Tania Almagro v. School Board of Miami-Dade County

Third District Court of Appeal

State of Florida

Opinion filed July 23, 2025.

Not final until disposition of timely filed motion for rehearing.

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No. 3D24-1463

Lower Tribunal No. 21-24443-CA-01

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Tania Almagro, et al.,

Appellants,

vs.

School Board of Miami-Dade County,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Daryl E.

Trawick, Judge.

Thomas E. Elfers; Craig J. Freger (Pembroke Pines), for appellants.

Bryant Miller Olive P.A., and David C. Miller, Frederick J. Springer and

Elizabeth W. Neiberger, for appellee.

Before SCALES, C.J., and EMAS1, and GOODEN, JJ.

SCALES, C.J.

1

Did not participate in Oral Argument.

Appellants Tania Almagro, et al.2 sought damages and mandamus

relief after appellee School Board of Miami-Dade County failed to adopt a

grandfathered salary schedule for teachers prior to July 1, 2014, as required

by section 1012.22(1)(c)4. of the Florida Statutes (2024). On July 24, 2024,

the trial court granted summary judgment in favor of the School Board on

several grounds, including Appellants’ lack of standing.

We agree with the trial court that, without specific statutory

authorization to pursue a private cause of action for violation of the statute,

Appellants lacked the requisite standing to enforce the statute via a lawsuit

against the School Board. In other words, no express language in section

1012.22 confers upon teachers a private right of action. See Moon-Vileno v.

Fla. Ass’n of Court Clerks, Inc., 383 So. 3d 128, 131 (Fla. 1st DCA 2024)

(“The Legislature has not provided a cause of action in the statute to afford

Appellants a judicial remedy in this case.”); Am. Towing of Miami, LLC v.

Espinal, 318 So. 3d 598, 601 (Fla. 3d DCA 2021) (“[W]e . . . discern no

legislative intent to create a private cause of action from the actual language

used in the statute[.]”). Nor do we discern from the legislative intent of section

1012.22 that a private right of action may be judicially implied. QBE Ins. Corp.

2

Appellants are composed of twenty-seven Miami-Dade County school

teachers.

2

v. Chalfonte Condo. Apartment Ass’n, 94 So. 3d 541, 550-51 (Fla. 2012).

Because section 1012.22 does not supplant collective bargaining between a

school board and a teachers union, we cannot infer that it provides teachers

a private cause of action related to their annual compensation.3

We therefore affirm the trial court’s summary judgment in favor of the

School Board.

Affirmed.

3

The existence of the teachers’ individual annual contracts, which

“incorporates all applicable laws” (presumably including section 1012.22),

does not change our standing analysis when the basis of Appellants’ lawsuit

is breach of the statute.

3

Tania Almagro, et al. v. School Board of Miami-Dade County

Case No. 3D24-1463

GOODEN, J. (specially concurring)

I fully concur in the majority’s opinion as no express or implied private

right of action exists. In addition to lack of standing, the trial court also

correctly found that this action was barred by sovereign immunity. I write

separately to address the Florida Constitution and the Florida Supreme

Court’s decision creating a waiver of sovereign immunity for contracts.

“Sovereign immunity is the privilege of the sovereign not to be sued

without its consent.” Va. Office for Prot. & Advoc. v. Stewart, 563 U.S. 247,

253 (2011). It is based “on the logical and practical ground that there can be

no legal right as against the authority that makes the law on which the right

depends.” Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907). “The

preeminent purpose of state sovereign immunity is to accord States the

dignity that is consistent with their status as sovereign entities.” Fed. Mar.

Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 760 (2002).

The doctrine of sovereign immunity “has been a fundamental tenet of

Anglo-American jurisprudence for centuries.” Am. Home Assurance Co. v.

Nat’l R.R. Passenger Corp., 908 So. 2d 459, 471 (Fla. 2005). It was well-

entrenched in the common law of England. See 1 William Blackstone,

Commentaries on the Laws of England 235–37 (1st ed. 1765); id. at 246

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(“Besides the attribute of sovereignty, the law also ascribes to the king, in his

political capacity, absolute perfection. The king can do no wrong.”). Since at

least the reign of King Edward I, the Crown has not been subject to suit

unless it expressly consented. See generally United States v. Lee, 106 U.S.

196, 205 (1882); Ludwik Ehrlich, Proceedings Against the Crown (1216-

1377), Oxford Studies in Social and Legal History, Vol 6, no. 12 (Paul

Vinogradoff ed., 1921); Louis L. Jaffe, Suits Against Governments and

Officers: Sovereign Immunity, 77 Harv. L. Rev. 1, 2 (1963) (“By the time of

Bracton (1268) it was settled doctrine that the King could not be sued eo

nomine in his own courts.”).

These broad principles were ever present in the founding of our great

country. In The Federalist No. 81, Alexander Hamilton wrote,

It is inherent in the nature of sovereignty not to be amenable to

the suit of an individual WITHOUT ITS CONSENT. This is the

general sense, and the general practice of mankind; and the

exemption, as one of the attributes of sovereignty, is now

enjoyed by the government of every State in the Union. Unless,

therefore, there is a surrender of this immunity in the plan of the

convention, it will remain with the States, and the danger

intimated must be merely ideal. The circumstances which are

necessary to produce an alienation of State sovereignty . . . flows

from the obligations of good faith. The contracts between a

nation and individuals are only binding on the conscience of the

sovereign, and have no pretensions to a compulsive force. They

confer no right of action, independent of the sovereign will.

5

The Federalist No. 81 (Alexander Hamilton). See also The Federalist No. 32

(Alexander Hamilton) (“But as the plan of the convention aims only at a

partial union or consolidation, the State governments would clearly retain all

the rights of sovereignty which they before had . . . .”); The Federalist No. 39

(James Madison) (explaining states retain “a residuary and inviolable

sovereignty”); Federal Farmer No. 3 (Oct. 10, 1787) (“[T]he states are now

subject to no such actions[.]”); Brutus No. 13 (Feb. 21, 1788) (“It is improper,

because it subjects a state to answer in a court of law, to the suit of an

individual. . . . The states are now subject to no such actions. All contracts

entered into by individuals with states, were made upon the faith and credit

of the states; and the individuals never had in contemplation any compulsory

mode of obliging the government to fulfil its engagements.”); 3 Debates on

the Federal Constitution 533 (J. Elliot ed., 1854) (noting James Madison

maintained “[i]t is not in the power of individuals to call any state into court”);

id. at 555 (observing John Marshall stated it was “not rational to suppose that

the sovereign power should be dragged before a court”). Our Founding

Fathers “regarded sovereign immunity as jurisdictional.” Mowrer v. U.S.

Dep’t of Transp., 14 F.4th 723, 741 (D.C. Cir. 2021) (Katsas, J., concurring).

During this Founding era, the states adopted the common law of

England as their own—through their constitutions, statutes, or judicial

6

opinions. See Bryan A. Garner, et al., The Law of Judicial Precedent 737–

38 (2016). See, e.g., Art. 25, Del. Const. (1776) (“The common law of

England, as-well as so much of the statute law as has been heretofore

adopted in practice in this state, shall remain in force, unless they shall be

altered by a future law of the Legislature[.]”); Art. XXXV, N.Y. Const. (1777)

(“And this convention doth further, in the name and by the authority of the

good people of this State, ordain, determine, and declare that such parts of

the common law of England, and of the statute law of England and Great

Britain, and of the acts of the legislature of the colony of New York, as

together did form the law of the said colony on the 19th day of April, in the

year of our Lord one thousand seven hundred and seventy-five, shall be and

continue the law of this State, subject to such alterations and provisions as

the legislature of this State shall, from time to time, make concerning the

same.”); Art. XXII, N.J. Const. (1776) (“[T]he common law of England, as well

as so much of the statute law, as have been heretofore practiced in this

Colony, shall still remain in force, until they shall be altered by a future law .

. . .”); Va., Ordinances of Convention ch. V, § I, VI (1776) (“[The] common

law of England, [and] all statutes or acts of Parliament made in aid of the

common law prior to the fourth year of the reign of King James the first . . .

shall be the rule of decision, and shall be considered as in full force, until the

7

same shall be altered by the legislative power of this colony.”); Acts of the

N.C. Gen. Assembly, 1778, ch. 5, § II, 24 N.C. Sess. Laws 162 (“[A]ll such .

. . Parts of the Common Law, as were heretofore in Force and Use within

this Territory . . . are hereby declared to be in full Force within this State.”);

Fitch v. Brainerd, 2 Day 163 (Conn. 1805). Indeed, the English common

law—including the doctrine of sovereign immunity—was adopted by the

Territory of Florida in 1822. Fla. Terr. Acts 1822, p. 50. See also Fla. Terr.

Acts 1823, p. 111; § 2.01, Fla. Stat. (1829); Am. Home Assurrance Co., 908

So. 2d at 471(“The doctrine was a part of the English common law when the

State of Florida was founded and has been adopted and codified by the

Florida Legislature.”).

The citizens of our great State believed the doctrine to be so important

that they enshrined it into our 1868 Constitution. It provided: “Provision may

be made by general law for bringing suit against the State as to all liabilities

now existing or hereafter originating.” Art. IV, § 19, Fla. Const. (1868); see

also Art. III, § 22, Fla. Const. (1885). This exact provision is still in our

Constitution today. Art. X, § 13, Fla. Const. (1968). Its plain text only allows

waiver “by general law,” which is law that “operates universally throughout

the state, or uniformly upon subjects as they may exist throughout the state,

or uniformly within permissible classifications by population of counties or

8

otherwise, or is a law relating to a state function or instrumentality.” State ex

rel. Landis v. Harris, 163 So. 237, 240 (Fla. 1934). See, e.g., Ch. 73-313, §

1, Laws of Fla. (1973) (currently § 768.28, Fla. Stat. (2011)) (general law

waiving of sovereign immunity in tort for personal injury, wrongful death, and

loss of property); Ch. 67-2204, § 1, Laws of Fla. (1967) (currently § 768.14,

Fla. Stat.) (general law waiving sovereign immunity where state files suit in

tort).

In 1888, the Florida Supreme Court first addressed the doctrine of

sovereign immunity. In McWhorter v. Pensacola & A.R. Co., 5 So. 129 (Fla.

1888), the Court analyzed whether the suit was one against the State. “If it

is, it is well understood that it cannot be sustained, unless by consent of the

state.” Id. at 131. The Court explained,

[T]he rule which forbids a suit against officers, because in effect

a suit against the state, applies only where the interest of the

state is through some contract or some property right of hers, or

where her interest is in a suit brought or threatened by her

officers in her own name to enforce some alleged claim of hers.

And it is important to observe the character of the interest. It is

not enough that the state should have a mere interest in the

vindication of her laws, or in their enforcement as affecting the

public at large, or as they affect the rights of individuals or

corporations, but it must be an interest of value to herself as a

distinct entity,—of value in a material sense. She has an interest

in the success of the policy of her laws, and in the just

administration and execution of those laws, yet it is not an

interest on which she can be said to be a party affected by any

private suit arising under them, when it is not another and more

9

direct interest inhering in some separate right or claim of right of

her own.

Id. at 133.

For almost a century, the Florida Supreme Court consistently

construed this provision as providing immunity for contracts of the State. See

Bloxham v. Fla. Cent. & Peninsular R.R. Co., 17 So. 902, 919 (Fla. 1895)

(“No such [general law] provision having been made by the legislature, the

section quoted is inoperative to change the general principles upon which

we hold that the state is not liable to be sued.”); Hampton v. State Bd. of

Educ., 105 So. 323, 327 (Fla. 1925) (“The immunity of the state from suit

applies where a contract or property interest of the state is involved.”); S.

Drainage Dist. v. State, 112 So. 561, 563 (Fla. 1927); State ex rel. Davis v.

Love, 126 So. 374, 375 (Fla. 1930); Gay v. S. Builders, Inc., 66 So. 2d 499,

501 (Fla. 1953) (“[W]ere the State a private corporation suit on the contract

would be the proper remedy of the contractor. But the State enjoys immunity

from suit as one of the attributes of sovereignty.”).

Despite the plain language of the Constitution, almost a century of

precedent, and no general law enacted by the Legislature expressly waiving

immunity for contracts, the Florida Supreme Court abruptly changed course

in 1984. But see In re Advisory Op. to the Governor, 112 So. 2d 843, 847

(Fla. 1959) (“[T]he construction of an old Constitution still applies to a new

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Constitution if the wording is the same. . . .”); Barndollar v. Sunset Realty

Corp., 379 So. 2d 1278, 1280 n.1 (Fla. 1979); State v. Miami Beach

Redevelopment Agency, 392 So. 2d 875, 885 (Fla. 1980) (“Decisions

construing predecessor provisions of the constitution having the same import

as current provisions are sources of authority for the construction of the

successor provisions.”); Israel v. DeSantis, 269 So. 3d 491, 495 (Fla. 2019)

(“Where the language of the Constitution is clear, unambiguous, and

addresses the matter in issue, then it must be enforced as written, as the

constitutional language must be allowed to speak for itself.”) (citation

modified).

In Pan-Am Tobacco Corp. v. Dep’t of Corrections, 471 So. 2d 4 (Fla.

1984), the Florida Supreme Court first recognized that a party can sue the

State for a breach of contract. As the Court explained, the Legislature, while

it explicitly waived sovereign immunity in tort, has not done so in contract.

Id. at 5. The Court turned to laws which allowed the State to enter a contract

and noted that a contract that is not mutually enforceable is illusory. Id. It

reasoned that a party must be able to sue the State to enforce those

contracts. Id. The Court, however, limited this judicially made waiver to only

express, written contracts. Id. at 6. See generally Univ. of Fla. Bd. of Trs. v.

Rojas, 351 So. 3d 1167, 1170 (Fla. 1st DCA 2022), quashed, No. SC2023-

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0126, 2025 WL 1969959 (Fla. July 17, 2025) (“The second exception is of

judicial creation. . . .”); City of Fort Lauderdale v. Israel, 178 So. 3d 444, 446

(Fla. 4th DCA 2015) (“There are no statutory provisions for sovereign

immunity, or its waiver, with regard to contracts. That issue has fallen instead

to the courts to address.”).

But this decision strays from the original public meaning of the

Constitution at the time it was ratified. Planned Parenthood of Sw. & Cent.

Fla. v. State, 384 So. 3d 67, 77 (Fla. 2024). The Great Dissenter—Justice

John Marshall Harlan—aptly observed:

The preservation of the dignity and sovereignty of the states,

within the limits of their constitutional powers, is of the last

importance, and vital to the preservation of our system of

government. The courts should not permit themselves to be

driven by the hardships, real or supposed, of particular cases, to

accomplish results, even if they be just results, in a mode

forbidden by the fundamental law. The country should never be

allowed to think that the Constitution can, in any case, be evaded

or amended by mere judicial interpretation, or that its behests

may be nullified by an ingenious construction of its provisions.

Ex parte Young, 209 U.S. 123, 182–83 (1908) (Harlan, J., dissenting). See

also Marbury v. Madison, 5 U.S. 137, 174 (1803) (“It cannot be presumed

that any clause in the constitution is intended to be without effect.”); George

Washington, Washington's Farewell Address to the People of the United

States (Sept. 19, 1796) (“If, in the opinion of the people, the distribution or

modification of the constitutional powers be in any particular wrong, let it be

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corrected by an amendment in the way which the Constitution designates.

But let there be no change by usurpation; for, though this, in one instance,

may be the instrument of good, it is the customary weapon by which free

governments are destroyed.”).

Because the Florida Supreme Court’s decision in Pan-Am Tobacco

Corp. is not true to our Constitution’s text, it should be reexamined. We

should strive to return our State to the original meaning of our Constitution

as it was ratified by the people. Planned Parenthood of Sw. & Cent. Florida,

384 So. 3d at 77. While allowing suits to enforce contracts may be good

policy, it is not the Court’s role to judicially create this exception, overriding

the express will of the people. See Gray v. Bryant, 125 So. 2d 846, 852 (Fla.

1960) (explaining the constitution “must never be construed in such manner

as to make it possible for the will of the people to be frustrated or denied.”).

The judiciary is not a policy-maker—that is the Legislature’s job. See Gessa

v. Manor Care of Fla., Inc., 86 So. 3d 484, 499 (Fla. 2011) (Polston, J.,

dissenting) (“The Florida Legislature, not this Court, should decide Florida’s

public policy.”). The Legislature holds the authority to enact general law in

those situations in which it wishes to waive sovereign immunity. To allow

otherwise violates the express separation of powers set forth in our

Constitution. See Art. II, § 3, Fla. Const. (1968).

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