Nova S.E. Univ. Of Health Sci. v. Sharick, No. 3D08-2507.
| Decision Date | 26 August 2009 |
| Docket Number | No. 3D08-2802.,No. 3D08-2705.,No. 3D08-2507. |
| Citation | 21 So.3d 41 |
| Parties | NOVA SOUTHEASTERN UNIVERSITY OF the HEALTH SCIENCES, INC., d/b/a College of Osteopathic Medicine, Appellants/Cross-appellees, v. Keith M. SHARICK, Appellee/Cross-appellant. |
| Court | Florida District Court of Appeals |
Panza, Maurer & Maynard, Richard A. Beauchamp and Mark A. Emanuele, Fort Lauderdale, for appellant/cross-appellee.
Mandina & Ginsberg; Philip D. Parrish, Miami, for appellee/cross-appellant.
Before RAMIREZ, C.J., and WELLS, and SUAREZ, JJ.
Nova Southeastern University of the Health Sciences, Inc., d/b/a College of Osteopathic Medicine "(Nova") appeals from the denial of its motions for a directed verdict and a new trial, and from orders awarding prejudgment interest and costs to Keith Sharick, a former student at its College of Osteopathic Medicine. Sharick cross-appeals the order awarding prejudgment interest. For the following reasons, we affirm each of the orders on appeal with the exception of the order on prejudgment interest.
This appeal arises from Sharick's dismissal from Nova's College of Osteopathic Medicine in March 1993, just two months before he was to receive a degree in osteopathic medicine ("a DO degree"). After exhausting the university's appeal process, Sharick brought the instant action, seeking specific performance and damages from Nova.
The first trial in this matter took place in August 1998 and resulted in a jury determination that Sharick's dismissal from the osteopathic medicine program was arbitrary, capricious and/or lacked any discernable rational basis. But, because the trial court only permitted the jury to consider damages with respect to tuition expenses, Sharick was awarded only $45,000 in damages.
In Sharick v. Southeastern University of Health Sciences, Inc., 780 So.2d 136 (Fla. 3d DCA 2000) ("Sharick I"), this Court concluded that the trial court had erred in refusing to allow Sharick to plead and prove damages stemming from lost earning capacity and ordered a new trial on damages on remand:
In this case, the jury found that the university's decision to dismiss Sharick was arbitrary, capricious, and/or lacking any discernable rational basis. This determination is supported by competent, substantial evidence. Southeastern has not challenged the propriety of the adverse jury verdict on cross-appeal. Therefore, the sole issue presently before the court is the appropriate measure of damages for Sharick's wrongful dismissal less than two months prior to when he expected to graduate and obtain his degree as a doctor of osteopathic medicine (DO).
....
In valuing the loss of this degree within the context of an arbitrary, capricious or bad faith deprivation of such, we conclude that it is appropriate to consider the possibility of lost future earnings. ...
....
The record in this case establishes that but for Sharick's dismissal from the university, he would have obtained his DO degree some two months thereafter. As the fact of Sharick's damage as the result of Southeastern's breach of contract can be proved with certainty, we reverse and remand for a new trial on damages. Upon retrial, Sharick must be afforded the opportunity to plead and prove damages in the form of the loss of earning capacity that would reasonably have resulted had he received his DO degree.
There is testimony in the present record suggesting that Sharick would have been foreclosed from enrolling or graduating elsewhere based upon the timing and nature of his dismissal from Southeastern. We conclude that this is an appropriate issue for the jury upon retrial. If the jury finds that it is no longer possible for Sharick to obtain a DO degree, then Southeastern would be foreclosed from complaining of the resulting uncertainty in proof of damage caused by its wrongful actions. Furthermore, there is evidence from which a jury could reasonably conclude that but for the wrongful deprivation of this degree, Sharick would have been able to practice in some capacity as a doctor of osteopathy.
....
... Accordingly, the extent or amount of the resulting impairment to Sharick's earning capacity may be determined by a jury based upon reasonable inference. Upon retrial, both parties are free to present evidence as to what impact Sharick's academic and clinical performance may have had upon his ultimate success as an osteopathic physician.
Alternatively, we recognize the potential for mitigation of damages if Sharick fails to establish...
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Rolfe v. Baker Coll., 340158
...Univ of Health Sciences, Inc, 780 So2d 136, 138 (Fla App, 2000) (Sharick I); Nova Southeastern Univ of the Health Sciences, Inc v Sharick (Following Remand), 21 So3d 41 (Fla App, 2009) (Sharick II). Plaintiff contends that she sufficiently demonstrated the likelihood of her successful compl......