UNIVERSITY OF SOUTH FLORIDA BOARD OF TRUSTEES v. VALERIEMARIE MOORE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED ( 2022 )

DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
THE UNIVERSITY OF SOUTH FLORIDA
BOARD OF TRUSTEES,
Appellant,
v.
VALERIEMARIE MOORE,
Appellee.
No. 2D21-2685
September 30, 2022
BY ORDER OF THE COURT:
Appellant's motion for rehearing, rehearing en banc, or
certification is denied. The panel on its own motion grants
rehearing, withdraws the opinion dated June 1, 2022, and
substitutes the attached opinion. No further motions for rehearing
will be entertained.
I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE
ORIGINAL COURT ORDER.
MARY ELIZABETH KUENZEL
CLERK
-2-
DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
THE UNIVERSITY OF SOUTH FLORIDA
BOARD OF TRUSTEES,
Appellant,
v.
VALERIEMARIE MOORE,
Appellee.
No. 2D21-2685
September 30, 2022
Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for
Hillsborough County; Darren D. Farfante, Judge.
Richard C. McCrea, Jr., and Cayla M. Page of Greenberg Traurig,
P.A., Tampa, for Appellant.
Adam A. Schwartzbaum, Adam Moskowitz, Howard M. Bushman,
and Barbara C. Lewis of The Moskowitz Law Firm, PLLC, Coral
Gables, for Appellee.
Kansas R. Gooden of Boyd & Jenerette, P.A., Miami; and Robert J.
Sniffen and Jeffrey D. Slanker of Sniffen & Spellman, P.A.,
Tallahassee, for Amicus Curiae Florida Defense Lawyers
Association.
Janet R. Varnell of Varnell & Warwick, P.A., Tampa, for Amicus
Curiae The National Association of Consumer Advocates.
CASANUEVA, Judge.
The University of South Florida Board of Trustees (USF)
appeals a trial court order denying its motion to dismiss in which it
asserted the defense of sovereign immunity. ValerieMarie Moore
filed the underlying class action complaint against USF alleging
claims for breach of contract and unjust enrichment based on the
collection of student fees for on-campus services that were not
offered due to COVID-19. The order at issue granted USF's motion
to dismiss Ms. Moore's breach of contract claim for the limited
purpose of allowing Ms. Moore to attach her registration agreement
to her amended complaint, but it otherwise denied USF's motion to
dismiss on the merits of its sovereign immunity defense. The order
also dismissed Ms. Moore's unjust enrichment claim without
prejudice to her ability to add allegations to support her claim. The
issue raised in this appeal is whether the trial court erred in
denying USF's motion to dismiss the breach of contract claim based
on sovereign immunity. We affirm the trial court's refusal to
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dismiss the claim at this stage of the proceeding, but our holding is
without prejudice to USF's right to again raise the defense of
sovereign immunity if supported by the facts.
I. Standard of Review
Florida Rule of Appellate Procedure 9.130(a)(3)(F)(iii) gives
district courts in this state jurisdiction to hear appeals involving
nonfinal orders that deny motions asserting entitlement to
sovereign immunity. "[B]ased on the plain and unambiguous
language of the amended rule, our jurisdictional inquiry now
focuses not on the challenged order, but rather on the motion that
the order adjudicates." City of Sweetwater v. Pichardo, 314 So. 3d
540, 542 (Fla. 3d DCA 2020).
"Article X, section 13 of the Florida Constitution provides
absolute sovereign immunity for the state and its agencies absent
waiver by legislative enactment or constitutional amendment." Lee
Mem'l Health Sys. v. Hilderbrand, 304 So. 3d 58, 60-61 (Fla. 2d
DCA 2020) (quoting Ingraham ex rel. Ingraham v. Dade Cnty. Sch.
Bd., 450 So. 2d 847, 848 (Fla. 1984)). "The issue of a party's
entitlement to sovereign immunity is a legal issue subject to the de
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novo standard of review." Id. at 60 (citing Plancher v. UCF Athletics
Ass'n, 175 So. 3d 724, 725 n.3 (Fla. 2015)).
However, when ruling on a motion to dismiss based on
sovereign immunity, courts are required to treat as true the
complaint's allegations, "including those that incorporate
attachments, and to look no further than the amended complaint
and its attachments." City of Gainesville v. Dep't of Transp., 778 So.
2d 519, 522 (Fla. 1st DCA 2001) (first citing Brewer v. Clerk of the
Circuit Court, 720 So. 2d 602, 603 (Fla. 1st DCA 1998); then citing
Sarkis v. Pafford Oil Co., 697 So. 2d 524, 526 (Fla. 1st DCA 1997);
and then citing Varnes v. Dawkins, 624 So. 2d 349, 350 (Fla. 1st
DCA 1993)). "A motion to dismiss is not a substitute for a motion
for summary judgment, and in ruling on a motion to dismiss a
complaint the trial court is confined to consideration of the
allegations found within the four corners of the complaint." Hurley
v. Lifsey, 310 So. 3d 1030, 1032-33 (Fla. 2d DCA 2020) (quoting
Baycon Indus., Inc. v. Shea, 714 So. 2d 1094, 1095 (Fla. 2d DCA
1998)). Consequently, at this stage of the pleadings, the trial court
was required to treat as true the complaint's allegations as well as
attachments to the complaint.
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II. Circuit Court Pleadings
Ms. Moore filed a class action complaint alleging that during
all semesters in 2020 and the Spring 2021 semester, USF collected
fees for on-campus services that were not offered due to COVID-19.
She alleged, "USF has improperly retained funds for services it did
not provide, in violation of its express contracts with students
which allow it to collect fees only for certain statutorily specified
purposes."
In its motion to dismiss, USF argued that the breach of
contract claim is barred by the doctrine of sovereign immunity. It
alleged that the complaint's assertion that Ms. Moore entered into
an express written contract with USF is a legal conclusion, which is
insufficient to establish a cause of action for breach of contract.
USF argued that two account statements attached to the complaint
were not student invoices, and it argued that even if an invoice were
attached, it would at most constitute a claim for breach of an
implied contract.
At the hearing on the motion to dismiss, USF argued that it
only waives sovereign immunity when it enters into an express,
written contract, and if there is a contract in this case, it is an
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implied contract. Florida Defense Lawyers Association filed an
amicus brief in support of USF. The National Association of
Consumer Advocates filed an amicus brief in support of Ms. Moore.
III. Analysis
When the state enters into a contract authorized by general
law, the defense of sovereign immunity will not shield it from
litigation.
In section 768.28, Florida Statutes (1981), the
legislature has explicitly waived sovereign immunity in
tort. There is no analogous waiver in contract.
Nonetheless, the legislature has, by general law, explicitly
empowered various state agencies to enter into contracts.
See e.g., §§ 23.017, 153.62(11), 163.370, 230.22(4),
337.19(1), Fla. Stat. (1981). Additionally, it has
authorized certain goals and activities which can only be
achieved if state agencies have the power to contract for
necessary goods and services. See e.g., §§ 20.315,
945.215, Fla. Stat. (1981).
It is basic hornbook law that a contract which is not
mutually enforceable is an illusory contract. Howard
Cole & Co. v. Williams, 157 Fla. 851, 27 So. 2d 352(1946). Where one party retains to itself the option of
fulfilling or declining to fulfill its obligations under the
contract, there is no valid contract and neither side may
be bound. Miami Coca-Cola Bottling Co. v. Orange-Crush
Co., 291 F. 102 (D. Fla. 1923), affirmed, 296 F. 693 (5th
Cir. 1924).
Pan-Am Tobacco Corp. v. Dep't of Corr., 471 So. 2d 4, 5 (Fla. 1984).
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When the legislature has authorized a state entity to enter into
a contract, it clearly intends that the contract be valid and binding
on both parties. Dep't of Transp. v. United Cap. Funding Corp., 219
So. 3d 126, 134 (Fla. 2d DCA 2017) ("[T]he government's obligations
under the terms of an express written contract it was authorized by
law to enter are subject to the same standards of contract
performance and enforcement that would apply to a private party.").
Therefore, "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." Pan-Am Tobacco Corp.,
471 So. 2d at 5; see also United Cap. Funding Corp., 219 So. 3d at
135 ("[W]here the government has entered into an express written
contract that it is statutorily authorized to enter, sovereign
immunity cannot protect it from the same contract rules that
govern the performance of the express written contract obligations
of a private party to a contract.").
In the present case, the complaint alleged that there was an
express written agreement. Ms. Moore's registration agreement was
not provided to her prior to filing the complaint, but when she
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received it, she filed it as an attachment in support of her
opposition to the motion to dismiss.1 After the hearing on the
motion to dismiss, the trial court granted USF's motion to dismiss
Ms. Moore's breach of contract claim for the limited purpose of
allowing Ms. Moore to attach the registration agreement to her
amended complaint.
The registration agreement states, "By clicking 'Submit
Changes' below, I am entering a legal, binding contract with USF and
I hereby acknowledge that I have read and understand the terms
and conditions of this registration agreement." (Emphasis added.)
Based on the clear language of the registration agreement, Ms.
Moore entered into a legal, binding contract with USF.
USF argued at the hearing on its motion to dismiss that, even
assuming the registration agreement is an express written contract,
it does not set forth a promise by USF to provide any specific
services in exchange for student fees. Therefore, it contends, Ms.
Moore cannot establish that USF breached a provision of the
1 At the hearing, counsel for USF stated, "I am amenable to the
Court's consideration of this document as if it was originally
attached to the complaint."
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contract. We conclude that the trial court correctly rejected this
argument at this stage of the pleadings.
First, we note that this argument was not raised in USF's
motion to dismiss. See City of Sweetwater, 314 So. 3d at 542
(holding that our jurisdictional inquiry focuses on the motion to
dismiss based on sovereign immunity, not on the challenged order).
Further, a determination regarding whether the parties' "legal,
binding contract" included a promise to provide on-campus services
in exchange for fees is more appropriate at the summary judgment
stage. Although Ms. Moore has sufficiently pleaded the existence of
a contract, this is not necessarily "a typical contract situation where
there is an express document with delineated terms that a plaintiff
can reference." Gibson v. Lynn Univ., Inc., 504 F. Supp. 3d 1335,
1340 (S.D. Fla. 2020) (quoting Salerno v. Fla. S. Coll., 488 F. Supp.
3d 1211, 1218 (M.D. Fla. 2020)). As noted above, the registration
agreement states, "By clicking 'Submit Changes' below, I am
entering a legal, binding contract with USF and I hereby
acknowledge that I have read and understand the terms and
conditions of this registration agreement." The agreement further
states that Ms. Moore is responsible for knowing all registration
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policies. Therefore, the "terms and conditions" of the registration
agreement along with any associated registration policies must be
examined to determine whether they contain a promise by USF to
provide any specific services in exchange for the fees it charged
students. Additionally, Ms. Moore agreed to "USF policies" when
she clicked "Submit Changes" on the website and, therefore, USF
policies must be examined to determine if USF promised to provide
any specific services in exchange for student fees.2
Although USF argues in its brief that the "Registration
Agreement and the USF policies make no promises to Moore
regarding any specific services in return for her payment of student
fees," USF's policies are not included in USF's appendix and the
transcript does not reflect that the policies were provided to the trial
court.
In Zainulabeddin v. University of South Florida Board of
Trustees, No. 8:16-cv-637-T-30TGW, 2016 WL 1451726 (M.D. Fla.
Apr. 13, 2016), the court denied USF's motion to dismiss based on
2 Ms. Moore was also required to agree to pay the attorney's
fees of USF in the event she defaulted on her payment.
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sovereign immunity where USF argued that the student could not
identify a valid written contract, but only a student handbook,
which generally does not, standing alone, constitute a written
contract. The court held that at this stage of the proceeding, the
plaintiff was not required to identify a written contract, but instead
was merely required to allege one. Id.; cf. Rhodes v. Embry-Riddle
Aeronautical Univ., Inc., 513 F. Supp. 3d 1350, 1357 (M.D. Fla.
2021) (noting in breach of contract action against a private
university, courts have recognized "the proposition that a student
handbook or publication can create contractual obligations on the
part of [the] university that are not necessarily limited to the
'service' of providing a college degree." Id. (alteration in original)
(quoting Orzechowitz v. Nova Se. Univ., No. 13–62217–CIV, 2014 WL
1329890, at *3 (S.D. Fla. 2014))).
"[T]o prevail on a claim of breach of contract, a party
must establish (1) a valid contract between the parties;
(2) an obligation or duty arising out of the contract; (3) a
breach of that duty; and (4) damages caused by breach."
Mawakana v. Bd. of Trs. of Univ. of D.C., 926 F.3d 859,
869 (D.C. Cir. 2019) (quoting Tsintolas Realty Co. v.
Mendez, 984 A.2d 181, 187 (D.C. 2009)).
...
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"[T]he relationship between a university and its
students is contractual in nature." Basch v. George
Washington Univ., 370 A.2d 1364, 1366 (D.C. 1977) (per
curiam). "[T]he terms set down in a university's bulletin
become a part of that contract," but "the mere fact that
the bulletin contain[s] language" on a topic "is not
enough to support a finding that the language amounted
to a contractual obligation." Id. at 1366-67 (citations
omitted). "Whether a given section of the bulletin also
becomes part of the contractual obligations between the
students and the university . . . depend[s] upon general
principles of contract construction." Id. at 1367. Other
university publications can also constitute a part of the
contract between a university and its students. See, e.g.,
Pride v. Howard Univ., 384 A.2d 31, 34 (D.C. 1978)
(accepting parties' assumption that the Code of Conduct
printed in the student manual constituted a part of the
contract between the university and its students).
In cases "raising the construction of a student-
university contract," " 'the document itself must be
viewed as a whole' and 'the court should view the
language of the document as would a reasonable person
in the position of the parties.' " Id. (quoting Basch, 370
A.2d at 1367).
Shaffer v. George Washington Univ., 27 F.4th 754, 762-63 (D.C. Cir.
2022) (alterations in original).3
IV. Conclusion
3 In Shaffer, the court noted that there must be "language
indicating that the provision of in-person education and on-campus
services was an explicit term of the parties' agreements." 27 F.4th
at 763.
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We affirm the trial court order denying USF's motion to
dismiss based on the defense of sovereign immunity without
prejudice to USF's right to assert the defense in a motion for
summary judgment.
Affirmed.
VILLANTI and LABRIT, JJ., Concur.
Opinion subject to revision prior to official publication.
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