Anthony Rojas v. University of Florida Board of Trustees

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.

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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

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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.

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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,

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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

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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

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“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

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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).

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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.

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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.

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IV.

We now examine Pan-Am and its progeny.

A.

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

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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.

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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

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express, written contracts into which the state agency has statutory

authority to enter.” Id. at 6.

B.

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

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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.

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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

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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

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“[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

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“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.

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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.

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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

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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.

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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

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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

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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

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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

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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).

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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

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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.

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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”

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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

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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”).

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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 -