Mootry v. Bethune-Cookman University, Inc.

186 So. 3d 15, 40 I.E.R. Cas. (BNA) 1760, 2016 Fla. App. LEXIS 312, 2016 WL 81680
CourtDistrict Court of Appeal of Florida
DecidedJanuary 8, 2016
DocketNos. 5D13-4052, 5D14-1550
StatusPublished
Cited by1 cases

This text of 186 So. 3d 15 (Mootry v. Bethune-Cookman University, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mootry v. Bethune-Cookman University, Inc., 186 So. 3d 15, 40 I.E.R. Cas. (BNA) 1760, 2016 Fla. App. LEXIS 312, 2016 WL 81680 (Fla. Ct. App. 2016).

Opinion

LAMBERT, J.

Aldonia Mootry, as personal representative of the Estate of Russell Mootry, Jr., appeals the final judgment entered in favor of Bethune-Cookman University, Inc. (“BCU”) after a jury found that BCU did not materially breach its employment contract with Dr. Russell Mootry (“Mootry”).1 BCU and Dr. Trudie Kibbe Reed2 (“Reed”) cross-appeal the trial court’s or[18]*18der denying their motion for attorneys fees filed pursuant to section. 768.79, Florida Statutes (2012) and Florida Rule of Civil Procedure 1.442. ■ Concluding that the trial court committed reversible error in admitting certain hearsay evidence and allowing BCU’s outside counsel to provide opinion testimony that essentially advised the jury how to decide this case, we reverse the final judgment. On the cross-appeal, we affirm the order denying BCU and Reed’s motion for attorney’s fees based on their 2012 proposals for settlement and additionally find that, though the. court erred in denying BCU’s separate motion for attorney’s fees filed based on its 2013 proposal for settlement, the enforceability of that proposal for settlement is now premature pending retrial.

Facts

Mootry began teaching at BCU in 1977 and except for a brief period from 1979-1982, was continuously employed there until 2009 when his employment was terminated and this litigation ensued. In 1995, Mootry was awarded tenure and in 2005, he was appointed Dean of the School of Social Sciences. As a tenured professor, Mootry and BCU entered into annual contracts each year for his employment. Pertinent to this appeal, Mootry’s employment contract provides that BCU has “the power and authority to terminate this contract at any time for malfeasance, inefficiency, neglect of duty, or contumacious conduct.”

BCU also had a faculty handbook, which provided. that a tenured faculty member may be terminated for cause and listed .numerous grounds that constituted 'cause, including moral turpitude and violation of 'BCU’s policies regarding sexual harassment. The handbook explained the process that occurs following a complaint of sexual harassment, including the requirement that BCU promptly establish a committee to investigate the complaint. The faculty handbook also recognized that BCU would uphold “[t]he rights prescribed by the American-Association of University Professors (“AAUP”) when not-in conflict with the policies of BCU.” The AAUP manual contained provisions pertaining to charges of sexual harassment, that included the right to confront an accuser, an opportunity to cross-examine an accuser and witnesses, and the right to have specific charges to respond to and formulate a defense. “'

In May 2009, Reed hired Bo .Brewer (“Brewer”) to conduct interviews related to staffing for the Academic Affairs Department at • BCU. During the course of conducting interviews with-, BCU faculty members, Brewer was advised of alleged widespread sexual harassment of students by Mootry and other professors in the Department of Social 'Sciences. Brewer advised Reed of this possible problem and Reed, rather than appoint a committee to investigate as required by the BCU handbook, directed Brewer to investigate these allegations of sexual harassment. In conducting his investigation, Brewer promised anonymity to those individuals with whom he spoke. Brewer would thereafter periodically meet with Reed and when discussing his investigation, intentionally withheld from Reed the names of the individuals making the allegation's of sexual harassment. Moreover, Bréwer destroyed his notes that identified the individuals he interviewed in order to ensure the previously promised confidentiality.

On May 15, 2009, Mootry received written notice from Reed that he had been suspended from his employment without pay, based upon allegations of improper conduct -with female students. In this notice, Mootry was advised of the ongoing investigation and was ordered to meet with Brewer to discuss the investigation. Moo-try met with Brewer,' denied the allega[19]*19tions of sexual harassment, and inquired of Brewer the names of the individuals making the accusations against him. Brewer did not disclose to Mootry the names of these students.

At the conclusion of his investigation, Brewer prepared a written report summarizing his findings and presented the report to Reed. None of the individuals making the allegations of sexual harassment were named in the report. Brewer’s report also summarized his interviews with members of the BCU faculty. The report does not indicate that any of the interviewed faculty members actually witnessed the alleged sexual harassment by Mootry.

On May 29, 2009, after Reed received Brewer’s report, BCU terminated Moo-try’s employment and tenure “for cause.” The termination letter specifically provided that Mootry was terminated for-“moral turpitude, violation of the university’s policies regarding sexual harassment, violation of ethical code, conduct in violation of commonly accepted standards of morality, and failure to cooperate within the bounds of accepted standards.” Mootry administratively appealed his termination with BCU. During the appeal process, Mootry claimed that he had never been provided with Brewer’s report and had no information as to who was accusing him of sexual harassment. The appeal committee upheld Moo-try’s termination, and Mootry filed the instant suit.

On appeal, Mootry argues four grounds for reversal. First, Mootry asserts the trial court erred in denying his motion for partial summary judgment as to the issue of BCU’s liability for breaching the employment contract.3 Second, Mootry argues., that Brewer’s report was hearsay that should not have been admitted into evidence. Third, Mootry contends the court permitted BCU’s outside counsel to provide opinion testimony that improperly told the jury how to decide the case. Fourth, Mootry claims the trial court erred in denying his motion for a new trial because the verdict was contrary to the manifest weight of the evidence. We agree with Mootry on issues two and three. Accordingly, we reverse the final judgment in favor of BCU and remand for a new trial.4

Brewer Report

Mootry argues that the trial court erred in admitting Brewer’s investigation report because it contained numerous hearsay statements. Section 90.801, Florida Statutes (2013), defines “hearsay” as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” The trial court recognized that the report contained statements of unidentified individuals detailing acts of sexual harassment allegedly committed by Mootry and the other professors. Nevertheless, the court determined that the report was admissible,, not to establish the truth of the matter asserted, but to show the reasonableness of BCU’s actions during its investigation and termination of Mootry’s employment. The court also gave the jury a limiting instruction to that effect.

While hearsay evidence is generally inadmissible, if the evidence “is offered for [20]*20a purpose other than to prove the truth of the matter asserted, it is by definition not hearsay.” Diaz v. State, 890 So.2d 556, 558 (Fla. 5th DCA 2005) (citing King v. State, 684 So.2d 1388, 1389 (Fla. 1st DCA 1996)). However, when an out-of-court statement is being “offered for a purpose other than proving the truth of its- eon-tents[, it] is admissible only when the purpose for which the statement is.

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Bluebook (online)
186 So. 3d 15, 40 I.E.R. Cas. (BNA) 1760, 2016 Fla. App. LEXIS 312, 2016 WL 81680, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mootry-v-bethune-cookman-university-inc-fladistctapp-2016.