Third District Court of Appeal
State of Florida
Opinion filed May 17, 2023.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-0072
Lower Tribunal No. 21-9869
________________
Florida International University Board of Trustees,
Appellant,
vs.
Rebecca Alexandre, etc., et al.,
Appellees.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, William Thomas, Judge.
Isicoff Ragatz, and Eric D. Isicoff, Teresa Ragatz and Matthew L.
Lines, for appellant.
The Moskowitz Law Firm, PLLC, and Adam M. Moskowitz and Howard
M. Bushman and Adam A. Schwartzbaum and Barbara C. Lewis, for
appellees.
Before LOGUE, MILLER and BOKOR, JJ.
BOKOR, J.
Rebecca Alexandre and Sarah Fagundez, individually and on behalf
of a putative class (collectively referred to as “Alexandre”), sued the Florida
International University Board of Trustees (“FIU”) for breach of contract
based on monies paid and services not provided during state-mandated
COVID-19 campus closures throughout the 2020 school year. Alexandre
sought class certification for such claims. FIU sought dismissal, claiming
sovereign immunity, and opposed class certification. The trial court denied
FIU’s motion to dismiss and certified the class. FIU appeals. To overcome
sovereign immunity, a breach of contract claim must rely on an express,
written contract. Because, as explained below, Alexandre alleges no such
express, written contract, we reverse. 1
FACTS AND PROCEDURAL HISTORY
In March 2020, the Florida Department of Education temporarily closed
all Florida colleges and universities due to the COVID-19 novel coronavirus
pandemic. 2 Accordingly, FIU established mandatory distance learning
1
FIU alternatively argues that the complaint was defective under section
768.38, Florida Statutes, which imposes additional pleading requirements for
certain civil suits against governmental and educational institutions arising
from COVID-19 related claims. FIU also asserts that the plaintiffs failed to
properly exhaust their administrative remedies before bringing the suit.
Because the sovereign immunity issue resolves this appeal, we decline to
address other arguments presented.
2
See Fla. Dep't of Educ., Florida Department of Education Announces
Guidance for 2019-20 School Year (Mar. 17, 2020),
2
protocols during the Spring, Summer, and Fall 2020 semesters, rendering
most in-person and on-campus services and facilities unavailable or
substantially limited during the closures.
Alexandre, individually and on behalf of a putative class of current and
former FIU students enrolled in FIU during the relevant semesters, sued for
breach of contract and unjust enrichment on the grounds that FIU failed to
provide them with any benefit from their continued payment of certain
mandatory health, athletics, transportation, and student activity fees during
the campus closures. In support of their breach of contract claims,
Alexandre proffered charging statements confirming payment of the
mandatory fees along with other documents attached to the operative
complaint. Alexandre asserted that these documents, in conjunction with the
statutes authorizing the fees and other as-yet undiscovered documents that
“likely” exist, constituted an express contract requiring FIU to provide specific
services in exchange for payment of the student fees.
FIU moved to dismiss, arguing in pertinent part that the operative
complaint failed to allege an express, written contract sufficient to waive
FIU’s sovereign immunity. The trial court granted dismissal of the unjust
https://www.fldoe.org/newsroom/latest-news/florida-department-of-
education-announces-additional-guidance-for-the-2019-20-school-
year.stml.
3
enrichment claim but denied dismissal as to the breach of contract claim,
finding that, through the combination of invoices, clickwrap, portions of the
student handbook, and statutes, Alexandre established the existence of an
express, written contract to provide the specified services in exchange for
the fees. In addition to the receipts of payment, the trial court relied in part
on additional documents provided by FIU as responsive discovery following
the denial of its motion for protective order, including the student handbook,
student enrollment agreements, and consent agreements incorporating the
terms of FIU’s policies. FIU now appeals.3
ANALYSIS
“We review the trial court’s determination regarding sovereign
immunity, a question of law, de novo.” Dist. Bd. of Trs. of Miami-Dade Coll.
v. Verdini,
339 So. 3d 413, 417 (Fla. 3d DCA 2022). In considering a motion
to dismiss, the trial court is bound by the “four corners rule” to consider only
the evidence alleged in the complaint and its incorporated attachments,
construed in the light most favorable to the non-moving party. See id.; Rolle
v. Cold Stone Creamery, Inc.,
212 So. 3d 1073, 1076 (Fla. 3d DCA 2017).
3
FIU also appeals the trial court’s grant of class certification, rendered in the
same order that denied FIU’s motion to dismiss the breach of contract clam
based on sovereign immunity and other grounds. Because this opinion
removes the predicate for the class certification, we also vacate the class
certification order.
4
“A motion to dismiss is designed to test the legal sufficiency of the complaint,
not to determine factual issues . . . .” The Fla. Bar v. Greene,
926 So. 2d
1195, 1199 (Fla. 2006); see also Howard v. Greenwich Ins. Co.,
307 So. 3d
844, 848 (Fla. 3d DCA 2020) (“This court has followed the general rule that
a court may not look beyond a complaint and its attachments . . . when ruling
on a motion to dismiss.”); Llanso v. WNF Law, P.L.,
306 So. 3d 221, 223
(Fla. 3d DCA 2020) (reversing dismissal because “the trial court considered
matters that were outside the four corners of Llanso’s complaint”).
Sovereign immunity shields state entities, such as public universities,
from liability except where expressly authorized by law. See, e.g., Am. Home
Assurance Co. v. Nat’l R.R. Passenger Corp.,
908 So. 2d 459, 471 (Fla.
2005). Typically, any waiver of sovereign immunity must be “clear and
unequivocal.” Rabideau v. State,
409 So. 2d 1045, 1046 (Fla. 1982); see
also Pan-Am Tobacco Corp. v. Dep’t of Corr.,
471 So. 2d 4, 5 (Fla. 1984)
(“[S]overeign immunity is the rule, rather than the exception . . . .”).
However, in explaining the broad scope of sovereign immunity, the Florida
Supreme Court articulated a common law exception predicated on the fact
that state entities often contract, like any other entity, and such contractual
activity occurs outside the state entity’s governmental role:
Where the legislature has, by general law, authorized entities of
the state to enter into contract or to undertake those activities
5
which, as a matter of practicality, require entering into contract,
the legislature has clearly intended that such contracts be valid
and binding on both parties. As a matter of law, the state must
be obligated to the private citizen or the legislative authorization
for such action is void and meaningless. We therefore hold 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.
Pan-Am,
471 So. 2d at 5. This exception, however, applies only to the state’s
breach of an “express, written contract,” as opposed to an implied contract.
Id. at 6; see also Verdini, 339 So. 3d at 418 (“It is firmly established that a
sovereign may be sued in contract only where there is an express, written
contract.”); County of Brevard v. Miorelli Eng’g, Inc.,
703 So. 2d 1049, 1051
(Fla. 1997) (approving of Fourth District decision interpreting Pan-Am to
apply only to breaches of express contracts and express or implied
conditions of those express contracts); City of Miami Firefighters’ & Police
Officers’ Ret. Tr. & Plan v. Castro,
279 So. 3d 803, 806 (Fla. 3d DCA 2019)
(“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.”).
This court recently addressed the application of sovereign immunity to
a student’s claim for breach of a contract based on a failure to provide on-
campus and in-person services and facilities during the pandemic closures.
6
See Verdini, 339 So. 3d at 415. The plaintiff in Verdini alleged that the
purported express contract could be derived from student invoices and
financial obligation agreements listing the relevant fees, as well as the
incorporated enabling statutes and other unspecified and undiscovered
documents. Id. at 416. In reversing the trial court’s denial of the college’s
motion to dismiss, this court explained that Verdini failed to provide an
express, written contract to provide services, as none of the documents
relied on by Verdini contained express terms to provide a specific service in
exchange for payment. Id. at 418. The court emphasized that “any
documents Verdini relies on to establish an express contract must be
incorporated or attached to the complaint,” specifically rejecting the notion
that the case could proceed to discovery “when a complaint merely alleges
the possible existence of an unidentified contract that may or may not be
another’s possession.” Id. at 420–21 (citing Fla. R. Civ. P. 1.130(a), which
requires “contracts . . . on which action may be brought or defense made” to
be “incorporated in or attached to the pleading”).
Here, Alexandre argues that Verdini does not control because of
different enabling statutes for state universities versus state colleges, as well
as different attachments to the respective complaints. But the same fatal
flaw presents itself here as in Verdini. “While a student’s relationship with
7
his university is contractual in nature, it is an implied contract and not an
express, written contract.” Williams v. Fla. State Univ., No. 4:11-cv-350-
MW/CAS,
2014 WL 340562, at *6 (N.D. Fla. Jan. 29, 2014) (applying Florida
law); see also Rhodes v. Embry-Riddle Aeronautical Univ., Inc.,
513 F. Supp.
3d 1350, 1357 (M.D. Fla. 2021) (“The terms of a student’s contract with the
university may be derived from university publications such as the student
handbook and catalog. Such publications are terms of an implied-in-fact
contract rather than an express contract.” (quotations and citations omitted)).
As with Verdini, the operative complaint here incorporates no documents
containing express terms requiring FIU to provide on-campus or in-person
services as an exchange for the fees. The student charging statements
contain itemized lists of paid charges, but no express terms. And while we
agree that any statement of fees incorporates section 1009.24(14), Florida
Statutes (authorizing the fees at issue), 4 the statute makes no provision for
what specific services must be provided, providing only that the fees “shall
be based on reasonable costs of services.” Therefore, section 1009.24(14),
4
See, e.g., Von Hoffman v. City of Quincy,
71 U.S. 535, 550 (1866) (“It is
also settled that the laws which subsist at the time and place of the making
of a contract, and where it is to be performed, enter into and form a part of
it, as if they were expressly referred to or incorporated in its terms.”).
8
alone or in conjunction with the documents relied upon, can’t be the basis
for the express contractual term necessary to defeat sovereign immunity.
In conjunction with the statute and statements of charges, the trial court
also based its denial of sovereign immunity on the additional documents
disclosed during discovery, which included mandatory financial obligation
agreements signed by each student that incorporate FIU’s academic policies
and regulations. These documents require students to pay applicable tuition
and fees as a condition of enrollment, but they lack any express term
requiring FIU to provide the specific on-campus and in-person services
claimed by Alexandre in exchange for the fees. 5
5
Moreover, these documents were not incorporated into the operative
complaint except through a vague reference to the putative contracts “likely
consist[ing] of other documents.” Thus, for purposes of the motion to
dismiss, the court could not take judicial notice of these documents absent a
stipulation from the parties. See Verdini, 339 So. 3d at 421 (“Verdini is not
entitled to discovery simply for alleging the possible existence of unspecified
documents.”); Schneiderman v. Baer,
334 So. 3d 326, 330 (Fla. 4th DCA
2022) (“Unless the parties have stipulated to judicial notice, a court cannot
rely on judicial notice to sidestep the four corners rule.”); cf. Lam v. Univision
Commc’ns, Inc.,
329 So. 3d 190, 198 n.9 (Fla. 3d DCA 2021) (explaining that
information outside the four corners of the complaint could be considered by
the trial court in ruling on a motion to dismiss where the “parties stipulated
the trial court could consider it in deciding the motion to dismiss”). However,
assuming for sake of argument that the trial court could rely on such
documents, the analysis doesn’t change as they fail to create an express
contract.
9
Our analysis, constrained by the record before us, this court’s binding
precedent in Verdini, and the requirement of an express, written contract to
waive sovereign immunity, aligns with the First District’s conclusion in
University of Florida Board of Trustees v. Rojas,
351 So. 3d 1167 (Fla. 1st
DCA 2022).6 Rojas reversed a denial of sovereign immunity in a similar
situation where the student’s claim of an express contract was supported
only by tuition statements and financial liability agreements containing no
“language obligating the University to provide any specific service at any
specific time.” 351 So. 3d at 1171. In reviewing the documents relied on by
Alexandre, we are persuaded by the logic of the First District (echoed
6
The Second District upheld a denial of sovereign immunity at the motion to
dismiss phase in University of South Florida Board of Trustees v. Moore,
347
So. 3d 545 (Fla. 2d DCA 2022). However, Moore proffered documents that
the Second District considered a potential express contract, including
student registration agreements expressly stating that the student was
“entering a legal, binding contract with USF” and incorporating university
publications and registration policies that could include express promises to
provide specific services in exchange for the payment of tuition.
Id. at 549–
50.
We take issue with the apparent sovereign immunity burden shifting imposed
in Moore,
id. at 550 (noting that the university hadn’t definitively
demonstrated that it made “no promises to Moore regarding any specific
services in return for her payment of student fees”), as the burden to show a
prima facie waiver of sovereign immunity by existence of an express written
contract falls on the plaintiff asserting the claim. But we decline to certify
conflict because Moore arguably relies on specific—and different—
documents to determine if an express, written contract exists.
10
recently by the Fourth District in Heine v. Florida Atlantic University Board of
Trustees, No. 4D22-15,
2023 WL 3083155 (Fla. 4th DCA Apr. 26, 2023)).
Specifically, the “hodge-podge of documents” relied upon by Alexandre
didn’t “obligate the University to a refund of fees when any such services are
paused, limited or outright cancelled,” and such documents fail to establish
“an express written contract expressly addressing the University’s obligation
to provide such on-campus services.” Rojas, 351 So. 3d at 1171.
We are mindful of the myriad ways in which the COVID-19 virus
negatively impacted our society, and the difficult choices individuals,
businesses, and governments were forced to make. But our task here
consists only of determining if the documents presented by Alexandre
evinced an express, written contract obligating FIU to provide specific
services or access to campus in a specific time, manner, or place.
Reviewing the record, constrained by statute and binding precedent, we
conclude that Alexandre failed to meet her burden to show an express,
written contract overcoming the general rule of sovereign immunity for
governmental entities.
CONCLUSION
Because the operative complaint fails to incorporate any document or
writing containing an express promise for FIU either to provide the claimed
11
services or waive the fees during state-mandated emergency closures, we
vacate class certification and reverse and remand for entry of an order of
dismissal. We also certify the following question of great public importance
to the Florida Supreme Court, modified from the question presented by the
First District in Rojas and the Fourth District in Heine:
WHETHER SOVEREIGN IMMUNITY BARS A BREACH OF
CONTRACT CLAIM AGAINST A STATE UNIVERSITY BASED
ON THE UNIVERSITY’S FAILURE TO PROVIDE ITS
STUDENTS WITH ACCESS TO ON CAMPUS SERVICES AND
FACILITIES, NOTWITHSTANDING THE ABSENCE OF AN
EXPRESS, WRITTEN CONTRACT TO PROVIDE SUCH
SERVICES AND FACILITIES IN A SPECIFIC TIME, MANNER,
OR PLACE?
Reversed and remanded.
12
