University of Miami v. Militana, 65-641

• Decision Date: 31 March 1966
• Docket Number: No. 65-641,65-641
• Citation: 184 So.2d 701
• Parties: UNIVERSITY OF MIAMI, a nonprofit corporation, et al., Appellants, v. Robert J. MILITANA, Appellee.
• Court: Florida District Court of Appeals

Page 701

184 So.2d 701

UNIVERSITY OF MIAMI, a nonprofit corporation, et al., Appellants, v. Robert J. MILITANA, Appellee.

No. 65-641.

District Court of Appeal of Florida, Third District.

March 31, 1966.

Rehearing Denied April 20, 1966.

Mershon, Sawyer, Johnston, Dunwody & Cole and James E. Glass, Miami, for appellants.

Bernard B. Weksler, Salvatore G. Militana, Miami, for appellee.

Before PEARSON, CARROLL and BARKDULL, JJ.

PER CURIAM.

The appellant, University of Miami, was the respondent in the circuit court to a petition for mandamus. The petition of the appellee sought an order directing the University of Miami to promote the petitioner to the fourth year class of the School of Medicine and to enroll him during the ensuing school year. The trial judge entered an order awarding the peremptory writ in the terms described, and this appeal is from that judgment.

The petition in this cause was filed on August 26, 1964. Thereafter, the trial judge entered an order pendente lite requiring the respondents, who are the appellants here, to enroll the appellee in the Medical School as a fourth year student. This interlocutory order was reviewed by this Court in University of Miami v. Militana, Fla.App.1964, 168 So.2d 88, in which we held that the order pendente lite requiring that the petitioner be admitted forthwith to the Medical School was without legal basis. We quashed the order. Subsequently, upon the entry of the order granting the peremptory writ, a notice of appeal was filed, and a motion requesting the circuit court to fix the amount, terms and conditions of a supersedeas bond was made in the circuit court. The motion for supersedeas was denied by the circuit court. Thereupon, the University moved, in this Court, for a review of the order denying the motion for supersedeas. Upon review we refused to change the order of the circuit court, and pursuant to the peremptory writ of mandamus, Mr. Militana has been enrolled in the University of Miami during the current (1965-66) academic year.

Militana was admitted to the University's School of Medicine in the fall of 1959. At the end of his first academic year, the Promotions Committee recommended that he be promoted to the second year on probation. After the second year, the Promotions Committee recommended that he be given the opportunity of repeating the second year. Militana repeated the second year and was promoted to the third year. At the conclusion of his third year, Militana had a cumulative grade point average of 1.92-a grade point average of 4.00 is equivalent to an 'A.' The Promotions Committee recommended that he be promoted to the fourth year on probation, subject to additional satisfactory work and re-examination in obstetrics-gynecology and pediatrics. During the summer of 1963 Militana successfully completed the required work in pediatrics. He did not successfully complete the work in obstetrics and gynecology. At the conclusion of his work in the summer of 1963, the Executive Committee of the School of Medicine dismissed him for academic failure.

This action was instituted by Militana by complaint for specific performance, declaratory decree and other relief. Before a hearing on the University's motion to dismiss, Militana filed a motion to amend the complaint and filed an amended complaint or petition for writ of mandamus. The alternative writ was issued after the cause was transferred to law. The return and answer denied the material allegations of the petition and the alternative writ and asserted other defenses. After trial before the court, the peremptive writ was issued.

Before discussing the points presented by the appellant, we think it advisable to consider the following findings of fact contained in the order appealed.

'3. That the action of the Respondents, particularly the School of Medicine, in dropping the Petitioner from the School of Medicine was arbitrary, capricious, and without just cause, and without any hearing, notice, or opportunity to be heard of the cause of the Petitioner's dismissal from the School of Medicine. The Respondents did not act in good faith.' (Emphasis supplied.)

A review of the record does not reveal any evidence upon which this finding of fact could have been based. In support of the finding, appellee urges only that the system employed by the University is inappropriate. Appellee labels the system 'arbitrary'. We find that this interpretation of the record, even if fully documented, would not be a basis for a finding of bad faith. Good faith is not an abstract quality. It has been defined as a 'concrete quality, descriptive of the motivating purpose of one's act or conduct when challenged or called in question.' Municipal Bond & Mortgage Corp. v. Bishop's Harbor Drainage Dist., 154 Fla. 246, 17 So.2d 226, 227, 228 (1944). The term 'arbitrary' is defined in Black's Law Dictionary (4 ed. 1951) as follows:

'ARBITRARY. Means in an 'arbitrary' manner, as fixed or done capriciously or at pleasure; without adequate determining principle; not founded in the nature of things; nonrational; not done or acting according to reason or judgment; depending on the will alone; absolutely in power; capriciously, tyrannical; despotic. * * * Without fair, solid, and substantial cause; that is, without cause based upon the law * * * not governed by any fixed rules or standard. * * *'

The term 'arbitrary' is not synonymous with 'bad faith' or 'lack of good faith.'

Appellants present three points. The first point urges that the acts coerced by the writ of mandamus are discretionary and, therefore, not subject to a writ of mandamus. The second point urges...