Tercier v. Univ. of Miami

• Docket Number: 3D22-1334
• Decision Date: 02 August 2023
• Parties: Robert Tercier, Appellant, v. University of Miami, Inc., Appellee.
• Court: Florida District Court of Appeals

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Robert Tercier, Appellant, v. University of Miami, Inc., Appellee.

No. 3D22-1334

Florida Court of Appeals, Third District

August 2, 2023

Not final until disposition of timely filed motion for rehearing.

An Appeal from the Circuit Court for Miami-Dade County, Carlos Lopez, Judge Lower Tribunal No. 21-26163

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 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.

• 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.

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 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).

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)).

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 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...