Supreme Court of Florida ____________
No. SC2023-0126 ____________
ANTHONY ROJAS, Petitioner,
vs.
UNIVERSITY OF FLORIDA BOARD OF TRUSTEES, Respondent.
July 17, 2025
PER CURIAM.
This case involves claims for breach of contract brought by
Anthony Rojas, a student enrolled at the University of Florida,
against the University arising from the suspension of on-campus
services and the closure of on-campus facilities during the COVID-
19 pandemic. We have for review the decision of the First District
Court of Appeal in University of Florida Board of Trustees v. Rojas,
351 So. 3d 1167 (Fla. 1st DCA 2022), which held that the claims
were barred by sovereign immunity and that the University’s motion
to dismiss those claims should therefore be granted. Id. at 1169. Basing its holding on our seminal decision in Pan-Am Tobacco
Corp. v. Department of Corrections, 471 So. 2d 4, 6 (Fla. 1984), in
which we recognized that sovereign immunity may be waived
regarding breach of contract claims but only if there is an “express,
written contract[]” entered under statutory authorization, the First
District held that the contract alleged by Rojas did “not constitute
an express written contract sufficient to overcome sovereign
immunity.” Rojas, 351 So. 3d at 1170. We accepted jurisdiction
under article V, section 3(b)(4) of the Florida Constitution based on
the First District’s certification of a question of great public
importance. 1 Because we conclude that the First District’s analysis
of the requirements of Pan-Am is flawed, we quash the decision on
review.
1. The First District certified as being of great public importance the following question: “WHETHER SOVEREIGN IMMUNITY BARS A BREACH OF CONTRACT CLAIM AGAINST A STATE UNIVERSITY BASED ON THE UNIVERSITY’S FAILURE TO PROVIDE ITS STUDENTS WITH ACCESS TO ON-CAMPUS SERVICES AND FACILITIES?” Rojas, 351 So. 3d at 1169.
-2- I.
We begin with the background of Rojas’s claims regarding his
contract with the University and the proceedings in the trial court
on those claims, followed by a review of the statutory provisions
relevant to the University’s contracting authority.
A.
In response to the COVID-19 pandemic, the University—along
with other state universities—suspended on-campus, in-person
classes and other activities and moved to online instruction. So
students were told to stay away from campus during the spring and
summer semesters of 2020. The crux of graduate student Rojas’s
complaint—which was brought as a class action—was that he and
other similarly situated students were contractually required to pay
mandatory fees for on-campus services that the University failed to
provide while on-campus activities and operations were suspended.
He also alleged that the University failed to refund the fees for
services that were not provided.
The complaint alleged claims for breach of contract and for
unjust enrichment. The unjust enrichment claim was dismissed by
the trial court, was not at issue in the First District, and thus is not
-3- at issue here. In support of the contract claim, Rojas attached to
his complaint2 a spring 2020 tuition statement, a general statement
of tuition and various fee estimates for the 2019-2020 academic
year, and a copy of the University’s financial liability agreement.
The allegations in the complaint focused in particular on the sums
related to the activity and service fee, the transportation access fee,
the health fee, and the athletics fee, which are referred to in the
statement of tuition and fees attached to the complaint. No claim
was made regarding tuition or room and board charges.
The core provisions of the financial liability agreement address
the obligations of students:
I agree to pay all UF debts and charges pursuant to UF policies. I understand that the university is advancing value to me in the form of educational services and that my right to register is expressly conditioned upon my agreement to pay the costs of tuition, fees, and other charges and any additional costs when those charges become due. I understand the university notifies students of debts by UF email. It is my responsibility to view my charges in ONE.UF, or at the location designated by my academic program.
2. Florida Rule of Civil Procedure 1.130(a) requires that material portions of a contract be incorporated or attached to a complaint brought on a contract.
-4- The agreement goes on to detail various other terms regarding
student liability, including liability for “all costs of collecting unpaid
charges, including a percentage based third-party collection fee up
to 30%, reasonable attorney’s fees, and court costs the university
may incur in efforts of collecting my account.”
The trial court denied the University’s motion to dismiss the
contract claim, which the University based on the defense of
sovereign immunity. The trial court ruled that the complaint
adequately pleaded the existence of an express contract providing
for the payment of fees “in exchange for specific services to be
provided by UF during the Spring 2020 and Summer 2020
semesters” in accordance with the statutory authorization of
student fees.
B.
We turn now to a brief summary of some salient features of
the statutory provisions that provide the backdrop to the
controversy presented by this case.
Section 1001.72(1), Florida Statutes (2019), provides that the
board of trustees of each state university has the power “to contract
and be contracted with, to sue and be sued.” Section 1009.24,
-5- Florida Statutes (2019), contains extensive provisions regarding
state university student fees, including tuition charges. Section
1009.24(2) provides that—subject to applicable exemptions and
waivers—“[a]ll students shall be charged fees.”
Section 1009.24(9) specifically authorizes each university to
“establish separate activity and service, health, and athletic fees” to
“be collected as component parts of tuition and fees” and to “be
retained by the university and paid into the separate activity and
service, health, and athletic funds.” Such fees are required to be
established by each university on the “main campus” of the
university and are permitted to be established “on any branch
campus or center.” § 1009.24(10)(a), (11), (12), Fla. Stat. According
to section 1009.24(9), universities are permitted under specified
circumstances to “transfer revenues derived from” these fees “to a
university direct-support organization of the university to be used
only for the purpose of paying and securing debt” on certain capital
projects. The “activity and service, health, and athletic fees” are
subject to certain conditions and limitations under section
1009.24(4)(d), including a general prohibition on such fees
exceeding 40% of the amount of the legally established tuition. The
-6- same subsection provides that a university may, subject to certain
limitations and requirements, nonetheless exceed the 40% cap to
“increase its athletic fee to defray the costs associated with
changing National Collegiate Athletic Association divisions.”
Section 1009.24(10)(b) specifies that “[t]he student activity and
service fees shall be expended for lawful purposes to benefit the
student body in general,” including for “student publications and
grants to duly recognized student organizations.” That provision
also states that “[u]nexpended funds and undisbursed funds
remaining at the end of a fiscal year shall be carried over and
remain in the student activity and service fund and be available for
allocation and expenditure during the next fiscal year.”
Section 1009.24(14)(r) authorizes universities to establish
“transportation access fees.” Such fees are, as provided by section
1009.24(14), within a category of fees that “shall be based on
reasonable costs of services.”
II.
The First District reversed the trial court’s denial of the
University’s motion to dismiss Rojas’s breach of contract claim
based on the district court’s conclusion that the University had not
-7- “entered an express written contract with Rojas that obligated it to
provide specific services at a specific time in a specific way.” Rojas,
351 So. 3d at 1172. According to the district court, “the assorted
documents attached to the complaint do not constitute an express
written contract sufficient to overcome sovereign immunity” and the
trial court therefore erred in failing to conclude that sovereign
immunity barred Rojas’s contract claim. Id. at 1169, 1170. Relying
on Pan-Am’s analysis of the waiver of sovereign immunity for
contractual liabilities, the district court stated that “for waiver-by-
contract, there must be an express, written agreement that is
legislatively authorized (that is, the state entity had statutory
authority to enter the contract, thereby waiving sovereign immunity
and binding the State).” Id. at 1170. The district court then
reasoned that the waiver-by-contract requirement for an express,
written contract imposed on Rojas the need to identify “an express
written contract expressly addressing the University’s obligation to
provide [the] on-campus services” that were the subject of his
complaint. Id. at 1171.
The district court concluded that Rojas had failed “to clear this
basic hurdle” but had instead submitted—in the attachments to his
-8- complaint—an insufficient “hodge-podge of documents.” Id. The
court identified two specific deficiencies in the contract documents
submitted in support of Rojas’s contract claim. First, the court said
that those documents have no “language obligating the University
to provide specific, on-campus services to any student during any
specific time.” Id. Second, the court stated that none of the
contract documents contained any “language that can be read to
obligate the University to a refund of fees when any such services
are paused, limited, or outright cancel[ed].” Id. The court also
stated that “all that [the financial liability agreement] does is
expressly condition a student’s right to enroll upon that student’s
agreement to pay tuition, fees, and any other amounts that may
come due.” Id. Finally, responding to Rojas’s contention that
section 1009.24 “impos[es] ‘implied conditions [into] [the
University’s] express contracts with its students,’ ” the court
concluded that the statute provided no support for Rojas’s contract
claim because “no provision of section 1009.24 directs the
University to provide a specific service or requires that a service be
provided in person or on campus.” Id. at 1171-72 (second
alteration in original).
-9- III.
We now briefly summarize the arguments presented to this
Court by Rojas and the University. 3
The crux of Rojas’s argument here is that the First District
erred in failing to recognize that his contract with the University
contains implied covenants of good faith and commercial
reasonableness or fair dealing. Rojas suggests that this failure
underlies the First District’s identification of insufficiencies in the
contract. He argues that no authority supports the view “that a
party to a contract only needs to provide services in exchange for
fees paid for those services if the contract expressly states so” or
that a “party to a contract only needs to refund fees paid for
services that were not provided if the contract expressly states so.”
Rojas contends that these limitations on the usual obligations of a
party contracting to provide services were “created from whole cloth
to extricate” the University from its contractual obligations to
provide services in exchange for fees authorized under section
3. Both parties make additional points that we need not address in resolving this case at the motion to dismiss stage of the proceedings.
- 10 - 1009.24 and are not justified by sovereign immunity waiver-by-
contract doctrine.
The University answers by arguing that Rojas “does not
present any document requiring on-campus services and facilities
to be provided in the Spring and Summer 2020 semesters for the
fees that were paid.” The University further contends generally that
under section 1009.24 there is “more discretion than restriction in
how the University applies each fee.” Thus, according to the
University, the “statute does not mandate specific services, and it
does not create an express contract regarding those services.” The
University urges a critical distinction between the written contract it
entered—which does not escape the sovereign immunity bar—and
an enforceable “express, written contract that obligates the
University to provide specific fee-related services at a specific time.”
Therefore, the University submits, the First District “correctly
concluded” that Rojas “did not sufficiently plead an express
contract” that would meet the waiver-by-contract requirements of
Pan-Am.
- 11 - IV.
We now examine Pan-Am and its progeny.
Pan-Am involved a breach of contract action against the
Department of Corrections brought by the operator of vending
machines at state correctional facilities. 471 So. 2d at 4-5. The
written contract between Pan-Am and the department provided for
cancellation by the department for “unsatisfactory performance”
upon the giving of specified notice and affording Pan-Am the
opportunity to “correct any deficiencies.” Id. at 4. Pan-Am sued
based on the department’s alleged failure to comply with the
contract’s notice provisions. Id. at 5. After the circuit court granted
summary judgment for the department based on its affirmative
defense of sovereign immunity, the First District affirmed but
certified a question of great public importance. Id.
We began our analysis in Pan-Am by stating that “[i]n Florida,
sovereign immunity is the rule, rather than the exception.” Id. In
support of this proposition, we cited the text of article X, section 13
of the Florida Constitution: “Provision may be made by general law
for bringing suit against the state as to all liabilities now existing or
- 12 - hereafter originating.” Id. (quoting art. X, § 13, Fla. Const.). After
mentioning that “the legislature has explicitly waived sovereign
immunity in tort” by section 768.28, Florida Statutes, we observed
that “[t]here is no analogous waiver in contract.” Id. But we then
explained why legislative action in general law provides the basis for
waiver-by-contract. Id.
Such legislative action is the first of two pillars on which our
analysis regarding waiver-by-contract rests. The second pillar is a
basic principle of contract law. Regarding legislative action, we
recognized that “the legislature has, by general law, explicitly
empowered various state agencies to enter into contracts” and that
the legislature “has authorized certain goals and activities which
can only be achieved if state agencies have the power to contract for
necessary goods and services.” Id. Regarding contract law, we
observed that “[i]t is basic hornbook law that a contract which is
not mutually enforceable is an illusory contract” and that “[w]here
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.” Id.
- 13 - Against the backdrop of this basic principle of contract law, we
reasoned that the legislative authorization of governmental action
and governmental contracting in furtherance of that action entails
the enforceability of government contracts. Id. Because “the
legislature has clearly intended” that the contracts it authorizes “be
valid and binding on both parties,” it therefore waives the sovereign
immunity that would render them not binding on the government.
Id. “As a matter of law”—that is, the requirement of mutual
enforceability—“the state must be obligated to the private citizen or
the legislative authorization for such action is void and
meaningless.” Id. The government cannot obtain the benefit of
entering contracts without taking on the liability that results from
breaching the government’s obligations under those contracts.
Enforceable rights for the government must be joined to enforceable
rights for the other contracting party.
We thus held that when “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. Finally, we
“emphasize[d]” that our holding was “applicable only to suits on
- 14 - express, written contracts into which the state agency has statutory
authority to enter.” Id. at 6.
After our decision in Pan-Am, the district courts considered a
series of cases in which the parties disputed the proper application
of Pan-Am’s holding. In these cases, the courts grappled with the
waiver-by-contract doctrine’s application to various obligations
connected to a contract but not explicitly stated in the text of the
contract. We next examine these decisions of the district courts
before turning to this Court’s assessment of them, which was
delivered in County of Brevard v. Miorelli Engineering, Inc., 703 So.
2d 1049 (Fla. 1997).
1.
The first in the series of cases was Southern Roadbuilders, Inc.
v. Lee County, 495 So. 2d 189 (Fla. 2d DCA 1986), which dealt with
a dispute related to a written contract for an airport construction
project that arose from a change in the scope of the construction
work. Id. at 190. After construction had proceeded for a period,
Lee County “revised the plans for underground drainage.” Id.
Months after completion of the project, Southern claimed that, in
- 15 - complying with the revised plans, it had incurred several hundred
thousand dollars in additional costs, which it brought suit to
recover. Id. The Second District Court of Appeal upheld the trial
court’s application of sovereign immunity to bar the claim for
breach of contract. Id.
In deciding the case, the Second District rejected Southern’s
argument that Lee County, “in its vacillation on plans for the
underground drainage[,] breached an implied contractual duty of
reasonable cooperation and payment of additional costs.” Id.
Instead, the court accepted Lee County’s argument that Southern
was seeking “enforcement of a new and separate oral contract.” Id.
The court focused on a “job specification” that “provided procedural
instructions to be followed by [Southern] in order to change the
terms of the written contract.” Id. at 190-91. Southern’s failure to
comply with the specification doomed its claim. Southern “totally
ignored [the] procedural instructions [of the specification] and failed
to secure any properly executed written instrument approving
changes in the contract.” Id. at 191. Southern thus could not
establish that “a breach of the written and binding instrument
occurred.” Id. at 190.
- 16 - 2.
Champagne-Webber, Inc. v. City of Fort Lauderdale, 519 So. 2d
696 (Fla. 4th DCA 1988), addressed a written contract entered by
the City for the construction of a bridge by Champagne-Webber. Id.
at 696. When Champagne-Webber sued the City, the trial court
determined that the claims against the City were barred by the
defense of sovereign immunity under Pan-Am and Southern
Roadbuilders, but the Fourth District Court of Appeal disagreed—
except regarding a quantum meruit claim. Id. at 697. The claims
other than quantum meruit were based on the allegation of express
and implied covenants and warranties under the written contract.
Id. Champagne-Webber’s claim of breach of those covenants and
warranties rested on the allegation that the City had provided
“inaccurate and misleading information concerning the soil
condition” at the construction site: that the soil was sand only
rather than the sand and rock that were actually present. Id. at
696-97.
The district court concluded that the trial court had
erroneously determined that those claims of breach “were founded
on theories of implied contract and therefore barred by the doctrine
- 17 - of sovereign immunity.” Id. at 697. The district court held that
those claims instead “were claims arising out of the express written
contract between the parties, albeit those claims included
allegations of breach of implied covenants and breach of implied
warranties.” Id.
The district court rejected the view—which it suggested was
adopted by the Southern Roadbuilders court and may have
influenced the trial court decision on review—that the reference in
Pan-Am to “suits on express, written contracts” means “that no
contractual cause of action may be maintained against a state
agency unless it is one for breach of an express covenant or
provision of an express written contract.” Id. The district court
pointed out Pan-Am’s reasoning that “the legislature, in authorizing
a state agency to enter into a contract, clearly intended that such
contracts be valid and binding on both parties and, thus, mutually
enforceable against both.” Id. (citing Pan-Am, 471 So. 2d at 5).
According to the district court, “there is no indication that the [Pan-
Am] Court intended by its decision to . . . change established
principles of contract law.” Id. And those established principles
recognize the existence of “implied covenants and conditions” in
- 18 - “[v]irtually every contract.” Id. The district court cited among
others the implied covenant to “perform in good faith” and “an
implied obligation to furnish information which would not mislead
prospective bidders.” Id. at 697-98. Stating that its decision
conflicted with Southern Roadbuilders, the Fourth District held that
when “a suit is brought on an express, written contract entered into
by a state agency under statutory authority, the defense of
sovereign immunity does not protect the state agency from an
action arising out of a breach of either an express or implied
covenant or condition of that contract.” Id. at 698 & n.2.
3.
Subsequently, the Fourth District in Interamerican Engineers
& Constructors Corp. v. Palm Beach County Housing Authority, 629
So. 2d 879 (Fla. 4th DCA 1993), dealt with facts similar to the facts
in Southern Roadbuilders but reached a different result than was
reached by the Second District. After the county Housing Authority
had entered a contract with Interamerican for the construction of a
HUD project, Interamerican “encountered unexpected obstacles
throughout the construction,” including “the necessity of
demucking the construction site.” Id. at 880. Interamerican then
- 19 - “sought recovery for . . . increased costs and expenses” resulting
from the various unexpected obstacles. Id. The district court
recounted that “[d]espite the contractor’s failure to comply with
contractual provisions requiring submissions for additional time
and expenses in a prescribed manner, the Housing Authority paid
some of the claims and denied others.” Id.
In the ensuing litigation, Interamerican “maintained that the
conduct between the parties had waived the contractual
prerequisites” while the Housing Authority “adhered to contractual
provisions to ward off the claims.” Id. The Housing Authority
“argued that the damages sought by the contractor were not
expressly covered under the written contract” and that the Housing
Authority thus “was immune from suit.” Id. at 881. Interamerican
contended “that as long as a written contract existed between the
parties, suit could be brought on express and implied covenants of
the written agreement.” Id. The trial court ruled for the Housing
Authority, but the Fourth District determined that the trial court
had misinterpreted the holding in Champagne-Webber and had
erred in concluding that Interamerican’s claim was barred by the
doctrine of sovereign immunity. Id.
- 20 - After discussing the decisions in Pan-Am, Southern
Roadbuilders, and Champagne-Webber and noting the conflict with
Southern Roadbuilders identified in Champagne-Webber, the district
court concluded that the trial court had erred because it apparently
believed that “Southern Roadbuilders protected the government
entity from liability.” Id. The trial court had thus ruled—in accord
with Southern Roadbuilders—that Interamerican’s claim was barred
by sovereign immunity because Interamerican “had not complied
with the time deadlines or written requirements of the express
contract in requesting additional time and making claims.” Id. But
the Fourth District had already said that it was not in accord with
the Second District’s decision in Southern Roadbuilders. So the
Interamerican panel of the Fourth District did not accept the trial
court’s apparent line of reasoning. The Fourth District reversed
and held that “[a]s long as an express written agreement exists, the
basis for a breach of contract suit also exists and may include
claims based upon implied covenants within the agreement”—even
when those claims arise from a failure by the claimant to follow the
express provisions of the written agreement. Id. at 881-82.
- 21 - 4.
In County of Brevard v. Miorelli Engineering, Inc., 677 So. 2d 32
(Fla. 5th DCA 1996), decision quashed, 703 So. 2d 1049 (Fla. 1997),
the Fifth District Court of Appeal considered a dispute related to
performance under a written contract between Brevard County and
Miorelli for the construction of a spring training facility for a
professional baseball team. Id. at 33. The County terminated
Miorelli as the contractor and withheld payment for the remaining
funds that were due. Id. Miorelli then sued the County on a variety
of grounds. Id.
Among the claims made by Miorelli was one for payment for
extra work that had been performed. Id. Miorelli alleged breach of
the implied covenant to act in good faith based on various acts and
omissions by the County, including dilatory conduct on various
matters. Id. at 34. An allegation was also made that undisclosed
site conditions had resulted in additional costs. Id. The County
raised the bar of sovereign immunity against Miorelli’s claims,
including the claim “for the extra work not expressly included in the
terms of the written agreement.” Id. at 33. The County contended
that the claim for extra work was precluded because the “extra
- 22 - work was not contemplated by the written contract and no written
change orders were issued authorizing the extra work as required
by the contract.” Id. In response, Miorelli contended that the
County had waived the contract provisions prohibiting modification
“without written change orders” by “directing changes to the
project” without following the required change order protocol. Id. at
34.
The Fifth District recognized Southern Roadbuilders as holding
that “a contractor’s claims for additional costs against a county
would be barred by sovereign immunity where the additional costs
were not addressed in the original written contract nor in any
subsequent written instrument.” Id. at 33. But the court declined
to follow Southern Roadbuilders. Aligning instead with its
understanding of the Fourth District’s teaching in Champagne-
Webber regarding implied covenants, the Fifth District held that
Miorelli’s “claims based on breach of the implied covenants of good
faith and fair dealing”—which encompassed the claim regarding
extra work—“should not be barred by sovereign immunity.” Id. at
34. We then accepted review of the decision based on express and
direct conflict with Southern Roadbuilders.
- 23 - C.
In our review of the Fifth District’s Miorelli decision, we began
by recounting Pan-Am’s recognition of the implied waiver of
sovereign immunity arising from the legislative authorization of
contracting by state entities. 703 So. 2d at 1050. We then
discussed Southern Roadbuilders and Champagne-Webber,
explaining how those two cases presented different issues, and
concluding that the question in the Miorelli case was the same as
the question in Southern Roadbuilders, but was “outside the
parameters of Champagne-Webber.” Id. at 1050-51. We explained
that in Southern Roadbuilders the Second District concluded that
“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.” Id. at 1050. We
compared this with Champagne-Webber’s holding that “Pan-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.” Id.
Regarding Champagne-Webber, we also observed that “the key issue
was whether the city had misrepresented the soil conditions at the
- 24 - construction site and whether the contractor had justifiably relied
on the misrepresentation.” Id. at 1051.
We stated that we “agree with Champagne-Webber’s
interpretation of Pan Am.” Id. And we thus quoted favorably and at
length Champagne-Webber’s interpretation of Pan-Am. See id. at
1050-51 (quoting Champagne-Webber, 519 So. 2d at 697-98). In
particular, we cited that portion of the analysis that included the
statement that “[v]irtually every contract contains implied
covenants and conditions”—including an “implied covenant” to
“perform in good faith.” Id. at 1050 (quoting Champagne-Webber,
519 So. 2d at 697). We also agreed with the language in
Champagne-Webber stating that the principles of Pan-Am required
recognizing the waiver of sovereign immunity not “only for the
state’s breach of an express covenant or condition of an express,
written contract” but also for “the state’s breach of an implied
covenant or condition of such contract.” Id. at 1051 (quoting
Champagne-Webber, 519 So. 2d at 698).
But we disagreed with Champagne-Webber’s “observation that
its opinion conflicted with Southern Roadbuilders.” Id. We
reasoned that “[b]inding the sovereign to the implied covenants of
- 25 - an express contract” (as was approved in Champagne-Webber) “is
quite different from requiring a sovereign to pay for work not
contemplated by that contract” (as was rejected in Southern
Roadbuilders). Id. We recognized that the facts in Champagne-
Webber were materially different from the facts in Southern
Roadbuilders and that the differing results were justified. We thus
approved the rationale of both Southern Roadbuilders and
Champagne-Webber. Id.
We quashed the decision of the Fifth District on review,
holding that Miorelli’s “extra work claims are for work totally
outside the terms of the contract” and that “[w]ithout a written
change order, the doctrine of sovereign immunity precludes
recovery of the cost of the extra work.” Id. In so holding, we
rejected the claim by Miorelli that “the doctrines of waiver and
estoppel can be used to defeat the express terms of the contract.”
Id. We concluded that allowing such a use of waiver and estoppel
would negate “the requirement of Pan Am that there first be an
express written contract before there can be a waiver of sovereign
immunity.” Id. We pointed out that application of the doctrines of
waiver and estoppel would permit “[a]n unscrupulous or careless
- 26 - government employee” to “alter or waive the terms of the written
agreement, thereby leaving the sovereign with potentially unlimited
liability.” Id.
Finally, we disapproved the decision in Interamerican, which—
as we have already explained—involved facts similar to Southern
Roadbuilders but reached a different result. Id. Our disapproval of
Interamerican was entailed by our decision to quash Miorelli, which
also involved facts similar to Southern Roadbuilders but reached a
different result.
Three salient points emerge from our decision in Miorelli.
First, Pan-Am’s requirement for an express written contract does
not foreclose all implied covenants and conditions that arise under
contract law. Second, Pan-Am’s framework for waiver-by-contract—
with its focus on a properly authorized written contract—does
preclude implied obligations that defeat the express provisions of a
contract entered by a government entity and claims for “work totally
outside the terms of the contract.” Third, the preclusion of implied
obligations in conflict with express contractual provisions extends
to obligations that would arise from application of the doctrines of
waiver and estoppel. In sum, Miorelli recognizes a line between
- 27 - impermissible implied obligations that contradict, supplant, or
override express contractual provisions and permissible implied
obligations that do not have such a directly antagonistic
relationship with the text of a contract.
V.
We now evaluate the decision of the First District in Rojas in
light of our understanding of the sovereign immunity waiver-by-
contract doctrine as we have explained it in Pan-Am and Miorelli.
The case comes to us on a determination by the district court that
the University’s affirmative defense of sovereign immunity required
the dismissal of Rojas’s contract claims with prejudice for failure to
state a claim. “The issue of sovereign immunity in this case is a
legal issue subject to a de novo standard of review.” Plancher v.
UCF Athletics Ass’n, 175 So. 3d 724, 725 n.3 (Fla. 2015). In
deciding that legal issue, given the procedural posture of the case,
“we must accept as true” the factual allegations of Rojas’s complaint
and from those allegations “we must draw all reasonable inferences
in favor of” Rojas. W.R. Townsend Contracting, Inc. v. Jensen Civ.
Const., Inc., 728 So. 2d 297, 300 (Fla. 1st DCA 1999).
- 28 - As our decision in Miorelli makes clear, the waiver-by-contract
doctrine does not carry with it a broad prohibition on all claims
based on implied covenants or conditions. On the contrary, we
have recognized that—under basic principles of law—contracts
include implied covenants, such as the implied covenant to
“perform in good faith.” Miorelli, 703 So. 2d at 1050 (quoting
Champagne-Webber, 519 So. 2d at 697). But the line of reasoning
adopted by the First District in Rojas cannot be reconciled with our
recognition of permissible implied covenants. Indeed, Rojas’s
reasoning suggests that government contracts are held to a
standard that does not apply to any other contracts—not only
because all implied covenants are negated, but also because a
requirement is imposed for extraordinary specificity in contract
terms. According to the First District, without a heightened level of
specificity in its terms, a written contract is not “sufficient to
overcome sovereign immunity.” Rojas, 351 So. 3d at 1169, 1170.
Nothing in our case law supports this view.
So the First District, in its interpretation of the waiver-by-
contract doctrine, faults the contract documents produced by Rojas
for containing no “language obligating the University to provide
- 29 - specific, on-campus services to any student during any specific
time.” Id. at 1171. But there is no doubt that the contract
documents refer to at least some fee-associated services—e.g.,
transportation services—that could reasonably be understood only
as services to be provided on campus. 4 And there is no doubt that
the time for the performance of the obligations under the contract
documents is during the school terms specified in the documents.
Aside from issues concerning the scope of the statutory
authorization to contract, questions about the precise scope of the
University’s obligation to provide fee-associated services are
questions of contract interpretation—not an issue of sovereign
immunity. Rojas’s reasoning on this point does not properly apply
our sovereign immunity precedents on waiver-by-contract. It does
not recognize that except for the limitations we explained in Miorelli,
properly authorized contracts with state entities are interpreted in
the same way that other contracts are interpreted.
4. By the use of this example, we imply nothing concerning any other category of services.
- 30 - Similarly, the First District faults the contract documents
because they contain no “language that can be read to obligate the
University to a refund of fees when any [of the contracted] services
are paused, limited, or outright cancel[ed].” Id. It is a basic
principle of contract law that when a party contracts to receive and
pays for services a remedy will ordinarily be available if the other
party subsequently fails to perform. Neither the First District nor
the University point to any authority contrary to this self-evident
point of contract law. The waiver-by-contract doctrine provides no
basis for concluding that a contract suffers from a fatal
insufficiency simply because it fails to expressly state the remedies
that are generally available for breach of contract. The First District
misses the mark on this point.
We also reject the First District’s understanding of the basic
rights of students under the financial liability agreement. The First
District states that “all that [the financial liability agreement] does
is expressly condition a student’s right to enroll upon that student’s
agreement to pay tuition, fees, and any other amounts that may
come due.” Id. On its face, this understanding of the contract
would render the rights of students illusory. The “right to enroll”
- 31 - becomes meaningless if shorn of the benefits that in the ordinary
course flow from enrollment. The waiver-by-contract doctrine does
not justify such a strained interpretation of the University’s
contract.
Because of these errors in the First District’s analysis, we
conclude that its decision must be quashed. 5 But we do not decide
that the bar of sovereign immunity cannot ultimately be applied to
any of the claims raised by Rojas. That question is subject to
further litigation.
Finally, in connection with what remains to be litigated, we
recognize that the First District made passing conclusory comments
regarding the authority concerning fees granted by section 1009.24.
The parties have likewise presented nothing more than conclusory
assertions regarding the scope and import of those statutory
provisions. Yet the scope and import of those provisions is of
fundamental significance. Waiver-by-contract is dependent on
statutory authorization to contract and the scope of the waiver is
5. Our focus on particular errors does not imply approval of other elements of the First District’s analysis.
- 32 - necessarily restricted by the limitations and conditions of the
authorization. There can be no liability for breach of any obligation
undertaken that is made in conflict with the authorization. But we
have not here been presented with arguments sufficient to provide a
basis for a decision regarding the scope of the authorization granted
by section 1009.24. So we do not suggest that the scope of the
waiver under the relevant statutory provisions either does or does
not preclude claims made by Rojas in this case.
VI.
The waiver-by-contract doctrine does not preclude claims
based on the breach of implied covenants or conditions that do not
conflict with express contract provisions. The First District erred in
failing to recognize this point. The First District also erred in
understanding that the waiver-by-contract doctrine imposes a
requirement for extraordinary specificity in government contracts.
There is no basis in our jurisprudence for such a requirement.
In line with our analysis here, we reframe the certified
question as follows:
For written contracts entered by government entities, does sovereign immunity bar claims for breach of implied
- 33 - covenants and conditions that do not contradict, supplant, or override express contract provisions?
We answered this question in the negative. The decision of the First
District is quashed.
It is so ordered.
MUÑIZ, C.J., and CANADY, LABARGA, COURIEL, and FRANCIS, JJ., concur. SASSO, J., dissents with an opinion, in which GROSSHANS, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
SASSO, J., dissenting.
I agree with much of the majority opinion, including its
synthesis of sovereign immunity law. Contrary to the First
District’s conclusion, the waiver-by-contract doctrine does not carry
with it a broad prohibition on all claims based on implied covenants
or conditions. But it does place on the plaintiff the burden to
demonstrate that the alleged claim is truly one that is under, versus
outside, the contract. See, e.g., County of Brevard v. Miorelli Eng’g,
Inc., 703 So. 2d 1049, 1051 (Fla. 1997) (noting the “requirement of
Pan Am that there first be an express written contract before there
can be a waiver of sovereign immunity”).
- 34 - It appears I depart from the majority though when it comes to
assessing how specific a plaintiff seeking to overcome a sovereign
immunity defense must be. This is so because we know that
sovereign immunity waiver presents more than a question of
whether a contractual relationship exists. See, e.g., id. (concluding
sovereign immunity barred suit even though contractual
relationship existed because specific breach alleged was based on
work outside of terms of contract). So the salient question is
whether the plaintiff has alleged the existence of a written contract
containing the terms the plaintiff alleges have been breached. See,
e.g., Halifax Hosp. Med. Ctr. v. Glob. Trauma Sys., Inc., 386 So. 3d
1054, 1056 (Fla. 5th DCA 2024) (consulting the written agreements
between the parties to evaluate whether they contained a provision
supporting the alleged breach); City of Mia. Firefighters’ & Police
Officers’ Ret. Tr. & Plan v. Castro, 279 So. 3d 803, 807 (Fla. 3d DCA
2019) (noting that examining the duty imposed by the contract is
critical to determining whether sovereign immunity is waived). This
inquiry does result in a specific analysis. But it is the level of
specificity that I believe a proper sovereign immunity waiver
analysis demands. See Levine v. Dade Cnty. Sch. Bd., 442 So. 2d
- 35 - 210, 213 (Fla. 1983) (facts for a waiver of sovereign immunity must
be pled in the complaint).
To answer that question here, one first needs to evaluate the
allegations in Rojas’s complaint. Rojas’s complaint is based on an
exact premise. Rojas alleges that students “entered express
contracts with [the University] for specific on-campus resources and
services during the Spring and Summer 2020 terms.” Rojas further
alleges that students “paid [the University] fees in exchange for
receiving or accessing specific on-campus resources and services”
during those same terms. Rojas then alleges that the University
breached this contract, specifically, when it “stopped providing
services for which the fees were paid, and did not return the fees to
students.”
Based on these allegations, Rojas needs to demonstrate that
there is a contract for (1) specific on-campus resources and
services, (2) during the Spring and Summer 2020 terms, (3) that
were paid for by the plaintiffs, (4) that students must receive or
have access to on campus, and (5) for which they are entitled to a
pro-rated refund. Rojas can accomplish this by demonstrating that
- 36 - these terms either exist in the contract or are implied obligations
arising out of a term that exists in the contract.
The next step is to compare the obligations Rojas alleges were
breached to the alleged contract’s terms. 6 This is where Rojas
falters though. Rojas alleges the “contract” consists of the financial
liability agreement, invoices, tuition statements, and other billing
materials, as well as the University’s many detailed statements
about specific services to be provided in exchange for fees. The
financial liability agreement, for example, provides:
I agree to pay all [University] debts and charges pursuant to [University] policies. I understand that the university is advancing value to me in the form of educational services and that my right to register is expressly conditioned upon my agreement to pay the costs of tuition, fees, and other charges and any additional costs when those charges become due.
6. Because Florida requires that any contract upon which an action is based be attached to the complaint, this is an appropriate question to ask at the motion to dismiss phase. See, e.g., Fla. Highway Patrol v. Jackson, 288 So. 3d 1179, 1185-86 (Fla. 2020) (“[C]ourts should determine entitlement to sovereign immunity as early as the record permits.”); Lutz v. Protective Life Ins. Co., 951 So. 2d 884, 888 (Fla. 4th DCA 2007) (where allegations in complaint for breach of contract did not sufficiently tie the alleged contractual breaches to any specific requirement, motion for judgment on the pleadings was proper).
- 37 - In other words, if you pay the fees, you get the right to enroll. That
is all that is provided by the agreement. But Rojas does not allege
that the University breached its obligation to let him enroll. Nor
can this general duty to permit enrollment be read as creating an
obligation to provide certain on-campus services or else provide
students pro rata refunds based on some theory of implied
covenants. 7 Ins. Concepts & Design, Inc. v. Healthplan Servs., Inc.,
785 So. 2d 1232, 1235 (Fla. 4th DCA 2001) (“Allowing a claim
for breach of the implied covenant of good faith and fair dealing
‘where no enforceable executory contractual obligation’ remains
would add an obligation to the contract that was not negotiated by
the parties.” (quoting Hosp. Corp. of Am. v. Fla. Med. Ctr., Inc., 710
So. 2d 573, 575 (Fla. 4th DCA 1998))).
Because the financial liability agreement does not get Rojas
where he needs to go, Rojas’s complaint next walks through a series
of websites that describe the services associated with the various
7. This interpretation does not render the right to enroll meaningless. For example, the financial liability agreement expressly recognizes the provision of “educational services.” Were the University collecting tuition and refusing to offer classes, this may be a different case.
- 38 - fees. Some of those websites describe services that occur on
campus—a shuttle bus system and a student health care center, for
example. But missing from these various websites is any promise
by the University to continue operating the services in the manner
described, let alone anything indicating that the University is
obligated to provide the services upon receipt of fee payments from
students. So even if these website provisions were incorporated
into the contract, which is an argument Rojas must stretch far for,
they do not contain the terms Rojas alleges the University breached.
Failing to identify a provision obligating the University to
provide on-campus services or else provide pro rata refunds, Rojas
falls back on allegations of “implied covenants or conditions.” This
is where Rojas starts getting very general though. He does not
reveal what those implied covenants are, or from which specific
contractual provision they emanate. And, in my view, his general
argument is based on a mistaken understanding of what an implied
covenant is. For example, to the extent Rojas refers to the implied
covenant of good faith, that duty must “relate to the performance of
an express term of the contract and is not an abstract and
independent term of a contract which may be asserted as a source
- 39 - of breach when all other terms have been performed pursuant to
the contract requirements.” QBE Ins. Corp. v. Chalfonte Condo.
Apartment Ass’n, 94 So. 3d 541, 548 (Fla. 2012) (quoting Ins.
Concepts, 785 So. 2d at 1235); see also Miorelli, 703 So. 2d at 1050
(“Pan-Am did not preclude . . . a claim of breach of implied
covenants or conditions contained within the scope of an express
written contract.” (emphasis added)). Because the express term
Rojas alleges does not exist, whether the University carried out its
obligations under that term in good faith is irrelevant.
In sum, none of the documents Rojas identified evince a
written contract containing the terms he alleges the University
breached. And while the alleged “implied covenants” Rojas falls
back on do not supplant or override express contractual provisions,
they fail to relate to performance of an express term of the contract,
adding obligations to the contract for which the parties did not
negotiate. For this reason, I disagree with the majority’s approach
to reframing the certified question because it incompletely describes
what sovereign immunity bars. Sovereign immunity does not bar
claims for breach of implied covenants and conditions that do not
supplant or override a contract if the implied covenants and
- 40 - conditions arise out of a term in the contract. Because Rojas’s
claim is one that adds (as opposed to supplants or overrides) terms
to a contract, it is not a claim falling within the scope of the
contract. I therefore respectfully dissent from this Court’s opinion.
GROSSHANS, J., concurs.
Application for Review of the Decision of the District Court of Appeal Direct Conflict of Decisions/Certified Great Public Importance
First District - Case No. 1D21-3430
(Alachua County)
Douglas F. Eaton of Eaton & Wolk, P.L., Miami, Florida,
for Petitioner Anthony Rojas
Joseph W. Jacquot and Lauren V. Purdy of Gunster Yoakley & Stewart, P.A., Jacksonville, Florida, and Jounice Nealy-Brown of Gunster Yoakley & Stewart, P.A., Tampa, Florida,
for Respondent University of Florida Board of Trustees
Janet R. Varnell of Varnell & Warwick, P.A., Tampa, Florida,
for Amicus Curiae The National Association of Consumer Advocates
Petra L. Justice of Banker Lopez Gassler, P.A., Tampa, Florida; and Elaine D. Walter of Kula & Associates, P.A., Miami, Florida,
for Amicus Curiae Florida Defense Lawyers Association
- 41 - James Uthmeier, Attorney General, Jeffrey P. DeSousa, Acting Solicitor General, and Nathan A. Forrester, Chief Deputy Solicitor General, Tallahassee, Florida,
for Amicus Curiae State of Florida
- 42 -