CITY OF DELRAY BEACH v. SHERMAN WILLIAMS AMERICAN LEGION, POST 188

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

CITY OF DELRAY BEACH,

Appellant,

v.

SHERMAN WILLIAMS AMERICAN LEGION, POST 188,

Appellee.

No. 4D22-783

[March 22, 2023]

Appeal of a nonfinal order from the Circuit Court for the Fifteenth

Judicial Circuit, Palm Beach County; Janis Brustares Keyser, Judge; L.T.

Case No. 50-2021-CA-012581.

Michael A. Rosenberg, Sanaz Alempour, and Courtney A. Kaiser of Cole,

Scott & Kissane, P.A., Plantation, for appellant.

Michael D. Brown of Brown & Associates, P.A., North Palm Beach, for

appellee.

CONNER, J.

The City of Delray Beach (“the City”) brings this nonfinal appeal,

challenging the denial of its motion to dismiss one of five counts based on

sovereign immunity. We agree with the City that the complaint fails to

sufficiently allege the existence of a written contract to establish a waiver

of sovereign immunity as to a breach of contract claim. We thus reverse

and remand for further proceedings.

Background

The complaint alleges that, in 1947, the City granted appellee, Sherman

Williams American Legion, Post 188 (“the Post”), a 99-year lease for the

purpose of constructing a meeting hall. Attached to the complaint were

copies of the following documents:

(1) The September 9, 1947 City Council meeting minutes, in which the

City manager advised that the Post was requesting a 99-year lease

of property upon which to build a meeting hall. The minutes reflect

that a motion to grant the request was made and passed.

(2) A letter which the City sent to the Post in 1982, acknowledging that

neither party possessed the original or a copy of the 1947 lease.

(3) A purported written 64-year lease signed in 1982 (representing the

balance of the 99-year term of the 1947 lease). The 1982 lease

included terms that either party could cancel the lease with sixty

days’ notice.

(4) An amended written lease purportedly signed by the parties in 2004.

The 2004 lease included a provision entitling either party to

terminate the lease with 180 days’ notice.

(5) A 2018 letter to the Post commander giving notice of the City’s intent

to terminate the lease. 1

The purported 1947 lease was not attached to the complaint.

The City took possession of the property 279 days after sending the

2018 termination notice. The Post then sued the City, alleging inverse

condemnation, trespass, conversion, breach of contract, and need for a

declaratory judgment. As part of the complaint’s general allegations, the

Post alleged it “never authorized any member(s), agent(s), or affiliate(s) to

relinquish, compromise or diminish its ownership of, or right of access to

the ‘Post.’”

The City moved to dismiss the breach of contract count as barred by

sovereign immunity. 2 The trial court denied the motion without

explanation. The City noticed this nonfinal appeal.

Appellate Analysis

The City argues the trial court erred in denying its motion to dismiss

because the trial court ignored the City’s entitlement to sovereign

immunity. Entitlement to sovereign immunity is a question of law which

1 The complaint alleged the commander to whom the letter was addressed died

in 2010. The complaint makes no allegation that the notice was ineffective

because the addressee was deceased, or it was sent to the wrong address.

2 The order on appeal also denied the motion to dismiss as to the other four

counts, but the City appeals only the denial on the breach of contract count.

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is reviewed de novo. Lee Mem’l Health Sys. v. Hilderbrand, 304 So. 3d 58,

60 (Fla. 2d DCA 2020).

The City argues the breach of contract count is barred by sovereign

immunity because the alleged conduct occurred after the termination of

the lease, and the Post failed to identify a specific contractual provision

that the City breached.

In Pan-Am Tobacco Corp. v. Department of Corrections, 471 So. 2d 4 (Fla.

1984), our supreme court held that “where the [sovereign] has entered into

a contract fairly authorized by the powers granted by general law, the

defense of sovereign immunity will not protect the [sovereign] from action

arising from the [sovereign’s] breach of that contract.” Id. at 5. The court

went on to “emphasize that our holding here is applicable only to suits on

express, written contracts into which the [sovereign] has statutory

authority to enter.” Id. at 6 (emphasis added); see also City of Fort

Lauderdale v. Israel, 178 So. 3d 444, 447 (Fla. 4th DCA 2015) (holding a

written contract is required to defeat a municipality’s sovereign immunity).

The Post argues the trial court properly denied the motion to dismiss

because the complaint alleges the Post and the City entered into a lease in

1947, and the Post did not authorize the 1982 and 2004 leases. The Post

correctly notes that, on a motion to dismiss at the pleading stage, the trial

court is limited to the four corners of the complaint, including its

attachments. See Alevizos v. John D. & Catherine T. MacArthur Found.,

764 So. 2d 8, 9 (Fla. 4th DCA 1999). The Post also correctly notes that

sovereign immunity is generally an affirmative defense, and a motion to

dismiss should be granted only when the complaint conclusively

establishes its applicability. See Peak v. Outward Bound, Inc., 57 So. 3d

997, 999 (Fla. 2d DCA 2011).

The problem with the Post’s argument is that, although the complaint

alleges the City and the Post entered into a lease in 1947, the complaint

does not sufficiently allege a written lease signed by both parties.

Additionally, this deficiency is not remedied by the complaint’s

attachments.

The Post presumably attached the September 9, 1947 City Council

meeting minutes to comply with the rule of procedure requiring a

complaint alleging breach of a written contract to attach a copy of the

contract. See Fla. R. Civ. P. 1.130(a). The minutes state the City manager

advised the Council that the Post was requesting a 99-year lease to

construct a meeting hall, and after a motion was made, the request was

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granted. The minutes then state: “City Attorney Nowlin was instructed to

prepare a lease accordingly.”

The pleading deficiency is undermined by another attachment, the

1982 letter from the City manager to the Post, which states:

City records show that the City Council granted your

American Legion Post’s request for a 99 year lease on

September 9, 1947, and that the City Attorney was to prepare

the necessary lease. We are unable to locate the executed

lease, and I understand that your records do not include one,

either. We must conclude that the lease was never prepared.

(Emphasis added).

Regardless, the City Council meeting minutes are not enough to

establish a written lease. On appeal, the Post cites cases which it argues

support the proposition that “[a]gency ‘minutes’ or other official

documents created by a government agency as part of its administrative

process can be considered as evidence of the existence of a contractual

relationship between a party and the government.” But none of the cases

cited address a situation where, as here, a copy of the written contract is

not part of the record.

Additionally, as the City correctly argues, while governmental meeting

minutes may confirm the existence of a contractual relationship, a well-

pled complaint alleging breach of a written contract must not only attach

a copy of the contract but also make allegations as to which contractual

provisions were breached. See Dist. Bd. of Trs. of Miami Dade Coll. v.

Verdini, 339 So. 3d 413, 421 (Fla. 3d DCA 2022) (reversing and remanding

to dismiss complaint based on sovereign immunity where complaint failed

to sufficiently identify an express, written contract to provide services).

Whether the City breached a purported 1947 written lease depends on

whether that lease had termination provisions. It is common for

residential and commercial leases to contain termination provisions. The

Post does not argue (nor are we inclined to assume) that, if there was a

written lease in 1947, it did not contain any termination provisions.

The City’s position is not without its own flaws. Below and on appeal,

the City argues the 1982 and 2004 leases replaced the lease authorized in

1947, and the lease was properly terminated pursuant to provisions in the

2004 lease. But the City ignores the Post’s allegations in the complaint

that it never authorized the 1982 and 2004 leases. Nonetheless, this is

secondary to the Post’s failure to sufficiently allege a written lease.

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At the pleading stage, a motion to dismiss should not be granted with

prejudice unless the plaintiff clearly cannot allege a cause of action, or the

amendment privilege has been abused. See Omasta v. Bedingfield, 689

So. 2d 409, 410 (Fla. 5th DCA 1997) (“[U]nless it appears that the privilege

to amend has been abused or that a complaint is clearly untenable, it is

an abuse of discretion to dismiss with prejudice.”). If the Post is able to

produce the original or a copy of a duly signed 99-year lease from the City,

the Post may be able to properly allege a breach of contract and avoid the

City’s sovereign immunity defense.

Conclusion

For the above reasons, we reverse the order denying the motion to

dismiss the breach of contract count of the complaint and remand with

instruction for the trial court to dismiss that count with leave to amend to

properly allege breach of a written lease agreement with appropriate

attachments.

Reversed and remanded with instructions.

DAMOORGIAN and ARTAU, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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