DISTRICT BOARD OF TRUSTEES OF MIAMI DADE COLLEGE v. FERNANDO VERDINI

Third District Court of Appeal

State of Florida

Opinion filed April 13, 2022.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-0470

Lower Tribunal No. 20-17924

________________

District Board of Trustees of Miami Dade College,

Appellant,

vs.

Fernando Verdini,

Appellee.

An Appeal from a non-final order from the Circuit Court for Miami-Dade

County, William Thomas, Judge.

Kozyak Tropin & Throckmorton LLP, and Javier A. Lopez, Dwayne A.

Robinson, Michael R. Lorigas, and Eric S. Kay; Javier A. Ley-Soto, General

Counsel, for appellant.

The Moskowitz Law Firm, PLLC, and Adam Moskowitz, Howard M.

Bushman, and Adam A. Schwartzbaum, for appellee.

Boyd & Jenerette, P.A., and Kansas R. Gooden; Sniffen & Spellman,

P.A., and Robert J. Sniffen and Jeffrey D. Slanker (Tallahassee), for the

Florida Defense Lawyers Association, as amicus curiae.

Matthew H. Mears (Tallahassee); Eversheds Sutherland (US) LLP,

and Rocco E. Testani and Stacey M. Mohr (Atlanta, GA); Isicoff Ragatz, and

Eric D. Isicoff; Lacey D. Hofmeyer (Fort Lauderdale); B. Shannon Saunders,

P.A., and B. Shannon Saunders (Marianna); Brian Babb (Daytona Beach);

Carl J. Coleman (Fort Myers); Gilligan, Gooding, Batsel, Anderson & Phelan,

P.A., and Robert W. Batsel, Jr. (Ocala); Michael A. Richey (Melbourne);

Romualdo C. Marquinez, Jr. (Jacksonville); Derrick Bennett, P.A., and

Derrick Bennett (Panama City Beach); Neill Griffin Marquis, PLLC, and

Richard V. Neill, Jr. (Fort Pierce); Sniffen & Spellman, P.A., and Robert J.

Sniffen (Tallahassee); Martha Kaye Koehler (Tampa); Law Office of Anita

Geraci-Carver, P.A., and Anita Geraci-Carver (Clermont); Hand Arendale

Harrison Sale, and Hayward Dykes, Jr. (Destin); Kevin Fernander (Lake

Worth); Boswell & Dunlap, LLP, and Donald H. Wilson (Bartow); J. Paul

Carland, II (Sanford); Thomas J. Gilliam, Jr. (Pensacola); Patti Locascio

(Gainesville); Karlson Law Group, P.A., and Pamela T. Karlson (Lake

Placid); Melissa C. Miller (Palatka); Steven W. Prouty (Bradenton); William

J. Mullowney (Orlando); Suzanne L. Gardner (St. Petersburg); Andrews,

Crabtree, Knox & Longfellow, LLP, and J. Craig Knox (Tallahassee), for the

Florida State Board of Education, the Commissioner of the Florida

Department of Education, and 36 Florida Public Colleges and Universities,

as amici curiae.

Robert B. Shillinger, Jr., Monroe County Attorney, and Cynthia L. Hall

and Peter H. Morris, Assistant County Attorneys; Steven T. Williams, City

Attorney; Vernis & Bowling of the Florida Keys, and Dirk M. Smits and

Gaelan P. Jones; Roget V. Bryan; Shawn D. Smith, Key West City Attorney,

and Nathalia Mellies, Assistant City Attorney, for Monroe County, Florida,

and the Cities of Key West, Marathon, Key Colony Beach, Layton, and the

Village of Islamorada, Florida, as amici curiae.

Holland & Knight LLP, and Frances G. De La Guardia; Miriam Soler

Ramos, City Attorney, for the City of Coral Gables, as amicus curiae.

Varnell & Warwick, P.A., and Janet R. Varnell (Tampa), for the National

Association of Consumer Advocates, as amicus curiae.

Before EMAS, LINDSEY, and GORDO, JJ.

LINDSEY, J.

2

Appellant (Defendant below) District Board of Trustees of Miami Dade

College (“MDC”) appeals from a non-final order denying its motion to dismiss

based on sovereign immunity, a doctrine that prohibits suit in the absence of

an express contract.1 Because Appellee (Plaintiff below) Fernando Verdini

has not alleged breach of an express, written contract to provide on-campus

or in-person services sufficient to overcome sovereign immunity, we reverse.

I. BACKGROUND

This is a putative class action for breach of contract stemming from the

transition from on-campus instruction to remote instruction at MDC due to

the COVID-19 pandemic. In March 2020, the Florida Department of

Education ordered all public institutions of higher learning to close in

response to the pandemic.2 MDC transitioned to remote learning during part

of the Spring 2020 semester and the entire Summer 2020 semester.

Verdini, who was enrolled as a nursing student during the Spring and

Summer 2020 semesters, filed a class action Complaint against MDC

1

This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure

9.130(a)(3)(F)(iii), which authorizes appeals from non-final orders that deny

motions asserting entitlement to sovereign immunity.

2

Fla. Dep’t of Educ., Florida Department of Education Announces Guidance

for 2019-20 School Year (Mar. 17, 2020),

http://www.fldoe.org/newsroom/latest-news/florida-department-of-

education-announces-additional-guidance-for-the-2019-20-school-

year.stml.

3

(through its Board of Trustees) alleging breach of contract.3 Verdini alleges

he paid certain mandatory fees 4 for on-campus services pursuant to express,

written contracts with MDC, and MDC breached when it failed to provide the

on-campus services for which the fees were intended. The Complaint lists

five mandatory fees, charged on a per credit hour basis:

Student Services: $8.28

Financial Aid: $4.14

Capital Improvement: $15.88

Technology: $4.14

Parking: $3.00

The Complaint alleges that the express, written contracts are

constituted by bills, invoices, and other written agreements. The Complaint

includes two exhibits: (A) Verdini’s Spring and Summer 2020 invoices and

(B) a Financial Obligation Agreement. Verdini further alleges he does not

have all the documents constituting the express contracts, but he asserts he

3

The Complaint also included a claim for unjust enrichment. The order on

appeal dismissed the unjust enrichment claim with prejudice because this

remedy only applies in the absence of an express contract, and, as the trial

court’s order correctly noted, “Florida law does not permit a waiver of

sovereign immunity based on implied contracts.” Verdini has not cross-

appealed this dismissal, so only the remaining breach of contract claim is at

issue in this appeal.

4

According to the Complaint, Verdini’s “claims relate solely to fees for on-

campus services that are not available to students with campuses effectively

shut down. Plaintiff’s claims do not concern tuition costs.”

4

should be given the opportunity to establish these unidentified documents by

way of discovery.

MDC moved to dismiss, arguing that as a public college it is protected

by sovereign immunity; therefore, Verdini is required to establish waiver by

identifying an express, written contract requiring MDC to provide on-campus

services. In response, Verdini maintained that “the Complaint attaches the

express agreement that Plaintiff entered into with MDC in which Plaintiff

agreed to pay all fees in exchange for specifically enumerated services.”

Verdini again pointed to the invoices and the Financial Obligation Agreement

attached to the Complaint. Additionally, though not alleged in the Complaint,

Verdini’s response relied heavily on the payment of laboratory fees.5

Following a virtual hearing, the lower court denied MDC’s motion to

dismiss, concluding that the invoices attached to the Complaint “sufficiently

contain the express written terms and provide the specific services MDC was

5

MDC argues that Verdini is attempting to impermissibly amend his

Complaint with new allegations based on the laboratory fees. MDC further

asserts that it refunded or waived all laboratory fees for courses that were

not held in person. In support, MDC attached the Declaration of Mercedes

Amaya, Associate Vice Provost of Student Financial Services. However, this

Declaration is the beyond the scope of our review. See Lewis v. Barnett

Bank of S. Florida, N.A., 604 So. 2d 937, 938 (Fla. 3d DCA 1992) (“The law

is well settled that a motion to dismiss a complaint is not a motion for

summary judgment in which the court may rely on facts adduced in

depositions, affidavits, or other proofs.”).

5

contractually obligated to provide in exchange for Plaintiff[’]s payment of

‘fees’ to survive a motion to dismiss.” (citing Waite Dev., Inc. v. City of Milton,

866 So. 2d 153, 155 (Fla. 1st DCA 2004) (“Several writings may constitute a

valid and binding written contract when they evidence a complete meeting of

the minds of the parties and an agreement upon the terms and conditions of

the contract.”)). MDC timely appealed. 6

6

The parties have filed numerous notices of supplemental authority involving

similar lawsuits against institutions of higher learning across the state. We

note that these cases all involve different factual allegations than the case

now before us. See Order Denying Motion to Dismiss, Moore v. The Univ.

of S. Fla. Bd. of Tr., No. 21-CA-002445 (Fla. 13th Cir. Ct. July 29, 2021);

Order Dismissing Complaint, LaFleur v. State Univ. Sys. of Fla., 8:20-CV-

1665-KKM-AAS, 2021 WL 3725243 (M.D. Fla. Aug. 23, 2021); Order

Partially Granting and Denying Motion to Dismiss, Rojas v. The Univ. of Fla.

Bd. of Trs., Case No. 01-2021-CA-1124 (Fla. 8th Cir. Ct. Oct. 15, 2021);

Order Partially Granting and Denying Motion to Dismiss, Fisher v. Polk State

Coll. Dist. Bd. of Trs., Case No. 2021-CA000922 (Fla. 10th Cir. Ct. Oct. 26,

2021); Order Denying Motion to Stay Discovery, Rivadeneira v. Univ. of S.

Fla., 8:21-CV-1925-CEH-AAS, (M.D. Fla. Oct. 21, 2021), federal claims

dismissed and state claims remanded, 2022 WL 445661 (M.D. Fla. Feb. 14,

2022); Order Denying Petition for Writ of Certiorari, Florida Int’l Univ. Bd. of

Trs. v. Alexandre, Case No. 3D21-1841 (Fla. 3d DCA Dec. 6, 2021); Order

Granting Motion to Dismiss, Heine v. Fla. Atlantic Univ. Bd. of Trs., Case No.

50-2021-CA-004008-XXXX-MB (Fla. 15th Cir. Ct. Dec. 3, 2021); Order

Denying Motion to Dismiss, Alexandre v. Fla. Int’l Univ Bd. of Trs., Case No.

2021-009869-CA-01 (Fla. 11th Cir. Ct. Dec. 30, 2021); Order Granting

Motion to Dismiss, Goldstein v. Univ. of Cent. Fla. Bd. of Trs., Case No.

2021-CA-2831-O (Fla. 9th Cir. Ct. Dec. 29, 2021); Order Granting Motion to

Dismiss, Levine v. Dist. Bd. of Trs. of Santa Fe Coll., Fla., Case No. 2021-

CA-1012 (Fla. 8th Cir. Ct. Feb. 1, 2022); Order Granting Motion to Dismiss,

Wilson v. Univ. of Cent. Fla. Bd. of Trs., Case No. 2020-CA-8194-O (Fla. 9th

Cir. Ct. Jan. 31, 2022); Order Granting Motion to Dismiss, Burke v. Dist. Bd.

of Trs. of Santa Fe Coll., Fla., Case No. 2021-CA-903 (Fla. 8th Cir. Ct. March

6

II. ANALYSIS

We review the trial court’s determination regarding sovereign

immunity, a question of law, de novo. City of Miami Firefighters’ & Police

Officers’ Ret. Tr. & Plan v. Castro, 279 So. 3d 803, 806 n.11 (Fla. 3d DCA

2019); Desantis v. Geffin, 284 So. 3d 599, 602 (Fla. 1st DCA 2019). The

issue of sovereign immunity may properly be considered on a motion to

dismiss. Charity v. Bd. of Regents of the Div. of Univs. of the Fla. Dept. of

Educ., 698 So. 2d 907, 907 (Fla. 1st DCA 1997).

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 Verdini has sufficiently alleged breach of an express, written

agreement, which is necessary to overcome sovereign immunity.

7, 2022); Order Granting Motion to Dismiss, Stready v. Fla. Agric. & Mech.

Univ. Bd. of Trs., Case No. 2021-CA-1164 (Fla. 2d Cir. Ct. March 8, 2022).

MDC also filed a notice of supplemental authority citing section 768.39,

Florida Statutes (2021), which provides educational institutions with liability

protections against lawsuits seeking tuition or fee reimbursements related to

the COVID-19 pandemic. Neither party relies on this statute, and we need

not consider its application in this case.

7

There is no dispute that MDC, a member of the Florida College

System, is protected by sovereign immunity. “In Florida, sovereign immunity

is the rule, rather than the exception . . . .” Pan-Am Tobacco Corp. v. Dep’t

of Corr., 471 So. 2d 4, 5 (Fla. 1984). “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.” City of Fort Lauderdale v. Israel, 178

So. 3d 444, 446 (Fla. 4th DCA 2015). It is firmly established that a sovereign

may be sued in contract only when there is an express, written contract.

Castro, 279 So. 3d at 806.

Verdini argues he has sufficiently alleged that MDC breached an

express, written contract to provide on-campus services in exchange for

certain mandatory fees. We need not decide whether Verdini has alleged an

express contractual relationship to provide some services because this alone

is not sufficient to survive MDC’s motion to dismiss. This is because

Verdini’s breach claim is not based on MDC’s complete failure to provide

services; it is premised on MDC’s failure to provide on-campus or in-person

services. So, the issue here is whether Verdini has sufficiently identified an

express, written contract to provide on-campus or in-person services.

Verdini’s Complaint specifically mentions five mandatory fees. The

first four fees—student services, financial aid, capital improvement, and

8

technology—are student fees authorized pursuant to separate subsections

within section 1009.23, Florida Statutes (2021). The fifth fee listed in the

Complaint, parking, is a user fee authorized by section 1009.23(12)(a).

Verdini also contends he is suing for a refund of laboratory fees, which are

likewise user fees authorized by section 1009.23(12)(a). We address the

student fees and the user fees in turn. And although Verdini maintains that

his Complaint sufficiently alleges an express, written contract to provide on-

campus services, we also consider Verdini’s contention that discovery is

needed to identify other potential documents evidencing an express contract.

A. Student Fees

As an initial matter, there is nothing in the Complaint or the attachments

that expressly requires MDC to provide on-campus services in exchange for

the student services, financial aid, capital improvement, and technology fees.

Moreover, Verdini has not identified anything that expressly prohibits MDC

from providing remote services in exchange for these fees.

Verdini argues that the attached invoices incorporate the conditions

imposed by section 1009.23. Even assuming for the sake of argument this

is true, Verdini fails to identify the conditions in section 1009.23 that require

on-campus or in-person services. The relevant portions of the provisions are

as follows:

9

• Activity and Service Fee (§ 1009.23(7)): “The student activity and

service fees shall be paid into a student activity and service fund at the

[college] . . . and shall be expended for lawful purposes to benefit the

student body in general. These purposes include, but are not limited

to, student publications and grants to duly recognized student

organizations . . . .”

• Financial Aid Fee (§ 1009.23(8)(c)): “Up to 25 percent or $600,000,

whichever is greater, . . . may be used to assist students who

demonstrate academic merit; [or other categories of students] . . . . A

minimum of 75 percent of the balance of these funds for new awards

shall be used to provide financial aid based on absolute need, and the

remainder of the funds shall be used for academic merit purposes and

other purposes approved by the boards of trustees. Such other

purposes shall include the payment of child care fees for students with

financial need.”

• Capital Improvement Fee (§ 1009.23(11)(a)): “Funds collected . . . may

be bonded . . . for the purpose of financing or refinancing new

construction and equipment, renovation, remodeling of educational

facilities, or the acquisition and renovation or remodeling of improved

real property for use of education facilities. The fee shall be . . .

expended only to acquire improved real property or construct and

equip, maintain, improve, or enhance the educational facilities of [the

college].”

• Technology Fee (§ 1009.23(10)): “Revenues . . . shall be used to

enhance instructional technology resources for students and faculty. .

. . Fifty percent of technology fee revenues may be pledged . . . as a

dedicated revenue source for the repayment of debt . . . .”

Nothing in these broad provisions requires the student fees at issue to

be used only for on-campus or in-person services. Consequently, based on

the Complaint, the attachments to the Complaint, and section 1009.23,

Verdini has failed to establish an express, written contractual obligation to

10

provide on-campus services in exchange for the Student Services, Financial

Aid, Capital Improvement, and Technology fees. 7

B. User Fees

Section 1009.23(12)(a) identifies certain user fees, including parking

fees and laboratory fees. According to the statute, “[s]uch user fees . . . shall

not exceed the cost of the services provided and shall only be charged to

persons receiving the service.”

With respect to the parking fee, the Complaint concedes that for the

Summer 2020 semester, students were not assessed the parking fee and

that the fee would be credited to their account if they already paid. Thus,

only the parking fee for the Spring 2020 semester is at issue. However,

Verdini has failed to identify an express, written contract for this fee because

the attached Spring 2020 invoice does not list a parking fee.

7

In Fiore v. Univ. of Tampa, 20-CV-3744 (CS), 2021 WL 4925562, at *17

(S.D.N.Y. Oct. 20, 2021), the Southern District of New York considered

whether plaintiffs sufficiently alleged that certain mandatory fees were tied to

access to on-campus facilities or in-person activities. Defendant, the

University of Tampa, is a private university, so sovereign immunity was not

at issue. Based on the allegations in the complaint and the plain language

of the fee descriptions, and under the federal motion to dismiss standard, the

court concluded that “Plaintiffs have failed to allege with adequate specificity

that fees intended to support certain programs were tied to access to on-

campus facilities or in-person activities and were not used for such

purposes.”

11

This leaves only the following general allegation in the Complaint,

which is insufficient to overcome sovereign immunity as there is nothing

evidencing an express, written contract:

36. MDC has retained the value of monies paid by

Plaintiff and the other Class members for fees, while

failing to provide the services for which those fees

were paid. MDC’s refusal to provide any refunds in

consideration of its decision to shutter its campuses

and move to remote learning violates its express

written contractual agreements with Plaintiff and

Class members to provide specific benefits, such as

on campus parking and student activities, in

exchange for certain fee amounts.

Finally, Verdini’s response in opposition to MDC’s motion to dismiss

raised allegations, for the first time, related to laboratory fees. As with the

parking fee, a laboratory fee is a user fee that “shall not exceed the cost of

the services provided and shall only be charged to persons receiving the

service.” § 1009.23(12)(a). Although a laboratory fee is listed on the

attached Spring 2020 invoice, Verdini’s Complaint does not contain any

allegations with respect to laboratory fees as a basis for his breach of

contract claim. Moreover, Verdini has not moved to amend the Complaint to

add any allegations regarding laboratory fees. We are therefore unable to

conclude that Verdini has sufficiently alleged breach of an express, written

contract with respect to laboratory fees.

C. Discovery

12

Verdini’s primary argument on appeal is that the Complaint (and

attachments), as is, sufficiently alleges the existence of an express, written

contract. 8 However, Verdini also argues there could be additional,

unspecified documents evidencing an express contract and that he should

therefore be allowed discovery. We disagree.

Florida Rule of Civil Procedure 1.130 governs the attachment of

documents to a complaint:

(a) Instruments Attached. All bonds, notes, bills of

exchange, contracts, accounts, or documents on

which action may be brought or defense made, or a

copy thereof or a copy of the portions thereof material

to the pleadings, must be incorporated in or attached

to the pleading. No documents shall be

unnecessarily annexed as exhibits. The pleadings

must contain no unnecessary recitals of deeds,

documents, contracts, or other instruments.

(Emphasis added).

As clearly set forth in Rule 1.130(a), any documents Verdini relies on

to establish an express contract must be incorporated or attached to the

complaint. “In the case of a complaint based on a written instrument it does

not state a cause of action until the instrument or an adequate portion thereof

8

At oral argument, counsel for Verdini was asked if it was his position that

the Complaint, as pled, is sufficient to survive a motion to dismiss, even if

discovery fails to uncover any additional documents. Counsel unequivocally

answered that the documents attached to the Complaint were sufficient.

13

is attached to or incorporated in the pleading in question.” Diaz v. Bell

MicroProducts-Future Tech, Inc., 43 So. 3d 138, 140 (Fla. 3d DCA 2010)

(quoting Safeco Ins. Co. of Am. v. Ware, 401 So. 2d 1129, 1130 (Fla. 4th

DCA 1981)).

Verdini relies on Amiker v. Mid-Century Insurance Co., 398 So. 2d 974

(Fla. 1st DCA 1981) in support of his argument that he should be permitted

discovery to determine whether there are any additional, unknown and

unspecified documents evidencing an express contract. Amiker, however,

does not support this broad proposition. The complaint in Amiker alleged

that an insurance agent and the Amikers entered into an agreement for

automobile insurance. Id. at 974. As further explained in the opinion:

The complaint set forth the policy number, the policy

period, the type of coverage, and the limits of liability.

Although a copy of the policy was not attached to the

complaint, the Amikers alleged that despite repeated

requests, [the insurer] had refused to deliver a copy

of the policy to the Amikers. In addition, the complaint

alleged that the policy was available to [the insurer]

and that when produced by [the insurer] it would be

incorporated into the complaint by reference.

Id. at 974-75.

Because the insurance policy was not attached to complaint, the trial

court in Amiker granted the insurer’s motion to dismiss based on Rule 1.130.

Id. at 974. The First District reversed, explaining the purpose of Rule 1.130

14

“is to apprise the defendant of the nature and extent of the cause of action

so that the defendant may plead with greater certainty.” Id. at 975 (citing

Sachse v. Tampa Music Co., 262 So. 2d 17 (Fla.2d DCA 1972)). Because

the Amikers had alleged that the insurer was a party to an insurance policy

and the policy was in the possession of the insurer, the court held that the

Amikers should be allowed discovery. Id. at 976.

In Amiker, the complaint identified the contract at issue in addition to

alleging that the contract was in the insurer’s possession. Here, by contrast,

Verdini has only alleged the possibility of unspecified documents evidencing

an express, written contract. Verdini has not cited, and research has failed

to uncover, any authority supporting the broad proposition that discovery is

warranted when a complaint merely alleges the possible existence of an

unidentified contract that may or may not be another’s possession. Indeed,

such a rule would be contrary not only to the plain language of Rule 1.130

but also its recognized purpose of apprising the defendant of the nature and

extent of the cause of action.

III. CONCLUSION

In conclusion, Verdini has failed to identify an express, written

contractual obligation to provide on-campus or in-person services in

exchange for the various fees listed in the Complaint. Further, the Complaint

15

does not contain allegations related to laboratory fees. And finally, Verdini

is not entitled to discovery simply for alleging the possible existence of

unspecified documents. We therefore reverse the order denying MDC’s

motion to dismiss and remand with instructions to dismiss the Complaint.

Reversed and remanded.

16