Uncapped “All Costs” Liability in Florida Concurrency Agreements; Rights Assignment Does Not Transfer Contractual Obligations Without Express Assumption

1. Introduction

In Southeast Development Partners, LLC v. St. Johns County, Florida (11th Cir. Aug. 7, 2026) (per curiam) (not for publication), a developer and a county executed a “Concurrency and Impact Fee Credit Agreement” requiring the developer to design, permit, and construct three miles of improvements to State Road 16 (“SR 16 improvements”) to mitigate traffic impacts and to supply a “public benefit” under the County’s Comprehensive Plan and Florida’s concurrency statute, Fla. Stat. § 163.3180.

After FDOT required a “complete redesign,” the project estimate ballooned from roughly $15 million to roughly $57 million. The developer sought to amend the arrangement by paying a fixed $15 million to FDOT; the County rejected the proposal, declared default based on missed contractual milestones (pond acquisition, design coordination, and permitting), and moved escrow funds toward construction.

The appeal presented four core issues: (i) whether later loss of development rights mooted the appeal; (ii) whether the Agreement unambiguously made the developer liable for all costs above escrow (with or without a cap); (iii) whether Florida emergency tolling extended the Agreement’s performance deadlines and whether the County materially breached by not adding improvements to its capital plan; and (iv) whether enforcing the Agreement was an unconstitutional exaction; plus (v) whether an affiliated assignee could be held liable for breach absent an express assumption of obligations.

2. Summary of the Opinion

  • Justiciability: The appeal was not moot and appellants had appellate standing because they were “aggrieved by the judgment” and meaningful relief remained available.
  • Contract interpretation: The Agreement unambiguously required the developer to pay all costs to complete the SR 16 improvements exceeding escrow—without any implied $15 million cap.
  • Breach: The developer breached by failing to meet acquisition/design/permitting obligations; Florida’s emergency tolling statute did not apply because the Agreement was not a covered “permit,” “authorization,” or “development order.”
  • County breach: The County did not materially breach by failing to place the improvements in the CIE at the “next scheduled update” (and, in any event, any omission was immaterial).
  • Unlawful exaction: Enforcement was not an unconstitutional exaction under Koontz; the condition related to traffic mitigation and the developer voluntarily chose construction (and the attendant cost-risk).
  • Assignment: Summary judgment against the assignee entity was improper because an assignment of rights does not transfer contractual liabilities absent express assumption.

The Eleventh Circuit affirmed in part, vacated in part, and remanded to clarify that only the original contracting developer breached and was obligated to bear “all costs.”

3. Analysis

3.1 Precedents Cited

A. Appellate standing and mootness

The court framed appellate standing as “adverseness”—being “aggrieved by the judgment”—drawing from Wolff v. Cash 4 Titles, 351 F.3d 1348 (11th Cir. 2003), and United States v. Amodeo, 916 F.3d 967 (11th Cir. 2019), which in turn quotes Hollingsworth v. Perry, 570 U.S. 693 (2013). The panel’s distinction between trial standing and appellate standing follows Kimberly Regenesis, LLC v. Lee Cnty., 64 F.4th 1253 (11th Cir. 2023), emphasizing that appellate injury must be “caused by the judgment,” not merely by underlying events.

For mootness, the court applied the “meaningful relief” standard from Soliman v. U.S. ex rel. INS, 296 F.3d 1237 (11th Cir. 2002), which relies on Powell v. McCormack, 395 U.S. 486 (1969), and Al Najjar v. Ashcroft, 273 F.3d 1330 (11th Cir. 2001). Even if subsequent private contract terminations impaired development, the dispute over contractual rights and liabilities remained live because declaratory and equitable relief remained possible under the Agreement’s remedies clause.

The opinion also references abandonment principles from Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678 (11th Cir. 2014), when noting an unappealed standing ruling on inverse condemnation.

B. Florida contract interpretation (plain meaning; no judicial rewriting)

On interpretation, the court relied on Florida’s plain-language approach from Taylor v. Taylor, 1 So. 3d 348 (Fla. 1st DCA 2009) (per curiam), and Sugar Cane Growers Coop., Inc. v. Pinnock, 735 So. 2d 530 (Fla. 4th DCA 1999), including the rule that courts must consider the entire instrument and avoid constructions that “leave out words and phrases.” It invoked ordinary-meaning rules from Siegle v. Progressive Consumers Ins. Co., 819 So. 2d 732 (Fla. 2002), which quotes Gen. Accident Fire & Life Assurance Corp. v. Liberty Mut. Ins. Co., 260 So. 2d 249 (Fla. 4th DCA 1972).

The panel underscored Florida’s prohibition against rewriting contracts for “reasonableness” using Ferreira v. Home Depot, 12 So. 3d 866 (Fla. 1st DCA 2009) (per curiam), and reinforced enforceability of “bad deals” via Ferguson v. Ferguson, 54 So. 3d 553 (Fla. 3d DCA 2011), and the reluctance to manufacture ambiguity in sophisticated-party agreements via Seritage SRC Fin., LLC v. Town Ctr. at Boca Raton Tr., 397 So. 3d 44 (Fla. 4th DCA 2024), plus City of Pompano Beach v. Beatty, 222 So. 3d 598 (Fla. 4th DCA 2017).

For choice-of-law and the general proposition that state law governs contract interpretation in federal court, it cited AFC Franchising, LLC v. Purugganan, 43 F.4th 1285 (11th Cir. 2022).

C. Breach, materiality, and damages

The elements of breach (contract, material breach, damages) were drawn from Marchisio v. Carrington Mortg. Servs., LLC, 919 F.3d 1288 (11th Cir. 2019), quoting Vega v. T-Mobile USA, Inc., 564 F.3d 1256 (11th Cir. 2009). Material breach standards came from Burlington & Rockenbach, P.A. v. L. Offs. of E. Clay Parker, 160 So. 3d 955 (Fla. 5th DCA 2015).

D. Unconstitutional exactions (nexus and rough proportionality)

The court analyzed exaction doctrine under Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595 (2013), and its doctrinal roots in Nollan v. Cal. Coastal Comm'n, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994). It treated traffic mitigation as a legitimate government purpose (citing Dolan) and found the Agreement’s conditions sufficiently connected to mitigation.

E. Assignment versus assumption of obligations

The panel relied on the Florida rule that an assignee of a contract’s rights is not liable for the assignor’s duties absent express assumption, citing Jenkins v. City Ice & Fuel Co., 118 Fla. 795 (1935). Because the assignment document transferred “rights, title and interest” but did not state that the assignee assumed duties, judgment for breach against the assignee was error.

3.2 Legal Reasoning

A. “All costs” means uncapped “all costs”

The interpretive core was the Agreement’s escrow-and-release clause: the developer “understands” escrow will be insufficient and “agrees that it shall pay all costs for the SR 16 [i]mprovements which are in excess of the Escrow Funds.” The court treated this as unambiguous and refused to imply a $15 million ceiling from preliminary estimates or Exhibit C’s “probable” cost language—especially where Exhibit C expressly warned costs “may vary with actual design.”

The court also rejected the statutory argument that Florida’s concurrency regime prohibits requiring developers to fund “existing deficiencies.” It reasoned the Agreement split the $15 million estimate between a “proportionate fair share” and an additional “public benefit” component; nothing in § 163.3180 barred the developer from voluntarily agreeing to construct improvements and bear the risk that actual costs differ from estimates.

B. Emergency tolling did not rescue missed deadlines

The developer argued that Florida emergency declarations tolled its contractual deadlines under Fla. Stat. § 252.363(1)(a) (2018). The court held the statute’s covered items (development orders, building permits, certain DEP/water permits, and DRIs) did not include this Agreement. Nor was the Agreement itself a “development order” under Fla. Stat. § 163.3164(15)–(16) (2018), because the Agreement expressly contemplated that separate permits remained necessary; at most, it was “a step toward” permitting.

C. The County’s CIE omission was not a material breach

The Agreement required CIE inclusion “at the next scheduled update.” The record did not establish that such an update occurred. But even assuming a technical failure, the court found no material breach: because the developer had assumed “all costs,” CIE listing would not alter the essential allocation of financial responsibility, and any visibility/prioritization benefit did not “go to the essence” of the bargain.

D. No unconstitutional exaction where the developer proposed and accepted the cost-risk

Applying Koontz/Nollan/Dolan, the court concluded the traffic-mitigation condition had an “essential nexus” to a legitimate public purpose. On rough proportionality, the court emphasized the developer’s voluntary choice—authorized by Florida’s concurrency statute—to construct improvements rather than make a fixed payment, and the Agreement’s express recognition that estimates could change. Cost escalation due to FDOT redesign requirements did not transform enforcement into extortion, particularly absent allegations that the County intentionally understated costs.

E. Assignment without assumption bars breach liability for the assignee

The panel treated it as “axiomatic” that an entity cannot breach duties it never assumed. Under Jenkins v. City Ice & Fuel Co., an assignment of rights alone does not create an assignee’s liability to the non-assigning party for breach. The judgment was therefore vacated as to the assignee company and remanded for correction, while leaving intact the County’s contractual remedies triggered by the original developer’s breach.

3.3 Impact

  • Concurrency agreements as construction obligations: Where an agreement states the developer will pay “all costs” above escrow (or above any partial funding), courts are unlikely to infer a cap from estimates, exhibits, or project summaries—especially when the contract flags variability.
  • Risk allocation drafting lesson: Developers seeking a ceiling must negotiate an explicit cap, redesign-risk clause, or termination/renegotiation trigger; courts will not supply one later under Florida’s anti-rewriting principles.
  • Emergency tolling limits (2018 statute): Not every development-related instrument is a “permit” or “development order.” Parties relying on tolling should identify a covered authorization (and draft private tolling provisions when needed).
  • Government enforcement vs. takings liability: When the developer itself proposes (or knowingly accepts) mitigation/public-benefit conditions with variable costs tied to project design, exaction challenges face an uphill battle absent evidence of coercion, misrepresentation, or disconnect from project impacts.
  • Assignments in land-development deals: Transferring “rights” and “entitlements” does not automatically transfer liability; counties and counterparties seeking recourse against an assignee should require an express assumption agreement or novation.
  • Appellate justiciability: Post-judgment changes in business relationships may not moot an appeal if the appellant remains bound by, or injured by, the judgment and a court can still grant declaratory or equitable relief.

4. Complex Concepts Simplified

Concurrency (Florida)
A statutory system (here, transportation concurrency) requiring infrastructure capacity to keep pace with development; developers may mitigate by paying for or constructing a proportionate share of improvements. See Fla. Stat. § 163.3180.
Proportionate fair share vs. “public benefit”
“Proportionate fair share” is the mitigation portion tied to development impacts; “public benefit” is an additional contribution a developer may offer to satisfy comprehensive-plan policy preferences for expanding development areas.
Escrow funding structure
Incremental per-unit payments are held until “Commencement” (posting a bond). The developer may draw escrow for project costs but remains liable for costs beyond escrow if the contract so states.
Development order vs. development-related agreement
A “development order” is an official government action granting/denying a development permit application; an agreement that anticipates future permitting is not necessarily a development order. See Fla. Stat. § 163.3164(15)–(16) (2018).
Unconstitutional exaction
A permitting condition requiring property (including money) must have an “essential nexus” to a legitimate government interest and be “roughly proportional” to the project’s impacts. See Koontz v. St. Johns River Water Mgmt. Dist.; Nollan v. Cal. Coastal Comm'n; Dolan v. City of Tigard.
Assignment vs. assumption
An assignment transfers rights; it does not, without express agreement, transfer the duty to perform. See Jenkins v. City Ice & Fuel Co.
Material breach
A failure so significant it defeats the contract’s essential purpose and can excuse the other side’s future performance; minor deviations are not enough. See Burlington & Rockenbach, P.A. v. L. Offs. of E. Clay Parker.

5. Conclusion

The Eleventh Circuit’s decision reinforces three practical legal rules in Florida development contracting: (1) clear “all costs” language allocates uncapped construction-cost risk to the developer notwithstanding preliminary estimates; (2) statutory emergency tolling (as of the 2018 version of Fla. Stat. § 252.363) does not automatically extend deadlines in a concurrency/impact-fee agreement that is not itself a covered permit or development order; and (3) a rights-only assignment does not make an assignee liable for breach absent an express assumption of obligations under Jenkins v. City Ice & Fuel Co.. The panel also signals that exaction doctrine is ill-suited to unwind a mitigation arrangement the developer proposed or knowingly accepted as part of securing development approvals.