Aldоnia 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”).
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, nеglect 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, аn 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 spоke. 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 frоm 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
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 actuаlly 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 committeе 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.
Brewer Report
Moоtry 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 contаined 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 effеct.
While hearsay evidence is generally inadmissible, if the evidence “is offered for
We find that the trial court erred in determining that BCU’s “reasonableness” is essentially a material issue to this breach of contract action. Here, Mootry could be properly terminated under his faculty agreement with BCU only if he had breached, its provisions. Whether BCU acted reasonably or in good faith in terminating his contract for cause is not a defense. See Placet, Inc. v. Ashton,
BCU next argues that if the rеport was erroneously admitted into evidence, the error was harmless because Mootry was terminated not only for sexual harassment, but also for not taking appropriate action after having knowledge of instances of sexual harassment committed by other professors at the school. In order to establish that an eiror is harmless, “the beneficiary of the error has the burden to prove that the error complained of did not contribute to the verdict. Alternatively stated, the beneficiary of the error must prove that there is no reasonable possibility that the error contributed to the verdict.” Landmark Am. Ins. Co. v. Pin-Pon Corp.,
We have little difficulty- in finding that the admissibility of the unredacted Brewer report was not harmless error. In addition to being replete with hearsay statements from unnamed allegеd- victims and faculty members, detailing acts of sexual harassment allegedly committed by Moo-try and the other professors, the report contains Brewer’s own- conclusions in which he opines that: (1) the “least severe allegation [of sexual abuse] is terminable [of employment]”; (2) the “failure to eradicate the behaviors [of sexual harassment], or the perception.that the behаviors exist, place current and future students at an unacceptable-risk of mistreatment ...”; (3) “the perception of guilt of [Mootry and the professors] is insurmountable”; and (4) he recommends the termination of the employment relationship. The report concludes with a. brief synopsis of Brewer’s lengthy experience in conducting sexual harassment investigations and providing sexual harassment trаining. Essentially, this report is a conduit for unsubstantiated hearsay evidence of sexual harassment, compounded with analysis and opinion of what may be perceived by the jury to be from an expert in the field recommending that termination is appropriate based on the sexual harassment. Therefore, the admission of the Brewer report was not harmless error, and we reverse and remand for a new trial.
Because we are reversing this case for a new trial, we_ will briefly address other evidence admitted at trial over Moo-try’s hearsay objections. Dr. Janice Allen-Kelsey, a dean and professor at BCU,
Opinion Testimony from BCU’s Outside Counsel
Next, Mootry argues that the trial court erred in allowing Kelly Parsons Kwiatek (“Kwiatek”) to provide opinion testimony as to matters that were for the jury to decidе. Kwiatek is an attorney, specializing in labor and employment law, who was employed by the law firm that served as outside counsel for BCU. Kwia-tek was involved in the investigation of Mootry to the extent that Kwiatek was contacted by Brewer and Reed at various times and advised Reed on the situation as it developed.
At trial, BCU called Kwiatek to testify. Specifically, Kwiatek testified that, in her oрinion, BCU had “cause” to terminate Mootry’s employment and that BCU had provided Mootry with “due process.” Kwiatek also opined that BCU did not have an obligation to form a committee to investigate allegations of sexual harassment and that, in her view, there was no legal requirement that Mootry was entitled to confront his accusers.
We.apply the abuse of discretion standard of rеview to a trial court’s decision on the admissibility of an expert opinion. See McWatters v. State,
Section 90.703,. Florida Statutes (2013), provides: “Testimony in the form of an opinion, or inference otherwise admissible is-not objectionable because it includes an ultimate issue to be decided by the trier -of fact.” § 90.703, Fla. Stat. “However, this rule does not render admissible all opinions on the ultimate issues. Witnesses will be prevented frоm expressing their conclusions when the opinion only tells the jury how to decide the case and does not help the jury to determine what occurred.’ ” Schneer v. Allstate Indem. Co.,
Mootry’s breach of contract action was premised on two bases. First, Mootry argued that there was no cause to terminate his contract because he did not sexually harass anyone and, second, that BCU did not follow the proper and required pre-termination and post-termination procedures in firing him. Kwiatek was essentially permitted to tell the jury that, in her opinion, they should answer these questions adversely to Mootry and find that BCU did not breach the сontract. We conclude that the trial court erred in permitting this type of opinion testimony, and in light of Kwiatek’s expertise in this area of the law and her direct involvement in the process leading up. to Mootry’s termination, we .reject BCU’s claim that the admission: of this- evidence was harmless érror.
Proposals for Settlement
BCU and Reed assert in their cross-appeal that the trial court erred in finding that their' separatе proposals for
Following the éntry of final judgments finding no liability on the part of BCU or Reed, they timely filed a motion for attorney fees pursuant to rule 1.442
For an offer tó be made in good faith, the offer must “have some rеasonable foundation on which to base an offer.” Schmidt v. Fortner,
In denying the motions for attorney’s fees, the trial court found that:
In July 2012, the outcome of the various claims was far from certain. The issues in this case had far reaching significance to both parties and to many others not parties to the case.... Discovery would prove to be extensive and far reaching, yet only preliminary discovery was completed. In shortj the nominal proposals filed by both defendants bore no relationship to the apparent importance of the case to both sides, as еvidenced from the scope and extent of their actions.
“The standard of review upon a finding that a proposal for settlement was not made in good faith is abuse of discretion.” Land & Sea Petroleum, Inc. v. Bus. Specialists, Inc.,
“An order granting or denying fees based on a proposal for settlement is reviewed de novo.” Mathis v. Cook,
Mootry further concedes that- BCU’s 2013 proposal for settlement was not ambiguous. Accordingly, we reverse the trial сourt’s order holding that-the July 2013 proposal for settlement was invalid because it was an undifferentiated joint offer, but do so without prejudice to Mootry asserting any additional grounds as to why this proposal for settlement should not be enforced if BCU is entitled to seek recovery of attorney’s fees under this proposal based upon the result of the retrial.
REVERSED and REMANDED for new trial on main appеal; AFFIRMED in part and REVERSED in part on cross-appeal.
Notes
. Dr. Mootry passed away during the pen-dency of this appeal.
. Dr. Reed is the president of Bethune-Cook-man University.
. Because we are reversing the final judgment and remanding this case for a new trial based on the trial court’s error in admitting certain evidence, we decline to address the merits of this issute, but do so without prejudice to Mootry, if he so chooses, filing a new, motion for summary judgment and the trial court considering and ruling on such a motion based on proper summary judgment evidence.
. As a result,' Mootiy's fourth issue is now moot.
. The defamation claim was the sole cause of • action asserted against Reed. Mootry has not challenged the final-judgment entered in favor of Reed after her motion for directed verdict at trial was granted.
. Florida Rule of Civil Procedure T.442 is titled “Proposal for Settlements” and implеments section 768.79, Florida Statutes, which is the offer of judgment and demand for judgment statute,
.Though we have ordered a new trial, we have 'elected to address the merits of the trial court’s denial of the motion to enforce the .2012 proposals for settlement for -two reasons. First, the issue is ripe as to Reed because she is not a party to the retrial. Sec