Bd. of Regents v. Rowsey

320 So.3d 954

BOARD OF REGENTS, UNIVERSITY OF SOUTH FLORIDA BOARD OF TRUSTEES, Appellant,

v.J. James ROWSEY, M.D., Appellee.

Case No. 2D19-1239

District Court of Appeal of Florida, Second District.

Opinion filed May 26, 2021.

Peter W. Zinober and Vanessa A. Patel of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Tampa; Tristan J. Reiniers of Greenberg Traurig, P.A., Tampa, for Appellant.

Mark S. Howard of Mark S. Howard, P.A., Tampa; Kevin C. Ambler of Ambler Law Group, Tampa, for Appellee.

ATKINSON, Judge.

Board of Regents of the State of Florida, through its successor in interest, University of South Florida Board of Trustees (USF), appeals a final judgment entered in favor of Dr. J. James Rowsey (Dr. Rowsey) in an action brought by Dr. Rowsey alleging breach of a settlement agreement with USF (Settlement Agreement). Because the trial court erred by concluding that the Settlement Agreement required Dr. Rowsey to provide only those documents and correspondence that Dr. Rowsey had in his personal possession and that the Settlement Agreement's compensation terms included an unwritten promise to pay Dr. Rowsey an additional $75,000, we reverse.

In October 1991, USF hired Dr. Rowsey as a professor and chair of the department of ophthalmology. In 1997, the American Academy of Ophthalmology (AAO), a private professional organization of ophthalmologists, began a confidential investigation of Dr. Rowsey in response to allegations that he had violated the AAO code of ethics. Between 1997 and 1999, the AAO and Dr. Rowsey exchanged correspondence marked "personal and confidential" regarding the AAO's ethics investigation.

The AAO Ethics Committee investigates allegations that a member has violated the AAO code of ethics. All correspondence between an AAO investigator, the AAO Ethics Committee, and the member subject to investigation are marked "personal and confidential." After completion of the investigation and any hearings, which may be held in private, the Ethics Committee issues a recommendation to the Board of Trustees of the AAO (Board), which the member may challenge. If the Board adopts the Ethics Committee's recommendation, the Board informs the member in writing and imposes an appropriate sanction, which may include publication of the determination of the failure to observe the AAO code of ethics. The member may request that the determination remain confidential if the individual who submitted the complaint agreed in advance and the sanctions imposed do not require publication of the determination. A member may appeal an adverse determination.

USF formed a committee headed by Dr. John Curran, the vice dean of the College of Medicine and acting chair of the department of ophthalmology, to investigate Dr. Rowsey's ethics allegations (Curran Committee). In February 1999, the Curran Committee asked Dr. Rowsey to submit certain files, including documents related to the AAO investigation, to the committee for review. The Curran Committee informed Dr. Rowsey that there had been several public records requests for information related to the subject matter of the investigations. Dr. Rowsey turned over responsive documents, including the AAO documents and correspondence.

In March 1999, the Curran Committee issued a report finding that Dr. Rowsey had engaged in misconduct. It also found that Dr. Rowsey had failed to provide all the documents and correspondence concerning the AAO ethics investigation to the committee. It recommended that Dr. Martin Silbiger, the dean of USF's College of Medicine, formally discipline Dr. Rowsey for his misconduct.

During the same month, a newspaper published articles that included information about the AAO's confidential investigation of Dr. Rowsey. Under the impression that he had an ethical responsibility pursuant to the AAO code of ethics to keep the investigation confidential until the Board's final determination, Dr. Rowsey confronted Dr. Silbiger about the articles. According to Dr. Rowsey, Dr. Silbiger told him that USF was required to disclose the documents that Dr. Rowsey had provided to the Curran Committee in response to public records requests from the media. Dr. Rowsey testified that he then informed Dr. Silbiger that to avoid USF's disclosure of additional AAO documents to the media, he would direct the AAO to send all correspondence to his attorney's office. Dr. Silbiger later testified that he had no recollection of this discussion. The AAO and Dr. Rowsey continued to exchange correspondence through Dr. Rowsey's attorney. Dr. Rowsey did not retain any AAO correspondence in his personal possession. Sometime between April and September 1999, the Board found Dr. Rowsey had violated the AAO code of ethics. Dr. Rowsey appealed this decision.

In April 1999, Dr. Silbiger issued a notice of intent to suspend Dr. Rowsey for ninety days, alleging a litany of misconduct. Among the infractions was an allegation by Dr. Silbiger that Dr. Rowsey had failed in his duty to turn over all AAO documents and correspondence concerning the AAO's ethics investigation. Dr. Rowsey disputed the suspension, arguing that no rule required him to provide the AAO documents to USF. In May 1999, Dr. Silbiger reduced Dr. Rowsey's suspension to seventy-five days.

In August 1999, his friend and fellow faculty member, Dr. Bradley Fouraker approached Dr. Rowsey and asked if he was interested in leaving USF and seeking a position at a private eye clinic. Dr. Rowsey expressed interest; however, he did not want many people to be involved in negotiating his departure from USF because of the tension he had with Dr. Curran and USF's general counsel's office. Dr. Rowsey designated Dr. Fouraker as his agent to negotiate the terms of Dr. Rowsey's departure with Dr. Silbiger. Dr. Rowsey wanted to resign effective January 1, 2000, and to receive a $200,000 severance payment. He also wanted USF to cease all its internal investigations concerning the alleged ethical violations. Dr. Fouraker arranged to meet alone with Dr. Silbiger to discuss Dr. Rowsey's departure from USF. Dr. Silbiger, however, did not recall any conversations with Dr. Fouraker regarding Dr. Rowsey's departure and later testified that he "did not" and "would not agree" to an additional payment not apparent from the face of the written Settlement Agreement.

According to Dr. Fouraker, at a meeting in early September 1999, he and Dr. Silbiger purportedly agreed to an October 1, 1999, resignation date and a $200,000 severance payment. Dr. Fouraker testified that Dr. Silbiger had been concerned about the contract including the full $200,000 severance figure because USF had settled unrelated lawsuits involving USF and Dr. Rowsey for $125,000 and Dr. Silbiger did not want to create a precedent for other plaintiffs to rely on in settlement negotiations of their pending claims. Dr. Fouraker testified that Dr. Silbiger proposed a total payment of $200,000 divided into two separate payments—a single payment of $125,000 that would be plain from the face of the contract and a "nonobvious" $75,000 payment that would be paid from a source over which Dr. Silbiger had discretion to disburse funds to faculty members: the Clinical Faculty Compensation Policy. Dr. Fouraker said the alleged meeting between him and Dr. Silbiger did not include a discussion about whether Dr. Rowsey would be required to provide any AAO documents or correspondence to USF. According to Dr. Fouraker, he understood from this discussion that the terms they had agreed on would need to be codified in a written agreement by USF's general counsel's office.

USF's general counsel's office, with assistance from Dr. Curran, drafted the written Settlement Agreement which stated in pertinent part the following:

2. In consideration of the payment provided in paragraph 3, Rowsey agrees:

(a) to tender a resignation letter with an effective date of October 1, 1999 upon his execution of this Settlement Agreement; and

(b) to provide any and all report(s) prepared or disseminated by the American Academy of Ophthalmologists [sic] ("AAO") since January 1, 1997, regarding any ethics or research review by any individual committee, panel or full body of the AAO, as related to the Tampa Trephine and/or any of your activities; and

(c) to provide all copies of any and all correspondence or communications between you and the AAO from January 1, 1997, to the present; and

(d) to provide all official records or documents of the University which are in his possession or custody and control which relate to his former service as the Chair of the University's Ophthalmology Department or which relate to his duties as a member of the University's College of Medicine, including resident's training; and

....

3. In consideration of Rowsey's full and general release, the University agrees:

(a) to, as soon as practicable after Rowsey's last date of employment and upon receipt of the items required in accordance with paragraph 2(a), 2(b), 2(c) and 2(d) of this Agreement, pay the gross amount of One Hundred Twenty-Five Thousand Dollars ($125,000), less all required state or federal taxes or additional deductions requested by Rowsey; and

(b) to pay all other scheduled compensation due to Rowsey through October 1, 1999 as an employee of the University pursuant to the College of Medicine Clinical Faculty Compensation Policy.

....

11. Rowsey agrees that he is entitled to no additional compensation or benefits from the University or pursuant to the Clinical Faculty Compensation Policy other than what has been paid in accordance with the terms and conditions of this Agreement ....

After the language of the Settlement Agreement was finalized by USF's general counsel's office, Dr. Rowsey and Dr. Fouraker reviewed it. According to Dr. Rowsey and Dr. Fouraker, they understood that the $75,000 payment would be made pursuant to paragraph 3(b) because they believed Dr. Silbiger had full discretionary authority to make bonus payments to faculty members through the Clinical...