Goldstein v. Univ. of Cent. Fla. Bd. of Trs.

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Sara Goldstein, Appellant, v. University of Central Florida Board of Trustees, Appellee.

No. 6D23-1203

Florida Court of Appeals, Sixth District

August 25, 2023

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

Appeal from the Circuit Court for Orange County. Lower Tribunal No 2021-CA-002831-O Paetra T. Brownlee, Judge.

Adam A. Schwartzbaum, Adam Moskowitz, Howard M. Bushman, and Barbara C. Lewis, of The Moskowitz Law Firm, PLLC, Coral Gables, and Douglas Eaton, of Eaton & Wolk, P.L., Miami for Appellant.

T Todd Pittenger and Kelly J. H. Garcia, of GrayRobinson, P.A. Orlando, for Appellee.

Janet R. Varnell, of Varnell & Warwick, P.A., Tampa, Amicus Curiae for the National Association of Consumer Advocates i/s/o Appellant.

Robert J. Sniffen and Jeffrey D. Slanker, of Sniffen &Spellman, P.A., Tallahassee, Amicus Curiae for the Florida State Public Universities and Colleges i/s/o Appellee.

STARGEL, J.

Appellant, Sara Goldstein, appeals the trial court's final order dismissing her action against Appellee, The University of Central Florida Board of Trustees ("UCF").^[1] This Court has jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). The basis of the underlying complaint is that in March 2020, UCF closed its campus and converted to remote learning to comply with directives from the Florida Department of Education; the Florida Board of Governors; and local, state, and federal guidelines; and that although Goldstein and other students no longer had the benefits of the on-campus services for which they paid statutorily mandated fees, UCF did not refund any portion of those fees and costs. As a result, Goldstein filed a class action lawsuit against UCF asserting one count of breach of contract regarding the mandatory fees paid pursuant to section 1009.24, Florida Statutes (2020), and alternatively, one count of unjust enrichment regarding those same fees.

UCF moved to dismiss the action with prejudice based on three independent grounds: (1) sovereign immunity; (2) lack of private cause of action; and (3) statutory immunity pursuant to the newly enacted section 768.39, Florida Statutes (2021). The trial court granted UCF's motion to dismiss based on sovereign immunity, and because that issue was dispositive, it did not reach the merits of the other grounds raised.

Outside of claims brought under the federal or state constitutions, sovereign immunity bars suit against the State. This is an absolute rule with only two exceptions. The first is in Florida's constitution itself, which expressly vests the Legislature with the authority to waive the State's immunity by general law. Art. X, § 13, Fla. Const. ("Provision may be made by general law for bringing suit against the state as to all liabilities now existing or hereafter originating."). The second exception is of judicial creation: When the State contracts with a private entity, then "the defense of sovereign immunity will not protect the state from action arising from the state's breach of that contract."

Univ. of Fla. Bd. of Trs. v. Rojas, 351 So.3d 1167, 1170 (Fla. 1st DCA 2022) (footnotes omitted) (quoting Pan-Am Tobacco Corp. v. Dep't of Corr., 471 So.2d 4, 5 (Fla. 1984)). The issue of a party's entitlement to sovereign immunity is a legal issue subject to the de novo standard of review. Plancher v. UCF Athletics Ass'n, 175 So.3d 724, 725 n.3 (Fla. 2015). "[B]ecause sovereign immunity includes immunity from suit, entitlement to sovereign immunity should be established as early in the litigation as possible," Fla. Highway Patrol v. Jackson, 288 So.3d 1179, 1185 (Fla. 2020), thus it "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) (citation omitted).

The waiver of sovereign immunity for contract claims pertains "only to suits on express, written contracts." Pan-Am Tobacco Corp., 471 So.2d at 6. When no express, written contract exists, even if the conduct between the parties suggests an agreement, it is merely an implied contract and "sovereign immunity protections remain in force." Brevard County v. Morehead, 181 So.3d 1229, 1232 (Fla. 5th DCA 2015) (quoting City of Fort Lauderdale v. Israel, 178 So.3d 444, 447-48 (Fla. 4th DCA 2015)); see also County of Brevard v. Miorelli Eng'g, 703 So.2d 1049, 1051 (Fla. 1997) (holding that even though an express contract existed, claims for work outside of the contract are barred by sovereign immunity). Furthermore, "any waiver of sovereign immunity must be clear and unequivocal," and "waiver will not be found as a product of inference or implication." Am. Home Assurance Co. v. Nat'l R.R. Passenger Corp., 908 So.2d 459, 4772 (Fla. 2005) (citations omitted).

In University of South Florida Board of Trustees v. Moore, 347 So.3d 545 (Fla. 2d DCA 2022), the Second District upheld a denial of sovereign immunity at the motion to dismiss phase. Unlike the instant case, Moore proffered documents including student registration agreements that stated, "By clicking 'Submit Changes' below, I am entering into a legal, binding contract with USF" and incorporated 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. The Second District considered these documents a potential express contract and held that "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.

As with Verdini, Goldstein's complaint incorporates no such documents containing express terms requiring UCF to provide on-campus or in-person services in exchange for the fees. 339 So.3d at 417. Goldstein attached the Statement of Charges for the Spring 2020 semester and UCF's Student Financial Responsibility Statement and Promise to Pay to the complaint. However, because neither of those documents state that UCF agreed to, or was obligated to provide on-campus, inperson services in exchange for the various fees collected, and because none of the documents provided state that students would be entitled to a prorated refund for any unused fees, our analysis aligns with Rojas. 351 So.3d at 1170 (holding "the assorted documents attached to the complaint [did not] constitute an express written contract sufficient to overcome sovereign immunity.").

Goldstein argues that because section 1009.24 requires universities to charge various fees, such fees are incorporated into the Student Financial Responsibility Statement and form a binding contract. We reject this argument because there is no express, written contract between Goldstein and UCF into which the fees set forth in section 1009.24 can be incorporated. Subsection (2) of the statute states, "[a]ll students shall be charged fees except students who are exempt from fees or students whose fees are waived." Id. However, the statute does not likewise impose any obligation upon UCF to provide any specific services, much less on-campus, inperson services in exchange for those fees. Further, the statute is devoid of any language requiring the reimbursement of these fees. To the contrary, the statute requires the funds to be deposited in accordance with Florida law. See id. § 1009.24(3).

Goldstein's argument would require this Court to read into the statute a provision requiring the ad hoc formation of a contract on the students' behalf. However, doing so would be a violation of the doctrine of separation of powers. See Florida Dep't of Revenue v. Fla. Mun. Power Agency, 789 So.2d 320, 324 (Fla. 2001) ("Under fundamental principles of separation of powers, courts cannot judicially alter the wording of statutes where the Legislature clearly has not done so. A court's function is to interpret statutes as they are written and give effect to each word in the statute." (footnote omitted)); see also Furst v Rebholz as Tr. of Rod Rebholz Revocable Tr., 302 So.3d 423, 429 (Fla. 2d DCA 2020) ("We simply cannot-and will not-read into the statute provisions that are not there."), ...