Rivadeneira v. The Univ. of S. Fla. Bd. of Trs.

Full title: FELIPE RIVADENEIRA, on behalf of himself and all others similarly…

Court: Florida Court of Appeals, Second District

Date published: Oct 25, 2023

No. 2D22-1703 (Fla. Dist. Ct. App. Oct. 25, 2023)

Opinion

2D22-1703

10-25-2023

FELIPE RIVADENEIRA, on behalf of himself and all others similarly situated, Appellant, v. THE UNIVERSITY OF SOUTH FLORIDA BOARD OF TRUSTEES, Appellee.

Joshua H. Eggnatz of Eggnatz|Pascucci, Davie; Thomas J. McKenna of Gainey McKenna &Egleston, New York, New York, for Appellant. Richard C. McCrea, Jr., and Jennifer W. Corinis of Greenberg Traurig, P.A., Tampa, for Appellee.

PER CURIAM.

Appeal from the Circuit Court for Hillsborough County; Emmett Lamar Battles, Judge.

Joshua H. Eggnatz of Eggnatz|Pascucci, Davie; Thomas J. McKenna of Gainey McKenna &Egleston, New York, New York, for Appellant.

Richard C. McCrea, Jr., and Jennifer W. Corinis of Greenberg Traurig, P.A., Tampa, for Appellee.

PER CURIAM.

Felipe Rivadeneira appeals from the trial court's order dismissing his class action suit against the University of South Florida Board of Trustees (USF) with prejudice on the ground of sovereign immunity. In University of South Florida Board of Trustees v. Moore, 347 So.3d 545 (Fla. 2d DCA 2022), this court upheld the trial court's denial of sovereign immunity at the motion to dismiss stage based on its conclusion that Moore had proffered documents that could potentially constitute an express contract. We held that "a determination regarding whether the parties' 'legal, binding contract' included a promise to provide on-campus services in exchange for fees is more appropriate at the summary judgment stage." Id. at 549. We are unable to distinguish this case from Moore, and being bound to follow that case, we must reverse. As in Moore, our ruling is "without prejudice to USF's right to assert the defense [of sovereign immunity] in a motion for summary judgment." See id. at 551. We also certify the following question of great public importance to the Florida Supreme Court:

SHOULD A MOTION TO DISMISS A BREACH OF CONTRACT CLAIM AGAINST A STATE UNIVERSITY ALLEGING THE UNIVERSITY'S FAILURE TO PROVIDE ITS STUDENTS WITH ACCESS TO ON-CAMPUS SERVICES AND FACILITIES BE GRANTED BASED ON SOVEREIGN IMMUNITY IF THE COMPLAINT ALLEGES A CONTRACT BETWEEN THE PARTIES BUT THE ATTACHED DOCUMENTS ALLEGED TO COMPRISE THAT CONTRACT DO NOT SPECIFICALLY OBLIGATE THE UNIVERSITY TO PROVIDE THE ON-CAMPUS SERVICES AND FACILITIES THAT THE STATE UNIVERSITY ALLEGEDLY FAILED TO PROVIDE?

Reversed, remanded, and question certified.

KELLY, ROTHSTEIN-YOUAKIM, and ATKINSON, JJ, Concur

Opinion subject to revision prior to official publication.