CITY OF MIAMI,

v.

ELVIS CRUZ, ET AL.,

Third District Court of Appeal State of Florida

Opinion filed June 22, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-2424 Lower Tribunal No. 21-10716 ________________

City of Miami, Appellant,

vs.

Elvis Cruz, et al., Appellees.

An Appeal from a non-final order from the Circuit Court for Miami-Dade County, William Thomas, Judge.

Victoria Méndez, City Attorney, and Christopher A. Green, Senior Assistant City Attorney, and John A. Greco, Deputy City Attorney, for appellant.

David J. Winker, P.A., and David J. Winker, for appellees.

Before EMAS, SCALES and GORDO, JJ.

EMAS, J.

Appellant, City of Miami, appeals the trial court’s nonfinal order denying its motion to dismiss the complaint filed against it by appellee Elvis Cruz. The complaint alleged the City breached a settlement agreement it entered into with Cruz, and sought damages and injunctive relief. The City moved to dismiss, contending the claims asserted in Cruz’s complaint were barred by the doctrine of sovereign immunity. The trial court denied the City’s motion to dismiss the count of the complaint alleging the City breached a settlement agreement.¹ We have jurisdiction, see Fla. R. App. P. 9.130(a)(3)(F)(iii) (authorizing appellate review of nonfinal orders which “deny a motion that . . . asserts entitlement to sovereign immunity”); Fla. Hwy. Patrol v. Jackson, 288 So. 3d 1179 (Fla. 2020); City of Sweetwater v. Pichardo, 314 So. 3d 540 (Fla. 3d DCA 2020), and review the trial court’s order de novo. The Florida Bar v. Greene, 926 So. 2d 1195 (Fla. 2006) (“A ruling on a motion to dismiss based on a pure question of law is subject to de novo review.”); City of Miami

4 [plaintiff] has sufficiently alleged breach of an express, written agreement, which is necessary to overcome sovereign immunity.

See also Sierra v. Associated Marine Insts., Inc., 850 So. 2d 582, 590 (Fla. 2d DCA 2003) (observing that “sovereign immunity generally is an affirmative defense that may justify granting a motion to dismiss only when the complaint itself conclusively establishes its applicability.”). Cruz alleges in his complaint that the City breached an express written contract, a copy of which was attached to the complaint. Florida law recognizes a limited waiver of sovereign immunity where the municipality breaches an express written contract. Pan-Am Tobacco Corp. v. Dep’t of Corrections, 471 So. 2d 4, 5 (Fla. 1984) (holding that “where 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”); Castro, 279 So. 3d at 806 (“In the contracts sphere, the limited waiver of sovereign immunity is founded in common law and occurs only when the municipality breaches an express written contract”); Champagne-Webber, Inc. v. City of Ft. Lauderdale, 519 So. 2d 696 (Fla. 4th DCA 1988) (applying Pan-Am holding to a municipality). We find no error in the trial court’s order denying the City’s motion to dismiss based on sovereign immunity. Affirmed.