ROBERT TERCIER v. UNIVERSITY OF MIAMI, INC.

Third District Court of Appeal
State of Florida
Opinion filed August 2, 2023.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-1334
Lower Tribunal No. 21-26163
________________
Robert Tercier,
Appellant,
vs.
University of Miami, Inc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Carlos
Lopez, Judge.
Nathan Soowal, P.A., and Nathan Soowal (Pompano Beach), for
appellant.
Isicoff Ragatz, and Eric D. Isicoff, Teresa Ragatz, and Catherine A.
Mancing, for appellee.
Before EMAS, SCALES and LOBREE, JJ.
EMAS, J.
INTRODUCTION
Robert Tercier, a former nursing student at the University of Miami,
sued the University, alleging he was dismissed from the nursing program
based on “discriminatory animus, retaliatory actions and [a] campaign to see
to it that [he] be removed from the program.” The trial court granted the
University’s motion to dismiss for failure to state a cause of action, and
dismissed the amended complaint with prejudice.
On appeal, Tercier asserts the trial court erred in: (1) dismissing his
complaint where Tercier adequately pled claims for breach of contract and
negligent supervision; (2) adopting the University’s proposed final judgment
verbatim and within three hours of receiving same; and (3) dismissing the
action with prejudice without first affording Tercier the opportunity to further
amend his amended complaint. Because these arguments are without merit,
we affirm.
FACTS AND PROCEDURAL BACKGROUND
In 2017, Tercier was enrolled in the University of Miami’s School of
Nursing. Four years later, he was dismissed, purportedly based on deficient
performance and substandard grades. Tercier contends his poor grades
were merely an excuse for the University’s dismissal, alleging that
throughout his time in the program, he “continuously experienced a high
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degree of bias against him from UM’s employees and agents as a result of
his ethnicity/national origin and gender.”
The following is a timeline of events, alleged within the operative
complaint, leading to Tercier’s dismissal from the University:
● In the Fall of 2017, Tercier participated in the clinical portion of class
NUR 619 at the Miami Veterans Affairs Medical Center. Due to a
medical condition for which he was treated, he “struggled with the
program.” The University eventually removed Tercier from the clinical
placement, resulting in him “not passing NUR 619.”
● In the Fall of 2018, Tercier repeated NUR 619 and passed both the
class and its clinical portion.
● In the Spring of 2020, Tercier was placed at Mount Sinai Medical
Center for a clinical rotation under clinical coordinator, Jampierre Mato.
Mato dismissed Tercier from the clinic soon after the rotation began,
without “notice or explanation.”
● In January 2020, Tercier met with two University professors, Dr.
Gonzalez and Dr. Vladinova. They asked Tercier to resign from the
nursing program citing “concerns regarding his clinical skills.” He
refused to resign and was later dismissed. Tercier successfully
appealed the decision.
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● Upon returning to the program, Tercier was placed at the University
of Miami Hospital to continue his clinical work.
● In the summer of 2020, “Tercier received falsified evaluations for his
NUR 694 course (among other courses) which would ultimately be
used to dismiss him from the program.” More specifically, Dr. Gonzalez
“deliberately [left] areas in the evaluation blank, which was not done to
other students in the program in order to lower his grade artificially.”
The evaluations indicated that Tercier’s performance in clinical settings
was deficient.
● In the Summer of 2021, Tercier was placed at the Plantation General
Hospital for clinical rotation. “Tercier was scheduled for 5 clinical days
per week (as opposed to 3, like every other student in the program at
the time).” Due to the rigorous workload, Tercier missed exams that
conflicted with his clinical schedule and his grades suffered. The
University, according to Tercier, “created a condition where passing
was impossible.”
● Tercier was dismissed from the nursing program approximately two
months before graduation; the University subsequently denied
Tercier’s appeal of the dismissal decision.
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In December 2021, Tercier sued the University on numerous grounds,
alleging generally that the University, through certain faculty members,
discriminated against him based on his “ethnicity/national origin and gender,”
and “created an environment of animosity intentionally designed to ensure
Tercier’s failure as a student at UM.” The University moved to dismiss the
complaint for failure to state a cause of action. Following a hearing, the trial
court entered an order treating the motion to dismiss as a motion for more
definite statement and requiring Tercier to file an amended complaint.
Tercier filed the operative amended complaint, making similar
allegations as were made in the original complaint and asserting the
following causes of action: breach of contract (Count I); breach of
contract/good faith and fair dealing (Count II); negligent supervision (Count
III); and injunctive relief (Count IV).
The University’s 2020-2021 Doctor of Nursing Practice (DNP) Student
Handbook was attached to the complaint and was alleged to serve as the
basis for the breach of contract claim. More specifically, the complaint
alleged the University violated several policies in the handbook’s “Statement
on Student Rights.”
The University again moved to dismiss Tercier’s amended complaint
for failure to state a claim; Tercier filed a response in opposition. The trial
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court held a special-set hearing on the motion at the conclusion of which it
requested the parties submit competing proposed orders by 3:00 pm on July
1. Tercier submitted his proposed order and served it contemporaneously on
opposing counsel. Thirty minutes later, counsel for the University did the
same. Three hours later, the trial court adopted the University’s proposed
order verbatim, granting the motion and dismissing the complaint with
prejudice.
This appeal followed.
ANALYSIS AND DISCUSSION
We review the trial court’s order on a motion to dismiss de novo.
Williams Island Ventures, LLC v. de la Mora, 246 So. 3d 471, 475 (Fla. 3d
DCA 2018). “A motion to dismiss is designed to test the legal sufficiency of
the complaint, not to determine factual issues. . . .” The Fla. Bar v. Greene,
926 So. 2d 1195, 1199 (Fla. 2006). When ruling on a motion to dismiss, a
trial court is generally limited to the four corners of the complaint and its
attachments, and must accept all well-pled factual allegations as true,
drawing all reasonable inferences in favor of the pleader. Chakra 5, Inc. v.
City of Miami Beach, 254 So. 3d 1056 (Fla. 3d DCA 2018); Minor v. Brunetti,
43 So. 3d 178 (Fla. 3d DCA 2010). Issues of statutory construction are also
reviewed de novo. Zingale v. Powell, 885 So. 2d 277, 280 (Fla. 2004).
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We note at the outset that Tercier’s appeal addresses the dismissal of
only two counts of his amended complaint: breach of contract (Count I) and
negligent supervision (Count III), thereby abandoning any challenge to that
portion of the order dismissing Counts II (breach of good faith and fair
dealing) and IV (injunctive relief).1 See Bath Club Entm’t, LLC v. Residences
at Bath Club Maint. Ass’n, 355 So. 3d 999, 1001 n.3 (Fla. 3d DCA 2023) (“If
an appellant fails to raise an argument in its initial brief, that argument is
deemed abandoned”) (citing Gen. Mortg. Assoc., Inc. v. Campolo Realty &
Mortg. Corp., 678 So. 2d 431, 431 (Fla. 3d DCA 1996)).
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We also note Tercier is procedurally barred from pursuing his claim that the
trial court erred in not allowing him further leave to amend the amended
complaint prior to entering a dismissal with prejudice. A review of the record
reveals that Tercier never requested further leave to amend, nor filed a
proposed second amended complaint. Even after the dismissal order was
rendered, Tercier chose to appeal it rather than moving for rehearing and
seeking to avoid a with-prejudice dismissal by requesting further leave to
amend. By doing so, Tercier has failed to preserve the issue for appeal.
Orlando Bar Grp., LLC v. DeSantis, 339 So. 3d 487, 494 (Fla. 5th DCA 2022)
(finding issue not preserved where: “Appellants did not move for leave to
amend, did not file a proposed amended complaint, and appealed rather than
moving for rehearing on the dismissal being with prejudice”) (citing Vorbeck
v. Betancourt, 107 So. 3d 1142, 1147-48 (Fla. 3d DCA 2012) (“It is now well
settled that the rule of preservation applies to the improper dismissal of a
complaint with prejudice”); Century 21 Admiral's Port, Inc. v. Walker, 471 So.
2d 544, 545 (Fla. 3d DCA 1985) (rejecting review of dismissal with prejudice
on the basis that “appellants' failure to seek leave to amend prior to the
dismissal with prejudice or to move for rehearing requesting leave to amend,
precludes consideration of the issue for the first time on appeal”).
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Breach of Contract Claim
The underlying basis for the breach of contract claim is the 2020-21
student handbook attached to the complaint. The trial court correctly found
that, because Tercier alleged he enrolled in the program in 2017, he was
required to rely on the provisions contained in the 2017 handbook. Sharick
v. Se. Univ. of Health Sciences, Inc., 780 So. 2d 136, 138 (Fla. 3d DCA 2000)
(“It is generally accepted that the terms and conditions for graduation are
those offered by the publications of the college at the time of enrollment. As
such, they have some of the characteristics of a contract between the
parties, and are sometimes subject to civil remedies in courts of law”)
(quoting Univ. of Miami v. Militana, 184 So. 2d 701, 704 (Fla. 3d DCA 1966)).
Regardless, even if Tercier could rely upon the 2020-21 handbook, dismissal
was proper because Tercier failed to allege a legally sufficient breach of
contract claim premised upon violation of the University’s policies contained
in that year’s student handbook.
Tercier contends the contract between himself and the University
consists of “all enrollment agreements, student handbooks, syllabi, school
policies and publications (including statements by faculty and staff).” He
further contends the University breached the parties’ contract “numerous
times throughout the pendency of Tercier’s time as a student at [the
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University]” by “creating an environment of animosity designed to ensure
Tercier’s failure. . . .”
The relationship between a private university and a student is
“contractual in character.” Sharick, 780 So. 2d at 138. In reviewing a
university’s dismissal of a student, courts have acknowledged a distinction
between a “judicial fact finding process and academic judgment regarding
the performance of students,” e.g., when considering whether a student is
qualified to be a physician. Id. To this end, “judicial review of a private
educational institution's determination of academic performance in this
context is limited to whether the challenged determination was arbitrary and
capricious, irrational, made in bad faith, or in violation of constitution or
statute.” Id.
Tercier alleges in conclusory fashion that his dismissal was made in
bad faith and in violation of the student handbook’s broad policy statements,
e.g., the handbook’s Statement on Student Rights: “[t]he right to be educated
and nurtured;” “[t]he right to be treated equally in academic and social
settings;” “[t]he right to privacy;” “[t]he expectation of a positive
living,/learning environment;” “[t]he right to learn without disruption;”
“[a]ccess to academic and support services that enhance student learning;”
and “[t]he right to know academic requirements and to be evaluated fairly.”
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An alleged violation of these broad policy statements is insufficient to state
a claim for breach of contract against the University. While there is no Florida
case law addressing this point, appellate decisions from other jurisdictions,
which we find persuasive, reject the notion that a university’s alleged
violation of broad policy statements in its student handbook can serve as a
basis for a breach of contract claim. See Shak v. Adelphi Univ., 549 F. Supp.
3d 267, 272 (E.D.N.Y. 2021) (“[O]nly specific promises . . . in a school's
bulletins, circulars[,] and handbooks, which are material to the student's
relationship with the school, are enforceable. In other words, [g]eneral policy
statements and broad and unspecified procedures and guidelines will not
suffice”) (citation and quotation omitted). See also In re Columbia Tuition
Refund Action, 523 F. Supp. 3d 414, 422 (S.D.N.Y. 2021) (“In general, to
sustain a contract claim against a university, a student must point to a
provision that guarantees certain specified services, not merely to a [g]eneral
statement[ ] of policy, or to statements of opinion or puffery. Additionally, to
state a valid claim for a breach of contract against a university, a student
must state when and how the defendant breached the specific contractual
promise”) (quotations omitted); Oyoque v. DePaul Univ., 520 F. Supp. 3d
1058,1064 (N.D. Ill. 2021) (“Though a student handbook may contain
material that forms part of the contract between a university and its students,
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only the handbook's specific promises become part of the contract, not its
expression[s] of intention, hope or desire”) (quotation omitted).
We agree with this analysis, which fully supports the trial court’s order
of dismissal in the instant case. Tercier failed to identify a specific contractual
promise the University breached, or how any of the purported acts by the
University were related to his ethnicity or gender.
Further, the only potentially viable cause of action was for breach of
contract based on the University’s supposed violation of its own dismissal
policy. However, this too fails on the face of the complaint, where Tercier
acknowledges his poor grades and admits to failing one of his courses. As
noted by the University, the student handbook provides that receiving a C or
below in a course is a ground for dismissal. And again, Tercier’s vague and
conclusory allegations—that his poor grades were the result of the University
faculty’s actions designed to make him fail—were facially insufficient to state
a cause of action or to allege a violation of the University’s contract with
Tercier.
For these reasons, we hold that the trial court properly dismissed the
breach of contract claim for failure to state a cause of action.
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Negligent Supervision Claim
Tercier’s complaint alleges the University “knew or should have known
that Dr. Gonzalez and Dr. Vladinova were exhibiting discriminatory animosity
towards Tercier in an effort to ensure his failure in the program.” According
to Tercier, the University had “actual notice of these discriminatory practices
when during his penultimate appeal(s) . . . he notified the appeals committee
of such behavior by Dr. Gonzalez and Dr. Vladinova.” Tercier alleges the
University should have known this because Tercier was assigned additional
clinic days and treated differently from his fellow classmates.
Florida recognizes a cause of action for negligent retention. See N.
Miami Med. Ctr., Ltd. v. Miller, 896 So. 2d 886, 889 (Fla. 3d DCA 2005) (citing
Garcia v. Duffy, 492 So. 2d 435, (Fla. 2d DCA 1986)). To prove such cause
of action, the plaintiff must show: (1) the employer became aware or should
have become aware that the subject employee was “unfit,” and (2) the
employer failed to take further action, e.g., investigation, discharge,
reassignment. Bennett v. Godfather's Pizza, Inc., 570 So. 2d 1351, 1353
(Fla. 3d DCA 1990) (“Negligent retention ... occurs when, during the course
of employment, the employer becomes aware or should have become aware
of problems with an employee that indicated his unfitness, and the employer
fails to take further action such as investigating, discharge, or reassignment”)
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(quoting Garcia, 492 So. 2d at 438-39). “It is necessary that the underlying
wrong—the actions of the employee or servant—be a tort,” and that the
employee’s actions “be performed outside the scope of employment.” Acts
Ret.-Life Comtys. Inc. v. Est. of Zimmer, 206 So. 3d 112, 115 (Fla. 4th DCA
2016). See also John A. Chiocca & Chelsea Furman, Liability for an
Employee's Intentional Torts, 38 NO. 3 Trial Advoc. (FDLA) 25 (2019) (“The
torts of negligent hiring, or negligent retention/ supervision are fundamentally
distinct from the employee's underlying, intentional wrong. However, it is
necessary that the underlying wrong—the actions of the employee or
servant—be a tort.”)
Our review of the complaint fails to reveal any intentional tort that
Tercier alleges these specific faculty members committed against him.
Instead, the allegations of this count read more like those advanced in his
breach of contract claim. For instance, Tercier makes various conclusory
allegations of purportedly “discriminatory” acts by unidentified University
employees, and several pertaining specifically to Dr. Gonzalez and Dr.
Vladinova:
● They asked Tercier to resign from the program; when he refused
(leading to his dismissal) and was readmitted, he “was immediately
met with discrimination and retaliation.”
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● While working at the University of Miami Hospital, Dr. Vladinova
“disseminated information concerning Tercier[’s] recent dismissal to
his colleagues and supervisors in an intentional effort to create
unnecessary adversity and challenges to Tercier’s pursuit of
completing the program.” The “dissemination” of such information,
caused the other faculty and staff to “question Tercier about his
dismissal fostering further animosity in the educational setting.”
● Dr. Gonzalez provided a “falsified evaluation” for Tercier in NUR 694
by “deliberately leaving areas in the evaluation blank.” These “falsified
evaluations” further indicated “a deficiency in his performance in
clinical settings when,” according to Tercier, “no such deficiency
existed.” As proof of the latter, he cites to his “stellar marks” from other
clinicians.
● In summer 2021, Dr. Gonzalez “continued the campaign to ensure
Tercier’s removal from the program,” e.g., Tercier was scheduled for
five clinical days per week (much more than his classmates) even
though he had enough credits to graduate. This “excess work” caused
Tercier’s grades to suffer and created a “condition where passing was
impossible.”
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Tercier contends that these actions amount to a campaign by Drs.
Gonzalez and Vladinova to cause Tercier to fail from the program; however,
none of them, individually or collectively, constitutes an intentional tort
committed by a University employee. The allegations in Tercier’s amended
complaint are insufficient to state a cause of action against the University for
negligent retention. We hold that the trial court properly dismissed the
negligent supervision claim for failure to state a cause of action.
Verbatim Adoption of the University’s Proposed Order
Lastly, Tercier relies on the Florida Supreme Court’s decision in Perlow
v. Berg-Perlow, 875 So. 2d 383 (Fla. 2004), to contend that, by adopting the
University’s proposed order hours after it was submitted, the trial court
created an appearance that it failed to exercise its independent judgment in
deciding the case, i.e., “an appearance of impropriety.” We conclude the
trial court did not commit reversible error where it requested proposed orders
from both parties; both parties submitted their competing orders and served
opposing counsel with their respective proposed orders; the record supports
the trial court’s ruling; the trial court made no oral pronouncements at the
hearing inconsistent with the order it subsequently adopted; and there is
nothing in the record to indicate that the trial court failed to exercise its
independent judgment.
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Initially, we note that “Florida law does not prohibit the adoption,
verbatim, of a judgment that has been proposed by a party to the litigation”
Smith v. Wallace, 249 So. 3d 670, 672 (Fla. 2d DCA 2017); In re T.D. v. Dep’t
of Children & Family Servs., 924 So. 2d 827, 831 (Fla. 2d DCA 2005) (no
“post-Berg-Perlow decisions of this court requires reversal solely on the
ground that a trial court has adopted a judgment prepared by one of the
parties”). See also Kendall Healthcare Grp., Ltd. v. Madrigal, 271 So. 3d
1120, 1122 (Fla. 3d DCA 2019) (rejecting appellant’s argument “that the trial
judge failed to exercise his independent judgment merely because he
adopted verbatim [appellee’s] proposed order”). Instead, “what is critical for
a reviewing court is that a final judgment reflect the trial judge's independent
decision on the issues of a case, not that the judge used words drafted by
one of the parties to express that decision.” Flint v. Fortson, 744 So. 2d
1217, 1220 (Fla. 4th DCA 1999).
In Perlow, the Florida Supreme Court held that a trial court's verbatim
adoption of a proposed final judgment in a dissolution of marriage case,
following a lengthy trial, was reversible error where: 1) the wife’s proposed
final judgment was twenty-five pages in length with six additional pages of
financial exhibits incorporated by reference; 2) the wife’s proposed final
judgment was adopted by the trial court within two hours of its submission,
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without any additions, changes, or deletions; 3) the trial judge did not permit
the husband an opportunity to submit his own proposed final judgment or
object to the wife's proposed final judgment; and 4) the trial judge had not
announced any findings of fact or determinations of law at the conclusion of
the trial. Perlow, 875 So. 2d at 389.
The Florida Supreme Court concluded that, given these
circumstances, “there was an appearance that the trial judge did not
independently make factual findings and legal conclusions, i.e., an
appearance of impropriety.” Id.Although it is true that, in the instant case, the trial court adopted the
University’s proposed order verbatim within three hours of its submission,
there are additional circumstances which distinguish it from Perlow:
● The final judgment in Perlow was issued following a 15-day trial in a
dissolution of marriage case. The instant case involves a non-
evidentiary hearing lasting 22 minutes, consisting solely of legal
argument addressing whether the operative complaint (whose well-
pled allegations must be accepted as true) stated a cause of action.
● The proposed final judgment in Perlow was 25 pages long, plus six
pages of financial exhibits, and consisted of factual findings relating to
predominating issues of parental responsibility and time sharing, see
17
section 61.13(3)(a)-(t), Florida Statutes (delineating 20 factors a trial
court is statutorily required to consider in making such determinations),
and were based upon extensive testimony and other evidence
introduced at the fifteen-day trial, including a determination that the
mother would be awarded sole parental responsibility; that the father
would be prohibited from having contact with the child for a period of
time because such contact would be detrimental to the child; and
concluding that the husband engaged in vexatious litigation and
ordering him to pay attorney’s fees. By contrast, the final judgment in
the instant case was five and a half pages long; was the result of a
non-evidentiary limited to a review of the four corners of the complaint
and attachments; required no findings of fact and no weighing of
testimony or determinations of credibility; and required a threshold
legal determination of whether the allegations were sufficient to state
a cause of action.
● Finally, the determinations contained in the instant order on appeal
are fully supported by the record, and the trial court made no oral
pronouncements at the hearing inconsistent with the order submitted
by the University and adopted by the trial court. See In re T.D., 924
So. 2d at 830 n.2 (holding that “if all parties have prepared proposed
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judgments, their own submissions would likely apprise the judge of
their positions and their disagreements with the opposing party's”);
Cabrera v. Cabrera, 987 So. 2d 753, 755 (Fla. 3d DCA 2008) (“The
trial court's active participation in the proceedings supports our
conclusion that there is no appearance that the trial court did not
exercise its independent judgment when entering the final judgment in
the instant case.”)
We conclude Tercier has not made any showing that the trial court
failed to exercise its independent judgment in this case. Nevertheless, given
Perlow’s admonition that a party's proposed order “cannot substitute for a
thoughtful and independent analysis of the facts, issues, and law by the trial
judge,” Perlow, 875 So. 2d at 390, we continue to encourage trial courts to
make oral findings, when possible, to help guide the attorneys and parties
who have been asked to submit proposed and competing orders that include
findings of fact and conclusions of law. And while the submission of
competing orders may further the goal of having the parties affirmatively
declare their respective positions, the trial court should consider, if
practicable, allowing a reasonable amount of time for one party to register
objections to the opposing party’s proposed order. We must be ever-mindful
that “justice must satisfy the appearance of justice,” Offutt v. United States,
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348 U.S. 11, 13 (1954), and that the requirement of a neutral arbiter
“preserves both the appearance and reality of fairness . . . by ensuring that
no person will be deprived of his interests in the absence of a proceeding in
which he may present his case with assurance that the arbiter is not
predisposed to find against him.” Marshall v. Jerrico, Inc., 446 U.S. 238, 242
(1980).
Affirmed.
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