COUNTY OF BREVARD, Petitioner, v. MIORELLI ENGINEERING, INC., et al., Respondents, 703 So. 2d 1049

GRIMES, Justice. We have for review County of Brevard v. Miorelli Engineering, Inc., 677 So.2d 32 (Fla. 5th DCA 1996), which expressly and directly conflicts with Southern Roadbuild-ers, Inc. v. Lee County, 495 So.2d 189 (Fla. 2d DCA 1986). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. On January 5, 1993, Miorelli Engineering Inc. (“MEI”) contracted with Brevard County (“County”) to design and build a spring training facility for the Florida Marlins. MEI began developing the facility. Subsequently, a dispute arose between the County and MEI.

The County terminated the contract and withheld amounts due under the contract. MEI sued the County, asserting a variety of claims including a breach of contract claim seeking damages for extra work it had done on the facility which was beyond that described in the contract. In a motion for partial

summary judgment, the County argued that the extra work claim was barred by the doctrine of sovereign immunity because the extra work was outside the terms of the express contract and no written change orders, as required by the contract, had been issued authorizing the extra work. The trial court denied the County’s motion as to the extra work claims. The Fifth District Court of Appeal affirmed that portion of the order which denied the motion for

summary judgment on the claim for damages for extra work. The legislature has explicitly waived sovereign immunity in tort for personal injury, wrongful death, and loss or injury of property. See § 768.28, Fla. Stat. (1995). Although no express legislative waiver has been granted for contract claims, this Court in Pan-Am Tobacco Corp. v.

Department of Corrections, 471 So.2d 4 (Fla.1984), found an implied waiver of sovereign immunity in contract on the premise that because the legislature authorized state entities to enter into contracts, it must have intended such contracts to be valid and binding on both parties. However, we concluded our opinion by stating: We would also emphasize that our holding here is applicable only to suits on express, written contracts into which the state agency has statutory authority to enter. Id. at 6.

Subsequently, the Second District Court of Appeal held that under Pan Am, sovereign immunity barred a contractor’s claim for payment for additional work where that work was not included in the original contract or any subsequent written instrument. Southern Roadbuilders. Later, in Champagne-Webber, Inc. v.

City of Fort Lauderdale, 519 So.2d 696 (Fla. 4th DCA 1988), the case heavily relied upon by the court below, the Fourth District Court of Appeal reasoned that Panr-Am did not preclude a contractor from recovering additional expenses based on a claim of breach of implied covenants or conditions contained within the scope of an express written contract. The court explained: Virtually every contract contains implied covenants and conditions. For example, every contract includes an implied covenant that the parties will perform in good faith. In construction contract law an owner has (

a) an implied obligation not to do anything to hinder or obstruct performance by the other person, Gulf American Land Corporation v. Wain, 166 So.2d 763, 764 (Fla. 3d DCA 1964), (

b) an implied obligation not to knowingly delay unreasonably the performance of duties assumed under the contract, Southern Gulf Utilities Inc. v. Boca Ciega Sanitary District, 238 So.2d 458, 459 (Fla. 2d DCA 1970), cert. denied, 240 So.2d 813 (Fla.1970), and (

e) an implied obligation to furnish information which would not mislead prospective bidders, Jacksonville Port Authority v. Parkhill-Goodloe Co. Inc., 362 So.2d 1009 (Fla. 1st DCA 1978). ...

It seems neither logical nor within the principles of fairness enunciated in the Pan-Am Tobacco case to construe the restrictive language of that case to mean that the defense of sovereign immunity is waived only for the state’s breach of an express covenant or condition of an express, written contract, but that the defense is not waived for the state’s breach of an implied covenant or condition of such contract, while the other contracting party remains liable for a breach of both the express and the implied covenants and conditions. Champagne-Webber, 519 So.2d at 697-98. While we agree with Champagne-Web-ber’&

interpretation of Pan Am, we cannot agree with Champagne-Webber’s further observation that its opinion conflicted with Southern Roadbuilders. Binding the sovereign to the implied covenants of an express contract is quite different from requiring a sovereign to pay for work not contemplated by that contract. See Phillips & Jordan, Inc. v. Department of Transp., 602 So.2d 1310 (Fla. 1st DCA 1992) (distinguishing between a claim for breach of an implied covenant within an express contract and a claim outside both the express and implied conditions of the contract).

Contrary to the court below, we conclude that the instant case falls outside the parameters of Champagne-Webber. In Champagne-Webber, the contractor agreed to construct a bridge for the City of Fort Lauderdale. The city represented to the contractor that the soil at the construction site was sand only. Once work commenced, the contractor discovered that the soil contained both sand and rock. Thus, the key issue was whether the city had misrepresented the soil conditions at the construction site and whether the contractor had justifiably relied on the misrepresentation.

In the case at bar, MEI’s extra work claims are for work totally outside the terms of the contract. Without a written change order, the doctrine of sovereign immunity precludes recovery of the cost of the extra work. One final point must be addressed. MEI asserts that the County waived the written change order requirement by directing work changes without following its own formalities. We decline to hold that the doctrines of waiver and estoppel can be used to defeat the express terms of the contract.

Otherwise, the requirement of Pan Am that there first be an express written contract before there can be a waiver of sovereign immunity would be an empty one. An unscrupulous or careless government employee could alter or waive the terms of the written agreement, thereby leaving the sovereign with potentially unlimited liability. Accordingly, we approve the rationale of Southern Roadbuilders and Champagne-Webber. We disapprove Interamerican Engineers & Constructors Corp. v. Palm Beach County Housing Authority, 629 So.2d 879 (Fla. 4th DCA 1993), to the extent that it is inconsistent with this opinion.

We quash the decision below and remand the ease for further proceedings consistent with this opinion. It is so ordered. OVERTON, HARDING and WELLS, JJ., concur. ANSTEAD, J., concurs in part and dissents in part with an opinion in which KOGAN, C.J., and SHAW, J., concur. . The validity of the remaining claims is not before us. . The Fifth District Court of Appeal accepted jurisdiction of this nonfinal order based on Department of Transportation v. Wallis, 659 So.2d 429 (Fla. 5th DCA 1995), which has since been disapproved. Department of Educ. v. Roe, 679 So.2d 756 (Fla.1996).