final until disposition of timely filed motion for rehearing.
of non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Carlos A. Rodriguez, Judge;
L.T. Case No. CACE 07-013811 (14).
C. Cochran and W. Tucker Craig of Billing, Cochran, Lyles,
Mauro & Ramsey, P.A., Fort Lauderdale, for appellant.
M. Silverio of Silverio & Hall, P.A., Naples, for
appellee Don Nichols.
City of Fort Lauderdale appeals the denial of its motion for
summary judgment based on sovereign immunity over claims of
breach of contract and negligence. We affirm the court's
denial of summary judgment as to the tort-based claim. But we
reverse the court's order as to the breach of contract
claim because it is not based on an express written contract
by which the City waived sovereign immunity.
2002, the City launched a "Paint and Plant" pilot
program to use federal grant money to fund exterior
improvements to certain residential properties. Appellee Don
Nichols applied for the program and was accepted. Through a
bidding process, the City selected Lobban Construction, Inc.
("Lobban") to perform the work on Nichols'
home. Lobban began the project in 2004, but Nichols claims
the work was substandard and caused extensive damage to his
sued the City in 2007, asserting claims for breach of
contract and negligence. He alleged the City failed to
supervise Lobban's work and breached agreements to
improve his property. He also alleged the City breached its
duties to "hire, maintain and supervise" the work
"in accordance with the level of care and skill which is
recognized as acceptable and appropriate under similar
community circumstances." The City moved for summary
judgment, asserting Nichols' claims were barred by
sovereign immunity. The court denied the motion, and the City
review the court's denial of the City's motion for
summary judgment based on sovereign immunity de
novo. Town of Gulf Stream v. Palm Beach County,
206 So.3d 721, 725 (Fla. 4th DCA 2016). Generally, sovereign
immunity derives from the understanding that "[i]t is
inherent in the nature of sovereignty not to be amenable to
the suit of an individual without its consent."
The Federalist No. 81, at 487 (Alexander Hamilton) (Clinton
Rossiter ed., 1961) (emphasis in original) ("This is the
general sense and the general practice of mankind.").
Id. And, consistent with that understanding, in
Florida, sovereign immunity is the rule rather than the
exception. Town of Gulf Stream, 206 So.3d at 725.
portion of sovereign immunity is the phrase "without its
consent." The Florida Legislature has expressly provided
for limited waiver of sovereign immunity in tort.
See § 768.28, Fla. Stat. (2017). Thus, the
court correctly denied the City's motion for summary
judgment as to the negligence claims.
there is no statutory provision waiving sovereign immunity
over claims for breach of contract. To overcome this, Nichols
claims the City expressly waived sovereign immunity in a
contract. We have recognized that a municipality may waive
the protections of sovereign immunity when it enters into an
express contract. City of Fort Lauderdale v.
Israel, 178 So.3d 444, 446 (Fla. 4th DCA 2015). That is
not the case here.
complaint alleges that the City was contractually obligated
"under the construction contract and through the various
programs . . . offered by the City" to improve his
property and to supervise the work as construction manager.
There is a provision in the contractor agreement stating that
the City has a right to supervise work done by Lobban at
Nichols' house. But the contractor agreement is signed by
Lobban and Nichols, not the City; it expressly provides that
the City is not a party. The City cannot expressly waive
sovereign immunity in a contract it did not sign. See
City of Orlando v. W. Orange Country Club, Inc., 9 So.3d
1268, 1272 (Fla. 5th DCA 2009); Strout v. Sch. Bd. of
Broward Cty., No. 15-61257-CIV, 2016 WL 4804075, at *9
(S.D. Fla. Feb. 1, 2016) ("Because no express written
contract with the terms Plaintiff alleges were breached
exists, sovereign immunity applies, and summary judgment is
appropriate."). As a result, the City was entitled to
summary judgment on the breach of contract claim.
in part; reversed in part; remanded for ...