Governor Ron DeSantis, in his official capacity as Chief Executive Officer and Chair of the Board of Education State of Florida v. Alexis S. Geffin, Ryan J. Geffin, Thomas A. Warren, Kathleen Villacorta, and the Symphonic Band of the Palm Beaches, Inc.

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________

No. 1D19-928
_____________________________

GOVERNOR RON DESANTIS, in his
official capacity as Chief
Executive Officer and Chair of
the Board of Education; STATE
OF FLORIDA; FLORIDA STATE
BOARD OF EDUCATION; FLORIDA
BOARD OF GOVERNORS OF THE
STATE UNIVERSITY SYSTEM;
FLORIDA DEPARTMENT OF
EDUCATION; and RICHARD
CORCORAN, in his official
capacity as Florida
Commissioner of Education,

Appellants,

v.

ALEXIS S. GEFFIN, RYAN J.
GEFFIN, THOMAS A. WARREN,
KATHLEEN VILLACORTA, and the
SYMPHONIC BAND OF THE PALM
BEACHES, INC.,

Appellees.
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On appeal from the Circuit Court for Leon County.
Charles W. Dodson, Judge.

October 21, 2019
M.K. THOMAS, J.

Appellants challenge the denial of their motion to dismiss
arguing Appellees’ claims are barred by the doctrine of sovereign
immunity. We agree and reverse the order on appeal.

Our opinion in Corcoran v. Geffin, 250 So. 3d 779 (Fla. 1st
DCA 2018), sets forth the underlying facts of the case. Id. at 782-
83. In Corcoran, Appellant filed a petition seeking a writ of
prohibition declaring that the circuit court lacked jurisdiction to
adjudicate the class action complaints. Id. at 781. We granted the
petition in part but denied the petition relating to Appellees’
breach of contract claims. Id. at 788. This Court did not determine
whether the claims were barred by sovereign immunity as factual
issues remained for determination by the circuit court.

Thereafter, Appellees filed amended complaints asserting,
among other claims, a count for breach of contract and a count for
violation of article I, section 10 of the Florida Constitution—
impairment of contracts. Appellants moved to dismiss the
amended complaints, asserting the claims were barred by
sovereign immunity. The circuit court denied the motion. This is
the appeal of the denial.

A trial court’s ruling on a motion to dismiss a complaint based
on whether a claim is barred under the doctrine of sovereign
immunity is a question of law; thus, the appropriate standard of
review is de novo. See Andrew v. Shands at Lake Shore, Inc., 970
So. 2d 887, 888-89 (Fla. 1st DCA 2007).

Sovereign immunity does not protect the state from suits
arising from the state’s breach of an “express, written contract into
which the state agency has the statutory authority to enter.” Pan-
Am Tobacco Corp. v. Dep’t of Corr., 471 So. 2d 4, 6 (Fla. 1984); see
also Corcoran, 250 So. 3d at 786. On appeal, Appellants argue the
trial court erred in denying the motion to dismiss the amended
complaints because Appellees fail to sufficiently allege (1) the
existence of an express, written contract, and (2) that Appellants
had the authority to enter into the alleged contracts.

We begin our analysis with the issue of whether Appellants
had the authority to enter into the alleged express, written
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contracts. Appellees claim the following four statutes not only
authorized the state to enter into contracts but required the state
to appropriate funds necessary to match private donations to
colleges and universities: sections 1011.85, 1011.32, 1011.94, and
1013.79, Florida Statutes (“matching statutes”). “Where the
legislature has, by general law, authorized entities of the state to
enter into contract or to undertake those activities which, as a
matter of practicality, require entering into contract, the
legislature has clearly intended that such contracts be valid and
binding on both parties.” Pan-Am, 471 So. 2d at 5. The Florida
Supreme Court has recognized that “[t]he Legislature has
authorized certain activities that implicitly grant state agencies
the power to contract for necessary goods and services.” Am. Home
Assur. Co. v. Nat’l R.R. Passenger Corp., 908 So. 2d 459, 475 (Fla.
2005).

Although the authority to contract need not be explicit and
may implicitly be granted, the matching statutes at issue fail to
provide even implicit authority to bind the Legislature to make
appropriations. First, the statutes fail to make any reference to
the Defendant’s authority to enter such contracts. See Id. (citing
to sections 20.315 and 945.215, Florida Statutes, as examples of
statutes that implicitly grant state agencies the power to contract
where each statute refers to contracts or contracted entities).
Second, contrary to Appellees’ argument, the matching statutes do
not require the Legislature to appropriate matching funds. Each
statute either makes the appropriation of funds subject to the
General Appropriations Act, §§ 1011.32 (6), 1013.79 (6) Fla. Stat.,
or contemplates scenarios where funds necessary to fulfill the
matching obligation would not be provided, §§ 1011.85(8)(b),
1011.94(7), Fla. Stat., or both. 1 Therefore as a matter of law,

1 Appellees cite to Republican Party of Florida v. Smith, 638
So. 2d 26 (Fla. 1994), in support of their argument that matching
is mandatory under the “matching statutes.” However, Smith is
readily distinguishable. In Smith, the Florida Supreme Court
declared section 106.32(1), Florida Statutes, “the Election
Campaign Financing Act,” constitutional, finding that it was not
“‘an appropriation act’ but an act of substantive legislation that
also contains an appropriation,” noting that sections of the act
“adequately specify, control, and limit the funds transferred.” Id.
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Appellants are entitled to sovereign immunity protection from the
breach of contract claims. 2

The circuit court similarly erred in failing to dismiss the
claims for impairment of contracts. Although sovereign immunity
does not bar Appellees’ impairment of contracts claims, see Fla.
Fish & Wildlife Conservation Comm’n v. Daws, 256 So. 3d 907, 912
(Fla. 1st DCA 2018) (“sovereign immunity will not bar a claim
against the State based on violations of the state or federal
constitution”), to succeed, there must be a preexisting contract to
impair. See Searcy, Denney, Scarola, Barnhart & Shipley v. State,
209 So. 3d 1181, 1191 (Fla. 2017) (“To impair a preexisting
contract, a law must have the effect of rewriting antecedent
contracts in a manner that changes the substantive rights of the
parties to existing contracts.”). However, as explained above,
Appellants did not have the authority to enter into contracts
mandating the state to appropriate matching funds; thus, even if
express, written contracts exist, the contracts were not impaired
when the matching statutes were amended suspending the
matching programs. 3 As such, Appellees are unable to plead an
impairment of contracts claim sufficient to withstand a motion to
dismiss.

at 28. In contrast, the “matching statutes” at issue here contain
no such limitations.
2 Because Appellants are without the required authority, we
do not address whether Appellants’ amended complaints and
attachments sufficiently allege the existence of express, written
contracts.
3 The matching statutes were amended in 2011 to include the
following provision, “Effective July 1, 2011 state matching funds
are temporarily suspended for donations received for the program
on or after June 30, 2011. Existing eligible donations remain
eligible for future matching funds. The program may be restarted
after $200 million of the backlog for the program under [the
matching statutes] have been matched.” §§ 1011.32(13),
1011.85(13), 1011.94(8), 1013.79(12), Fla. Stat. (2011).

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 Based on the foregoing, we reverse and remand for entry of a
final order dismissing both the breach of contract and impairment
of contracts claims.

REVERSED and REMANDED.

WOLF and OSTERHAUS, JJ., concur.

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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________

Ashley Moody, Attorney General, Blaine H. Winship, Special
Counsel to the Office of the Attorney General, Amit Agarwal,
Solicitor General, Edward M. Wenger, Chief Deputy Solicitor
General, and Christopher J. Baum, Deputy Solicitor General,
Tallahassee, for Appellants.

Eugene E. Stearns, Grace L. Mead, and Morgan Q. McDonough of
Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Miami;
Glenn Burhans, Jr., and Kelly O'Keefe of Stearns Weaver Miller
Weissler Alhadeff & Sitterson, P.A., Tallahassee, for Appellees.

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