The opinion
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NOT FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-13385
____________________
SOUTHEAST DEVELOPMENT PARTNERS, LLC,
a Florida limited liability company,
SOUTHEAST LAND VENTURES, LLC,
a Florida limited liability company,
Plaintiffs-Counter Defendants-Appellants,
versus
ST. JOHNS COUNTY, FLORIDA,
a political subdivision of the State of Florida,
Defendant-Third Party Plaintiff-Counter Claimant-Appellee,
DAYLATE ENTERPRISES, INC.,
a Florida for-profit corporation,
Third Party Defendant-Counter Defendant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:23-cv-00846-CRK-PDB
____________________
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2 Opinion of the Court 24-13385
Before WILLIAM PRYOR, Chief Judge, and BRANCH and ABUDU,
Circuit Judges.
PER CURIAM:
A developer and a county government contracted to
mitigate the impact a proposed development would have on public
roadways. Now that mitigation costs ballooned past initial
estimates, the parties disagree over who should bear the additional
costs, and each accuses the other of breaching their contract. The
district court granted summary judgment to the county, finding
that the contract unambiguously placed the excess mitigation costs
on the developer. We agree. We also agree with the district court
that the developer breached the contract in several ways, but the
county did not. Nor was the county’s enforcement of the contract
an unconstitutional exaction. But the district court erred by
granting summary judgment against one of the developer’s
associated companies that was assigned no responsibilities under
the contract. Thus, we vacate and remand the district court’s grant
of summary judgment concerning that company’s alleged breach
of the contract and affirm the district court as to the remainder of
the judgment.
I. Background
A. Governing Regulations
In St. Johns County, Florida (the “County”), new
development is governed, in part, by the County’s comprehensive
plan governing development and zoning (the “Comprehensive
Plan”). The Comprehensive Plan discourages the County from
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adding development areas unless the developer shows that a
proposed development provides a public benefit. Evaluating a
development’s public benefit includes determining any additional
burden the development would place on public facilities, including
transportation, efficient land use, and the community’s general
infrastructure needs.
Concurrency is Florida’s codified impact mitigation
approach for property development. See Fla. Stat. § 163.3180.
Under Florida law, local governments can implement a
concurrency requirement to ensure that public facilities and
services will be adequate to meet a development’s demands as it
progresses. See Fla. Stat. § 163.3180(5)(d). Counties that
implement a transportation1 concurrency system must allow
developers to mitigate a proposed development’s impact by
entering an agreement “to pay for or construct its proportionate
share of required improvements.” 2 Id. § 163.3180(5)(h)1. The
developer meets this obligation concurrently with the increased
infrastructure demands a project generates. Such agreements
1 Florida law allows for local governments to enact various concurrency
requirements, including sewer, water, or public education facilities. See Fla.
Stat. § 163.3180. Only the County’s use of transportation concurrency is at
issue here.
2 The statute provides instructions for calculating a developer’s proportionate
share “based upon the number of trips from the proposed development.” Fla.
Stat. § 163.3180 (5)(h)2a. Neither party challenges the initial proportionate
share calculation for this development.
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cannot require a developer to cover existing transportation
infrastructure deficiencies. Id. § 163.8180(5)(h)2.
In short, new developments in the County like the one at
issue must show both a public benefit per the Comprehensive Plan
and how the development will mitigate any costs it generates.
B. The Development Agreement
In September 2016, Southeast Development Partners, LLC
(“Southeast Development”) applied to the County for a large-scale
comprehensive plan amendment for the Grand Oaks Planned Unit
Development (the “Development”). The plan for the Development
was to turn roughly 524 land acres into a mixed-use project
including a maximum of 999 residential units, “100,000 square feet
of commercial use and a maximum of 50,000 square feet of office
use” along the south side of State Road 16 (“SR 16”). The
Development’s plan included an explanation of how the
Development would provide a public benefit and mitigate its
impact on public facilities.
After reviewing Southeast Development’s application, the
Board of County Commissioners (“BOCC”) determined that the
development would increase traffic on public roads beyond their
then-existing capacity, including the parts of SR 16 closest to the
development. In response, Southeast Development proposed that
it would widen three miles of SR 16 around the development’s
entrance (the “SR 16 improvements”), which the parties estimated
would cost $15,013,392.49. Notably, this proposal involved
Southeast Development completing the improvements, as opposed
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to paying for the County to complete them. The County agreed
to the proposal, and the parties entered a “Concurrency and Impact
Fee Credit Agreement” (the “Agreement”).
Here is how the parties formalized the proposal in the
Agreement. At a high level, Southeast Development agreed to pay
for and construct the SR 16 improvements, with a portion of the
money it paid counting towards the Development’s proportionate
share to mitigate the Development’s effects on traffic and the
remainder serving as the Development’s public benefit.
Importantly, Southeast acknowledged that the initial calculations
for the SR 16 improvements costs in the Agreement were estimates.
And as we will discuss, Southeast agreed to assume all costs for
those improvements.
Now for the details. As to costs that Southeast Development
agreed to take on: The Agreement’s section 4(a) stated that the
“opinion of probable construction costs estimate” was that the
total cost to “improve all deficient roadways” in the project area
was $42,515,248. Of that estimate, the “proportionate fair share”
for Southeast Development to mitigate the Development’s effects
was $10,132,643. Per section 4(c), the sum of Southeast
Development’s proportionate share contribution and its public
benefit contribution was $15 million. So of the $15 million, and
consistent with the estimate, $10,132,643.00 would count as
Southeast Development’s proportionate share contribution to
mitigate the Development’s transportation impacts, and the
remaining $4,867,357.00 would serve as the project’s public benefit.
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Section 4(d) explained that Southeast Development would use the
funds to complete the SR 16 improvements, which per the
“preliminary engineering cost estimate for the design, permitting,
and construction” of the project would cost an estimated
$15,013,392.49, which the Agreement defined as the “Estimated
Total Cost.”
The Agreement’s section 4(e) allowed Southeast
Development to fund the SR 16 improvements over time,
concurrent with the BOCC’s approval of new portions of the
development. BOCC would hold Southeast Development’s
payments toward this obligation over time in “a separate escrow
account . . . to be used only for the SR 16 [i]mprovements.” Id.
§ 4(e)(iv)(b). The payments into escrow amounted to $7,500 per
approved unit for the first 212 units, and $15,000 per unit beginning
with the 213th unit, up to the maximum of 999 units and a total of
$13,395,000 paid into escrow. The Agreement provided for the
escrow funds’ disbursement as follows:
At the time [Southeast Development] achieves
Commencement[ 3], [Southeast Development] may
apply to the County for a release of the Escrow Funds
to [Southeast Development], which [Southeast
Development] shall then have the right to use for
payment of all Pre-Construction Costs, Permits Costs
and costs related to construction of the SR 16
3 The Agreement defines “Commencement” as Southeast Development
“posting a bond for the SR 16 [i]mprovements.” As we will discuss, Southeast
Development never reached that point.
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[i]mprovements (the “Construction Costs”).
[Southeast Development] understands that the
Escrow Funds shall not be sufficient to pay the
Estimated Total Cost of the SR 16 [i]mprovements
and [Southeast Development] agrees that it shall pay
all costs for the SR 16 [i]mprovements which are in
excess of the Escrow Funds.
(emphasis added). In the event of a default, the escrow funds
would “become non-refundable” and “be used by the County to
construct a portion of the SR 16 [i]mprovements” or another road
improvement project near the proposed development.
With the framework for payments defined, the Agreement
also set out timelines for the parties to satisfy their respective
obligations for mitigation of the development’s impacts. Within
60 days of the Agreement’s effective date, Southeast Development
needed to: (1) commence acquisition of offsite drainage ponds for
the SR 16 improvements and (2) commence design of the SR 16
improvements in coordination with the Florida Department of
Transportation (“FDOT”). The Agreement further required
Southeast Development to complete the pond acquisitions and
road design during the “design period,” which ran from the
Agreement’s effective date to the earlier of either (1) fourteen
months after the effective date, or (2) the BOCC’s approval of a plat
containing the 443rd residential unit. Southeast Development also
had to “apply for and pursue all FDOT, environmental and other
permits and required governmental approval for the SR 16
[i]mprovements” within 30 days after the design period’s end and
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obtain all permits and approvals within one year of the design
period’s end.
For its part, the County had to include the SR 16
improvements in the “County’s Five-Year Schedule of Capital
Improvements in the County’s Capital Improvements Element
(‘CIE’) of its Comprehensive Plan at the next scheduled update.” 4
And the County agreed to use the Agreement “as a basis for
granting traffic or transportation concurrency” to the
Development, but both parties expressly acknowledged that state,
federal, and local permits would be necessary to authorize the
Development.
Remedies for breach under section 11 of the Agreement
included “all remedies available at law or in equity, including the
remedies of specific performance and all forms of injunctive relief.”
Further, the Agreement authorized the County to “halt approval
of additional plats or construction plans” until Southeast
Development complied with its obligations under the Agreement.
Also relevant here and included in the Agreement was
“Exhibit C” containing the “SR 16 [i]mprovements and
Engineering Cost Estimate” as prepared by Southeast
Development’s analyst, which echoed the probable cost language
contained in § 4 of the contract. Exhibit C notes a probable
4 We note that the County never included the SR 16 improvements in the CIE.
As we will explain later, this omission did not violate the Agreement, because
the next scheduled update of the CIE never occurred.
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construction cost for the SR 16 improvements of $15,013,392.09
based on the preliminary design and further notes that costs “may
vary with actual design and the cost of material at the time of
construction.”
Southeast Development and the County executed the
Agreement on September 21, 2018. A short time later, on October
1, 2018, Southeast Development assigned its development rights
under the Agreement to Southeast Land Ventures, LLC
(“Southeast Land”).5 Specifically, the assignment stated that
[Southeast Development] sells, assigns, transfers,
conveys, and allocates to [Southeast Land] all of
[Southeast Development’s] present and future rights,
title and interest, if any, relating to the Property in the
following[]: existing permits, approvals, rights, plans,
reports, studies, site plans, surveys, marketing and
engineering studies and reports, engineering plans,
warranties, utility rights and capacities including all
water and sewer agreements, guaranties, bonds and
similar rights and interests relating solely to the
Property, including but not limited to, all site
improvement construction plans and engineering
drawings together with all other planned unit
development rights, entitlements and concurrency
5 The Agreement, in section 13, provided that “[t]he rights and obligations of
[Southeast Development] may be assigned and delegated to a successor or
owner/developer.”
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and impact fee agreements pertaining to or benefiting
the Property issued by [the County]
Shortly after the assignment, Southeast Land asked to toll
several of its deadlines for the Development. First, Southeast Land
sought tolling for the opioid epidemic, Hurricane Maria, and
Hurricane Florence. Then it submitted another request following
Hurricane Dorian. Finally, Southeast Land sought tolling because
of the Covid-19 pandemic.
Southeast Land ran into obstacles as it pursued the SR 16
improvements. In September 2021, Southeast Land learned from
FDOT that Southeast Land’s initial plans required a “complete
redesign” that would increase the SR 16 improvement’s cost to
roughly $57 million. This drastically increased cost from the
original $15 million estimate pushed Southeast Land to seek
changes to the Agreement. After receiving FDOT’s feedback,
Southeast Land proposed to the BOCC that Southeast Land would
pay $15 million to FDOT so that the state could design and
complete the SR 16 improvements in its stead. 6
The BOCC held a hearing on February 21, 2023, on whether
to accept Southeast Land’s proposal to pay $15 million to FDOT in
6 At this point, Southeast Land and its affiliates had begun paying funds toward
the escrow account as the Agreement required and concurrent with the
approval of new plats. The total escrow amount in the account at the time of
the district court proceedings was roughly $5 million, and the parties agree
this amount represents the appropriate payments to that account.
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lieu of completing the SR 16 improvements itself. The BOCC
rejected Southeast Land’s proposal. And because Southeast Land
had neither acquired the necessary drainage ponds nor finished
designing the SR 16 improvements, the BOCC found Southeast
Land in default of the Agreement. That finding led the BOCC to
order the transfer of the roughly $5 million in the escrow account
to FDOT to begin the SR 16 improvements.
C. Procedural History
On March 14, 2023, Southeast Development sued the
County in Florida state court following the BOCC’s finding that
Southeast defaulted. The County counterclaimed against
Southeast Development and Southeast Land (together,
“Southeast”) seeking either a declaratory judgment that Southeast
breached the contract or a declaratory judgment for specific
performance. 7
Southeast Development brought four causes of action.
Count I sought declaratory relief finding that the County’s
interpretation of the Agreement and finding of default were
invalid, illegal, and unconstitutional. Count II sought a permanent
injunction enjoining the County from continuing alleged breaches8
7 The County also impleaded Day Late, the owner of the to-be-developed
property. The court dismissed Day Late from this case, and Day Late is not
directly involved in any claims on this appeal.
8 These alleged breaches included failing to adopt the SR 16 improvements
into the County’s CIE, failure to properly account for Southeast’s payments,
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of the Agreement and from disbursing the escrow funds to FDOT,
which disbursal Southeast claimed was inappropriate as Southeast
had not breached the contract. Count III sought a finding of
inverse condemnation under the Florida Constitution, article X,
§ 6(a). Finally, Count IV sought a finding of unlawful exaction
under 42 U.S.C. § 1983 because “the County extortionately
leveraged its police powers to require [Southeast] to pay $15
million” for the County to approve the Development and further
“leveraged” those powers to require Southeast to pay the full cost
of the SR 16 improvements when the costs drastically exceeded the
initial $15 million estimate. After the plaintiffs amended their
complaint to add Southeast Land as a co-plaintiff, the County
removed the action to federal court.
Once in federal court, the County counterclaimed, alleging
that both Southeast Development and Southeast Land breached
the Agreement with the County and requested declaratory
judgment confirming the County’s ability (1) “to halt the approval
of additional plats or construction plans,” (2) to retain the escrow
funds in accordance with the Agreement, and (3) to require that
Southeast Land assign the road planning documents and any
permits to the County for no cost. The County also requested a
judgment declaring that the Agreement obligated Southeast to pay
all costs for the SR 16 improvements despite the increase from the
initial $15 million estimate.
failing to maintain Southeast’s payments in a separate escrow account, and
failing to cooperate with Southeast to carry out the Agreement.
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Each party moved for summary judgment. The district
court granted the County’s motion and denied Southeast’s motion.
As relevant to this appeal, the district court first determined that
the Agreement obligated Southeast to pay “all costs for the SR 16
[i]mprovements” in their entirety, even if they exceeded the $15
million total cost estimate, and that Southeast breached the
Agreement by failing to timely acquire offsite drainage ponds and
coordinate the road design with FDOT. The district court then
outlined the remedies available to the County under the
Agreement and declared that the County could
(1) halt approval of additional plats and construction
plans within the [Development] until and unless
[Southeast Land] complies with the terms and
conditions of Sections 4 and 5 of the Agreement[ 9];
(2) declare the [incremental payments] held in the
separate account as non-refundable . . . [and to] be
used by the County to construct a portion of the SR
16 [i]mprovements or another road improvement
within the project impact area; and (3) require
[Southeast Land] to assign the Road Design
documents and any Permits to the County, free of
charge, within thirty (30) days of the entry of
judgment.
9 Section 4 outlined the “Total Proportionate Share Obligation and Payment
Schedule,” while Section 5 described Southeast’s “Specific Obligations and
Rights.”
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The district court also rejected Southeast’s unlawful
exaction claim because it found that Southeast could not show that
the County’s decision to hold Southeast responsible for the
increased SR 16 improvements costs under the Agreement or any
other conditions the County placed on its approval of the
Development “lacked an essential nexus to a public purpose,”
which is all that the Supreme Court requires to defeat an unlawful
exaction claim. 10 Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S.
595, 605–06 (2013). The district court awarded the County its costs
incurred in the action other than attorney’s fees.
Southeast then filed a motion to stay the judgment and the
district court’s costs award pending appeal. In opposing that
motion, the County submitted a letter that stated the property
owner had “on September 20, 2024, . . . terminated its
Development Services Agreement with Southeast Development
Partners, LLC, its assignee Southeast Land Ventures, LLC, and any
and all agents or representative of same.” Further, the letter stated
that the property owner had “on October 2, 2024, . . .terminated its
Purchase and Sale Agreement with Southeast.” 11 The County
argued that these two facts meant that Southeast no longer had any
10 The district court also found that Southeast lacked standing to bring an
inverse condemnation claim. Southeast does not challenge this finding on
appeal, and we do not review it. See Sapuppo v. Allstate Floridian Ins. Co., 739
F.3d 678, 680 (11th Cir. 2014) (“[A] party abandons an issue by failing to list or
otherwise state it as an issue on appeal.” (quotation omitted)).
11 The property owner also sued Southeast in state court alleging breach of a
contract, which the parties later agreed to dismiss without prejudice.
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legal right to continue work on the Development, so the balance
of equities did not favor staying the judgment. The district court
denied Southeast’s motion.
Southeast timely appealed. The County then moved to
dismiss the appeal for a lack of standing or as moot because
Southeast no longer had the right to proceed with the
development. We carried the motion to dismiss with the case.
II. Discussion
We review orders on summary judgment de novo, applying
the same standard as the district court. Hearn v. McKay, 603 F.3d
897, 901 (11th Cir. 2010). Under that standard, “[t]he court shall
grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We also
consider questions of appellate standing de novo. See Kimberly
Regenesis, LLC v. Lee Cnty., 64 F.4th 1253, 1258 (11th Cir. 2023).
There are four issues before us on appeal. First, the County
argues that we must dismiss this appeal as moot because
Southeast 12 is no longer able to develop the property and thus does
not have appellate standing. Second, Southeast argues that the
12 As noted above, we refer to Southeast Development and Southeast Land
together as Southeast throughout this opinion. For clarity, we continue that
convention in addressing together the arguments of both entities. That said,
for the reasons discussed below, we conclude that only Southeast
Development could breach the Agreement, and nothing in this discussion
should be construed to contradict that conclusion.
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district court erred in granting summary judgment to the County
on the breach of contract claims for three reasons: (1) the
Agreement did not require Southeast to pay for all costs of the SR
16 improvements; (2) Southeast did not breach the Agreement
because declarations of states of emergency tolled Southeast’s
deadlines for project performance; and (3) the County breached
the Agreement by failing to add the SR 16 improvements to the
County’s schedule of capital improvements. Third, Southeast
argues that the court erred in granting summary judgment to the
County on the unlawful exaction claim. Finally, Southeast
contends that the district court’s entry of judgment against
Southeast Land following the Agreement’s assignment was
improper. We address each issue in turn.
A. Standing and Mootness
The County argues that there has been a “material change
in circumstances in the status of the parties so as to eliminate any
justiciability” of the case. Specifically, Southeast “no longer hold[s]
any interest or rights as to the development” in the wake of the
property owner terminating its contracts with Southeast and the
reversion of the property to the owner. Thus, the County argues
that even if the “County breached the Concurrency Agreement”
and “imposed a monetary exaction with no nexus or
proportionality,” our ruling “would have no practical effect” on
Southeast because Southeast lacks “any right or ability to engage
in any development activities related to that development,” thus
rendering the case moot. The County also argues that Southeast’s
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“interest in avoiding liability or prejudice in the state court action
[brought by the property owner] through the Final Judgment does
not establish justiciability” because the property owner was not a
party to the final judgment. And finally, the County argues that an
interest in attorneys’ fees does not establish standing for Southeast.
Southeast argues to the contrary: because of its ongoing state court
litigation with the property owner, which may reinstate its right to
develop the property as initially intended, Southeast claims it has
an ongoing interest in the development of the property. We find
that Southeast has standing to bring this appeal because it was
injured by the district court’s decision below and the case is not
moot.
The U.S. Constitution limits the jurisdiction of federal
courts to actual “Cases” and “Controversies.” U.S. Const. art. III,
§ 2. Accordingly, “[l]itigants must establish their standing not only
to bring claims, but also to appeal judgments.” Wolff v. Cash 4 Titles,
351 F.3d 1348, 1353 (11th Cir. 2003). “To establish appellate
standing, a litigant must ‘prove that he has suffered a concrete and
particularized injury that is fairly traceable to the challenged
conduct, and is likely to be redressed by a favorable judicial
decision.’” United States v. Amodeo, 916 F.3d 967, 971 (11th Cir. 2019)
(quoting Hollingsworth v. Perry, 570 U.S. 693, 704 (2013)). The
requirements for appellate standing resemble the standing
requirements that plaintiffs must meet to bring a case in the first
instance. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103–
04 (1998) (noting that Article III standing to sue requires the “triad
of injury in fact, causation, and redressability”).
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But, while they are “similar and overlapping, the doctrines
of appellate standing and trial standing are not identical.” Wolff,
351 F.3d at 1353. “The ‘most obvious difference’ is that ‘standing
to appeal’ requires an ‘injury caused by the judgment’ while
‘standing to bring suit’ requires an ‘injury caused by the underlying
facts.’” Kimberly Regenesis, 64 F.4th at 1259 (quoting 15A Charles A.
Wright & Arthur R. Miller, Federal Practice and Procedure § 3902 (3d
ed. & Supp. Sept. 2022)). “In other words, ‘in the context of
appellate standing, the primary meaning of the injury requirement
is adverseness: Only a litigant who is arieved by the judgment or
order may appeal.’” Id. (quoting Amodeo, 916 F.3d at 971) (alteration
adopted) (emphasis added).
In Kimberly Regenesis, we addressed whether two appellants,
a county and a county commissioner, had standing to appeal the
district court’s determination that the county commissioner was
subject to a deposition subpoena in a case brought against the
county and that quasi-judicial immunity did not apply. Kimberly
Regenesis, 64 F.4th at 1259–64. We noted that the county lacked
standing because, while it had lost when it was a party litigating
this issue below, the judgment did not actually aggrieve the county
because the appeal addressed “the commissioner’s quasi-judicial
immunity, not the county’s.” Id. at 1259. Thus, “[b]ecause the
immunity does not belong to the county, the county [was] not
aggrieved by the district court denying the immunity,” and the
county could not appeal the judgment. Id. at 1260.
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The commissioner lacked appellate standing as well, but for
a different reason: he was never a party to the case. Id. at 1260–61.
We observed that a person may have an interest in a case without
being a named party, but that interest normally arises for persons
who either (1) intervene in the case or (2) are nonparties who
“participated in the case before the district court.” Id. (emphasis in
original). Because the commissioner qualified for neither
exception and did not appear in the case until it was on appeal, he
lacked appellate standing. Id. at 1262.
Here, Southeast possesses appellate standing because, unlike
the parties in Kimberly Regenesis, Southeast was not only a named
party and active participant in the case below, but the district
court’s final judgment also injured Southeast. See Amodeo, 916 F.3d
at 971. The district court ruled that the Agreement obligated
Southeast to pay all costs for the SR 16 improvements in their
entirety, including those above the $15 million estimate, and
awarded the County its costs. The judgment injured Southeast,
and reversal would redress the injury. So, Southeast’s appeal
satisfies the triad – there is an injury the judgment caused that is
redressable and Southeast has standing. See id.
The County’s claim that the case is moot is incorrect. “[A]
case is moot when the issues presented are no longer ‘live’ or the
parties lack a legally cognizable interest in the outcome.” Soliman
v. U.S. ex rel. INS, 296 F.3d 1237, 1242 (11th Cir. 2002) (quoting Powell
v. McCormack, 395 U.S. 486, 496 (1969)). A live case requires that the
court be able to grant meaningful relief; “‘if events that occur
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subsequent to the filing of a lawsuit or an appeal deprive the court
of the ability to give the plaintiff or appellant meaningful relief,
then the case is moot and must be dismissed.’” Id. (alteration
adopted) (quoting Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir.
2001)).
Here, Southeast’s dispute with the property owner may
curtail its ability to develop the property. But if we were to reverse
the district court and find that the County breached the
Agreement, Southeast would have remedies under the section 11
of the contract against the County, including “all remedies
available at law or in equity.” These remedies could include a
declaratory judgment that Southeast did not breach and did not
have to pay the entire cost of the SR 16 improvements. Thus, a
“live” issue remains that allows the Court to grant relief, and the
case is not moot. 13 See Soliman, 296 F.3d at 1242. Accordingly, we
deny the County’s motion to dismiss this appeal for lack of
standing or mootness. 14
B. Summary Judgment Merits
We now turn to the merits of this appeal. Southeast claims
that the County was not entitled to summary judgment on the
13 We do not address Southeast’s alternative suggestion that we vacate the
district court’s judgment because we find that this appeal is not moot.
14 The Florida state court’s dismissal without prejudice of the state court suit
between Southeast and the landowner does not change our analysis because
Southeast has appellate standing and the case is not moot regardless of any
state court action.
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breach of contract claims because (1) the Agreement did not
require Southeast to pay all costs related to the SR 16
improvements; (2) Southeast did not breach the Agreement
because declarations of states of emergency tolled Southeast’s
deadlines for project performance; and (3) the County breached
the Agreement by not adding the SR 16 improvements to the
County’s schedule of capital improvements. We address each
contention and conclude that the district court did not err in
rejecting each one.
1. The Agreement required Southeast to pay all costs for the
SR 16 improvements.
Southeast argues that the district court erred in finding that
the Agreement required Southeast to pay all costs for the SR 16
improvements in their entirety, including those beyond the initial
$15 million estimate. In Southeast’s view, the Agreement requires
Southeast to “pay all costs for the SR 16 [i]mprovements which are
in excess of the Escrow Funds,” but only up to that $15 million
estimate, a number mentioned in the calculation of Southeast’s
obligations and close to the $15,013,392.49 probable construction
cost included in Exhibit C attached to the Agreement. Southeast
contends that interpreting the contract without a cap on its
payments toward the SR 16 improvements would be absurd and
that Southeast would not have agreed to such a term.
The County argues that concluding Southeast assumed the
burden of all costs to pay for the SR 16 improvements is consistent
with the Agreement’s plain language. The County further
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22 Opinion of the Court 24-13385
contends that nothing in Exhibit C or in the Agreement itself limits
Southeast’s “obligation to fund the SR 16 [i]mprovements to
certain portions, phases, or particular designs of the construction.”
Under Florida law 15, contract interpretation begins with a
review of the contract’s plain language, which is the “best evidence
of the parties’ intent . . . .” Taylor v. Taylor, 1 So. 3d 348, 350 (Fla.
1st DCA 2009) (per curiam); Sugar Cane Growers Coop., Inc. v.
Pinnock, 735 So. 2d 530, 538 (Fla. 4th DCA 1999). Courts applying
Florida law interpret words and phrases “in their ordinary sense”
and do not apply “a strained, forced, or unrealistic construction.”
Siegle v. Progressive Consumers Ins. Co., 819 So. 2d 732, 736 (Fla. 2002)
(quoting Gen. Accident Fire & Life Assurance Corp. v. Liberty Mut. Ins.
Co., 260 So. 2d 249, 253 (Fla. 4th DCA 1972)). Courts determine
the legal effect of a contract’s provisions from the words of the
entire contract, and it is error for a court to construe a contract in
a manner which leaves out words and phrases. Sugar Cane Growers,
735 So. 2d at 535. “[I]t is never the role of a trial court to rewrite a
contract to make it more reasonable for one of the parties.”
Ferreira v. Home Depot, 12 So. 3d 866, 868 (Fla. 1st DCA 2009) (per
curiam).
15 The parties both cite Florida law in support of their contract interpretation
arguments. Section 14 of the Agreement also provides that the Agreement
“shall be governed by, construed under and enforced in accordance with the
laws of the State of Florida.” For these reasons, and because “state law governs
issues of contract interpretation,” we apply Florida state law in analyzing the
breach of contract claims. AFC Franchising, LLC v. Purugganan, 43 F.4th 1285,
1290 (11th Cir. 2022).
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The Agreement unambiguously requires Southeast to
construct the SR 16 improvements without a cost limitation.
Pursuant to state law, as part of its planned development, Southeast
had to show the County that it would both mitigate the
development’s transportation infrastructure effects and show how
the development would provide a public benefit. See Fla. Stat.
§ 163.3180. The Agreement provided that Southeast would pay
roughly $10 million as its proportionate share of the SR 16
improvements as mitigation and an additional estimated $5 million
beyond its proportionate share representing the project’s public
benefit. But as section 4(a) of the Agreement makes clear, those
amounts were based on the “probable construction costs
estimate.” And § 4(d) acknowledged that $15,013,392.49 was the
Estimated Total Cost, based on the preliminary cost estimate for
the design, permitting, and construction costs of the SR 16
improvements. Exhibit C also acknowledged the uncertain nature
of the total project costs and explained that the “estimated
construction costs” were based on the “preliminary design . . . and
may vary with actual design and the cost of material at the time of
construction.” And section 4(e) the Agreement specifically notes
that these amounts are estimates only: “[Southeast] understands
the Escrow Funds shall not be sufficient to pay the Estimated Total
Cost of the SR 16 [i]mprovements and [Southeast] agrees that it
shall pay all costs for the SR 16 [i]mprovements which are in excess
of the Escrow Funds.” That language, in the ordinary sense,
requires Southeast to “pay all costs for the SR 16 [i]mprovements,”
in their entirety. See Siegle, 819 So. 2d at 736. In entering the
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24 Opinion of the Court 24-13385
Agreement, Southeast acknowledged that what it paid into escrow
was not the total cost of the SR 16 improvements or the limit of
what it would bear, and in agreeing to the “all costs” language,
Southeast accepted that it would pay the entire burden of the SR
16 improvements.
Southeast asks us to read into the contract an implied limit
of $15 million on the costs it assumed under the Agreement. We
decline to do so. See Ferreira, 12 So. 3d at 868. Nothing in the
Agreement limits Southeast’s costs to the $15 million estimate to
design and construct the SR 16 improvements. Indeed, the initial
estimate in Exhibit C was $15,013,392.49, in excess of $15 million,
and, as discussed above, the Agreement included language
acknowledging that the estimate acknowledged that the $15
million was only the parties’ best estimate at the time for the SR 16
improvements cost that Southeast would bear. The Agreement
therefore recognized that Southeast was agreeing to pay “all costs”
for the SR 16 improvements, even if the costs exceeded the initial
estimate.
Southeast’s reliance on the $15,013,392.49 estimated
amount listed in Exhibit C for an implied cap to its costs is similarly
unavailing. As noted above, that estimate includes the notation
that the estimated costs were based on a preliminary design and
“may vary with actual design and the cost of material at the time
of construction.” While Section 4(e) of the Agreement contains
language that the escrow funds would “count toward” Southeast’s
obligations under the Agreement, both parties knew the costs
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would exceed the escrow amount. Though, under the
Agreement’s section 4(e), Southeast would no longer need to
contribute to the escrow funds when the account totaled
$13,395,000 or when construction commenced, the Agreement still
required Southeast to meet the Agreement’s design, permitting,
and construction requirements if the amount in escrow was
insufficient to cover all costs. As Exhibit C noted, the costs were
based on preliminary design; the actual design required for FDOT
approval when it required a “complete redesign” was much more
expensive. So far from providing the cap that Southeast argues for,
Exhibit C actually confirms that Southeast knew its costs would
exceed $15 million at the time it entered the Agreement.
To be sure, this interpretation means the Agreement does
not cap Southeast’s exposure. But under Florida law, where a
contract is unambiguous, our “task is to apply the parties’ contract
as written, not rewrite it under the guise of judicial construction.”
City of Pompano Beach v. Beatty, 222 So. 3d 598, 600 (Fla. 4th DCA
2017) (quotation omitted). We cannot vary a contract simply
because a provision turns out to be ill-advised, and we cannot say
that a sophisticated party assuming the potential risk or benefit in
negotiating a contract is absurd, particularly when Southeast did
not include an explicit cap to their costs in the Agreement. See
Ferguson v. Ferguson, 54 So. 3d 553, 554 (Fla. 3d DCA 2011) (“[T]he
bedrock principle of contract law . . . [is] that bad deals are as
enforceable in the law as good deals.”); Seritage SRC Fin., LLC v.
Town Ctr. at Boca Raton Tr., 397 So. 3d 44, 46 (Fla. 4th DCA 2024)
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26 Opinion of the Court 24-13385
(holding that an agreement between sophisticated parties was
unambiguous).
Southeast also argues that under Florida law, it should not
be “responsible for the cost of reducing or eliminating existing
deficiencies” because concurrency only requires it to mitigate the
development’s infrastructure effects, not pay for otherwise needed
improvements that its development did not cause. See Fla. Stat.
§ 163.3180(5)(h)2 (“[A] local government may not require payment
or construction of transportation facilities whose costs would be
greater than a development’s proportionate share of the
improvements necessary to mitigate the development’s impacts.”).
But Southeast leaves unexplained how its agreement to pay all
associated costs violates this anti-deficiency provision. After all,
Southeast agreed to pay more than its proportionate share to satisfy
its public benefit obligations. As stated in the Agreement’s § 4(a),
Southeast’s proportionate share, based on initial estimates, was
$10,132,643.00. And per § 4(b), Southeast agreed to pay
$4,867,357.00 in addition to that proportionate share as its public
benefit contribution. The $15 million total of those two amounts
from §§ 4(a) and 4(b) was roughly equivalent to the $15,013,392.49
in Exbibit C. But § 4(e) also notes that Southeast “understands that
the Escrow Funds shall not be sufficient to pay the Estimated Total
Cost of the SR 16 improvements and [Southeast] agrees that it shall
pay all costs for the SR 16 improvements which are in excess of the
Escrow Funds.” Southeast did not negotiate contract language
stating that it would pay all costs for the SR 16 improvements which
are in excess of the Escrow Funds up to the amount of the Estimated
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Total Cost of the SR 16 improvements (which the Agreement defined
as $15,013,392.49). The Agreement says all costs.
Southeast chose how it wanted to meet the County’s public
benefit requirement for the Development. The Comprehensive
Plan does not specifically define a developer’s public benefit
contribution. Instead, it requires only that an applicant for a
development demonstrate that there is one, and nothing precludes
a developer from agreeing to a potentially variable amount in
meeting this obligation. We also note that Florida law allows for a
developer to contract to satisfy its proportionate share obligation
by “construct[ing] its proportionate share,” which Southeast chose
to do when it agreed to cover all costs associated with the SR 16
improvements. Fla. Stat. § 163.3180(5)(h)c(I). By agreeing to
construct the improvements in lieu of contributing its
proportionate share payment under the statute, Southeast assumed
the risk of the development costing more or less than it might
otherwise have to spend, if for instance it had instead contracted to
pay the County $15 million to construct the SR 16 improvements.
Southeast was familiar with the distinction; it attempted to modify
the Agreement and pay $15 million to the County instead before
the County declared Southeast in breach. Under the ordinary
meaning of the contract, Southeast agreed to that variable amount,
knowing that the initial estimate was just that—an estimate—and
that actual construction costs might vary.
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28 Opinion of the Court 24-13385
Accordingly, we find that the Agreement unambiguously
meant what it said: Southeast must pay all costs associated with the
SR 16 improvements.
2. Southeast breached the Agreement.
Under section 4(e) of the Agreement, Southeast had to meet
various benchmarks, including acquiring offsite drainage ponds
during the design period, designing the SR 16 improvements, and
obtaining the needed permits for the SR 16 improvements after the
design period ended. Southeast had to begin these tasks with 60
days of the Agreement’s effective date and conclude the design
period at the earlier of 14 months later or at the time of the
County’s approval of the 443rd residential unit. The Agreement
required Southeast to apply for and obtain all the needed permits
for the Development within one year of the design period’s end.
Southeast did not achieve these timing benchmarks. The district
court found that the Agreement did not qualify for tolling under
Florida state statute because it was not a development permit or
order and at most was a step toward a permit, and that because
Southeast had not performed its obligations, Southeast had
breached the Agreement.
Southeast argues that the district court incorrectly found
that it breached the Agreement because five states of emergency in
Florida tolled the deadlines for Southeast’s performance of these
obligations, meaning it had not yet missed a deadline when the
County declared Southeast in default. The County responds that
Southeast breached the Agreement because (1) Southeast did not
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perform according to the stipulated timelines; (2) the Florida
statute providing for the tolling of deadlines related to states of
emergency does not apply to the Agreement; and (3) even if the
statute did, Southeast did not properly notify the County of the
deadlines Southeast wanted tolled.
The relevant Florida law provides that
[t]he declaration of a state of emergency by the
Governor tolls the period remaining to exercise the
rights under a permit or other authorization for the
duration of the emergency declaration. Further, the
emergency declaration extends the period remaining
to exercise the rights under a permit or other
authorization for 6 months in addition to the tolled
period.
Fla. Stat. § 252.363(1)(a) (2018). 16
The parties signed the Agreement in 2018. At the time, the
tolling provision in § 252.363(1)(a) applied to:
1. The expiration of a development order issued by a
local government.
16 Florida law applies the statutory scheme in effect at the time the parties enter
an agreement. See Fla. Beverage Corp. v. Div. of Alcoholic Bevs. & Tobacco, Etc,
503 So. 2d 396, 398 (Fla. 1st DCA 1987) (“The laws in force at the time of the
making of a contract enter into and form a part of the contract as if they were
expressly incorporated into it.”). Florida has since amended this statute, but
as the parties entered the Agreement in 2018, we apply the version in effect at
the time.
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2. The expiration of a building permit.
3. The expiration of a permit issued by the
Department of Environmental Protection or a water
management district pursuant to part IV of chapter
373.
4. The buildout date of a development of regional
impact, including any extension of a buildout date
that was previously granted as specified in s.
380.06(7)(c).
Fla. Stat. § 252.363(1)(a) (2018). The statute also explains that “[i]f
the permit or other authorization for a phased construction project
is extended, the commencement and completion dates for any
required mitigation are extended such that the mitigation activities
occur in the same timeframe relative to the phase as originally
permitted.” Id § 252.363(1)(c).
The County argues that the statute did not include
development agreements such as the Agreement at issue here.17
Southeast contends that the Agreement is not a development
agreement and is instead a “proportionate share agreement
pursuant to section 163.3180,” apparently arguing that such a
proportionate share agreement that sets out mitigation
requirements would qualify for tolling. But we need not decide
17 The Florida legislature did add development agreements to the tolling
statute, see Fla. Stat. § 252.363(1)(a)(6) (2021), but not until 2021, well after the
Agreement’s effective date.
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whether the Agreement qualifies as either type because the tolling
statutes lists neither proportionate share agreements nor
development agreements among those permits a state of
emergency would extend. See Fla. Stat. § 252.363(1)(a) (2018). The
statute lists development orders, building permits, environmental
permits, and developments of regional impact, but no other
“permit or other authorization.” See id. And the statute’s
references to mitigation is tied to the extension of “permits or
other authorizations” described in the statute, which the
Agreement is not. See id. § 252.363(1)(c).
Nor does the Agreement qualify as a development order (not
to be confused with the County’s assertion that it is a development
agreement.)18 A “development order” is “any order granting,
denying, or granting with conditions an application for a
development permit,” Fla. Stat. § 163.3164(15) (2018).
“‘Development permits’ include[] any building permit, zoning
permit, subdivision approval, rezoning, certification, special
exception, variance, or any other official action of local
government having the effect of permitting the development of
land.” Fla. Stat. § 163.3164(16) (2018). We agree with the district
court that, at most, the Agreement served as a step toward
Southeast seeking the permits the Development required.
18 Neither party argues that the Agreement qualifies as a building permit,
environmental permit, or development of regional impact. Accordingly, we
do not analyze whether the Agreement fits these categories.
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32 Opinion of the Court 24-13385
The Agreement says as much. In Section 6(a), the
Agreement emphasizes that the parties still had to obtain necessary
permits for the Development. And under section 9, Southeast
agrees to obtain those permits in accordance with federal, state,
and local requirements. Given that the Agreement acknowledges
the need for permits that it does not grant, we cannot conclude that
the Agreement is “an official action of local government having the
effect of permitting the developed land,” Fla. Stat. § 163.3164(16)
(2018), or that the County entering the Agreement with Southeast
represented a “grant[] with conditions [of ] an application for a
development permit.” Fla. Stat. § 163.3164(15). Thus, the
Agreement is not a development order subject to tolling under
§ 252.363(1)(a). 19
Accordingly, because the Florida states of emergency did not
toll the timelines specified in the Agreement, and Southeast did not
perform under the original timelines, Southeast breached the
Agreement.
3. The County did not materially breach the Agreement
Southeast argues that the County breached the Agreement
by failing to adopt “the SR 16 [i]mprovements into its Five-Year
Schedule of Capital Improvements in the Capital Improvements
19 Southeast contends that the development order it sought to toll was the
authorization for the Development, which it asserts would qualify as a
development order, not the Agreement. But the requirements for design and
obtaining permits were part of the Agreement, which does not qualify for
tolling, as explained above.
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Element of its Comprehensive Plan” as section 7 of the Agreement
required. Doing so, Southeast argues, would have given the
Development “some level of priority by the County, as well as
visibility to the general public” and allowed the County to “enter[]
into other proportionate share agreements to put funds towards
the roadway or identif[y] other funding sources.” The County
responds that it did not breach the Agreement because, while the
Agreement requires the County to add the improvements into the
schedule at its first update, it has not yet updated the schedule. The
County also argues that, even if the failure to do so was a breach,
it was not a material breach, because adding the improvements into
the plan would not have changed the costs Southeast agreed to bear
and did not go to the essence of the Agreement.
Breach of contract claims in Florida require a party to
establish “(1) the existence of a contract; (2) a material breach of
that contract; and (3) damages resulting from that breach.”
Marchisio v. Carrington Mortg. Servs., LLC, 919 F.3d 1288, 1313 (11th
Cir. 2019) (quoting Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1272
(11th Cir. 2009) (emphasis omitted). A party materially breaches
when he “fail[s] to perform a duty that goes to the essence of the
contract and is of such significance that it relieves the injured party
from further performance of its contractual duties.” Burlington &
Rockenbach, P.A. v. L. Offs. of E. Clay Parker, 160 So. 3d 955, 960 (Fla.
5th DCA 2015). “[T]rivial noncompliance and minor failings do
not constitute material breaches.” Id.
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34 Opinion of the Court 24-13385
As an initial matter, the record does not show that the
County breached the Agreement. The Agreement required that
[t]he County will adopt [Southeast’s] Transportation
Contribution . . . into the County’s Five-Year
Schedule of Capital Improvements in the County’s
Capital Improvements Element (“CIE”) of its
Comprehensive Plan at the next scheduled update.
Southeast argues that Florida law requires the County to review its
Capital Improvements Element “on an annual basis.” Fla. Stat. §
163.3177(3)(b). That may be so. But reviewing a plan and updating
it are not the same thing. The district court correctly noted that
the Agreement only requires inclusion of the SR 16 improvements
“at the next scheduled update.” The record does not indicate when
the “next scheduled update” to the plan was to occur or if it even
has. It also does not show the County’s failure to update the plan
at that indeterminate time.
But even if the County did breach the Agreement in failing
to update the plan, such failure was immaterial. As we have
discussed, the Agreement obligated Southeast Development (and
no one else) to pay “all costs” of the improvements. Southeast does
not explain why inclusion of the improvements into the plan would
have resulted in state or local government funding priority for a
project that Southeast had already agreed to pay for. Nor does
Southeast explain why the County would have solicited additional
proportionate share agreements to fund those same
improvements. Thus, such inclusion would not have materially
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affected Southeast’s burden under the Agreement. And even if
adding the improvements to the CIE would have increased their
“visibility to the general public,” such visibility did not go to the
“essence” of the contract, and any noncompliance on this point
was trivial. See Burlington, 160 So. 3d at 960.
C. Unlawful Exaction
The district court granted the County summary judgment
on Southeast’s § 1983 claim that the County holding Southeast
accountable for the increase in the costs of SR 16 improvements
amounts to an unconstitutional exaction. Southeast argues that the
district court erred because enforcing the Agreement amounts to a
taking that lacks an essential nexus to a legitimate state interest and
was not roughly proportionate to the development project’s
impacts. The County responds that requiring Southeast to pay the
increased costs of the SR 16 improvements is not an unlawful
exaction because Southeast, in the Agreement, assumed the
burden of any price increase when it agreed to construct the
improvements rather than negotiating to merely pay the estimate
improvement costs upfront, as it tried to do shortly before the
County declared Southeast in breach. Southeast replies that the
unconstitutional burden overcame the Agreement and rendered it
unenforceable.
The Supreme Court established the test for an unlawful
exaction in Koontz. 570 U.S. at 606. As explained in Koontz, “the
government may choose whether and how a permit applicant is
required to mitigate the impacts of a proposed development, but it
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36 Opinion of the Court 24-13385
may not leverage its legitimate interest in mitigation to pursue
governmental ends that lack an essential nexus and rough
proportionality to those impacts.” Id. If there is no nexus and the
demands are not roughly proportional to the impacts, the demands
are extortionate. Id. Monetary exactions must satisfy the same
nexus and proportionality requirements. Id. at 612. An
unconstitutional land-use exaction occurs when the government
requires the landowner to surrender property in exchange for land-
use permits, unless the transfer meets the nexus and
proportionality requirements. Id. at 606; see generally Nollan v. Cal.
Coastal Comm’n, 483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S.
374 (1994).
Where a claim alleges that an unlawful exaction has
occurred in conjunction with the granting of a development
permit, we first consider whether an “essential nexus” exists
between a “legitimate state interest” and the permit condition
exacted by the government. See Dolan, 512 U.S. at 386 (citing Nollan,
483 U.S. at 837). After establishing that an essential nexus exists, the
Court “must then decide the required degree of connection
between the exactions and the projected impact of the proposed
development.” Id. Stated simply, the government may “condition
approval of a permit on the dedication of property to the public so
long as there is a ‘nexus’ and ‘rough proportionality’ between the
property that the government demands and the social costs of the
applicant’s proposal.” Koontz, 570 U.S. at 605–06.
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Assuming the County must establish that the agreement
meets the nexus and proportionality requirements, the
requirements are satisfied here. But see Koontz, 570 U.S. at 604–05
(explaining that nexus and proportionality are implicated “when
owners apply for land-use permits” (emphasis added)). The
Agreement between Southeast and the County allows Southeast to
mitigate the development’s transportation impacts, a legitimate
state interest. See Dolan, 512 U.S. at 387–88 (explaining that
attempts to reduce local traffic congestion by a municipality qualify
as a legitimate public purpose). And the concurrency mechanism
allows developers to pay costs that are roughly proportionate to
their projects’ effects upon agreement with the local government.
See Fla. Stat. § 163.3180(5)(h)1. So to the extent Southeast argues
that the proportionate fair share it agreed to pay as part of the
concurrency agreement was an unlawful exaction, that argument
fails. But the variable cost (the “public benefit” from section 4(b)
of the agreement) is also not an unlawful exaction. Southeast’s
conduct explains why.
In signing the Agreement, Southeast confirmed what
contribution amount it considered roughly proportionate to its
development proposal when it agreed to construct the SR 16
improvements estimated to cost more than $15 million. Southeast
had a choice between paying for the SR 16 improvements or
constructing them itself, and it chose the latter. See Fla. Stat.
§ 163.3180(5)(h)1.c. In doing so, it voluntarily assumed full
responsibility for completion of the SR 16 improvements to satisfy
its concurrency requirements as well as its public benefit
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38 Opinion of the Court 24-13385
demonstration. It did so despite the availability of alternative
avenues to satisfy its mitigation and public benefit requirements,
and cannot now argue that the conditions it put forward and agreed
to are unconstitutional. If the improvements had cost less than the
Agreement estimated they would, then Southeast would have
benefited from that windfall. We will not declare the Agreement
unconstitutional simply because it shifted from a boon to a burden
for Southeast. See Ferreira, 12 So. 3d at 868.
Nor can Southeast claim that the concurrency agreement
became an exaction after the fact when the SR 16 improvements
costs increased. Per Koontz, an exaction is not unlawful if it meets
the nexus and rough proportionality requirements. 570 U.S. at 605–
06. The parties agreed that the SR 16 improvements were
necessary to meet both Southeast’s traffic mitigation and public
benefit demonstration requirements. The agreement estimated the
SR 16 improvements costs. The nexus between the SR 16
improvements and approval of the Development remained even
when the costs to complete the improvements ballooned because
the development would still generate the need for the
improvements. And as for rough proportionality, section 4(a) of
the Agreement calculated Southeast’s proportionate share amount
based on the estimates available at the time. Southeast offered to
pay the difference between what mitigation required and what the
SR 16 improvements cost as the Development’s public benefit. We
see no violation of rough proportionality when a developer’s costs
increase at the same time the cost of the overall project increases,
especially when those costs were known to be variable at the time
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of the Agreement.20 At bottom, we conclude that Southeast
accepted an arrangement to advance its Development that resulted
in a variable cost. Southeast’s desire not to pay that variable cost is
not a basis for us to overturn the contract.
Thus, the County has shown as a matter of law that holding
Southeast to the terms of the Agreement was an unconstitutional
exaction, and the district court properly granted summary
judgment to the County.
D. The Assignment’s Effects
One final matter remains. The district court granted the
County’s motion for summary judgment as to all counts in the
amended complaint and the second amended counterclaim.
Southeast argues that decision was error because Southeast
Development only assigned its rights under the contract to
Southeast Land and that Southeast Land could not breach
responsibilities it did not accept. To the extent the district court’s
judgment found that Southeast Land breached the Agreement, that
was error.
20 We note that there are no allegations in the record that any of the parties
intentionally misstated the estimated costs of the SR 16 improvements to force
Southeast to bear the significantly higher costs that became necessary to
complete the project. Rather, the record reflects that the costs increased due
to FDOT requirements unknown at the time the parties entered the
Agreement. Thus, we need not consider whether an unlawful exaction occurs
when a local government intentionally underestimates the costs of a project
in order to force an applicant to bear the higher actual costs that the
government knew were necessary.
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40 Opinion of the Court 24-13385
Under Florida law, an assignment of rights does not include
an assumption of liabilities by the assignee unless the assignee
expressly agrees. See Jenkins v. City Ice & Fuel Co., 118 Fla. 795, 801
(1935) (“The assignment of a personal contract does not give to the
other party to the original agreement a right of action against the
assignee for its breach, nor is the mere assignee liable unless he has
expressly agreed to become bound or has promised upon a
sufficient consideration to perform for the benefit of a third party.”)
The Agreement allowed Southeast Development to assign
its “right and obligations . . . to a successor or
owner/developer . . . .” Southeast Development chose to assign all
its “present and future rights, title, and interest, if any” to Southeast
Land, including “concurrency and impact fee agreements
pertaining to or benefiting” the development. In short, Southeast
Development assigned its rights under the Agreement to Southeast
Land, but not its obligations, which go unmentioned in the
assignment. It is axiomatic that a party cannot breach a contract
that it has no responsibilities under, and thus judgment against
Southeast Land on the breach of contract claim was error. 21
We therefore vacate the district court’s judgment against
Southeast Land concerning breach of contract, and remand for the
21 The County did not contest the issue of the assignment of obligations to
Southeast Land in its brief, and counsel for the County at oral argument
conceded that judgment was appropriate only against Southeast Development
and not Southeast Land on the County’s breach of contract claim because of
the assignment.
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24-13385 Opinion of the Court 41
district court to modify the judgment to indicate that only
Southeast Development breached the Agreement and was
obligated under the Agreement to pay all costs for the SR 16
improvements.22
III. Conclusion
For the foregoing reasons, we deny the County’s motion to
dismiss this appeal, and we affirm the district court’s grant of
summary judgment to the County except as to the judgment
against Southeast Land on the breach of contract claims. We
vacate and remand for the district court to modify the judgment
and clarify that only Southeast Development breached the
Agreement.
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED.
22 We note that even though Southeast Land could not breach an agreement
under which it had no responsibilities, the district court did not err in declaring
the County’s authority under the contract to “halt approval of additional
plats,” declaring the escrow payments forfeit, and requiring the assignment of
“the Road Design documents and any Permits to the County.” Those
remedies were consistent with the County’s rights to enforce the Agreement
upon a breach.