IN THE SUPREME COURT OF FLORIDA

Filing # 20350715 Electronically Filed 11/07/2014 04:03:14 PM RECEIVED, 11/7/2014 16:08:58, John A. Tomasino, Clerk, Supreme Court ENOCK PLANCHER, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ERECK M. PLANCHER, II, IN THE SUPREME COURT OF FLORIDA Petitioner, Case No.: SC13-1872 SC13-1874 v. (Consolidated) L.T. Case Nos. 5D11-2710 UCF ATHLETICS ASSOCIATION, INC. et al., Respondents, _/ BRIEF IN SUPPORT OF RESPONDENTS BY AMICI CURIAE THE UNIVERSITY OF CENTRAL FLORIDA BOARD OF TRUSTEES, THE UNIVERSITY OF FLORIDA BOARD OF TRUSTEES, THE FLORIDA STATE UNIVERSITY BOARD OF TRUSTEES, THE FLORIDA A & M UNIVERSITY BOARD OF TRUSTEES, THE UNIVERSITY OF SOUTH FLORIDA BOARD OF TRUSTEES, THE FLORIDA ATLANTIC UNIVERSITY BOARD OF TRUSTEES, THE UNIVERSITY OF WEST FLORIDA BOARD OF TRUSTEES, THE UNIVERSITY OF NORTH FLORIDA BOARD OF TRUSTEES, THE FLORIDA INTERNATIONAL UNIVERSITY BOARD OF TRUSTEES, THE FLORIDA GULF COAST UNIVERSITY BOARD OF TRUSTEES, THE NEW COLLEGE OF FLORIDA BOARD OF TRUSTEES, AND THE FLORIDA POLYTECHNIC UNIVERSITY BOARD OF TRUSTEES RICHARD E. MITCHELL, ESQ. GRAYROBINSON, P.A. Florida Bar No.: 0168092 rick.mitchell@gray-robinson.com 301 East Pine Street, Suite 1400 Orlando, Florida 32801 (407) 843-8880 Telephone (407) 244-5690 Facsimile Counsel for Amici Curiae

TABLE OF CONTENTS Page TABLE OF AUTHORITIES...iii TABLE OF ENTITY REFERENCES...1 STATEMENT OF IDENTITIES AND INTERESTS...2 SUMMARY OF ARGUMENT...4 ARGUMENT...6 A. Certified Direct-Support Organizations Can Have Sovereign Immunity for Tort Liability as Florida Not-For-Profit Corporations Exclusively Acting As Instrumentalities and Agencies of the State...6 B. The Florida Legislature Conferred Operational Flexibility on State Universities to Accomplish Their Missions Through Creation and Operation of Certified University Direct-Support Organizations...14 CONCLUSION...16 CERTIFICATE OF SERVICE...18 CERTIFICATE OF COMPLIANCE... 19 ii

TABLE OF AUTHORITIES CASE LAW Page Am. Home Assur. Co. v. Plaza Materials Corp., 908 So. 2d 360 (Fla. 2005)...16 Elend v. Sun Dome, Inc., 2005 U.S. Dist. LEXIS 35264 (M.D. Fla. Dec. 22, 2005)...11 Fla. Dep t of Revenue v. Fla. Mun. Power Agency, 789 So. 2d 320 (Fla. 2001)...16 Hawkins v. Ford Motor Co., 748 So. 2d 993(Fla. 1999)...16 Pagan v. Sarasota Cnty. Pub. Hosp. Bd., 884 So. 2d 257 (Fla. 2d DCA 2004)...11 Prison Rehabilitative Indus. & Diversified Enters. Inc. v. Betterson, 648 So. 2d 778 (Fla. 1st DCA 1995)...11 Tang v. Univ. of S. Fla., 2005 WL 2334697 (M.D. Fla. Sept 23, 2005)...13 Tuveson v. Fla. Governor s Council on Indian Affairs, Inc., 734 F.2d 730 (11th Cir. 1984)...12 Walker v. Fla. State Univ. Sch., 2004 WL 3135466 (N.D. Fla. Dec 30, 2004)...13 Zommer v. State of Fla., 31 So. 3d 733 (Fla. 2010)...15 CONSTITUTION, STATUTES AND RULES Art. II, 3, Fla. Const...15 Art. IX, 7, Fla. Const...1, 2, 3 768.28, Fla. Stat....4, 7, 11, 13, 17 1001.705, Fla. Stat...2 1001.706, Fla. Stat...2 1001.71, Fla. Stat...3 1001.72, Fla. Stat...3 iii

CONSTITUTION, STATUTES AND RULES (CONTINUED) 1001.73, Fla. Stat...3 1004.28, Fla. Stat...1, 3, 4, 5, 7, 8, 12, 14, 15 Florida BOG Regulation 1.001...3 Florida BOG Regulation 9.011...2, 5, 8 UCF Regulation 4.034...5 LEGISLATIVE MATERIALS A Review of the Historic Preservation Boards of Trustees of the Department of State and Their Authority to Approve Direct-Support Organizations, Staff of the Senate Committee on Governmental Operations, Senator Curt Kiser, Chairman, (1990)...10 A Review of the Board of Trustees of the John and Mable Ringling Museum of Art and Its Authority to Approve a Direct-Support Organization Pursuant to Section 11.611, Florida Statutes, The Sundown Act, Staff of the Florida Senate Committee on Governmental Operations, Senator Curt Kiser, Chairman, (1989)...10 A Review of Direct-Support Organizations, Their Function, and Accountability to the State, Staff of the Florida Senate Committee on Governmental Operations, Senator Curt Kiser, Chairman, (1987)...7, 10, 15 REFERENCE MATERIALS www.merriam-webster.com/dictionary...3, 4, 5, 15 iv

TABLE OF ENTITY REFERENCES 1. Florida BOG means the Board of Governors for the State University System of Florida which shall operate, regulate, control, and be fully responsible for the management of the whole [state] university system. Art. IX, 7(d), Fla. Const. 2. University Board of Trustees means 1 or more of the 12 local boards of trustees which shall administer each public university. Art. IX, 7(b) and (c), Fla. Const. 3. University DSOs and DSOs refer to not-for-profit Florida corporations known as university direct-support organizations certified by their parent university s board of trustees to be operating in a manner consistent with the goals of the university and in the best interest of the state and [o]rganized and operated exclusively to receive, hold, invest, and administer property and to make expenditures to or for the benefit of a state university in Florida[.] 1004.28(1)(a)(1)-(3), Fla. Stat. 4. UCF BOT means the University of Central Florida Board of Trustees, which administers the University of Central Florida, ( UCF ). 5. UCFAA means Respondent, UCF Athletics Association, Inc., which is a university DSO created and certified by the UCF BOT to administer UCF s inter-collegiate athletics program. 1

STATEMENT OF IDENTITIES AND INTERESTS Amici Curiae are the Boards of Trustees of Florida s 12 state universities, (hereinafter collectively State University System ). This appeal has fundamental implications for the future of Florida s State University System as it involves the determination of whether the state s sovereign immunity for tort liability includes a not-for-profit university direct-support organization ( DSO ) that exclusively supports its parent university s mission, such as by administering its student athletics or other mission-centered programs. The Florida BOG consists of 17 citizen members, 13 of whom are appointed by Florida s Governor and confirmed by Florida s Senate, and the other members include Florida s commissioner of education, faculty senate advisory council chair, and student association president. Art. IX, 7(d), Fla. Const. By constitutional and statutory mandate, the Florida BOG operates, regulates, controls and is fully responsible for the management of Florida s entire State University System, including establishing and enforcing laws and regulations applicable to universities within the State University System, such as those governing DSO certification, operation, budgeting and audit. See Art. IX, 7, Fla. Const.; 1001.705 and 1001.706, Fla. Stat.; and Florida BOG Reg. 9.011, ( University 2

Direct Support Organizations and Health Services Support Organizations ). 1 In turn, each of Florida s 12 state universities is administered 2 by a 13 member local board of trustees dedicated to the State University System s purposes, of which 11 total members are appointed by Florida s Governor (6) and the Florida BOG (5) and confirmed by Florida s Senate, and the other members include the faculty senate chair and student body president. See Art. IX, 7, Fla. Const.; 1001.71, 1001.72 and 1001.73, Fla. Stat.; and Florida BOG Reg. 1.001 ( University Board of Trustees Powers and Duties ). 3 Local university boards of trustees are responsible for administering their respective universities and implementing and meeting state education policy, budgeting and education standards, and they may create and control not-for-profit DSOs certified to be operating exclusively in a manner consistent with their parent universities goals and in the best interest of the State of Florida. 1004.28(1)(a)(3), Fla. Stat. 1 App. A. 2 The word administer broadly means to manage or supervise the execution, use, or conduct of <administer a trust fund>[;] to mete out: dispense <administer punishment>[;] to give ritually <administer the last rites>[;] to give remedially <administer a dose of medicine>. http://www.merriamwebster.com/dictionary/administer (last visited November 4, 2014). 3 App. B. 3

Given the breadth and depth of Amici Curiae s citizen members and broad constitutional and statutory rights and obligations in the subject matter area of education policy, Amici Curiae respectfully wish to bring their unique perspective to the issues before this Court to help illuminate the historical path and use of Florida s university DSO statute ( 1004.28, Fla. Stat.), and to underscore the statewide importance of affirming the Fifth District Court of Appeal s ruling that, as a state university created and certified DSO, UCFAA has sovereign immunity for tort liability subject to the limited waiver provided by 768.28, Fla. Stat. SUMMARY OF ARGUMENT A DSO created and certified by a state university may qualify for and have sovereign immunity for tort liability because it is a not-for-profit corporation exclusively acting as an instrumentality and agency of its parent university and the State of Florida. See 768.28(2), Fla. Stat. (Sovereign immunity extends to state agencies or subdivisions including, inter alia, corporations primarily acting as instrumentalities or agencies of the state[.] ). 4 4 The word primarily means for the most part: chiefly <has now become primarily a residential town>[,] whereas the word exclusive means excluding or having power to exclude[;] limiting or limited to possession, control, or use by a single individual or group[; or] excluding others from participation, http://www.merriam-webster.com/dictionary/primarily and 4

By constitution, statute and regulation, state university boards of trustees are the only entities empowered to create, certify and de-certify university DSOs and are vested with broad discretion and governance and operational control over university DSOs. A university DSO s very existence (creation and termination), singular mission, and budget and audit oversight must be determined by, and is the responsibility of, a state university board of trustees. See Florida BOG Reg. 9.011; and UCF Reg. 4.034 ( University Direct Support Organizations ). 5 Section 1004.28, Fla. Stat. mandates that a universitycertified DSO must be organized and operated exclusively to receive, hold, invest, and administer property and to make expenditures to or for the benefit of a state university in Florida. Further, Florida BOG Regulation 9.011 requires university DSOs to be organized and operated to serve the best interests or missions of the university, and charges university boards of trustees to so organize and operate their DSOs and to establish budget, audit and other controls of DSOs. These regulations also require the DSO s chief executive to report to the university s president or their designee, such as a university vice president. A DSO s operational information is always available to the university board of trustees and Florida http://www.merriam-webster.com/dictionary/exclusive visited November 4, 2014). 5 App. C. (last 5

Auditor General, and DSOs are subjected to extensive governance and operational controls by their parent universities. Hence, by operating a university s athletics or other mission-centric programs in the best and exclusive interests of the university and State of Florida subject to governance and operational control of the university, a DSO (such as UCFAA) is clearly acting as an instrumentality of its creating university and the state, and therefore necessarily comes within the protective umbra of its parent university s unquestionable sovereign immunity for tort liability. In addition, since at least 1987 the Florida Legislature has acknowledged the broad use of DSOs to administer a wide variety of university programs, including athletics programs. The administration and operation of athletics programs is an integral university function, and that integral function would still be performed by the university even in the absence of a statutorily-authorized DSO. ARGUMENT A. Certified Direct-Support Organizations Can Have Sovereign Immunity for Tort Liability as Florida Not-For-Profit Corporations Exclusively Acting As Instrumentalities and Agencies of the State The Florida Legislature has determined that the state s sovereign immunity for tort liability extends to corporations 6

primarily acting as instrumentalities or agencies of the state. 768.28(2), Fla. Stat. State university certified DSOs such as UCFAA clearly satisfy this test because: (1) the Florida Legislature has mandated that university DSOs must be not-for-profit Florida corporations [o]rganized and operated exclusively to receive, hold, invest, and administer property and to make expenditures to or for the benefit of a state university in Florida, and must be certified to be operating in a manner consistent with the goals of the university and in the best interest of the state ; 6 and (2) the state universities that create DSOs establish governance control of them as well as the right and ability to exercise operational control of them. In 1987, the Florida Senate Committee on Governmental Operations conducted a comprehensive study analyzing directsupport organizations, including those operated within the state university system, entitled, A Review of Direct-Support Organizations, Their Function, and Accountability to the State, (the Senate Committee Report ), and following its analysis, the Senate Committee determined that direct-support organizations are functioning as instrumentalities of the state, and the 6 1004.28(1)(a)(1)-(3), Fla. Stat. 7

state assumes a degree of liability for the employees and activities of DSOs. 7 Further, Section 1004.28 and Florida BOG Regulation 9.011 mandate extensive university control over DSOs, such as: State universities are the only entities that have authority to create, certify and de-certify university DSOs pursuant to Section 1004.28, thereby having control of their very existence, missions and continuation. State universities must incorporate and administer their DSOs as Florida not-for-profit corporations approved by the Florida Department of State. A state university must organize and require its DSOs to serve the best interest or mission of the university and its DSOs must be operated exclusively to receive, hold, invest, and administer property and to make expenditure to or for the benefit of that state university. The Director or Chief Operating Officer of a DSO must report to the creating university s President or their designee (e.g., a vice president). The operating budget of a state university s DSO must be approved by the creating university s board of trustees or its designee (e.g., chief financial officer) and any significant changes must be reported to the university board of trustees or designee (e.g., university president or audit or finance committee). DSOs must provide their parent university board of trustees, the Florida BOG and Florida s Auditor General with annual financial audits prepared by an independent certified public accountant in accordance with rules and regulations of the board of trustees and Auditor General. Upon request at any time, the Florida BOG, university board of trustees, the Auditor General, and the Office of Program Policy Analysis and Government Accountability all have the right to require and receive from any DSO (or its 7 App. D at 73 and 88. 8

independent auditor) any records relative to the operation of the DSO. University boards of trustees or their designee must approve DSO expenditure plans and monitor and control DSO use of state resources, are entitled to and do in fact appoint members to the DSO board of directors, and must decertify a DSO if the board of trustees or its designee (e.g., university president) determines that the DSO is no longer serving the best interests of the university or the State of Florida. The organizational documents of a DSO must require property of the university held by the DSO to be conveyed to the creating university or its foundation upon the decertification or dissolution of the DSO, and many DSOs require all property to be handled in this manner. DSOs are considered and treated as component units of their governing universities under the Government Accounting Standards Board ( GASB ) Statement Number 14, since DSOs are controlled by and operate for the service and convenience of their university. The financial statements of a DSO are also included in the university s financial statements for financial auditing purposes. DSOs are subject to prescription and enforcement of university regulations and certain regulations to which the university is bound, such as National Collegiate Athletic Association ( NCAA ) regulations and requirements governing the privacy of student records, academic performance requirements, etc. In addition, the Florida Senate Committee on Governmental Operations has acknowledged on at least 3 occasions that university DSOs are distinguished from all other Florida notfor-profit corporations in at least 3 significant ways: 1) DSOs are statutorily authorized affiliates of state agencies, recognized to act on behalf of the state; 9

2) DSOs may be permitted by their affiliate agency to use state property; facilities; and personal services, which include both personnel and the state s payroll processing system; and 3) The state assumes some degree of liability for the direct-support organization s actions through recognizing the organizations as agents of the state and authorizing state employees to work on direct-support organization programs. 8 Under these circumstances, a state university that creates a DSO like UCFAA can establish extensive governance and operational control of the DSO, not the least of which is the fact that the DSO s chief executive or chief operating officer reports to the university s president, providing similar information to, taking a similar degree of instruction from, and being subject to similar oversight and level of operational 8 See App. E at 43 ( A Review of the Historic Preservation Boards of Trustees of the Department of State and Their Authority to Approve Direct-Support Organizations, by the Staff of the Senate Committee on Governmental Operations, Senator Curt Kiser, Chairman, (1990)); App. F at 28-29 ( A Review of the Board of Trustees of the John and Mable Ringling Museum of Art and Its Authority to Approve a Direct-Support Organization Pursuant to Section 11.611, Florida Statutes, The Sundown Act, by Staff of the Florida Senate Committee on Governmental Operations, Senator Curt Kiser, Chairman, (1989)); and App D at 4 and 70-71 ( A Review of Direct-Support Organizations, Their Function, and Accountability to the State, by Staff of the Florida Senate Committee on Governmental Operations, Senator Curt Kiser, Chairman, (1987)). While this legislative history is not dispositive of a DSO s legal status as a university affiliate or otherwise, it certainly confirms the Legislature s intent for DSOs to act as state instrumentalities. 10

control by the university president as is any vice president or senior official of the university. State university DSOs must act exclusively and in the best interests of their parent universities and the State of Florida, and university boards of trustees maintain governance and operational control over their DSOs and their day-to-day operations. Hence, by design and definition, university DSOs such as UCFAA are corporation[s] primarily acting as an instrumentality or agency of the state under 768.28(2), Fla. Stat. See, e.g., Pagan v. Sarasota Cnty. Pub. Hosp. Bd., 884 So. 2d 257, 264 (Fla. 2d DCA 2004) (affirming summary judgment finding that not-for-profit created by county hospital board has sovereign immunity as a state agency under 768.28(2)); and Prison Rehabilitative Indus. & Diversified Enters. Inc. v. Betterson, 648 So. 2d 778, 780 (Fla. 1st DCA 1995). 9 This conclusion is entirely consistent with the holding of Elend v. Sun Dome, Inc., 2005 U.S. Dist. LEXIS 35264 (M.D. Fla. 2005), in which the court determined that the Sun Dome, Inc. ( Sun Dome ), a direct-support organization created and certified by the University of South Florida ( USF ) through the 9 Notably, the question of whether or not actual operational control must be exercised over a private not-for-profit corporation to justify sovereign immunity need not be determined because UCF has the unquestionable right of governance and operational control over UCFAA by a combination of statutes, UCFAA's incorporating documents, and contracts, and UCF maintains both governance and operational control of UCFAA. 11

USF Board of Trustees ( USF Board ) pursuant to 1004.28, Fla. Stat., was an arm of the state or state agency entitled to Eleventh Amendment immunity from suit in federal court. 10 In making its immunity determination, the Sun Dome court relied on the following: Sun Dome is a not-for-profit corporation established as a direct-support organization under 1004.28, Fla. Stat. Under an agreement entered into by Sun Dome and USF, Sun Dome was organized to operate, and administer for and on behalf of USF, certain facilities located on the campus of USF in Hillsborough County, Florida, as designated by USF, for the conduct of University activities, events and entertainment on behalf of USF s students, faculty, and staff. The Sun Dome was to engage solely in activities which exclusively support and benefit the University, the Board of Regents of the State of Florida and the State of Florida. USF, a state agency, has control over Sun Dome as it must make facilities available to USF when directed by USF s President, and Sun Dome must permit USF and legislative auditors of the state to audit or inspect its records. Sun Dome must also receive written approval from USF prior to making structural alterations to the facilities. USF has control over Sun Dome because USF s President appoints the members of Sun Dome s board of directors, may remove those directors with or without cause, recommends 10 In reaching its decision, the court analyzed the following four (4) factors that federal courts consider when determining if entities, such as the Sun Dome, are entitled to Eleventh Amendment immunity: (1) how state law defines the entity; (2) what degree of control the state maintains over the entity; (3) where funds for the entity are derived; and (4) who is responsible for judgments against the entity. Id. at *9 (citing Tuveson v. Fla. Governor s Council on Indian Affairs, Inc., 734 F.2d 730, 732 (11th Cir. 1984)). 12

and approves the president of Sun Dome, and has control over Sun Dome s officers. The Sun Dome is a component unit of the USF Board and must report its budget each fiscal year as part of the USF Board s state financial statements. USF also oversees the Sun Dome s finances by requiring that Sun Dome present an annual balance sheet to USF s President, present quarterly budget and expenditure plans to USF s president, and submit its operating budget to the USF Board. USF s President monitors Sun Dome s use of USF resources, recommends an annual budget, reviews and approves expenditures, and approves Sun Dome s employees salaries, other compensation and benefits. Given the required exclusive university missions of state university DSOs and the governance and operational control that state universities have over them, DSOs can certainly be state instrumentalities or agencies shielded by sovereign immunity for tort liability subject to the limited waiver in 768.28, Fla. Stat. See also Tang v. Univ. of S. Fla., 2005 WL 2334697, at *1 (M.D. Fla. Sept 23, 2005) ( In Florida, state universities are agencies of the state and courts have specifically stated that public universities are arms of the state. ); and Walker v. Fla. State Univ. Sch., No. 4:04-cv-144, 2004 WL 3135466, at *2-3 (N.D. Fla. Dec 30, 2004) ( [T]he Court finds that FSUS is a state agency that is entitled to Eleventh Amendment immunity. Accordingly, the claims against FSUS, with the exception of the Title VII claim for which immunity has been waived by Congress, will be dismissed. ). 13

Indeed, the simple fact that the core activity of such a DSO is to operate a program within the mission of the state university - which the university would operate even in the absence of the DSO further compels the conclusion that certified university DSOs, such as UCFAA, are acting as instrumentalities of the state and thus have sovereign immunity. B. The Florida Legislature Conferred Operational Flexibility on State Universities to Accomplish Their Missions Through Creation and Operation of Certified University Direct-Support Organizations In its wisdom, the Florida Legislature enacted Section 1004.28 to confer flexibility on each state university to accomplish its mission by creating not-for-profit organizations and permitting their use of state property, facilities and personal services. 11 That authority is broad in scope, is not limited to any particular subject areas or functions, and certainly does not evidence any legislative intent to exclude athletic activities. As a result, state university DSOs perform a broad range of functions such as operating research and education programs, undertaking investments, and administering athletics programs, among other activities for their parent universities. 11 1004.28(2)(a), Fla. Stat. 14

More than 25 years ago, the Florida Senate s Committee Report on Governmental Operations studied the state s use of DSOs and determined that: The functions of direct-support organizations are many and varied. They cover a broad range of activities such as managing an annual statewide amateur athletic competition, operating an art museum, assisting with university athletic programs, and operating a major cancer treatment and research center. [...] There are currently 27 direct-support organizations operating within the State University System.... One type of direct-support organization is a foundation which exists to accept, invest, and administer charitable gifts for the benefit of the university. Others exist to meet more specific needs, such as to administer facilities and to conduct activities for and on behalf of the university. 12 Consistent with the 1987 Senate Committee Report expressly taking note of the use of DSOs for many and varied functions, as well as the plain language of the DSO statute itself, Florida state universities utilize DSOs for a wide variety of purposes, including the administering of athletics programs. See, e.g., Art. II, 3, Fla. Const.; Zommer v. State of Fla., 31 So. 3d 12 App. F at 11. Notably, the word within commonly means in or into the interior: inside[;] in one's inner thought, disposition, or character: INWARDLY[.] http://www.merriamwebster.com/dictionary/within (last visited November 4, 2014). In this light, Section 1004.28 s placement within the heart of Florida s Education Code is noteworthy. 15

733, 754 (Fla. 2010); Fla. Dep't of Revenue v. Fla. Mun. Power Agency, 789 So. 2d 320, 324 (Fla. 2001) ( Under fundamental principles of separation of powers, courts cannot judicially alter the wording of statutes where the Legislature clearly has not done so. ). Accordingly and unanimously, Amici Curiae respectfully submit that the question of whether or not a DSO should, as a policy matter, serve any particular function in furtherance of its parent university s mission, such as administering its athletics programs, is a decision the Florida Legislature has left to the individual state universities subject to the constitutionally-vested oversight and enforcement of the Florida BOG. 13 See Am. Home Assur. Co. v. Plaza Materials Corp., 908 So. 2d 360 (Fla. 2005); and Hawkins v. Ford Motor Co., 748 So. 2d 993, 1000 (Fla. 1999) ( [T]his Court may not rewrite statutes contrary to their plain language. ). CONCLUSION The important protections of sovereign immunity are not lost simply because a university exercises its Legislatureconferred flexibility under the plain language of Section 1004.28, published legislative reports and published case law in 13 Moreover, there would be significant employee benefits, administrative and other substantial costs and disruption incurred by the state if existing athletics DSOs were to be disturbed under these circumstances. 16

deciding to create, certify and operate a statutorily-authorized not-for-profit organization for the exclusive benefit and best interests of the university and the State of Florida. For all these reasons of state-wide importance and impact, Amici Curiae respectfully request this Court to render an Opinion affirming the Fifth District Court of Appeal s ruling that UCFAA has sovereign immunity for tort liability subject to the limited waiver in 768.28, Fla. Stat. Respectfully submitted this 7th day of November, 2014. /s/ Richard E. Mitchell RICHARD E. MITCHELL, ESQ. Florida Bar No.: 0168092 rick.mitchell@gray-robinson.com GRAYROBINSON, P.A. 301 East Pine St., Suite 1400 Orlando, Florida 32801 (407) 843-8880 Telephone (407) 244-5690 Facsimile Counsel for Amici Curiae The University of Central Florida Board of Trustees The University of Florida Board of Trustees The Florida State University Board of Trustees The Florida Agricultural and Mechanical University Board of Trustees The University of South Florida Board of Trustees 17

The Florida Atlantic University Board of Trustees The University of West Florida Board of Trustees The University of North Florida Board of Trustees The Florida International University Board of Trustees The Florida Gulf Coast University Board of Trustees New College of Florida Board of Trustees The Florida Polytechnic University Board of Trustees CERTIFICATE OF SERVICE I certify that on November 7th, 2014, a true and correct copy of the foregoing was served by e-mail through the e-portal on:: Matthew J. Conigliaro, Esq. and Joshua D. Moore, Esq., Carlton Fields, 200 Central Avenue, Suite 2300, St. Petersburg, Florida 33701; Wendy L. Lumish, Esq., Carlton Fields, 4000 Bank of America Tower, 100 Southeast Second Street, Miami, Florida 33131; Peter D. Webster, Carlton Fields, 215 S. Monroe Street, Suite 500, Tallahassee, Florida 32301; Stacy D. Blank, Esq. and Patrick M. Chidnese, Holland & Knight, LLP, Post Office Box 1288, Tampa, Florida 33601; and Christopher Carlyle, Esq. and David A. Monaco, The Carlyle Appellate Firm, 1950 Laurel Manor Drive, Suite 130, The Villages, Florida 32162; C. Steven Yerrid, 18

The Yerrid Law Firm, P.A., 101 E. Kennedy Blvd., Suite 3910, Tampa, Florida 33602. /s/ Richard E. Mitchell RICHARD E. MITCHELL, ESQ. Florida Bar No.: 0168092 CERTIFICATE OF COMPLIANCE The undersigned hereby certifies that this brief complies with the font requirements set forth in Florida Rule of Appellate Procedure 9.210 by using Courier New 12-point font. /s/ Richard E. Mitchell RICHARD E. MITCHELL, ESQ. Florida Bar No.: 0168092 19