Contractpoint Florida Parks, LLC v. State, 1D06-4746.

• Citation: 958 So.2d 1035
• Decision Date: 05 June 2007
• Docket Number: No. 1D06-4746.,1D06-4746.
• Parties: CONTRACTPOINT FLORIDA PARKS, LLC, Appellant, v. STATE of Florida, and State of Florida, Department of Environmental Protection, Appellee.
• Court: Florida District Court of Appeals

958 So.2d 1035

CONTRACTPOINT FLORIDA PARKS, LLC, Appellant, v. STATE of Florida, and State of Florida, Department of Environmental Protection, Appellee.

No. 1D06-4746.

District Court of Appeal of Florida, First District.

June 5, 2007.

Mike Piscitelli of Vezina, Lawrence & Piscitelli, P.A., Ft. Lauderdale, and Bradley S. Copenhaver of Vezina, Lawrence & Piscitelli, P.A., Tallahassee, for Appellant.

Bill McCollum, Attorney General, Louis F. Hubener, Acting Solicitor General, and Lynn C. Hearn, Deputy Solicitor General, Office of the Attorney General, Tallahassee, for Appellees.

WOLF, J.

This case originated in a breach of contract action filed by appellant against appellee, State of Florida, Department of Environmental Protection (DEP). In April 2001, DEP entered into a contract with appellant in which appellant was to construct and operate 143 vacation cabins along with associated concessions, in eight state parks. Under the contract, appellant was scheduled to pay 15% of its gross sales to DEP. The contract was to last for 30 years, with two 10-year renewal options based on satisfactory service. In August 2005, appellant brought suit against DEP for wrongful termination of the contract.

Following a jury trial, judgment was entered against DEP for $628,543. However, DEP refused to pay the judgment asserting section 11.066(3), Florida Statutes (2001), barred payment. The relevant portion of section 11.066, Florida Statutes (2001), provides:

(1) As used in this section, the term "appropriation made by law" has the same meaning as in s. 1(c), Art. VII of the State Constitution and means money allocated for a specific purpose by the Legislature by law in a general appropriations act or a special appropriations act.

(2) The state and each state agency, when exercising its inherent police power to protect the public health, safety, or welfare, is presumed to be acting to prevent a public harm. A person may rebut this presumption in a suit seeking monetary damages from the state or a state agency only by clear and convincing evidence to the contrary.

(3) Neither the state nor any of its agencies shall pay or be required to pay monetary damages under the judgment of any court except pursuant to an appropriation made by law. To enforce a judgment for monetary damages against the state or a state agency, the sole remedy of the judgment creditor, if there has not otherwise been an appropriation made by law to pay the judgment, is to petition the Legislature in accordance with its rules to seek an appropriation to pay the judgment.

(4) . . . Moreover, it is a defense to an alternative writ of mandamus issued to enforce a judgment for monetary damages against the state or a state agency that there is no appropriation made by law to pay the judgment.

(Emphasis added).

In December 2005, appellant filed a Petition for Writ of Mandamus seeking to compel Florida's Chief Financial Officer (CFO) to pay the damage award. The trial court entered a final order denying the Petition for Writ of Mandamus, stating that in the face of the clear language of section 11.066, appellees did not have a clear legal duty to pay the judgment to appellants without a specific appropriation for that purpose. This timely appeal followed.

Whether appellant had a clear legal right to enforce the monetary judgment and, thus, was entitled to mandamus relief rests on this court's interpretation of whether section 11.066, Florida Statutes (2001), is applicable to an action based on a breach of contract. The issue of the application of sovereign immunity in contract actions involving the State was specifically dealt with in Pan-Am Tobacco Corp. v. Department of Corrections, 471 So.2d 4 (Fla.1984). The court determined that the application of the doctrine in that situation would result in the State's inability to enter into binding contracts.

It is basic hornbook law that a contract which is not mutually enforceable is an illusory contract. Howard Cole & Co. v. Williams, 157 Fla. 851, 27 So.2d 352 (1946). Where one party retains to itself the option of fulfilling or declining to fulfill its obligations under the contract, there is no valid contract and neither side may be bound. Miami Coca-Cola Bottling Co. v. Orange-Crush Co., 291 F. 102 (D.Fla.1923), affirmed, 296 F. 693 (5th Cir.1924).

Respondent contends that the requirement of mutuality of remedy is satisfied by petitioner's opportunity to bring a claims bill before the legislature. This Court has recently held that subjecting oneself to the possibility of suit in a court of law is not sufficient obligation to support a contract. Stack v. Dunn, 444 So.2d 935 (Fla.1984). We cannot now, in good conscience, hold that the chance to seek an act of grace from the legislature is sufficient remedy to create mutuality.

Where the legislature has, by general law, authorized entities of the state to enter into contract or to undertake those activities which, as a matter of practicality, require entering into contract, the legislature has clearly intended that such contracts be valid and binding on both parties. As a matter of law, the state must be obligated to the private citizen or the legislative authorization for such action is void and meaningless. We therefore hold that where the state has entered into a contract fairly authorized by the powers granted by general law, the defense of sovereign immunity will not protect the state from action arising from the state's breach of that contract.

Id. at 5.

The trial court determined that section 11.066, Florida Statutes (1991), superseded the decision in Pan-Am Tobacco.

Contrary to the trial court's reasoning, section 11.066 does not express any legislative intent to...