Earl Holmes v. Florida A&M University, by and through etc.

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-2282
_____________________________
EARL HOLMES,
Appellant,
v.
FLORIDA A&M UNIVERSITY, by
and through the Board of
Trustees for Florida A&M
University,
Appellee.
_____________________________
No. 1D17-4069
_____________________________
CLEMON J. JOHNSON,
Appellant,
v.
FLORIDA A&M UNIVERSITY, by
and through the Board of
Trustees for Florida A&M
University,
Appellee.
_____________________________
On appeal from the Circuit Court for Leon County.
James O. Shelfer, Judge.
November 27, 2018
BILBREY, J.
In these consolidated appeals, Appellants challenge final
summary judgments in favor of Appellee Florida Agricultural and
Mechanical University (FAMU) in Appellants’ respective suits for
breach of contract and other causes of action after Appellants’
employment agreements were terminated without cause prior to
the expiration dates specified in the agreements. We find, based
on the expressed terms of the agreements and reading the
agreements and incorporated regulations as a whole, that
ambiguities exist such that FAMU was not entitled to judgment
as a matter of law. Accordingly, the summary judgments are
reversed, and the cases are remanded for further proceedings.
Background
Appellant Earl Holmes is the former head football coach and
Appellant Clemon J. Johnson is the former head basketball coach
at FAMU. Both coaches had previously been employed by FAMU
as assistant coaches before entering into the agreements at issue.
Coach Holmes’ previous employment agreements as an assistant
coach were clearly terminable at will.
When Coach Holmes was promoted to head football coach
and Coach Johnson returned to FAMU as head basketball coach,
FAMU entered into separate, very similar written employment
agreements with both coaches. The employment agreements set
out specific start and end dates for their “appointments,” the
language used in the agreements to specify the term of each
agreement. Coach Holmes testified in his deposition and claimed
in answer to interrogatories that he was told by the then FAMU
athletic director that the contract was a guaranteed four year
term. Coach Holmes’ employment agreement provided in part:
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2.0 TERM
2.1 This appointment shall commence on
January 11, 2013 and end on January 10, 2017, without
further notice to Coach, and is subject to the rules,
regulations, polices and procedures of the Florida Board
of Governors and the University as now or hereafter
promulgated and the conditions stated herein.
2.2 This Agreement is renewable solely upon
an offer from University and acceptance by Coach, both
of which must be in writing and signed by the parties.
This employment in no way grants Coach a claim to
tenure in employment, or any years of employment
attributable to tenure within the University.
Coach Johnson claimed that emails and the deposition of the
then FAMU president supported his contention that his
employment agreement also contained a definite four year term.
Section 2 of former Coach Johnson’s employment agreement
provided nearly identical language as Coach Holmes’ agreement,
with a start date of May 23, 2011, and an end date of April 30,
2015. Because both of the agreements were for multiple years,
approval was sought and received from FAMU’s Board of
Trustees before the agreements were finalized.
In addition to the terms of the appointments being subject to
FAMU’s regulations as referenced in section 2, section 5 of both
contracts addressed “Non-reappointment, Separation,
Termination, and Other Discipline.” Coach Holmes’ agreement
provided in section 5:
5.0 NON-REAPPOINTMENT, SEPARATION,
TERMINATION, OTHER DISCIPLINE
5.1 Non-reappointment, separation or
termination of this Agreement by University may occur
pursuant to the terms of this Agreement and University
regulations as now existing or hereafter promulgated.
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5.2 The University shall also have the right to
terminate this at any time prior to its expiration, upon
written notice to Coach, upon the following grounds:
[listing grounds for early termination for cause, (a) – (f)]
Coach Johnson’s agreement provided nearly identical
language in section 5 and listed seven grounds upon which the
coach’s appointment could be terminated for cause.
During their initial appointments, both coaches received
letters from the then president of FAMU informing them that
they were immediately placed on “administrative leave” and that
their employment would end sixty days after the dates of their
letters. 1 Neither coach was terminated based on any of the for
cause grounds as listed in section 5 of the employment
agreements. Both sixty-day administrative leave periods ended
prior to the end dates set out in section 2.1 of the employment
agreements. The FAMU president’s letters stated that the
terminations were “[p]ursuant to paragraph 5.1 of your
Employment Agreement and Florida A&M University Board of
Trustees (FAMU) regulations 10.105 and 10.106.” The coaches’
contractual salaries were paid until the ending dates stated in
the letters.
Both coaches filed suit seeking damages for breach of
contract and other causes of action. Following the trial court’s
entry of summary judgments in favor of FAMU in their
respective cases, the coaches appeal to this court.
Analysis
Where no material facts are in dispute and the
“determination of the issues of a lawsuit depends upon the
construction of a written instrument and the legal effect to be
drawn therefrom, the question at issue is essentially one of law
1 The actual ending date for both coaches employment as
stated in the letters was greater than 60 days after the FAMU
president’s letters. This discrepancy has not been explained.
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only and determinable by entry of summary judgment.” Cox v.
CSX Intermodal, Inc., 732 So. 2d 1092 (Fla. 1st DCA 1999)
(citations omitted). But the existence of an ambiguity in a
contract precludes the entry of summary judgment. As this court
has stated:
Nevertheless, when the terms of the contract are
ambiguous, susceptible to different interpretations,
parol evidence is admissible to “explain, clarify or
elucidate the ambiguous term.” Friedman v. Va. Metal
Prods. Corp., 56 So. 2d 515, 517 (Fla.1952). The initial
determination of whether the contract term
is ambiguous is a question of law for the court, and, if
the facts of the case are not in dispute, the court will
also be able to resolve the ambiguity as a matter of law.
See Ellenwood v. Southern United Life Ins. Co., 373 So.
2d 392, 394 (Fla. 1st DCA 1979). However, “[w]here the
terms of the written instrument are disputed and
reasonably susceptible to more than one construction,
an issue of fact is presented as to the parties’ intent
which cannot properly be resolved
by summary judgment.” Universal Underwriters Ins.
Co. v. Steve Hull Chevrolet, Inc., 513 So. 2d 218, 219
(Fla. 1st DCA 1987).
Strama v. Union Fidelity Life Ins. Co., 793 So. 2d 1129, 1132 (Fla.
1st DCA 2001).
“Whether a contract is ambiguous is a question of law.”
Talbott v. First Bank Florida, FSB, 59 So. 3d 243, 245 (Fla. 4th
DCA 2011). “Accordingly, the issue before the Court is whether
the trial court correctly determined that [Appellee] was entitled
to prevail as a matter of law.” Volusia County v. Aberdeen at
Ormond Beach, L.P., 760 So. 2d 126, 131 (Fla. 2000). Our
standard of review of the summary judgments for FAMU, based
on the legal effect of the contracts, is de novo. University Hous.
by Dayco Corp. v. Foch, 221 So. 3d 701, 704 (Fla. 3d DCA 2017).
The trial court found, and we agree, that FAMU regulations
10.105 and 10.106 were sufficiently incorporated into the
contracts as generally referenced throughout numerous sections
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of both agreements. 2 See BGT Group, Inc. v. Tradewinds Engine
Servs., LLC, 62 So. 3d 1192, 1194 (Fla. 4th DCA 2011) (discussing
how a document can be incorporated into a contract); see also
Lowe v. Nissan of Brandon, Inc., 235 So. 3d 1021 (Fla. 2d DCA
2018). Accordingly, the provisions in the body of the contracts
and the language in the incorporated regulations must be read as
a whole. See Jenkins v. Eckerd Corp., 913 So. 2d 43 (Fla. 1st
DCA 2005). However, because the interaction of FAMU’s
regulations with the explicit terms of the agreements creates an
ambiguity, we cannot agree with the trial court’s conclusion that
the legal effect of FAMU’s regulations entitled FAMU to
judgment as a matter of law.
FAMU regulation 10.105, titled “Recruitment, Selection and
Employment of University Faculty, Administrative and
Professional, Executive Service, University Support Personnel
System and Other Personal Services Employees,” provides in
pertinent part:
(3) Appointments.
* * *
(e) No appointment shall create any right, interest, or
expectancy of continued employment. At any time
during any appointment, faculty, A&P, and Executive
Service employees may be non-renewed upon written
notice in compliance with these regulations and
consistent with any collective bargaining agreement.
* * *
(5) Probationary Period for A&P and USPS
employees.
2 The question of whether the FAMU regulations were
incorporated consumed much of the argument on summary
judgment below. The impact of the incorporation of the
regulations was not extensively argued below but the parties
agree that our de novo review means that the issue is preserved.
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(a) The initial appointment for of [sic] a new employee
to an A&P or a USPS position shall be for a
probationary period of six (6) months . . . During this
probationary period, the appointment may be
terminated at any time without any requirements of
notice and without any rights of appeal or access to any
complaint procedure as provided in these regulations.
While FAMU regulation 10.106 titled, “Non-reappointment
and Separation of Administrative & Professional (A&P)
Employees,” provides in pertinent part:
(1) The President or President’s designee may
choose not to renew the employment of Administrative
and Professional (A&P) employees, including the
Executive Service. The notice of non-reappointment or
intention not to reappoint an A&P employee shall be in
writing. On or before March 1st of each contract year,
the President or the President’s designee shall notify
any employee who will be non-reappointed.
(a) Administrative and Professional (A&P) employees
appointed to positions of Head Athletic Coach . . . may
be non-reappointed as provided in section 1 above,
unless their employment contracts provide otherwise.
* * *
(3) Notwithstanding the provisions of section 1 herein,
an A&P employee may be separated from University
employment. An A&P employee shall not have tenure
and no expectation of appointment beyond a sixty (60)
days’ notice.
FAMU relied on the final sentence in regulation 10.106(3) in
particular for its purported authority to terminate the coaches’
appointments early, without cause but upon sixty days’ notice.
FAMU contends that this expectation-limiting language modifies
the stated end dates of these contracts, so long as FAMU provides
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sixty days’ notice. We disagree with FAMU that this language
makes the agreements unambiguous.
The law is well-settled that an employment contract with a
specified term of duration is not terminable at will, but can only
be terminated prior to its end date if provided for in the contract.
See Story v. Culverhouse, 727 So. 2d 1128, 1130 (Fla. 2d DCA
1999). “[W]hen a contract for employment provides a definite
duration, the employment contract is enforceable.” Iniguez v.
American Hotel Register Co., 820 So. 2d 953, 955 (Fla. 3d DCA
2002).
The law is also well-settled that courts are required “to read
provisions of a contract harmoniously in order to give effect to all
portions thereof.” City of Homestead v. Johnson, 760 So. 2d 80,
84 (Fla. 2000); see also Speegle Const. Co. v. District Bd. of Trs. of
Nw. Fla. State Coll., 75 So. 3d 360, 361 (Fla. 1st DCA 2011);
Story, 727 So. 2d at 1130. A contract “should be considered as a
whole, not in its isolated parts.” Maines v. Davis, 491 So. 2d
1233, 1235 (Fla. 1st DCA 1986). If clauses of a contract cast
doubt upon the end date and circumstances allowing early
termination, “an interpretation which gives a reasonable, lawful,
and effective meaning to all its terms is preferred to an
interpretation which leaves a part of the contract unreasonable,
unlawful or of no effect.” Raytheon Subsidiary Support Co. v.
Crouch, 548 So. 2d 781, 783 (Fla. 4th DCA 1989). Finally,
“ambiguities are to be construed against the drafter.” Id. at 784
(quoting Maines, 548 So. 2d at 1235).
Reading the contract and incorporated regulations as a
whole, giving meaning and effect to all provisions, and construing
any ambiguities against FAMU as the drafter of both contracts
and incorporated regulations, we find that FAMU was not
entitled to judgment as a matter of law. The only use of the word
“terminated” in FAMU regulations 10.105 and 10.106 is found in
regulation 10.105(5) pertaining to probationary employees.
Because neither coach was terminated during the first six
months of his employment, this subsection is clearly inapplicable.
FAMU’s use of the terms “non-renewal,” “non-reappointment,”
“separated from University employment,” and “terminated” in
separate portions of these regulations establishes that “non-
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renewal,” “non-reappointment,” and “separated” may not be
synonymous with “terminated.” See Paladyne Corp. v.
Weindruch, 867 So. 2d 630, 633 (Fla. 5th DCA 2004) (holding that
separate non-renewal and termination provisions required
reading to give effect to each; separate provisions had separate
meanings and consequences).
“As a general proposition, the use of different language in
different contractual provisions strongly implies that a different
meaning was intended.” Kel Homes, LLC v. Burris, 933 So. 2d
699, 703 (Fla. 2d DCA 2006). We are uncertain whether the
terms FAMU used in its regulations — “non-renewed” and “non-
reappointed” — mean the absence of a renewal or reappointment
upon the expiration of the stated end dates of the coaches’
appointments. And considering the defined terms of the coaches’
appointments in section 2, as modified by the for-cause provisions
in section 5, we cannot say whether FAMU’s use of the phrase
“separated from University employment” in regulation 10.106(3)
meant “terminated early without cause.”
While regulation 10.105(3)(e) addresses A&P employees’ lack
of “expectation” of “continued employment” and regulation
10.106(3) provides “no expectation of appointment beyond a sixty
(60) days’ notice,” these provisions regarding lack of expectation
must be read in harmony with and to preserve the effect of the
clearly stated end dates and for-cause provisions in these
contracts. See Johnson, 760 So. 2d at 84 (holding that courts are
required to read provisions of a contract harmoniously in order to
give effect to all portions thereof); Speegle Constr. Co., 75 So. 3d
at 361 (same). Where there is no specified duration in an
employment contract, “an employee’s mere expectations, however
reasonable, are insufficient to create a binding term of
employment.” Tohma v. Spalding & Evenflo Cos., 724 So. 2d 693,
694 (Fla. 2d DCA 1999). On the other hand, where a duration of
the appointment is specified and modified by various stated
contingencies, the employer’s right to terminate early without
cause is limited. Based on the inconsistencies in the agreements
parol evidence will be necessary to determine which reading
prevails.
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For example, in Raytheon Subsidiary Support Company, a
minimum duration of assignments was specified, but the
employer “reserved” the right to “terminate employment prior to
completion.” 548 So. 2d at 783. This wording in isolation
appeared to give the employer unlimited discretion to terminate
early. However, the memorandum incorporated into the
employment contract there addressed various contingencies
under which the company could terminate for cause. Id.
Considering the contract and memorandum as a whole, the court
in Raytheon found that the provision for early termination under
various scenarios for cause would be rendered superfluous if the
contract was terminable at will without cause based upon one
phrase giving the employer discretion to terminate. Id. at 783-
84. Reading the clauses of the contract in concert to give effect to
each led the court in Raytheon to conclude that the contract was
one “for a definite duration,” terminable early only upon the
conditions and procedures particularly set out in the termination
clause in the incorporated memorandum. Id. at 784.
Reading the contracts and regulations here as a whole rather
than in isolated parts, the lack of “expectation” set out in
regulations 10.105(3)(e) and 10.106(3) may not override the
specified durations of the coaches’ contracts in the absence of
cause for termination. See Maines, 491 So. 2d at 1235. To find
the appointments terminable by FAMU at will, merely upon sixty
days’ notice, could impermissibly render the specified end dates
and provisions for early termination for cause in the contracts
“virtual dead letters,” that is, unnecessary and of no effect. See
McArthur v. A.A. Green & Co. of Fla., 637 So. 2d 311, 312 (Fla. 3d
DCA 1994). We are uncertain whether that was the parties
intention in entering into the agreement. Since the contract
language “is susceptible to more than one reasonable
interpretation, extrinsic evidence may be considered by the court
to ascertain the intent of the parties.” Talbott, 59 So. 3d at 245.
The summary judgment as to the second count in both
complaints for breach of implied covenant of good faith and fair
dealing must also be reversed. “Florida contract law does
recognize an implied covenant of good faith and fair dealing in
every contract.” QBE Ins. Corp. v. Chalfonte Condo. Apartment
Ass’n, Inc., 94 So. 3d 541, 548 (Fla. 2012). In its motions for
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summary judgment, FAMU relied on our case Ahearn v. Mayo
Clinic, 180 So. 3d 165, 170 (Fla. 1st DCA 2015), for the
proposition that “a claim for breach of the implied covenant of
good faith and fair dealing cannot be maintained under Florida
law absent an allegation that an express term of the contract has
been breached.” This contention apparently provided the trial
court’s only rationale in granting summary judgment as to these
counts. Since we are reversing on the grant of summary
judgment as to the breach of contract counts, it is necessary to
also reverse the summary judgment as to the other counts in both
complaints.
Finally, the grant of summary judgment on the counts for
fraudulent inducement and negligent misrepresentation must
also be reversed. The trial court found that because the
termination provisions in the employment agreements were
clear, the terms of the agreements superseded any oral
statements FAMU employees may have made. See Taylor
Woodrow Holmes Florida, Inc. v. 4/46-A Corp., 850 So. 2d 536
(Fla. 5ht DCA 2003). Since we find that the agreements were
ambiguous, we also reverse as to these counts. See D & M
Jupiter, Inc. v. Friedopfer, 853 So. 2d 485, 487 (Fla. 4th DCA
2003) (holding that “[a]s a general rule, it is a matter for the jury
to determine if an intentional misrepresentation has been made
by” one party to another).
Conclusion
Because of conflicts in the express terms of both coaches’
contracts, including FAMU’s regulations incorporated therein,
the early terminations of these employment contracts without
cause merely upon sixty days’ notice may have violated the
specific terms of the contracts. Because of this ambiguity FAMU
was not entitled to judgment as a matter of law. Accordingly, the
summary judgments for FAMU and against Holmes and Johnson
are reversed as to all counts, and the causes are remanded for
further proceedings.
REVERSED and REMANDED.
B.L. THOMAS, C.J., and OSTERHAUS, J., concur.
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_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Beverly A. Pohl and Christina Lehm of Nelson Mullins Broad and
Cassel LLP, Fort Lauderdale; Michael K. Wilson and Natalie
Peters Chappel of Nelson Mullins Broad and Cassel, Orlando, for
Appellants.
Robert E. Larkin, III, of Allen, Norton & Blue, P.A., Tallahassee,
for Appellee.
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