service. Am. Compl. {9 9, 24. The Amended Complaint does not allege that the County ever
agreed or promised that Plaintiff had 25 years of service as a part of the MOU. At best, Plaintiff
alleges a unilateral mistakes, which is not a basis for recession or breach. She does not allege a
mutual agreement or a mutual mistake.
OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
‘TELEPHONE (305) 375-5151B. The Breach of Contract Claim Fails Because the Complaint Does Not
Actually Allege a Violation of the Contract (Count IT
“An adequately pled breach of contract action requires three elements: (1) a valid contract;
(2) a material breach; and (3) damages.” Friedman y, New York Life Ins. Co., 985 So. 2d 56, 58
(Fla. 4th DCA 2008). Here again, the Amended Complaint does not allege an actual breach. As
best as the County can tell, the breach of contract claim is identical to claim which the Court
previously dismissed. 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 fwo, that
the County failed to resolve the open investigations prior to the date of Fernandez’s retirement.
Am. Compl. ff 28, 29.
But these are not breaches because the written contract never required these things. Again,
the contract does not state that Plaintiff's 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 prior to
Fernandez’s retirement. Again, it simply stated that “[aJny pending investigations in which
FERNANDEZ is a subject shall be resolved without the imposition of discipline.” MOU 4 5
(emphasis added). Since the 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 II
does not state a cause of action.
CONCLUSION
The Court should dismiss Plaintiff's Amended Complaint with prejudice.
9
OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE (305) 375-5151Respectfully Submitted,
ABIGAIL PRICE-WILLIAMS
Miami-Dade County Attorney
111 N.W. Ist Street
Suite 2810
Miami, FL 33128
By: /s/Ezra S. Greenberg
Ezra 8. 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
J 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 November 21, 2017 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
10
OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
‘TELEPHONE (305) 375-5151EXHIBIT APOLICE LIEUTENANT EVELYN FERNANDEZ,
This Memorandum of Understanding (“MOU”) is entered into this 1B" ay of
PECerrber _; 2016, between Police Lieutenant EVELYN FERNANDEZ (“FERNANDEZ”)
and Miami-Dade County (“COUNTY”), by and through its department, the Miami-Dade Police
Department, jointly referred to as the (“PARTIES”),
WHEREAS, FERNANDEZ is currently employed by the COUNTY as a Police Lieutenant
in the Miami-Dade Police Department (“DEPARTMENT”),
WHEREAS, on June 14,2016, FERNANDEZ received a Disciplinary Action Report (DAR),
Control Number 2016-10509-13790, containing alleged violations of COUNTY and/or
DEPARTMENT policy;
WHEREAS, the recommended level of discipline regarding DAR. Contio! Number 2016-
10509-13790 is a ten day suspension;
WHEREAS, additional discipline is pending against FERNANDEZ;
WHEREAS, the PARTIES are desirous of settling these and all other claims between them
and are also desirous of avoiding further legal and administrative proceedings,
: NOW, THEREFORE, in consideration of the mutual covenants contained herein; the
PARTIES intending to be legally bound do hereby stipulate and agree as follows:
1 The COUNTY will permit FERNANDEZ to utilize her Special Leave, Donation
through February 28, 2017.
2. 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 this MOU.
Initials: ea
Employee MD,
-i-3. FERNANDEZ agrees to waive her right to appeal the ten day suspension
imposed as a result of DAR Control Number 2016-10509-13790 and waives any
tights to challenge the DAR and the terms of this MOU, including by way of
appeal pursuant to Section 2-47 of the Code of Miami-Dade County (Hearing
Exarhiner System).
4. The COUNTY will reimburse FERNANDEZ 12 days of pay (96 hours) as a
result of her serving her 10 day suspension and an additional 2 days of pay to
cover two days used in June, 2016.
Sur Any pending investigations in which FERNANDEZ is a subject shall be
resolved without the imposition of discipline.
6% The DEPARTMENT will release. FERNANDEZ?’ petsonally owned firearm to
her when she is legally permitted to posséss a firearm.
de FERNANDEZ agrees to relinquish her Florida law enforcement certification
within five business days of her resignation/retirement.
By No statement contained herein shall be construed as an admission by
FERNANDEZ to the alleged violations of policy contained in DAR Control
Number 2016-10509-13790.
9., FERNANDEZ understands and agrees that she must not violate any:
departmental policies for the duration of her employment with the COUNTY,
10, In consideration of this MOU, FERNANDEZ, her heirs, executors,
administrators, successors and assigns, hereby irrevécably and unconditionally
release, acquit and forever discharge the COUNTY, its agents, employees,
assigns, successors, administrators, and all other petsons, firms, corporations,
Initials? ak : a
Employee PD
-2-Initials:
it.
12,
13,
associations, or partnerships acting by, through, under, or in concert with any of
them, of and from any and all charges, claims, complaints, liabilities,
obligations, causes of action, promises, agreements, controversies, damages,
suits, rights, demands, costs, losses, grievances, debts and expenses (including
attorney's fees and costs actually incurred), of any nature whatsoever, known or
unknown, suspected or unsuspected, including but not limited to, any alleged
violation of Title VII of the Civil Rights: Act of 1964, the Americans with
Disabilities Act (‘ADA”), the Age Discrimination in Employment Act
(“ADEA”), the Florida Civil Rights Act (“FCRA”), Fla. Stat. § 112.532 et seq.,
the Law Enforcement Officer’s Bill of Rights, Ethics and Public Trust
Commission complaints and any other rights under federal, state, or local laws
prohibiting any form of harassment, intimidation, retaliation, discrimination or
bias in employment, wrongful discharge, demotion or. termination or of any
other type of claims, which he now has or which may hereinafter accrue on
account of or in any way growing out of any known and unknown, foreseen.and
unforeseen injuries, damages and the consequences that arise out of the DAR,
suspension, and reimbursement of leave that.are the subject of this MOU.
The PARTIES retain the right to challenge any violations of the terms, of this
MOU.
This MOU shall not be'used as precedent for the resolution of any other issue or
discipline appeal that may now exist or any that may hereafter arise.
The PARTIES agree and state that no promise, inducement or agreement not
expressly contained herein has been made, that this MOU constitutes their entire
‘Employee MDPDand final understanding with respect to the subject matter of this MOU, and that
the terms of this MOU are contractual and not a mere recital.
14, The PARTIES have read this MOU and fully understand it.
yin
Signed this {3 ‘of D&Cemnber,.2016.
Miami-Dade Police Department
et Lewis, Esq.
‘Attorney for FERNANDEZ “ Police Legal Bureau
Initials: Ze GO
Employee MDPDEVELYN FERNANDEZ
December 16, 2016
Juan Perez, Director
Miami-Dade Police- Department
91OS. NW 25" Street
Miami, FL 33172
RE: ‘Retirement of Police Lieutenant Evelyn Fernandez
Dear Director Perez:
It is with a heavy heart that due to personal circumstances after a devoted and dedicated career I
have decided to retire fiom sny position with the Miami Dade Police Department effective February
28, 2017. It has truly been an honor serving you, the citizens of Miami-Dade County and this
Department.
Sincerely,
Evelyn Fernandez
cc: Janet Lewis, Esquire Senior Bureau Commander, Miami-Dade Police Legal Bureau
James.C. Casey, Esquire
Preview
Filing # 64473169 E-Filed 11/21/2017 12:30:39 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 AMENDED COMPLAINE Defendant Miami-Dade County moves to dismiss Plaintiff Evelyn Fernandez’s Amended Complaint for failing to state a cause of action and sovereign immunity. 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 Il 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 Evenly 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) 375-51543. 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 $9 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 {ff 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.” MOU { 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. 49-10. Fernandez further alleged that she would not have entered into the agreement but for this understanding. Id. 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. Thus, Fernandez did not allege a mutual promise that the parties failed to reduce to writing necessary to trigger the mutual mistake doctrine. 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. Plaintiffs rescission claim therefore failed. Similarly, Plaintiff's 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, fails to address the bases on which the Court initially granted dismissal. The Amended Complaint contains 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 suffers from a fatal defect in that she seeks to bind ' In an apparent oversight, the Amended Complaint did not actually attach the MOU, which warrants dismissal under Fla. R. Civ. P. 1.130(a). See Contractors Unlimited, Inc. v. Nortrax Equip. Co. Se., 833 So. 2d 286, 288 (Fla. 5th DCA 2002) (“A complaint based on a written instrument does not state a cause of action until the instrument or an adequate portion thereof, is attached to or incorporated in the complaint.”). However, because the MOU was attached to the initial Complaint, the County now attached it to this motion as Exhibit A and requests that the Court address the merits and issue a final order of dismissal. 3 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151the County to an understanding that is outside the four comers of the agreement. It is now evident that Plaintiff cannot allege a breach of the actual, express written agreement and dismissal with prejudice is therefore warranted. ARGUMENT 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. 5th 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 “[iJn 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 y. City of Florida City, 07-22727-ClV, 2008 WL 2332003, at *3 (8.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. Am. Compl. ¥ 19. 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. OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (306) 375-5151B, 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 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. Jd. 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. Jd. 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. 5 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (308) 375-5151For 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 be 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, 6 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (308) 375-5151express 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 Amended Complaint states that “[t]he contract provided that Plaintiff would retire, thereby obtaining her retirement benefits, including the Defendant’s group retiree health insurance and supplemental payments for her health insurance as well as participate in Defendant’s life insurance for retirees.” Am. Compl. {[ 22, In fact, the MOU states no such thing. 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 4 2. By its plaint terms, the MOU envisioned either a retirement or a resignation. Moreover, the MOU makes no reference to any benefits that Plaintiff would receive upon her separation from County service. The inclusion of an integration clause, as well as the doctrine of sovereign immunity, foreclose such an interpretation. 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.” Jd. { 13 (emphasis added). Given that the MOU makes no reference (express or otherwise) to any retirement benefits, Plaintiffs attempt to read such terms into the agreement contravenes both 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 7 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5154for 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 bar 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. Ti, The Amended Complaint Claim Does Not State a Cause of Action A. Plaintiff Does Not Actually Allege a Mutual Mistake (Count 1) Even if Plaintiff's claims were not subject to sovereign immunity, they would still not withstand a motion to dismiss because the 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. Kline, 645 So.2d at 78 (mutual mistake arises from parties’ inadvertent failure to reduce agreed terms to writing), The Amended Complaint, like its predecessor, alleges that Fernandez would not have entered into the contract had she known that she had not completed 25 years of special risk service. Am. Compl. {9 9, 24. The Amended Complaint does not allege that the County ever agreed or promised that Plaintiff had 25 years of service as a part of the MOU. At best, Plaintiff alleges a unilateral mistakes, which is not a basis for recession or breach. She does not allege a mutual agreement or a mutual mistake. OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA ‘TELEPHONE (305) 375-5151B. The Breach of Contract Claim Fails Because the Complaint Does Not Actually Allege a Violation of the Contract (Count IT “An adequately pled breach of contract action requires three elements: (1) a valid contract; (2) a material breach; and (3) damages.” Friedman y, New York Life Ins. Co., 985 So. 2d 56, 58 (Fla. 4th DCA 2008). Here again, the Amended Complaint does not allege an actual breach. As best as the County can tell, the breach of contract claim is identical to claim which the Court previously dismissed. 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 fwo, that the County failed to resolve the open investigations prior to the date of Fernandez’s retirement. Am. Compl. ff 28, 29. But these are not breaches because the written contract never required these things. Again, the contract does not state that Plaintiff's 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 prior to Fernandez’s retirement. Again, it simply stated that “[aJny pending investigations in which FERNANDEZ is a subject shall be resolved without the imposition of discipline.” MOU 4 5 (emphasis added). Since the 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 II does not state a cause of action. CONCLUSION The Court should dismiss Plaintiff's Amended Complaint with prejudice. 9 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE (305) 375-5151Respectfully Submitted, ABIGAIL PRICE-WILLIAMS Miami-Dade County Attorney 111 N.W. Ist Street Suite 2810 Miami, FL 33128 By: /s/Ezra S. Greenberg Ezra 8. 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 J 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 November 21, 2017 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 10 OFFICE OF THE COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA ‘TELEPHONE (305) 375-5151EXHIBIT APOLICE LIEUTENANT EVELYN FERNANDEZ, This Memorandum of Understanding (“MOU”) is entered into this 1B" ay of PECerrber _; 2016, between Police Lieutenant EVELYN FERNANDEZ (“FERNANDEZ”) and Miami-Dade County (“COUNTY”), by and through its department, the Miami-Dade Police Department, jointly referred to as the (“PARTIES”), WHEREAS, FERNANDEZ is currently employed by the COUNTY as a Police Lieutenant in the Miami-Dade Police Department (“DEPARTMENT”), WHEREAS, on June 14,2016, FERNANDEZ received a Disciplinary Action Report (DAR), Control Number 2016-10509-13790, containing alleged violations of COUNTY and/or DEPARTMENT policy; WHEREAS, the recommended level of discipline regarding DAR. Contio! Number 2016- 10509-13790 is a ten day suspension; WHEREAS, additional discipline is pending against FERNANDEZ; WHEREAS, the PARTIES are desirous of settling these and all other claims between them and are also desirous of avoiding further legal and administrative proceedings, : NOW, THEREFORE, in consideration of the mutual covenants contained herein; the PARTIES intending to be legally bound do hereby stipulate and agree as follows: 1 The COUNTY will permit FERNANDEZ to utilize her Special Leave, Donation through February 28, 2017. 2. 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 this MOU. Initials: ea Employee MD, -i-3. FERNANDEZ agrees to waive her right to appeal the ten day suspension imposed as a result of DAR Control Number 2016-10509-13790 and waives any tights to challenge the DAR and the terms of this MOU, including by way of appeal pursuant to Section 2-47 of the Code of Miami-Dade County (Hearing Exarhiner System). 4. The COUNTY will reimburse FERNANDEZ 12 days of pay (96 hours) as a result of her serving her 10 day suspension and an additional 2 days of pay to cover two days used in June, 2016. Sur Any pending investigations in which FERNANDEZ is a subject shall be resolved without the imposition of discipline. 6% The DEPARTMENT will release. FERNANDEZ?’ petsonally owned firearm to her when she is legally permitted to posséss a firearm. de FERNANDEZ agrees to relinquish her Florida law enforcement certification within five business days of her resignation/retirement. By No statement contained herein shall be construed as an admission by FERNANDEZ to the alleged violations of policy contained in DAR Control Number 2016-10509-13790. 9., FERNANDEZ understands and agrees that she must not violate any: departmental policies for the duration of her employment with the COUNTY, 10, In consideration of this MOU, FERNANDEZ, her heirs, executors, administrators, successors and assigns, hereby irrevécably and unconditionally release, acquit and forever discharge the COUNTY, its agents, employees, assigns, successors, administrators, and all other petsons, firms, corporations, Initials? ak : a Employee PD -2-Initials: it. 12, 13, associations, or partnerships acting by, through, under, or in concert with any of them, of and from any and all charges, claims, complaints, liabilities, obligations, causes of action, promises, agreements, controversies, damages, suits, rights, demands, costs, losses, grievances, debts and expenses (including attorney's fees and costs actually incurred), of any nature whatsoever, known or unknown, suspected or unsuspected, including but not limited to, any alleged violation of Title VII of the Civil Rights: Act of 1964, the Americans with Disabilities Act (‘ADA”), the Age Discrimination in Employment Act (“ADEA”), the Florida Civil Rights Act (“FCRA”), Fla. Stat. § 112.532 et seq., the Law Enforcement Officer’s Bill of Rights, Ethics and Public Trust Commission complaints and any other rights under federal, state, or local laws prohibiting any form of harassment, intimidation, retaliation, discrimination or bias in employment, wrongful discharge, demotion or. termination or of any other type of claims, which he now has or which may hereinafter accrue on account of or in any way growing out of any known and unknown, foreseen.and unforeseen injuries, damages and the consequences that arise out of the DAR, suspension, and reimbursement of leave that.are the subject of this MOU. The PARTIES retain the right to challenge any violations of the terms, of this MOU. This MOU shall not be'used as precedent for the resolution of any other issue or discipline appeal that may now exist or any that may hereafter arise. The PARTIES agree and state that no promise, inducement or agreement not expressly contained herein has been made, that this MOU constitutes their entire ‘Employee MDPDand final understanding with respect to the subject matter of this MOU, and that the terms of this MOU are contractual and not a mere recital. 14, The PARTIES have read this MOU and fully understand it. yin Signed this {3 ‘of D&Cemnber,.2016. Miami-Dade Police Department et Lewis, Esq. ‘Attorney for FERNANDEZ “ Police Legal Bureau Initials: Ze GO Employee MDPDEVELYN FERNANDEZ December 16, 2016 Juan Perez, Director Miami-Dade Police- Department 91OS. NW 25" Street Miami, FL 33172 RE: ‘Retirement of Police Lieutenant Evelyn Fernandez Dear Director Perez: It is with a heavy heart that due to personal circumstances after a devoted and dedicated career I have decided to retire fiom sny position with the Miami Dade Police Department effective February 28, 2017. It has truly been an honor serving you, the citizens of Miami-Dade County and this Department. Sincerely, Evelyn Fernandez cc: Janet Lewis, Esquire Senior Bureau Commander, Miami-Dade Police Legal Bureau James.C. Casey, Esquire