Third District Court of Appeal
State of Florida
Opinion filed June 22, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-2424
Lower Tribunal No. 21-10716
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City of Miami,
Appellant,
vs.
Elvis Cruz, et al.,
Appellees.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, William Thomas, Judge.
Victoria Méndez, City Attorney, and Christopher A. Green, Senior
Assistant City Attorney, and John A. Greco, Deputy City Attorney, for
appellant.
David J. Winker, P.A., and David J. Winker, for appellees.
Before EMAS, SCALES and GORDO, JJ.
EMAS, J.
Appellant, City of Miami, appeals the trial court’s nonfinal order
denying its motion to dismiss the complaint filed against it by appellee Elvis
Cruz. The complaint alleged the City breached a settlement agreement it
entered into with Cruz, and sought damages and injunctive relief. The City
moved to dismiss, contending the claims asserted in Cruz’s complaint were
barred by the doctrine of sovereign immunity. The trial court denied the City’s
motion to dismiss the count of the complaint alleging the City breached a
settlement agreement.1
We have jurisdiction, see Fla. R. App. P. 9.130(a)(3)(F)(iii) (authorizing
appellate review of nonfinal orders which “deny a motion that . . . asserts
entitlement to sovereign immunity”); Fla. Hwy. Patrol v. Jackson,
288 So. 3d
1179 (Fla. 2020); City of Sweetwater v. Pichardo,
314 So. 3d 540 (Fla. 3d
DCA 2020), and review the trial court’s order de novo. The Florida Bar v.
Greene,
926 So. 2d 1195 (Fla. 2006) (“A ruling on a motion to dismiss based
on a pure question of law is subject to de novo review.”); City of Miami
1
The complaint alleged four counts: Count One alleged breach of settlement
agreement against the City; Count Two alleged breach of settlement
agreement against defendant 5101 RE Co., LLC; Count Three sought
injunctive relief against the City; Count Four sought injunctive relief against
5101 RE Co., LLC. The trial court dismissed Counts Three and Four seeking
injunctive relief, but denied the motion to dismiss the breach of settlement
counts. This appeal is limited to review of the trial court’s nonfinal order
denying the City’s motion to dismiss Count One on the basis of sovereign
immunity.
2
Firefighters’ & Police Officers’ Ret. Tr. & Plan v. Castro,
279 So. 3d 803, 806
n.11 (Fla. 3d DCA 2019); Medina v. Pollack,
300 So. 3d 173 (Fla. 4th DCA
2020).
In invoking the doctrine of sovereign immunity as a basis for dismissal
of Cruz’s complaint, the City raises matters which, at this stage of the
proceedings, may not be considered by the trial court (or by the reviewing
court). “A motion to dismiss is designed to test the legal sufficiency of the
complaint, not to determine factual issues, and the allegations of the
complaint must be taken as true and all reasonable inferences therefrom
construed in favor of the nonmoving party.” Greene,
926 So. 2d at 1196. At
this stage of the proceedings, “we are bound to accept as true for purposes
of decision the amended complaint's well-pleaded factual allegations and
draw all reasonable inferences from these allegations in appellant's favor.”
Hall v. Knipp,
982 So. 2d 1196, 1198 (Fla. 1st DCA 2008) (citing Siegle v.
Progressive Consumers Ins. Co.,
819 So.2d 732, 734–35 (Fla. 2002)). As
we recently observed in District Bd. of Trustees of Miami Dade College v.
Verdini, 47 Fla. L. Weekly D857 at *3 (Fla. 3d DCA Apr. 13, 2022):
In reviewing an order on a motion to dismiss, we apply the “four
corners rule.” Under this rule, “review for the sufficiency of a
complaint to state a cause of action is limited solely to the
complaint at issue and its attachments.” Santiago v. Mauna Loa
Invs., LLC,
189 So. 3d 752, 756 (Fla. 2016). Therefore, we
review the Complaint and its attachments to determine whether
3
[plaintiff] has sufficiently alleged breach of an express, written
agreement, which is necessary to overcome sovereign immunity.
See also Sierra v. Associated Marine Insts., Inc.,
850 So. 2d 582, 590 (Fla.
2d DCA 2003) (observing that “sovereign immunity generally is an affirmative
defense that may justify granting a motion to dismiss only when the
complaint itself conclusively establishes its applicability.”).
Cruz alleges in his complaint that the City breached an express written
contract, a copy of which was attached to the complaint. Florida law
recognizes a limited waiver of sovereign immunity where the municipality
breaches an express written contract. Pan-Am Tobacco Corp. v. Dep’t of
Corrections,
471 So. 2d 4, 5 (Fla. 1984) (holding that “where the state has
entered into a contract fairly authorized by the powers granted by general
law, the defense of sovereign immunity will not protect the state from action
arising from the state’s breach of that contract”); Castro, 279 So. 3d at 806
(“In the contracts sphere, the limited waiver of sovereign immunity is founded
in common law and occurs only when the municipality breaches an express
written contract”); Champagne-Webber, Inc. v. City of Ft. Lauderdale,
519
So. 2d 696 (Fla. 4th DCA 1988) (applying Pan-Am holding to a municipality).
We find no error in the trial court’s order denying the City’s motion to dismiss
based on sovereign immunity.
Affirmed.
4
