AMANDA HEINE and JHAYLA STREADY v. FLORIDA ATLANTIC UNIVERSITY BOARD OF TRUSTEES

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

AMANDA HEINE and JHAYLA STREADY,

individually and on behalf of all others similarly situated,

Appellants,

v.

FLORIDA ATLANTIC UNIVERSITY BOARD OF TRUSTEES,

Appellee.

No. 4D22-15

[April 26, 2023]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm

Beach County; Samantha Schosberg Feuer, Judge; L.T. Case No.

502021CA004008.

Adam A. Schwartzbaum, Adam M. Moskowitz, Howard M. Bushman,

and Barbara C. Lewis of The Moskowitz Law Firm, Coral Gables, and

Douglas F. Eaton of Eaton & Wolk, P.L., Miami, for appellants.

Holly Griffin Goodman and Jack J. Aiello of Gunster, Yoakley &

Stewart, P.A., West Palm Beach, for appellee.

KLINGENSMITH, C.J.

Appellants Amanda Heine and Jhayla Stready (“Students”) appeal the

trial court’s order granting Florida Atlantic University Board of Trustees’

(“FAU”) motion to dismiss their class action suit with prejudice. Students

claim FAU breached a contract when the university failed to provide

certain in-person services during the COVID-19 pandemic yet continued

to collect fees and refused to provide refunds. For the reasons set forth

below, we affirm. Because of the nature of the dispute and the similar

cases filed in other jurisdictions, we also certify a question of great public

importance.

Background

After the COVID-19 virus began infecting people nationwide, Florida’s

Governor issued Executive Order 20-52 on March 9, 2020, declaring a

Florida State of Emergency due to COVID-19. Two days later, the Florida

Board of Governors issued an order to all state public universities,

including FAU, directing them to immediately begin transitioning their

faculty and students to remote instruction. Many colleges and universities

throughout the country acted similarly to stop the spread of COVID-19 by

moving classes online and halting various in-person activities and

services. Initially, this response earned these institutions praise for acting

in the best interests of their students and public health. 1 However, those

directly and adversely affected by the shutdowns later closely scrutinized

those decisions. As a result, college students across the country filed

lawsuits seeking refunds of either tuition or fees for the in-person

educational experience which they expected, but did not receive.

In exercising its constitutional authority to establish tuition and fees

for students at these institutions, 2 the Florida Legislature has enacted

several statutes requiring all state public universities to charge fees to

students who register for courses. See § 1009.24(2), Fla. Stat. (2021) (“All

students shall be charged fees . . . .”); § 1009.24(4)(d), Fla. Stat. (2021)

(“The sum of the activity and service, health, and athletic fees a student is

required to pay to register for a course . . . .”). The Legislature has

prescribed the fees which each state public university must charge to all

students, except those exempted by law. § 1009.24, Fla. Stat. (2021); §

1001.706(4)(c), Fla. Stat. (2021) (“The Board of Governors, or the board’s

designee, shall establish tuition and fees pursuant to ss. 1009.24 and

1009.26, unless otherwise provided in law.”). In addition to mandating

state universities collect and retain certain fees, the Legislature has

specified general purposes for their use. See, e.g., § 1009.24(9), Fla. Stat.

(2021) (authorizing “separate activity and service, health, and athletics

fees”).

In June 2021, Students filed this suit against FAU after the COVID-19

shutdown, alleging one count of breach of contract and, in the alternative,

one count of unjust enrichment. Students assert that an express, written

contract was established with FAU when they signed up for classes and

paid tuition and fees. In support of their position, Students attached to

their complaint the billing statements which they had received after paying

1 “The Legislature finds that during the COVID-19 public health emergency,

educational institutions had little choice but to close or restrict access to their

campuses in an effort to protect the health of their students, educators, staff, and

communities. Despite these efforts, more than 120,000 cases of COVID-19 have

been linked to colleges and universities nationwide, and the deaths of more than

100 college students have been attributed to the disease.” § 768.39(1), Fla. Stat.

(2021).

2 See Art. II, § 19, Fla. Const.

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their tuition for the affected semesters. In the billing statements for the

Spring 2020 semester, Students were charged for several services in

addition to tuition, including fees for transportation access, health, and

athletics. Students also attached a “Statement of Responsibility” to their

complaint that they were required to sign when registering for classes. In

the section of the Statement titled “Payment of Fees & Refunds,” Students

agreed to the following terms:

I understand that when I register for any course at Florida

Atlantic University or request and/or receive any service from

Florida Atlantic University I accept full responsibility to

pay all tuition, fees and other associated costs assessed

as a result of my registration and/or request/receipt of

services. I further understand and agree that my

registration and acceptance of these terms constitutes a

promissory note agreement (i.e., a financial obligation in the

form of an educational loan as defined by the U.S. Bankruptcy

Code at 11 U.S.C. § 523(a)(8)) in which Florida Atlantic

University is providing me educational services, deferring

some or all of my payment obligation for those services. I

promise to pay for all assessed tuition, fees and other

associated costs by the published or assigned due date. I

understand that distance learning courses may have

additional cost associated with taking online proctored exams.

Those costs could include: webcam (if your computer does not

already have one), online proctoring fees, and/or remote

testing center costs.

(emphasis added).

FAU moved to dismiss the complaint, arguing Students’ claims were

barred by the separation of powers doctrine as well as by sovereign

immunity. Following a hearing on the motion, the trial court dismissed

Students’ complaint with prejudice, finding their claims were barred under

both doctrines. On FAU’s sovereign immunity defense, the trial court

found the Statement of Responsibility and tuition billing statements did

not constitute an express, written contract because they simply referenced

“fees” in the aggregate without identifying any specific services provided in

exchange for Students’ payment. According to the lower court’s ruling,

“[a]t best, the Statement of Responsibility is an agreement by FAU to allow

Plaintiffs to register for courses (without regard to whether classes would

be offered online or in-person). No specific or ancillary services are

promised in the Statement of Responsibility.” Because the attachments to

the operative complaint did not clearly and unequivocally show the

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existence of an express contract, the trial court found Students did not

establish a cause of action with allegations sufficient to be deemed a waiver

of sovereign immunity to allow recovery under either a breach of contract

or unjust enrichment claim. This appeal followed.

Standard of Review

An appellate court reviews a motion to dismiss using a de novo review.

See Bell v. Indian River Mem’l Hosp., 778 So. 2d 1030, 1032 (Fla. 4th DCA

2001); see also Plancher v. UCF Athletics Ass’n, Inc., 175 So. 3d 724, 725

n.3 (Fla. 2015) (an appellate court reviews issues of sovereign immunity

de novo). “When considering a motion to dismiss, trial courts are not

permitted to ‘go beyond the four corners of the complaint in considering

the legal sufficiency of the allegations.’” PNC Bank, Nat’l Ass’n v. Inlet Vill.

Condo. Ass’n, Inc., 204 So. 3d 97, 99 (Fla. 4th DCA 2016) (quoting Barbado

v. Green & Murphy, P.A., 758 So. 2d 1173, 1174 (Fla. 4th DCA 2000)).

However, “[t]he issue of sovereign immunity may properly be considered

on a motion to dismiss.” Dist. Bd. of Trs. of Miami Dade Coll. v. Verdini,

339 So. 3d 413, 417 (Fla. 3d DCA 2022) (citing Charity v. Bd. of Regents

of the Div. of Univs. of the Fla. Dep’t of Educ., 698 So. 2d 907, 907 (Fla. 1st

DCA 1997)).

Florida Cases

Three opinions from other Florida appellate courts are relevant to the

analysis of the legal viability of Students’ claims: Verdini, 339 So. 3d at

413; University of South Florida Board of Trustees v. Moore, 347 So. 3d 545

(Fla. 2d DCA 2022), reh’g denied, SC22-1398, 2023 WL 105592 (Fla. Jan.

5, 2023); and University of Florida Board of Trustees v. Rojas, 351 So. 3d

1167 (Fla. 1st DCA 2022), appeal filed, SC23-126. We will discuss each

of these in turn.

1. District Board of Trustees of Miami Dade College v. Verdini

In Verdini, the trial court denied the state college’s motion to dismiss

by ruling the attachments to the complaint sufficiently contained express

written terms and provided “the specific services [the college] was

contractually obligated to provide in exchange for [the student’s] payment

of ‘fees’ to survive a motion to dismiss.” Verdini, 339 So. 3d at 417. The

Third District reversed that order, finding the plaintiff’s complaint did not

establish an express contract for “on-campus or in-person services in

exchange for the various fees listed in the complaint.” Id. at 421.

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The Third District noted the plaintiff’s breach of contract claim was not

based on the college’s complete failure to provide services; it was instead

premised on “an alleged failure to provide on-campus or in-person

services.” Id. at 418. The appellate court found nothing in the complaint

expressly required the college to provide on-campus services in exchange

for paying the student services, financial aid, capital improvement, and

technology fees. Id. Further, the appellate court held the plaintiff had

failed to identify anything that expressly prohibited the school from

“providing remote services in exchange for these fees.” Id. For that reason,

the appellate court held the general allegations made in the complaint were

“insufficient to overcome sovereign immunity as there is nothing

evidencing an express, written contract.” Id. at 419.

2. University of South Florida Board of Trustees v. Moore

In Moore, the plaintiffs attached a copy of the university’s registration

statement to their complaint to support the allegation that an express

contract existed. Moore, 347 So. 3d at 549. That statement provided in

part: “By clicking ‘Submit Changes’ below, I am entering a legal, binding

contract with [university] and I hereby acknowledge that I have read and

understand the terms and conditions of this registration agreement.” Id.

The trial court denied the university’s motion to dismiss “on the merits of

its sovereign immunity defense,” and the Second District affirmed, finding

“the clear language of the registration agreement” created a “legal, binding

contract” between Moore and the university. Id. at 547, 549.

In making its decision, the district court noted the university had not

included any of its policies in the record to support the contention that it

made “no promises to Moore regarding any specific services in return for

her payment of student fees.” Id. at 550. However, the Second District

held “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.” Id. at 549.

3. University of Florida Board of Trustees v. Rojas

In Rojas, the plaintiffs brought claims of unjust enrichment and breach

of contract based on the university’s “failure to offer on-campus services

or refund the related fees for those impacted semesters” during the

pandemic. Rojas, 351 So. 3d at 1169. Attachments to the complaint

included: “a copy of the [school’s] financial liability agreement,” “an

estimate of tuition and fees . . . along with Rojas’s tuition statement,” and

citations to “various University webpages” with descriptions of in-person

and on-campus amenities. Id. at 1169, 1171. On the university’s motion,

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the trial court dismissed the unjust enrichment claim but denied the

motion as to the plaintiffs’ breach of contract claim. Id. at 1170.

On appeal, the First District reversed the lower court’s denial of the

motion to dismiss the breach of contract claim, finding “the assorted

documents attached to the complaint [did not] constitute an express

written contract sufficient to overcome sovereign immunity.” Id. at 1170.

The district court found the attachments to the complaint did not “obligate

the University to a refund of fees when any such services are paused,

limited, or outright cancelled,” and failed to establish “an express written

contract expressly addressing the University’s obligation to provide such

on-campus services.” Id. at 1171–72. The appeals court described these

attachments as a “hodge-podge of documents that fail[ed] to clear this

basic hurdle.” Id. at 1171. Nonetheless, the First District certified a

question of great public importance to the Florida Supreme Court on the

issue of whether a plaintiff could proceed on their breach of contract claim

to recover subject fees from a state university. Id. at 1169.

Analysis

Unless the immunity is waived, governmental entities in Florida are

generally sovereignly immune from suit. See City of Key West v. Fla. Keys

Cmty. Coll., 81 So. 3d 494, 497 (Fla. 3d DCA 2012); Pan-Am Tobacco Corp.

v. Dept. of Corrs., 471 So. 2d 4, 5 (Fla. 1984) (noting sovereign immunity

“is the rule, rather than the exception” in Florida). Florida courts

determine whether a state entity “has waived sovereign immunity

depending on whether the claim against [it] sounds in tort or contract.”

City of Miami Firefighters’ & Police Officers’ Ret. Tr. & Plan v. Castro, 279

So. 3d 803, 806 (Fla. 3d DCA 2019). “[W]here 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.

However, waiver is “applicable only to suits on express, written contracts

into which the state agency has statutory authority to enter.” Id. at 6.

That immunity cannot be waived by “inference or implication.” Am. Home

Assurance Co. v. Nat. R.R. Passenger Corp., 908 So. 2d 459, 472 (Fla. 2005)

(citing Spangler v. Fla. State Tpk. Auth., 106 So. 2d 421, 424 (Fla. 1958));

see also City of Fort Lauderdale v. Israel, 178 So. 3d 444 (Fla. 4th DCA

2015).

1. Breach of contract

To decide whether sovereign immunity bars Students’ breach of

contract claim, we must answer the fundamental question of whether the

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Legislature has waived immunity or whether an express, written contract

exists between FAU and Students. If either can be answered in the

affirmative, FAU cannot invoke sovereign immunity to bar Students’

breach of contract action. See Pan-Am, 471 So. 2d at 5. However, if the

complaint establishes at best the existence of only an implied contract

between the parties, then sovereign immunity bars Students’ breach of

contract action and their unjust enrichment claim. See Israel, 178 So. 3d

at 447–48.

Students’ breach of contract claim is founded on the allegation that

FAU breached an express obligation to provide certain on-campus and in-

person services when FAU transitioned to remote classes during the

pandemic. Specifically, Students argue the Statement of Responsibility

and tuition invoices attached to their amended complaint “provide for,

inter alia, the provision of and payment for on-campus services and

facilities.” Looking at the plain language of section 1009.24, the

Legislature clearly did not authorize a private cause of action premised on

the improper collection of fees, and, therefore, has not expressly waived

sovereign immunity by statute. See, e.g., Murthy v. N. Sinha Corp., 644

So. 2d 983, 986 (Fla. 1994) (“There is no evidence in the language of the

statute or the statutory structure that a private cause of action . . . was

contemplated by the legislature in enacting this statute.”). Because

nothing contained in section 1009.24 expressly obligates FAU to provide

any specific on-campus or in-person services or activities, Students may

only recover if an express, written contract was formed by the attachments

to appellant’s amended complaint.

In comparing this case to the three cases from our sister courts

referenced above, we find this case more closely resembles Verdini and

Rojas and apply their rationales here. Much like this case, the plaintiff in

Verdini sought a pro rata refund of fees due to a public college’s alleged

failure to offer in-person services for which the college charged fees

pursuant to section 1009.23. See Verdini, 339 So. 3d at 417. Similarly,

the plaintiff in Rojas sued a public university to recover “fees for on-

campus services that were not provided to students.” Rojas, 351 So. 3d

at 1170. The First District in Rojas noted that to pierce the State’s

immunity, the plaintiff had to “identify an express written contract

expressly addressing the University’s obligation to provide such on-

campus services” or point to “any language obligating the University to

provide specific, on-campus services to any student during any specific

time.” Id. at 1170–71. Here, Students have not pointed to any language

in the documents of record that can be read to “obligate [FAU] to a refund

of fees when any such services are paused, limited, or outright cancelled.”

See id. at 1171; Verdini, 339 So. 3d at 419.

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We do not find the Second District’s decision in Moore applicable to this

case for two reasons. First, the document under review in Moore contained

different language than the one attached to Students’ amended complaint.

There, the statement provided that the plaintiffs were explicitly “entering

a legal, binding contract with USF.” Moore, 347 So. 3d at 549. Nothing

similar is found in the FAU Statement of Responsibility, nor Students’

tuition invoices. Second, the court in Moore opted to defer a decision on

the merits of the application of sovereign immunity, finding the allegations

of the complaint facially sufficient to state a cause of action and

determining that the issue should be decided on summary judgment at

the soonest. Id. However, the Second District did not address the

application of Florida Highway Patrol v. Jackson, 288 So. 3d 1179, 1185

(Fla. 2020), where the Florida Supreme Court held sovereign immunity

must be determined at the earliest possible stage of litigation to uphold

separation of powers principles and judicial economy, or whether the

documents enabled the court to do so at that stage of the proceedings.

Although the Florida Supreme Court declined to review the Second

District’s decision, denial of review does not provide substantive guidance.

The fact that FAU is a state institution makes this case different from

several other COVID-19 suits filed in other Florida jurisdictions. Many of

those cases have allowed causes of action to proceed past the motion to

dismiss stage because they involved private institutions and not state

universities protected by sovereign immunity. See Salerno v. Fla. S. Coll.,

488 F. Supp. 3d 1211, 1213 (M.D. Fla. 2020) (finding the plaintiff stated a

cause of action for breach of contract and unjust enrichment against a

private college); Rosado v. Barry Univ. Inc., 499 F. Supp. 3d 1152, 1160

(S.D. Fla. 2020); Gibson v. Lynn Univ., Inc., 504 F. Supp. 3d 1335, 1337

(S.D. Fla. 2020); In re Univ. of Miami COVID-19 Tuition and Fee Refund

Litig., 524 F. Supp. 3d 1346, 1355 (S.D. Fla. 2021); Rhodes v. Embry-

Riddle Aeronautical Univ., Inc., 513 F. Supp. 3d 1350, 1357 (M.D. Fla.

2021).

Florida law recognizes that an actionable implied contract can exist

between a student and a private university. See John B. Stetson Univ. v.

Hunt, 102 So. 637, 640 (Fla. 1924) (stating that the relationship between

a private school and a student is “solely contractual in character”); see

also Jallali v. Nova Se. Univ., Inc., 992 So. 2d 338, 342 (Fla. 4th DCA 2008)

(recognizing a student’s relationship with his university as an implied

contract arising out of a university’s rules, regulations, regimen and

publications at the time of enrollment). Because this case involves a public

university and not a private institution, our analysis about whether a

viable cause of action exists is different. See, e.g., Lafleur v. State Univ.

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Sys. of Fla., No. 8:20-cv-1665-KKM-AAS, 2021 WL 3727832 (M.D. Fla.

Aug. 2, 2021).

On this record, we agree with the lower court that the documents cited

by Students do not constitute an express, written contract, and FAU’s

sovereign immunity is not waived. Based on the Florida Supreme Court’s

opinion in Jackson, we believe the trial court correctly decided the issue of

sovereign immunity at the motion to dismiss phase—rather than deferring

the decision to summary judgment—because the trial court was able to

review the documents attached to Students’ complaint for the existence of

an express, written contract. See Jackson, 288 So. 3d at 1185. The plain

language of FAU’s Statement of Responsibility provides only an offer to

allow Students to register for classes, which Students accepted by

enrolling and paying the statutorily mandated tuition and fees.

Students concede they were permitted to enroll in courses at the

university in exchange for paying their tuition and fees, which is FAU’s

only express obligation found in any of the documents submitted for

review. No express contract was formed by the attachments to the

complaint regarding what Students would receive in return for paying the

statutorily mandated fees. See Rojas, 351 So. 3d at 1170–71. In fact,

nothing in the attachments establish any contractual agreement to hold

in-person classes or provide on-campus services at all, even though that

was certainly a reasonable—albeit unenforceable—expectation. See

Verdini, 339 So. 3d at 418.

In conclusion, Students have failed to identify an express, written

contractual obligation for FAU to provide any on-campus or in-person

services in exchange for their payment of the various fees listed in their

Amended Complaint. See id.; Rojas, 351 So. 3d at 1170–71. Reasonable

expectations based on implied agreements are not express, written

contracts. See Castro, 279 So. 3d at 808 (“We are loath to adopt a rule of

law that transforms general language in a retirement plan ordinance . . .

into an express contractual duty . . . .”). Therefore, the trial court’s

dismissal of Students’ breach of contract claim was proper.

2. Unjust Enrichment

A cause of action for unjust enrichment sounds in equity and is, by its

nature, based on the existence of an implied contract between parties.

14th & Heinberg, LLC v. Terhaar and Cronley Gen. Contractors, Inc., 43 So.

3d 877, 880 (Fla. 1st DCA 2010). With no waiver of immunity for claims

in equity, the state continues “to enjoy sovereign immunity from quasi-

contractual claims such as unjust enrichment” even in its own courts.

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Veolia Water N. Am. - S., LLC v. City of Everglades City, No. 2:18-cv-785-

FtM-99UAM, 2019 WL 1921900 (M.D. Fla. Apr. 30, 2019); see also

Calderone v. Scott, No. 2:14–cv–519–FtM–29CM, 2015 WL 1800315 (M.D.

Fla. Apr. 16, 2015) (dismissing unjust enrichment claim with prejudice);

Llorca v. Rambosk, No. 2:15–cv–17–FtM–29CM, 2015 WL 2095805 (M.D.

Fla. May 5, 2015) (rejecting the plaintiff’s claims of oral contract provisions

and dismissing unjust enrichment claim with prejudice); Fin. Healthcare

Assocs., Inc. v. Pub. Health Tr. of Miami-Dade Cnty., 488 F. Supp. 2d 1231,

1236 (S.D. Fla. 2007) (holding claim based on implied contract barred by

sovereign immunity). Thus, Students’ unjust enrichment claim premised

on a theory of implied contract is also barred due to sovereign immunity.

See id. For these reasons, we also find no error in the trial court’s

dismissal of Students’ unjust enrichment claim.

Conclusion

It is beyond dispute that the COVID-19 virus took a tremendous toll on

society. Thousands of students lost a significant portion of their college

experience as a result, and we are mindful of the fact that many others

lost far more. 3 However, as the court in Rojas explained, we are powerless

to redress some losses under the law:

[I]f there were a sufficient contract attached to [this]

complaint, we would affirm the trial court without hesitation.

But without such an express, written agreement (and with no

indication by the University that it consents to suit, nor any

express statutory waiver by the Legislature to allow students

such as [appellants] to proceed with these types of claims),

sovereign immunity bars the action.

Therefore, we affirm the trial court’s order granting FAU’s motion to

dismiss Students’ complaint with prejudice for the reasons stated herein.

Because we find no express, written contract exists sufficient to overcome

FAU’s defense of sovereign immunity, we do not reach the merits of the

separation of powers issue. Finally, because state universities across

Florida are facing similar lawsuits, we certify the following question of

great public importance to the Florida Supreme Court as stated by the

First District in Rojas:

3 See Norwegian Cruise Line Holdings Ltd. v. State Surgeon Gen., Fla. Dep’t of

Health, 50 F. 4th 1126, 1156–58 (11th Cir. 2022) (Rosenbaum, J., dissenting)

(describing COVID-19’s death toll, potential long-term medical complications,

and effects on commerce).

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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?

Affirmed.

DAMOORGIAN and ARTAU, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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