University of Florida Board of Trustees, and The Florida Board of Governors v. Browning, Boisse

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2021-1857

_____________________________

THE UNIVERSITY OF FLORIDA

BOARD OF TRUSTEES, and THE

FLORIDA BOARD OF GOVERNORS,

Appellants,

v.

LISA BROWNING, individually;

JULIANA BOISSE, JONATHAN

CHARLES, MAX CHERN, and

MICHELLE GRESSER, on behalf of

themselves and all other

similarly situated,

Appellees.

_____________________________

On appeal from the Circuit Court for Alachua County.

Monica J. Brasington, Judge.

April 3, 2024

LEWIS, J.

Appellants, the University of Florida Board of Trustees and

the Florida Board of Governors, challenge the trial court’s non-

final Order Granting in Part and Denying in Part Defendants’

Motions to Dismiss, asserting that sovereign immunity bars the

claims against them for negligent misrepresentation, conversion,

and declaratory judgment. The Board of Governors argues, and

we agree, that the trial court erred in denying its motion to dismiss

as to all those claims against it because, under the circumstances

of this case, there is no basis for waiving the Board’s sovereign

immunity under section 768.28, Florida Statutes (2021), and

holding it vicariously liable. We also agree with Appellants that

sovereign immunity bars the declaratory judgment claims against

them. We affirm the denial of the Board of Trustees’ motion to

dismiss as to the negligent misrepresentation and conversion

claims without discussion. Accordingly, we affirm in part, reverse

in part, and remand with instructions.

BACKGROUND

Appellees, Lisa Browning, individually, and Juliana Boisse,

Jonathan Charles, Max Chern, and Michelle Gresser, on behalf of

themselves and all other persons similarly situated, filed a twenty-

two-count Third Amended Class Action Complaint against

Appellants, alleging that the University of Florida (“UF”) charged

prospective students a non-refundable application fee in excess of

the statutory maximum amount of $30 and charged admitted

students a preview orientation fee in excess of the statutory

maximum amount of $35 as set forth in section 1009.24(14),

Florida Statutes (2021). According to Appellees, the UF Board of

Trustees is responsible for setting the application and orientation

fees charged. Appellees did not allege any specific actions on the

part of the Board of Governors or its representatives or employees.

Nor did Appellees allege that they had any transactions or

interactions with the Board of Governors or its employees.

Instead, they based their claims against the Board of Governors

solely on vicarious liability given its constitutionally mandated

duties of oversight over the state university system.

The Third Amended Complaint contained claims for breach of

contract, rescission of contract, breach of fiduciary duty, negligent

misrepresentation, conversion, and declaratory judgment. In

addition to seeking damages for their tort claims, Appellees sought

in the declaratory judgment counts a declaration that the Board of

Trustees unlawfully charged non-refundable application and

preview orientation fees in excess of the statutory maximums and

that Appellees are entitled to repayment of those excess amounts.

2

Each Appellant filed a Motion to Dismiss or, in the

Alternative, Motion for Judgment on the Pleadings, arguing in

part that the claims are barred by the doctrine of sovereign

immunity. Following a hearing on the motions, the trial court

entered an Order Granting in Part and Denying in Part

Defendants’ Motions to Dismiss, in which it dismissed with

prejudice the breach of contract, rescission of contract, and breach

of fiduciary duty counts upon finding they are barred by sovereign

immunity because no enforceable written or express contract

exists between the parties. The court denied the motions with

regard to the negligent misrepresentation, conversion, and

declaratory judgment counts, which are the only counts at issue on

appeal, finding that they are not barred by sovereign immunity.

This appeal followed.

ANALYSIS

Our review of the trial court’s ruling on a motion to dismiss a

complaint based on sovereign immunity is de novo. Desantis v.

Geffin, 284 So. 3d 599, 602 (Fla. 1st DCA 2019). We must accept

as true the complaint’s well-pleaded factual allegations and draw

all reasonable inferences from the allegations in favor of the

plaintiff. Medina v. Pollack, 300 So. 3d 173, 175 (Fla. 4th DCA

2020).

Sovereign immunity, which derives from the separation of

powers provision of article II, section 3 of the Florida Constitution,

protects the state and its subdivisions from civil liability unless

such immunity is waived by legislative enactment or

constitutional amendment. Fla. Fish & Wildlife Conservation

Comm’n v. Hahr, 326 So. 3d 1165, 1167 (Fla. 1st DCA 2021) (citing

article X, section 13 of the Florida Constitution). The Florida

Legislature codified a limited waiver of sovereign immunity for

tort actions in section 768.28, Florida Statutes, which provides in

pertinent part as follows:

(1) In accordance with s. 13, Art. X of the State

Constitution, the state, for itself and for its agencies or

subdivisions, hereby waives sovereign immunity for

liability for torts, but only to the extent specified in this

act. Actions at law against the state or any of its agencies

3

or subdivisions to recover damages in tort for money

damages against the state or its agencies or subdivisions

for injury or loss of property, personal injury, or death

caused by the negligent or wrongful act or omission of any

employee of the agency or subdivision while acting within

the scope of the employee’s office or employment under

circumstances in which the state or such agency or

subdivision, if a private person, would be liable to the

claimant, in accordance with the general laws of this

state, may be prosecuted subject to the limitations

specified in this act. . . .

....

(9)(a) An officer, employee, or agent of the state or of

any of its subdivisions may not be held personally liable

in tort or named as a party defendant in any action for

any injury or damage suffered as a result of any act,

event, or omission of action in the scope of her or his

employment or function, unless such officer, employee, or

agent acted in bad faith or with malicious purpose or in a

manner exhibiting wanton and willful disregard of

human rights, safety, or property. . . . The exclusive

remedy for injury or damage suffered as a result of an act,

event, or omission of an officer, employee, or agent of the

state or any of its subdivisions or constitutional officers is

by action against the governmental entity, or the head of

such entity in her or his official capacity, or the

constitutional officer of which the officer, employee, or

agent is an employee, unless such act or omission was

committed in bad faith or with malicious purpose or in a

manner exhibiting wanton and willful disregard of

human rights, safety, or property. The state or its

subdivisions are not liable in tort for the acts or omissions

of an officer, employee, or agent committed while acting

outside the course and scope of her or his employment or

committed in bad faith or with malicious purpose or in a

manner exhibiting wanton and willful disregard of

human rights, safety, or property.

§ 768.28, Fla. Stat. (2021).

4

We agree with the Board of Governors that there is no basis

for waiving its sovereign immunity under section 768.28 and

holding it vicariously liable. An “employee” is defined as

“[s]omeone who works in the service of another person (the

employer) under an express or implied contract of hire, under

which the employer has the right to control the details of work

performance.” Employee, Black’s Law Dictionary (11th ed. 2019).

Appellees have not alleged that UF employees are also the

employees of the Board of Governors. In fact, the Third Amended

Complaint is devoid of any allegation of wrongdoing on the part of

an employee of the Board of Governors or even the Board itself.

Appellees’ claims against the Board of Governors for vicarious

liability were not based on an employer-employee or agency

relationship, but solely on the Board of Governors’ general

constitutional and statutory oversight responsibilities over the

state university system, which is insufficient for imputing liability

to the Board. See § 768.28, Fla. Stat.; see also McGhee v. Volusia

Cnty., 679 So. 2d 729, 733 (Fla. 1996) (“We thus conclude that the

intent behind the 1980 amendments [to section 768.28(9)(a)] was

to extend the veil of sovereign immunity to the specified

governmental employees when they are acting within the scope of

employment, with the employing agency alone remaining liable up

to the limits provided by statute.” (Emphasis added)). As such,

under the circumstances of this case, there is no basis for applying

section 768.28’s limited waiver of sovereign immunity to the Board

of Governors.

We further agree with Appellants that they are immune from

Appellees’ declaratory judgment claims. Sovereign immunity is

the rule, not the exception, and a waiver of sovereign immunity

must be unequivocal and will not be found by inference. Hahr, 326

So. 3d at 1167. “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.” Univ. of

Fla. Bd. of Trs. v. Rojas, 351 So. 3d 1167, 1170 (Fla. 1st DCA

2022). The first exception is when the Legislature waives the

State’s immunity by general law. Id. The second exception is

when the State enters into an express, written agreement with a

private entity. Id. Here, Appellees’ declaratory judgment claims

are not brought under the federal or state constitutions, and

5

neither exception to sovereign immunity applies to the

claims. The claims are not based on an asserted contractual

relationship; indeed, the trial court found that no enforceable

written contract exists between the parties.

“Sovereign immunity does not exempt the State from a

challenge based on violation of the federal or state constitutions . .

. .” Dep’t of Revenue v. Kuhnlein, 646 So. 2d 717, 721 (Fla. 1994).

Cases for declaratory relief against governmental entities that

proceeded without an express waiver of sovereign immunity

involved constitutional violations. City of Fort Lauderdale v.

Hinton, 276 So. 3d 319, 325 (Fla. 4th DCA 2019); see also, e.g.,

Bradsheer v. Fla. Dep’t of Highway Safety & Motor Vehicles, 20 So.

3d 915, 916, 921 (Fla. 1st DCA 2009) (reversing the dismissal of

the count seeking declaratory or injunctive relief and remanding

for the trial court to consider whether the Department violated the

state prohibitions against depriving liberty or property without

due process and unauthorized agency penalties); City of

Jacksonville v. Jacksonville Mar. Ass’n, Inc., 492 So. 2d 770, 771–

72 (Fla. 1st DCA 1986) (affirming the final judgment declaring

invalid the “user fees” provided in a City ordinance and directing

the City to refund certain fees paid under the ordinance because

the “user fee” was an illegal tax unauthorized under by the Florida

Constitution). Claims for declaratory relief based on a

constitutional violation existed even before the enactment of

section 768.28. See Westwood Lake, Inc. v. Dade Cnty., 264 So. 2d

7, 8 (Fla. 1972) (reflecting that the plaintiff filed a declaratory

decree contesting the constitutionality of a county ordinance);

Rosenhouse v. 1950 Spring Term Grand Jury, in & for Dade Cnty.,

56 So. 2d 445, 446 (Fla. 1952) (explaining that the plaintiff’s bill

for declaratory decree and injunctive relief challenged the

constitutionality of certain statutes). Here, Appellees have not

alleged any constitutional violation. Instead, they alleged only a

violation of section 1009.24 and asserted that Appellants’

sovereign immunity is waived by virtue of section 768.28.

A statute must be given its plain and obvious meaning when

its language is unambiguous, and courts may not extend, modify,

or limit the statute’s express terms or its reasonable implications.

Searcy, Denney, Scarola, Barnhart & Shipley v. State, 209 So. 3d

1181, 1189 (Fla. 2017). Section 768.28 by its plain language waives

6

sovereign immunity only for “liability for torts,” “to recover

damages in tort”; it does not waive immunity for declaratory

judgment claims. See § 768.28(1), Fla. Stat. Nor does section

1009.24 waive sovereign immunity or authorize a cause of action

for refunds of unlawfully charged fees. Cf. § 215.26(1), Fla. Stat.

(2021) (authorizing the Chief Financial Officer to refund any

moneys paid into the State Treasury that constitute “[a]n

overpayment of any tax, license, or account due,” “[a] payment

where no tax, license, or account is due,” and “[a]ny payment made

into the State Treasury in error”). Simply stated, the State has

not waived immunity from suit for Appellees’ declaratory

judgment claims pursuant to law. Therefore, Appellees’

declaratory judgment claims are barred by sovereign immunity

because the claims do not seek to establish certainty as to some

aspect of a contractual relationship between the parties, the claims

are not based on an asserted constitutional violation, and the State

has not waived immunity from suit for the claims pursuant to law.

In denying Appellants’ motions to dismiss as to the

declaratory judgment claims, the trial court cited Bill Stroop

Roofing, Inc. v. Metropolitan Dade County, 788 So. 2d 365 (Fla. 3d

DCA 2001), as a case where the court allowed a declaratory

judgment claim to proceed against the government under similar

circumstances. Bill Stroop Roofing, Inc. brought an action for

“declaratory decree and other relief,” contending that the County

charged state-certified contractors a fee in violation of section

489.113(4)(a), Florida Statutes. Id. at 366. The Third District

agreed, stating that “[t]he trial court should have so declared, and

enjoined the County from charging the forbidden additional fee.”

Id. The court further concluded that the government is “required

to refund taxes and fees illegally exacted, and the doctrine of

sovereign immunity is inapplicable thereto.” Id. at 368. Without

citing any authority in support, the court rejected the County’s

contention that refunds of illegal tax or fee exactions are subject to

sovereign immunity defenses unless the action is based on a

constitutional violation. Id. at 367–68. To the extent Bill Stroop

Roofing, Inc. holds that sovereign immunity does not bar a

declaratory judgment action against the State even when the claim

is not based on an alleged constitutional violation and the State

has not waived immunity pursuant to law for such claim, we

certify conflict with the Third District’s decision.

7

CONCLUSION

For the foregoing reasons, we reverse the trial court’s denial

of the Board of Governors’ motion to dismiss Appellees’ Third

Amended Class Action Complaint. We also reverse the court’s

denial of the Board of Trustees’ motion to dismiss as to Appellees’

declaratory judgment claims. Accordingly, we remand the case to

the trial court with instructions to dismiss with prejudice all

claims against the Board of Governors, as well as the declaratory

judgment claims against the Board of Trustees. We affirm the trial

court’s denial of the Board of Trustees’ motion to dismiss as to the

negligent misrepresentation and conversion claims.

AFFIRMED in part, REVERSED in part, and REMANDED with

instructions; CONFLICT CERTIFIED.

LONG, J., concurs in part and dissents in part with opinion;

TANENBAUM, J., concurs in result in part and dissents in part

with opinion.

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

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8

LONG, J., concurring in part and dissenting in part.

I concur that the Board of Governors is not vicariously liable

for the actions of the Board of Trustees and is entitled to sovereign

immunity. I also agree to affirm the conversion and negligent

misrepresentation claims as to the Board of Trustees. The Court

correctly rejects Judge Tanenbaum’s theory that one’s money is not

one’s property.

I dissent, however, from the Court’s decision on the

declaratory judgment claim. Appellees sought a declaratory

judgment in their complaint. They sought a declaration that the

fees charged exceeded the statutory maximums and were

unlawfully obtained, and a declaration that they were entitled to

a reimbursement. The trial court denied Appellants’ sovereign

immunity-based motion to dismiss this claim. The trial court

found that because Appellees were seeking money damages for loss

of property, section 768.28’s waiver of immunity applied. I agree

with my colleagues that section 768.28 does not waive sovereign

immunity for declaratory judgment actions. But I would affirm on

a different ground.

I agree with Bill Stroop Roofing v. Metro. Dade Co., 788 So. 2d

365 (Fla. 3d DCA 2001). Actions to recover unlawful taxes and fees

were never barred by sovereign immunity. Sovereign immunity is

a separation of powers doctrine. And states do not enjoy sovereign

immunity when they act in violation of their controlling

constitutions. Dep’t of Revenue v. Kuhnlein, 646 So. 2d 717, 721

(Fla. 1994) (“Sovereign immunity does not exempt the State from

a challenge based on violation of the federal or state constitutions,

because any other rule self-evidently would make constitutional

law subservient to the State’s will.”). As recognized in Bill Stroop,

the Florida Constitution enshrines special protections against

unauthorized government takings and provides that “[n]o tax shall

be levied except in pursuance of law” and “[n]o person shall be

deprived of life, liberty or property without due process of law . . .

.” Art. VII, § (1)(a), Art. I, § 9, Fla. Const. And Bill Stroop held

that an action for a declaratory judgment to determine the legality

of a tax or fee is necessarily a constitutional claim because “any

tax not authorized by law is unconstitutional.” Bill Stroop, 788 So.

2d at 367; see also Broward Cnty. v. Mattel, 397 So. 2d 457, 460

9

(Fla. 4th DCA 1981). I view this as a straightforward application

of organic law: The constitution prohibits imposing unlawful fees

and taxes. A declaratory action can be used to declare a tax or fee

unlawful and therefore in violation of the constitution.

Supplemental relief can then be sought. 1

I agree that our decision today conflicts with Bill Stroop, but

I disagree with the majority’s characterization of the conflict. It is

not whether sovereign immunity bars “a declaratory judgment

action against the State even when the claim is not based on an

alleged constitutional violation.” Instead, it is about the nature of

the claim and whether it alleges a constitutional violation in the

first place. If it alleges a constitutional violation, then it is not

barred by sovereign immunity.

The fees here are set out by the Legislature. While there is a

difference between a fee and a tax, 2 “once the illegality of either is

established, the prerequisites for recovery are the same.” Id. at

367; Ves Carpenter Contractors, Inc. v. City of Dania, 422 So. 2d

342, 344 n.2 (Fla. 4th DCA 1982). Sovereign immunity does not

bar the declaratory judgment action against the Board of Trustees.

TANENBAUM, J., concurring in result in part and dissenting in part.

Both the University of Florida Board of Trustees (“UF”) and

the Florida Board of Governors (“BOG”) (collectively, the

“university defendants”) are sovereign state entities. There is no

dispute about that. Their sovereignty gives them total immunity

from suit in the State’s courts when plaintiffs, like the ones here,

1 Whether a declaratory action can look backwards to address

a previous transaction is a question for another day. Here we

address only whether sovereign immunity bars the declaratory

action. The answer is no.

2 For more detail, observe Jacksonville Port Auth. v. Alamo

Rent-A-Car, Inc., 600 So. 2d 1159, 1162 (Fla. 1st DCA 1992), and

Contractors & Builders Ass’n of Pinellas Cnty. v. City of Dunedin,

329 So. 2d 314 (Fla. 1976).

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seek purely economic damages, and that is true regardless of the

labels they put on their putative causes of action. The whole

complaint against the university defendants should have been

dismissed. I concur, then, in vacating 1 the parts of the trial court’s

order that deny the entities’ motion to dismiss. Additionally, I

agree with Judge Lewis’s conclusion that the Legislature’s waiver

of sovereign immunity for “damages in tort” is not so broad as to

include the plaintiffs’ efforts to seek declaratory judgment against

the university defendants, so I join his certification of conflict with

Bill Stroop Roofing. Finally, I agree with Judge Lewis that section

1009.24, Florida Statutes, is not a waiver of immunity or an

authorization for suit to recover statutorily excessive fees.

Otherwise, I must dissent insofar as the rest of the panel has

chosen to allow the plaintiffs and a putative class to go after these

two sovereign entities for purely economic loss allegedly suffered

from a supposed conversion of the plaintiffs’ funds and because of

putative negligent misrepresentations. The Legislature’s waiver of

sovereign immunity—strictly construed, as it must be—does not

extend so far.

I

As indicated in the opening, I support Judge Lewis’s

conclusion regarding dismissal of the declaratory judgment counts,

but I want to add a few comments. First, I take issue with Judge

Long’s recharacterization of the declaratory judgment counts

regarding $30- and $35-new-student fees as having some

constitutional dimension. The only way to get there is through

article VII, section 1(a), of the Florida Constitution: “No tax shall

be levied except in pursuance of law.” Seriously, though, the

student fees we all had to pay in college hardly resemble taxes. “In

common parlance a tax is a forced charge or imposition, it operates

whether we like it or not and in no sense depends on the will or

contract of the one on whom it is imposed.” State ex rel. Gulfstream

Park Racing Ass’n v. Fla. State Racing Comn’n, 70 So. 2d 375, 379

(Fla. 1953). Attendance at a university in Florida is a voluntary

1 The main opinion uses the term “reverse” for the disposition,

but this is not technically correct because we do not have on review

a judgment or a dismissal with some res judicata effect.

11

act. If a student does choose to attend, he or she will be subject to

several fees and costs to offset university expenses.

Moreover, unlike taxes, fees taken in by a university are not

considered state revenue and are not deposited into the State’s

treasury. Compare § 1011.42(1), Fla. Stat. (requiring each board of

trustees to “designate the depositories in which any university

funds may be deposited”); id. (2) (requiring that all funds received

by a university, “from whatever source and for whatever purpose,

[] promptly be deposited in” the aforementioned depositories); id.

(6), (7), Fla. Stat. (allowing each university president to move

university funds around for different purposes and requiring each

board of trustees to “designate” check signatories “to pay legal

obligations of the university”), with § 215.31, Fla. Stat. (requiring

revenue, including fees, “collected or received under the authority

of the laws of the state” to “be promptly deposited in the State

Treasury,” not to be paid out without an appropriation); § 17.52,

Fla. Stat. (“No moneys shall be paid out of the treasury except on

such warrants or other orders of the Chief Financial Officer or

Comptroller.”); § 17.57(1)(b), Fla. Stat. (requiring the chief

financial officer to “deposit the money of the state or any money in

the State Treasury in such qualified public depositories of the

state”); § 17.58(1), Fla. Stat. (requiring that all moneys collected

by state institutions “be deposited” in the treasury, “except as

otherwise provided by law”).

State universities, in fact, are not treated as typical state

agencies for budgeting purposes, and they are not appropriated

funds as if they were. See § 1011.41, Fla. Stat. (providing for

funding of “general operations” of universities by grant-in-aid).

Still, universities must charge the fees described in section

1009.24. See § 1009.24(2), Fla. Stat. (requiring that “[a]ll students

[] be charged fees”). Their compliance with the Legislature’s fee

policies is a condition of their receipt of funds granted from the

Legislature. See § 1011.41, Fla. Stat. (stating that legislative

funding is “contingent upon each university complying with the

tuition and fee policies established in the proviso language and

with the tuition and fee policies for state universities included in

part II of chapter 1009,” including section 1009.24). In turn, if a

university charges more for a fee than what the Legislature has

authorized, that is a matter between the university and the

12

Legislature, not one to be battled out in the courts. It certainly is

not a matter of a constitutional dimension, as Judge Long

suggests.

My next point regarding the declaratory judgment counts at

issue here is that they do not really seek declaratory relief.

Instead, they essentially ask the trial court to determine whether

a tort or some other wrong was committed in the past. They do not

express doubt about their “rights, status, or other equitable or

legal relations” being “affected by a statute, or any regulation

made under statutory authority,” such that they need determined

“any question of construction or validity arising under such statute

[or] regulation” or “a declaration of rights, status, or other

equitable or legal relations thereunder.” § 86.021, Fla. Stat. This

use of chapter 86 in the retrospective is not proper, because the

purpose of the chapter is to give trial courts the authority to

declare “the existence, or nonexistence,” of “any immunity, power,

privilege, or right” or any fact upon which the existence or non-

existence of one of these “right now exists or will arise in the

future.” § 86.011, Fla. Stat. (emphasis supplied). 2 Regardless,

2 See also § 86.051, Fla. Stat. (allowing for a declaration to be

“rendered by way of anticipation with respect to any act not yet

done or any event which has not yet happened” and providing that

“the judgment shall have the same binding effect with respect to

that future act or event”); Sheldon v. Powell, 128 So. 258, 263 (Fla.

1930) (“The common-law judgment cannot be secured until a right

has been invaded or an injury imposed, while the declaratory

decree contemplates that parties may be in doubt as to their rights,

and that they may have a judicial determination of them before

wrong has been committed or damage done.” (emphasis supplied));

id. at 262 (“In its inception, the purpose of the declaratory

judgment was to serve as an instrument of preventive justice, to

render practical help in determining issues, and to adjudicate the

rights or status of parties, without the peril of committing a crime

or resorting to violence or breach to put the legal machinery in

motion. It is inhibitory of injury.” (emphasis supplied) (internal

quotations omitted)); Seaside Town Council, Inc. v. Seaside Cmty.

Dev. Corp., 347 So. 3d 89, 100–01 (Fla. 1st DCA 2021)

(Tanenbaum, J., dissenting) (providing historical context of the

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though, of whether these counts properly were pleaded under

chapter 86, to the extent the counts could be read as an alternative

means to recover in tort, the university defendants still are

immune because on the face of these counts, the plaintiffs clearly

seek to recover only for what they consider to be economic loss. And

that leads to a critical point, which I discuss in detail in the next

part: The Legislature has not waived sovereign immunity for suits

seeking such loss of funds, akin to contract or expectation

damages—i.e., the loss of value through some economic

transaction, as opposed to through some act causing physical harm

to property.

II

Now for why, in my view, no count pleaded in the complaint

fits within the limited immunity waiver set out in section 768.28,

Florida Statutes, thereby necessitating dismissal of the whole

thing (including, of course, the conversion and negligent

misrepresentation counts). Simply put, read narrowly, the

immunity-waiver text allows only for tort suits of the type that

seek recovery for damage to or destruction of real property or

chattel. Under this properly narrow reading, then, the waiver does

not include the suit that the plaintiffs bring: to recover funds they

say the university defendants improperly or tortiously obtained

from them as payment. The majority necessarily has applied—

without explicitly saying so—a more expansive reading of the

waiver-text, contrary to what the supreme court requires. 3

A

“The doctrine of sovereign immunity, which provides that a

sovereign cannot be sued without its own permission, has been a

declaratory judgment act and its prospective, preventative

purpose).

3 Regrettably, the majority has opted not to provide an

explanation for its affirmance regarding the conversion and

negligent-misrepresentation counts. That means, however, there

is no court holding tied to the affirmance. The analysis that follows

14

fundamental tenet of Anglo–American jurisprudence for centuries

and is based on the principle that ‘the King can do no wrong.’” Am.

Home Assurance Co. v. Nat’l R.R. Passenger Corp., 908 So. 2d 459,

471 (Fla. 2005). It “was a part of the English common law when

the State of Florida was founded and has been adopted and

codified by the Florida Legislature.” Id. (citing section 2.01, Florida

Statutes).

There are three policy justifications for this doctrine. First,

and perhaps most importantly, it preserves the “constitutional

principle of separation of powers.” Id.; Kaisner v. Kolb, 543 So. 2d

732, 737 (Fla. 1989) (reaffirming “that governmental immunity

derives entirely from the doctrine of separation of powers”); Com.

Carrier Corp. v. Indian River County, 371 So. 2d 1010, 1022 (Fla.

1979) (stating that “certain functions of coordinate branches of

government may not be subjected to scrutiny by judge or jury as to

the wisdom of their performance”); see also Wallace v. Dean, 3 So.

3d 1035, 1044–45 (Fla. 2009) (characterizing sovereign immunity

in terms of a lack of subject-matter jurisdiction in that it “may

shield the government from an action in its courts”). Second,

sovereign immunity protects the public fisc. See Am. Home

Assurance Co., 908 So. 2d at 471; see also Spangler v. Fla. State

Tpk. Auth., 106 So. 2d 421, 424 (Fla. 1958) (noting that sovereign

immunity “is a part of the public policy of the state” that “is

enforced as a protection of the public against profligate

encroachments on the public treasury”). Finally, it maintains “the

orderly administration of government.” Am. Home Assurance Co.,

908 So. 2d at 471.

In the light of these considerations, it makes sense that the

Florida Constitution gives the Legislature exclusive authority to

waive the State’s sovereign immunity. Id.; see 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.” (emphasis supplied)). In other words, only the

Legislature gets to spell out the extent to which the State may be

sued and the parameters of such suits—and it will do so in the text

in this opinion hopefully will prove helpful to judges and counsel

when considering the scope of the immunity waiver in other cases.

15

of the law it enacts. Section 768.28 is the Legislature’s waiver of

that immunity in tort. Because a law is required to waive

immunity, courts do not have the authority to redefine the scope of

any immunity waiver. Moreover, out of respect for the

Legislature’s exclusive role here and “to protect public funds,” the

supreme court directs that courts construe immunity waivers

narrowly, hewing closely to what is explicit in the text. Hardee

County v. FINR II, Inc., 221 So. 3d 1162, 1165–66 (Fla. 2017); see

Spangler, 106 So. 2d at 424 (noting that “statutes purporting to

waive the sovereign immunity must be clear and unequivocal,” and

that to enforce the State’s public policy, “[w]aiver will not be

reached as a product of inference or implication”).

Indeed, there is a practical side to narrowly construing

immunity-waiver statutes. When we construe a word (or

combination of words) in a statute—like we supposedly are doing

here—we are considering that word as “the linguistic expression of

a term.” PETER KREEFT, SOCRATIC LOGIC 40 (2014 ed. 3.1); see id.

at 41 (explaining how “different words in many different

languages” can express “the same stable term”). A term,

meanwhile, “is simply any word or group of words that denotes one

object of thought.” Id. Every term has two components: its

“comprehension” (its “inner meaning” or “connotation”) and its

“extension” (its “denotation” or “all the real things the term refers

to”). Id. at 43–44. Assessing a term involves both components. Id.

at 44–45. Consideration of comprehension is qualitative and

involves “all the attributes or qualities or characteristics meant by”

the term—the “essential nature” of the object of thought being

expressed. Id. at 44–46; see also id. at 123 (“A definition tells us

what a thing is.” (emphasis removed)). A term’s extension, by

contrast, is quantitative: telling us what set of things is grouped

by the term based on its comprehension. The two components are

inversely related. Adding attributes to increase comprehension

gives more meaning to the term but narrows its extension, i.e., the

scope of things that the term references, and vice versa. Id. at 45.

If we are to define a word itself, rather than the term it

represents, we are looking for a “nominal definition,” which really

“answer[s] the question, ‘How is this word used?’ rather than

‘What is this thing?’” Id. at 125. An argument over meaning with

respect to a nominal definition, then, will be in reference to

16

“socially constructed conventions rather than universal objective

truths.” Id. at 127. There nevertheless will be the same two

inversely related components of definition: comprehension and

extension. If we define a word by its more general social usage, we

necessarily decrease its comprehension (i.e., its meaning) and

increase its extension (i.e., its usage, or scope of things to which it

refers). Contrariwise, if we define a word by how it has

conventionally been used in a more specific sense, we give the word

more meaning, because the narrower context of usage adds to the

“attributes or qualities or characteristics” included within the

word. This expansion of meaning in turn narrows the scope of

“things” to which the word refers.

This philosophical understanding about what we are doing

informs the practical aspect of our interpretative endeavor. Take a

word with two usages, one general and one specific. 4 The set of

things within scope of the specific would include no more than

what would be within the set covered by the general usage. If we

apply a word’s specific usage in a case, then, we can be assured

that we have effectuated the whole of the policy adopted by the

Legislature—and nothing more. The same, however, cannot be

said about going with the general usage over the specific: The

general usage will include what the specific covers plus some

additional things that are not included under the specific usage.

When it is called for, narrow construction of an ambiguous

word in a statute means choosing the more specific conventional

usage of the word over the more general. The specific usage carries

with it more comprehension, a richer meaning. A richer meaning,

in turn, narrows the scope of what is included within the word as

used in a statute. When we do this—say in the context of a

sovereign-immunity waiver—we significantly reduce the risk of

our erroneously expanding (read: judicially modifying) a legislative

4 A word with different usages, or meanings, is ambiguous. See

PETER KREEFT, SOCRATIC LOGIC 47 (2014 ed. 3.1) (“Ambiguous

means having more than one meaning.” (internal quotations

omitted)). Statutory construction, at bottom, is a judicial exercise

in picking the usage that best reflects the policy enacted by the

Legislature.

17

policy to include things that are outside the boundaries properly

enacted through the process set out in article III of the Florida

Constitution.

Despite the absence of an explanation or holding from the

majority, its decision to sustain the conversion and negligent-

misrepresentation counts stands in contravention of this directive

to narrowly construe and preserve the Legislature’s decision to

waive immunity under only the circumstances that it specified. As

I am about to discuss, the waiver in section 768.28 contains a key

ambiguous word—“property.” I will demonstrate that the

historical usage of “property,” especially its usage in the context of

the words surrounding it in the statute, is more specific than the

more recent alternative usage that the majority implicitly adopts.

In its sustaining of the conversion and misrepresentation counts,

the majority necessarily has chosen a usage of “property” that

includes money (i.e., economic loss) within its scope of extension—

without any explanation as to why, or even an acknowledgment of

the ambiguity. 5 Whatever the reasoning, the majority’s approach

now effectively exposes the State’s coffers to these enterprising

litigants in a way the Legislature has not authorized.

B

The Legislature has chosen to waive immunity only for torts.

See § 768.28(1), Fla. Stat. (waiving “sovereign immunity for

liability for torts, but only to the extent specified in this act”); Pan-

Am Tobacco Corp. v. Dep’t of Corr., 471 So. 2d 4, 5 (Fla. 1984)

(noting that “[t]here is no analogous waiver in contract”); see also

Ch. 73-313, § 1, at 711, Laws of Fla. (enacting waiver language

5 Judge Long misses the mark with his passing quip (I can

only assume) that I somehow am suggesting a person’s money is

not his or her property. Nonsense. My analysis has nothing to do

with legal theory or political philosophy. All I address here is what

should be a faithful effort at narrowly discerning the meaning of

the word “property” as it is used in the immunity-waiver statute. It

should go without having to say that a word can be given a more

narrow meaning under an accepted canon of construction without

that construction being labeled an effective rejection of other,

broader meanings that the word could carry in other contexts.

18

that now is section 768.28(1)). The waiver, however, does not

extend to all suits in tort.

Rather, the Legislature has limited the waiver in terms of the

type of damages sought. The waiver allows the State to be subject

to suit in its own courts only for “[a]ctions at law” (as opposed to in

equity) and only “to recover damages in tort for money damages . . .

for injury or loss of property, personal injury, or death.” Id.

(emphasis supplied); cf. id. (5)(a) (excluding punitive damages and

prejudgment interest from the waiver). Had the Legislature

intended to waive immunity for all tort suits for damages, then

there would be no reason for the highlighted prepositional phrase.

This phrase, then, must be a further narrowing of the immunity

waiver, so we should pay careful attention to getting the meaning

behind this text right.

That attention is particularly warranted here. The plaintiffs

seek recovery of funds they collectively paid over to the university

defendants. When looking at the limitation quoted in the preceding

paragraph, one can see that the university defendants’ immunity

claim turns on whether the recovery of ill-obtained funds

constitutes a “loss of property.” The plaintiffs do not seek recovery

for damage to or loss of their real property or chattel. They claim

a loss of their money, or the value of what they perceive to be their

contracted expectation. They seek to be made whole through

compensation, then, only for economic damage they claim to have

suffered. To address the university defendants’ immunity claim,

we should be analyzing whether the word “property,” as it used in

the waiver limitation, includes the concept of money 6 within its

scope of reference.

It should be clear that “property” is an ambiguous word, as it

is used in the waiver. The history that I provide below highlights

this point. The ambiguity requires a proper textual construction to

find the correct meaning behind the waiver. The majority’s

6 By “money” here, I mean the abstract concept of money

operating as a medium of exchange. This usage is distinguishable

from the word’s more specific usage, as will be discussed below, to

refer just to the physical, transportable representations of money

like coins or paper notes.

19

disposition “without discussion” fails to address this question. For

the majority, apparently, “property” must include pretty much

everything that can be owned, even intangibles like money. This

unelaborated approach, however, would obviate any effect of the

highlighted text as a legislative limitation on the immunity

waiver, thereby running counter to at least a couple well-

established principles of textual analysis.

The constitution requires a more robust judicial effort.

Economic loss is the obvious type of damage excluded by “injury or

loss of property.” If “injury or loss of property” includes economic

loss, what is left? We either read these words to exclude this

alternative type of damage, or we improperly render the words

surplusage. See Heart of Adoptions, Inc. v. J.A., 963 So. 2d 189,

198–99 (Fla. 2007) (“Moreover, a basic rule of statutory

construction provides that the Legislature does not intend to enact

useless provisions, and courts should avoid readings that would

render part of a statute meaningless.” (internal quotation and

citation omitted)). Hechtman v. Nations Title Ins. of N. Y., 840 So.

2d 993, 996 (Fla. 2003) (“It is an elementary principle of statutory

construction that significance and effect must be given to every

word, phrase, sentence, and part of the statute if possible, and

words in a statute should not be construed as mere surplusage.”);

Johnson v. Feder, 485 So. 2d 409, 411 (Fla. 1986) (“We are

compelled by well-established norms of statutory construction to

choose that interpretation of statutes and rules which renders

their provisions meaningful.”).

There is a reasonable, more specific usage of “property” in this

space. If the majority were to abide by the supreme court’s

directive to narrowly construe an immunity waiver (and faithfully

effectuate the waiver only insofar as the Legislature enacted), it

would have no choice but to vacate (rather than affirm) the trial

court’s denial of the university defendants’ claims of immunity.

The remainder of this opinion addresses the specific usage of

“property” that should apply to support dismissal of the plaintiffs’

complaint.

1

The Legislature uses words to reflect state policy, and those

words carry certain specialized meaning, depending on the context

20

and moment in history when they are enacted. The statute at issue

here was enacted in 1973. Discerning how the word “property” is

used in the statute requires consideration of the words

surrounding it. It is used in the prepositional phrase “for injury or

loss of property, personal injury, or death,” which modifies (read:

limits) the type of “money damages” (the antecedent of that

phrase) that may be recovered against the State. The prepositional

phrase itself is modified by the participial phrase that follows it:

“caused by the negligent or wrongful act or omission of any [state]

employee. . . .” As I will show, all this language taken together,

including the word “property,” is rooted in the ancient common

law—a fact relevant both at the time of the waiver’s 1973

enactment and now. See § 59, Revised Statutes (1892) (declaring

the “common and statute laws of England which are of a general

and not of a local nature . . . down to the 4th day of July, 1776, . . .

to be of force in this State”); § 2.01, Fla. Stat. (1973) (same); § 2.01,

Fla. Stat. (2023) (same); cf. Waller v. First Sav. & Tr. Co., 138 So.

780, 784 (Fla. 1931) (analyzing and determining application of old

English common-law principles); Gates v. Foley, 247 So. 2d 40, 43

(Fla. 1971) (same); Hoffman v. Jones, 280 So. 2d 431, 435–36 (Fla.

1973) (same); Tomlinson v. State, 369 So. 3d 1142, 1147 (Fla. 2023)

(looking to “settled legal meaning at English common law” to

interpret statute); id. (“Where Congress uses terms that have

accumulated settled meaning under either equity or the common

law, a court must infer, unless the statute otherwise dictates, that

Congress means to incorporate the established meaning of these

terms.” (quoting NLRB v. Amax Coal Co., a Div. of Amax, Inc., 453

U.S. 322, 329 (1981))). 7

7 Cf. Tomlinson, 369 So. 3d at 1146 (“When, in discerning what

a statute requires, we encounter a word with more than one

meaning, we look for the original meaning of the statutory text to

keep us from overriding the bargain struck in the Legislature and

signed by the Governor, that is, the law that governs us.”); id.

(“And when (as often happens) a word had more than one accepted

meaning at that time, we decide which one is the law by looking to

the context in which it appears, and what history tells us about

how it got there.”).

21

The common law historically made a clear distinction between

recovery of “money” (i.e., economic losses), on the one hand; and for

bodily injury and damage or destruction of physical “property,” on

the other. As to the former, economic loss could stem, for instance,

from a failure of an expectation under contract. It could stem from

a deprivation of an ownership interest. In any case, though, the

common law did not equate “economic loss” with a loss of

“property.” See Property, BOUVIER’S LAW DICTIONARY (1856) (“The

right and interest which a man has in lands and chattels to the

exclusion of others.”). Recompense for economic loss, in turn,

consistently has resembled contract damages, as contract law

developed first based on tort law, and later evolved separately from

tort law. In turn, recovery was not for “loss of property”; it was for

return of money owed. See BENJAMIN J. SHIPMAN, HANDBOOK OF

COMMON-LAW PLEADING 39 (2d ed. 1895) (defining “debt” as “a

liquidated or certain sum of money due [the plaintiff]” and

describing action of debt as one to recover debt “based upon

contract,” either express or implied, or on “quasi-contractual

obligations having the force and effect of simple contracts”); id. at

41 (describing an action of debt as lying “to recover money lent,

money paid by the plaintiff for the use of the defendant, money had

and received by the defendant for the use of the plaintiff, or the

balance due on an account stated . . . for work and labor . . . [and]

for goods sold and delivered, or bargained and sold”); id. at 46–47

(describing “action of account” as one arising “ex contractu” and

lying “where one has received goods or money for another, to

ascertain and recover the balance due” (emphasis supplied)); see

also id. at 11–13 (describing “action of assumpsit” as a “proper

remedy for the breach of any simple or parole contract . . . whether

it is for the payment of money, or for the performance of some other

act, as to render services or deliver goods, or for the forbearance to

do some act”); id. at 19 (explaining that “general assumpsit” also

is called “the common counts,” which will lie to recover “for money

paid by the plaintiff for the use of the defendant,” “for money had

and received,” “for money lent,” and “for a balance due on account

stated”); id. at 20 (defining “money counts” as those common

counts relating “to money transactions as the basis of the debt”);

id. at 28–30 (describing how money counts under general

assumpsit provide vehicles by which to seek repayment of “money

so obtained” in situations “where one person by means of fraud,

duress, trespass, or any other tort, obtains another’s money, and

22

converts it to his own use, or obtains his property and sells the

same, and converts the proceeds”; and also “to recover money paid

by mistake, as where money is paid as due upon the basis of

erroneous accounts”). 8

The supreme court from early on has recognized these money

counts. See S. States Power Co. v. Pittman, 165 So. 893, 895 (Fla.

1936) (recognizing “common count” as lying “for money had and

received upon a consideration of money obtained through

imposition or through an undue advantage taken of the plaintiff’s

situation”); Cullen v. Seaboard Air Line R. Co., 58 So. 182, 184

(Fla. 1912) (recognizing common count “for money had and

received by the defendant for the use of the plaintiff” as lying for

recovery of excess charges, “whether the charges exacted are in

excess of reasonable rates at common law or are in excess of rates

prescribed and made prima facie reasonable under statutory

authority” (emphasis supplied)); Gordon v. Camp, 2 Fla. 422, 428

(1849) (rejecting argument that action for money had and received

would not lie to recover money paid over, because “property paid or

received as money will support the action for money paid, or had

8 Justice Holmes described these same common-law actions

for the recovery of money. See OLIVER WENDELL HOLMES, THE

COMMON LAW 269–70 (Dover ed. 1991) (explaining that “debt was

the time-honored remedy on every obligation to pay money

enforced by law, except the liability to damages for a wrong”); id.

at 252 (explaining that the “substance of the plaintiff’s claim as set

forth in the writ of debt is that the defendant owes him so much

[money] and wrongfully withholds it,” and that the claim is based

on “a duty to pay on any ground”); id. at 275–82 (describing

development of assumpsit as common-law vehicle for contract

damages based on trespass action and then action for trespass-on-

the-case, with the common-law action originally limiting liability

“to damage to person or property arising after the defendant had

entered upon the employment” under contract); id. at 322–24, 327–

39 (explaining how the common law treated damages for

misrepresentations and deceit (fraud) as contract, or expectation,

damages).

23

and received, the same as if money itself had been paid or

received”). 9

Actions for trover and conversion, meanwhile, differ in form

from the money counts described above, but the recovery these

actions allow—essentially for economic loss—are very similar. The

economic loss in these situations—through a common-law fiction—

are essentially for the wrongful transfer of a possessory interest in

the property taken. OLIVER WENDELL HOLMES, THE COMMON LAW

144 (describing trover and conversion actions as being based on an

interference “with the real owner’s right of possession”); id. at 98–

99 (describing damages for a defendant’s wrongful detention of

another’s chattel as the equivalent of requiring the defendant to

“pay over its value” as a sum owed). Notably, the “property” at

issue in a trover and conversion action is limited to chattel—

tangible, moveable goods. 10 Blackstone, in his treatment of this

area, expressly limits the definition of personal property to “goods,

money, and all other moveable chattels, and things thereunto

incident.” 3 BLACKSTONE’S COMMENTARIES *144 (emphasis

supplied); see also 2 BLACKSTONE’S COMMENTARIES *384

(describing personal property as tangible, “things moveable”); id.

at *387 (defining “chattels personal,” as opposed to “chattels real,”

as “things moveable; which may be annexed to or attendant on the

person of the owner, and carried about with him from one part of

the world to another”).

9 The Legislature recognized these counts as well. See § 2648,

Revised Gen. Statutes (1920) (setting sufficient statements of

declaration for causes of action for money counts and actions on

contract); §§ 51.01, 51.02, 51.03, Fla. Stat. (1949) (setting sufficient

statements of declaration for causes of action for money counts and

actions on contract). These provisions later were repealed as being

“superseded by the existing common law rules.” Ch. 26962, Laws

of Fla. (1951).

10 The fact that the plaintiffs do not seek damages for

conversion of chattel—only for an historically unrecognized

conversion of funds—further highlights my point. The plaintiffs

seek only economic loss and not damages for harm to or loss of

“property,” as that term is more narrowly defined.

24

Blackstone, meanwhile, clearly makes a distinction between

“money” as a medium of exchange, and “money” as “personal

property,” referring to “money” in this context only in the physical

sense, because personal property at the time was considered to be

something “that can properly be put in motion, and transferred

from place to place.” 2 BLACKSTONE’S COMMENTARIES *387; see also

3 BLACKSTONE’S COMMENTARIES *144 (referring to “money” as

something tangible—capable of “attend[ing] a man’s person where

he goes, and from thence receives its denomination.”). Trover and

conversion indeed required that “the thing detained” be

ascertainable, such that “it may be specifically known and

recovered.” 3 BLACKSTONE’S COMMENTARIES *151. “Therefore it

cannot be brought for money, corn, or the like: for that cannot be

known from other money or corn; unless it be in a bag or sack.” Id.

(emphasis supplied); see also BENJAMIN J. SHIPMAN, HANDBOOK OF

COMMON-LAW PLEADING at 68 (explaining that an “action for

trover and conversion” requires, among other elements, that the

plaintiff have “property in the thing,” that he was “in the actual

possession, or entitled to the immediate possession,” and that the

conversion involved the taking, carrying away, wrongful

assumption or detention of “goods” (emphasis supplied)); id. at 70–

71 (explaining that trover and conversion is limited to “personal

property” and that such an action “will lie for so many pieces of

money taken and converted by the defendant” but not for “money

had and received generally”). For Blackstone, the taking of

property (as in conversion) is not the same as causing physical

“abuse or damage of the chattels.” 3 WILLIAM BLACKSTONE,

COMMENTARIES *145; see also id. at *151–52. That is, the harm

involved in a conversion is the loss of possession and use of chattel;

the chattel itself has not been harmed or destroyed. The remedy in

that case is payment of the value of the chattel at the time it was

taken or detained.

In contrast to these common-law actions for the recovery of

money owed in a variety of ways, there was really but one, distinct,

common-law action that allowed for recovery of damages for

physical harm. The ancient action of trespass traditionally was the

vehicle “for the recovery of damages for an injury to the person [or]

property.” BENJAMIN J. SHIPMAN, HANDBOOK OF COMMON-LAW

PLEADING at 50. For “injury to property,” the property must have

been “in the actual or constructive possession of the plaintiff at the

25

time of the injury,” and the injury had to be caused by “force, actual

or implied.” Id. at 50–51; see also OLIVER WENDELL HOLMES, THE

COMMON LAW 192, 195–96 (discussing “loss” in the context of

chattels or goods); see generally id. at 77–129 (describing evolution

of common-law action for trespass to hold defendant liable for

physical or tangible harm to person or property caused by his act);

but cf. SHIPMAN, HANDBOOK OF COMMON-LAW PLEADING at 86–93

(describing “action on the case,” “trespass on the case,” or just

“case” as a form of action that allows for damages for harm suffered

to intangible rights and interests, because there could be no

physical violence inflicted on such a right or interest, which is

required for trespass); id. at 93 (“If the injury is to corporeal

property, and is immediate, and committed with force, case will

not lie merely because that property was the means by which an

incorporeal right was enjoyed.”); id. (explaining that when an

“incorporeal right is invaded, the redress is by action on the case,”

but when “visible, tangible, corporeal property is injured, if the

injury be direct, immediate, and willful, trespass is the proper form

of action . . . .”); id. at 94–96 (consistently referring to tangible

personal property when referring to recovery for tortious injury to

property rather than equating intangible rights and interests with

such property). Notably, the distinction is woven through

Blackstone’s extended treatment of common-law suits for injury to

personal and real property. See, e.g., 3 WILLIAM BLACKSTONE,

COMMENTARIES *144–153 (distinguishing between financial loss

from lack of use when one’s property is dispossessed, on the one

hand, and damage suffered to the thing itself, which “tak[es] from

the value of any of [the owner’s] chattels or making them in a worse

condition than before”); id. at *223–29 (describing as “waste” a loss

to the substance of real property, rather than just economic losses

suffered from loss of use).

I lay all this out to make a critical point about construing

section 768.28(1): Limiting the waiver to damages only for “injury

or loss of property, personal injury, or death,” and then only such

injury or loss “caused by the negligent or wrongful act or omission”

of a state employee, mirrors the common law’s clear, ancient

distinction between actions to recover for harm to or destruction of

26

chattel and actions to recover economic losses. 11 This parallelism

amply supports a more specific usage of the word “property” here,

a usage that carries with it the additional “attributes” that the

historical context provides. These additional attributes increase

“comprehension” and narrow the word’s extension, or scope. A

narrow construction of the immunity waiver, which is mandated,

dictates that “property,” as it is used in the term “injury or loss of

property,” be treated and applied in this narrow sense to exclude

the purely economic losses that the plaintiffs sought in their

negligent misrepresentation and conversion counts.

2

If that were not enough, the supreme court’s long history of

making the distinction between recovery for tangible property

damage and for economic loss provides additional support. See,

e.g., Casa Clara Condo. Ass’n, Inc. v. Charley Toppino & Sons, Inc.,

620 So. 2d 1244, 1246 (Fla. 1993) (“The [economic loss] rule is the

fundamental boundary between contract law, which is designed to

enforce the expectancy interests of the parties, and tort law, which

imposes a duty of reasonable care and thereby encourages citizens

to avoid causing physical harm to others.” (internal quotation and

citation omitted)); id. (defining “economic losses” as “‘disappointed

economic expectations,’ which are protected by contract law, rather

than tort law”); id. at 1247 (holding that “contract principles [are]

more appropriate than tort principles for recovering economic loss

without an accompanying physical injury or property damage”

(emphasis supplied)); AFM Corp. v. S. Bell Tel. & Tel. Co., 515 So.

2d 180, 181–82 (Fla. 1987) (“We conclude that without some

conduct resulting in personal injury or property damage, there can

be no independent tort flowing from a contractual breach which

would justify a tort claim solely for economic losses.” (emphasis

supplied)); see also Curd v. Mosaic Fertilizer, LLC, 39 So. 3d 1216,

1222 (Fla. 2010) (allowing fishermen to recover for loss of income

11 I have not addressed the common-law’s treatment of actions

for damage to real property and interests related to real property

because doing so is not necessary in this analysis. Still, I

acknowledge that this waiver likely is broad enough to allow

actions for those damages as well.

27

as “economic damages,” even though they “do not own any real or

personal property damaged by the pollution”); id. (distinguishing

between recovery “for damages to real or personal property” and

recovery for economic damages caused by damage to natural

resources under the statute); id. at 1223 (“As a general principle of

common law negligence, some courts have not permitted recovery

for purely economic losses when the plaintiff has sustained no

bodily injury or property damage.” (emphasis supplied)); cf. U.S.

Fire Ins. Co. v. J.S.U.B., Inc., 979 So. 2d 871, 889 (Fla. 2007)

(noting how “faulty workmanship or defective work that has

damaged the otherwise nondefective completed project has caused

‘physical injury to tangible property’ within the plain meaning of

the definition in the policy,” but that “[i]f there is no damage

beyond the faulty workmanship or defective work, then there may

be no resulting ‘property damage’”); Peoples Gas Sys. v. Posen

Constr., Inc., 322 So. 3d 604, 614 (Fla. 2021) (treating the term

“losses” as synonymous for “damages” and noting that by itself, the

term would include “economic damages that are independent of

personal injury or property damage” (emphasis supplied));

Monsanto Agr. Prods. Co. v. Edenfield, 426 So. 2d 574, 576 (Fla.

1st DCA 1982) (“Tort law imposes upon manufacturers a duty to

exercise reasonable care so that the products they place in the

marketplace will not harm persons or property.”). 12

Finally, additional support for the narrower reading of

“property” can be found in the Legislature’s consistent statutory

distinction between “property” and “money.” The Legislature

routinely refers to money as “money” when it uses the word in the

medium-of-exchange sense. It rarely, if ever, uses the word

“property” to include a reference to money in that same sense,

instead using the words “monies” or “moneys” to refer to money as

12 See also Note, Economic Loss in Products Liability

Jurisprudence, 66 COLUM. L. REV. 917, 918, 929 (May 1966)

(discussing how “property damage” and “economic loss” are

“usually readily distinguishable”); Fleming James Jr., Limitations

on Liability for Economic Loss Cause by Negligence: A Pragmatic

Appraisal, 25 VAND. L. REV. 43, 43–46, 50 (Jan. 1972) (discussing

difference between recovery for physical damage to chattel and for

economic loss).

28

tangible property. See, e.g., § 624.605(1)(a), (b), (d), (g), (l), (p) Fla.

Stat. (1973) (referring separately to insurance for “loss of or

damage to . . . property while contained” in a vehicle; insurance

against liability for “death, injury, or disability of any human

being, or for damage to property”; coverage for “loss of or damage

to moneys, coins, bullion, securities, notes, drafts acceptances or

any other valuable papers and documents”; coverage against “loss

or damage to property or interest”; and “insurance against liability

for any other kind of loss or damage to person or property”

(emphasis supplied)); § 716.02, Fla. Stat. (1973) (referring to “[a]ll

money or other property”); § 716.07(1), (4), Fla. Stat. (providing for

recovery of escheated “property, funds or money delivered to the

state,” and referring to “money or property” and “property, money,

or funds claimed”); § 116.23, Fla. Stat. (1973) (referring to

forfeiture of “personal property or chattels personal listed, used,

offered, or received in evidence”); §§ 402.17, 402.18, Fla. Stat.

(1973) (referring repeatedly to “money” and “funds” received or

held); see also § 513.114(1), Fla. Stat. (1983 Supp.) (exonerating

operator of recreational vehicle park from “obligation to accept for

safekeeping any physical “properties” like “moneys, securities,

jewelry, or precious stones of any kind belonging to any guest”); §

68.082, Fla. Stat. (1994 Supp.) (referring to “possession, custody,

or control of property or money”); § 550.1645, Fla. Stat. (1993)

(referring to “money or other property”); § 717.129, Fla. Stat.

(1987) (referring to “a claim for money or property”).

3

The way I see it, the university defendants are immune from

the plaintiffs’ suit because it claims nothing but economic

damages. The plaintiffs seek money that they contend the

university defendants should return because UF either

overcharged them or took advantage of them. Those claims are

classic money counts at common law, seeking the return of money

owed, not damages for “injury or loss of property.” See Pittman,

165 So. at 895 (recognizing “common count” as lying “for money

had and received upon a consideration obtained through

imposition or through an undue advantage taken of the plaintiff’s

situation”); Cullen, 58 So. at 183–84 (recognizing common count

“for money had and received by the defendant for the use of the

plaintiff” as lying for recovery of excess charges, “whether the

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charges exacted are in excess of reasonable rates at common law

or are in excess of rates prescribed and made prima facie reasonable

under statutory authority” (emphasis supplied)). The immunity

waiver, strictly construed, does not cover those claims. In the end,

we have a duty to construe the immunity waiver in section

768.28(1) as narrowly as reasonably possible while remaining true

to the text. I believe I have set out an approach that best fulfills

that duty.

The majority takes the opposite tack: implicitly (but “without

discussion”) applying “property” in its broader sense and

presumably finding a waiver of immunity that a narrower-yet-still-

reasonable sense cannot support. As I noted at the beginning of

this part, the objective when we are narrowly construing an

immunity waiver is to minimize, if not eliminate, the risk that we

end up reading the waiver to include matters that it was not

drafted to include. In other words, our goal here should be to do no

harm to the Legislature’s carefully crafted waiver—to avoid

encroachment upon the Legislature’s exclusive authority to

precisely set the parameters of any waiver of sovereign immunity.

The majority’s disposition sustaining the conversion and negligent

representation counts—and the expansive reading of “property” on

which it has to have relied—seriously risks just such an

encroachment.

At all events, that disposition cannot be reconciled with

centuries of history, supreme court directives, or statutory usage

with respect to the word “property.” I dissent from the majority’s

affirmance of the conversion and negligent misrepresentation

counts.

III

Allow me to close with an observation. Reading the waiver to

exclude economic damages, like those sought by the plaintiffs in

this case, is commensurate with the textual purpose of the statute.

SCALIA & GARNER, READING LAW 19–20 (describing how “the

textualist routinely takes purpose into account, but in its concrete

manifestations as deduced from close reading of the text”). As I

already explained, only the Legislature—and not the courts—has

the authority to waive sovereign immunity. The purpose of the

statute is there in its opening words (to exercise the Legislature’s

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authority under article X, section 13 of the Florida Constitution),

and we should read the statute in a way that leaves control over

the scope of the immunity waiver with the Legislature.

Florida’s courts over the decades have shown their willingness

to arrogate to themselves (at the expense of the legislative power)

the authority to expand quite liberally upon the English common

law adopted by the Legislature as the substantive law. Cf. § 2.01,

Fla. Stat. The courts repeatedly have found new duties and new

causes of action unknown to English common law. See, e.g.,

Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So. 2d 334, 339 (Fla.

1997) (adopting Restatement’s position establishing negligent

misrepresentation as cause of action); McCain v. Fla. Power Corp.,

593 So. 2d 500, 503 (Fla. 1992) (expanding scope of duty based on

undertaker doctrine, in reliance on Restatement); Wallace, 3 So.

3d at 1052–54 (expanding the duty’s scope even further to avoid

sovereign immunity bar). If the Legislature were to set out a

waiver of immunity merely in terms of theories of tort recovery, it

would, for better or worse, effectively be ceding at least some of its

exclusive authority over sovereign immunity waivers (and the

treasury) to the judiciary.

The Legislature instead wisely has put the limited waiver in

terms of types of damages: The State is not immune from suit in

its courts when a plaintiff seeks to recover for actual harm to real

property or chattel or to the plaintiff’s body (including death), but

it remains otherwise immune to efforts to recover any other type

damages, including for economic loss. This way, regardless of the

various novel tort theories that the judiciary may recognize in the

future, the waiver will remain fixed in scope, based on the type of

damages sought.

As I already noted above, the plaintiffs here clearly sued to

recover only economic loss—indeed, based on several novel legal

theories. The trial court’s permissiveness toward this “creativity”

could prove destructive to the legislative effort to limit the scope of

the waiver. We should stay true to the Legislature’s prerogative in

this respect by narrowly applying the term “property” and putting

an immediate stop to these enterprising plaintiffs’ effort to gain

legislatively unanticipated access to public funds.

31

* * *

I would vacate the trial court’s order to the extent it denies

the university defendants’ motion to dismiss, and I would remand

with an instruction that the trial court dismiss the complaint with

prejudice. 13

_____________________________

Robert J. Sniffen, Matthew J. Carson, and Jeffrey D. Slanker of

Sniffen & Spellman, P.A., Tallahassee, for Appellants.

Paul S. Rothstein of Paul S. Rothstein, P.A., Gainesville; Robert S.

Peck of Center for Constitutional Litigation, P.C., pro hac vice,

Washington, DC, for Appellees.

13 With respect to the majority’s disposition on the negligent

misrepresentation count, we at least should certify conflict with

the Fourth District Court of Appeal, which has adopted my more

limited reading of section 768.28(1). See City of Pembroke Pines v.

Corr. Corp. of Am., Inc., 274 So. 3d 1105, 1113 (Fla. 4th DCA 2019)

(holding that trial court erred in denying motion to dismiss on

immunity grounds because “waiver of sovereign immunity has not

been extended to include [a] claim [for] economic damages framed

in counts for declaratory relief, promissory estoppel, tortious

interference with contract, and tortious interference with

advantageous business relationship”); id. (relying on reasoning set

out in Brevard County v. Miorelli Eng’g, Inc., 677 So. 2d 32, 34–35

(Fla. 5th DCA 1996), quashed on other grounds, 703 So. 2d 1049

(Fla. 1997)). The majority offers no explanation for not certifying.

Because the majority also fails to offer any analysis for how it

resolved the ambiguity behind the use of “property” in the waiver,

the majority’s disposition likely will evade review by the supreme

court, leaving unresolved what is otherwise a clear and

irreconcilable conflict.

32