Opinion
Case No. 2D19-1239
05-26-2021
BOARD OF REGENTS, UNIVERSITY OF SOUTH FLORIDA BOARD OF TRUSTEES, Appellant, v. J. James ROWSEY, M.D., Appellee.
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.
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 Faculty Compensation Policy.
Although USF recommended that Dr. Rowsey have his attorneys review the finalized Settlement Agreement, Dr. Rowsey signed the agreement on September 29, 1999, without having an attorney review it. On the same day, Dr. Rowsey submitted a letter of resignation effective October 1, 1999, to Dr. Silbiger which stated, "Please be advised that I have received no further communications from the American Academy of Ophthalmology besides those you currently have in the files." Dr. Rowsey also left all his university files and department of ophthalmology records with his secretary when he left USF. Dr. Silbiger accepted Dr. Rowsey's resignation on the same day.
Dr. Silbiger and the USF's general counsel's office appointed Dr. Curran as the point person to monitor Dr. Rowsey's compliance with his performance obligations under the Settlement Agreement. In October 1999, Dr. Curran sent Dr. Rowsey a letter requesting documents responsive to paragraphs 2(b), 2(c), and 2(d) of the Settlement Agreement, explaining that documents in an attorney's possession "are deliverable just as if they are in your possession." In December 1999, one of Dr. Rowsey's attorneys sent a letter to USF which stated that Dr. Rowsey had provided all AAO documents and correspondence to USF. The attorney enclosed a September 20, 1999, letter from the president of the AAO to Dr. Rowsey concerning the result of Dr. Rowsey's appeal of the AAO's determination that he had violated the AAO code of ethics.
In July 2000, Dr. Rowsey sent a letter to Dr. Silbiger requesting payment of $200,000 under the Settlement Agreement. Dr. Silbiger replied, "As soon as you have completed the requirements of our agreement as determined by our formal contract, I will pay you any moneys owed." All subsequent communications between USF and Dr. Rowsey were fruitless, and in September 2004, Dr. Rowsey sued USF for breach of contract.
During the litigation, two of the issues disputed by the parties were whether Dr. Rowsey had complied with his performance obligations under paragraphs 2(b) and 2(c) of the Settlement Agreement and whether "scheduled compensation" under paragraph 3(b) included a $75,000 lump sum payment purportedly negotiated by Dr. Fouraker and Dr. Silbiger. Prior to trial, USF filed a motion in limine to exclude parol evidence that would vary the terms of the written Settlement Agreement. The trial court granted USF's motion in part and denied it in part, excluding parol evidence of an oral agreement for $75,000 unless it was used to explain a latent ambiguity in the Settlement Agreement.
At trial, Dr. Rowsey testified that he had not provided copies of AAO correspondence that were in his attorneys' possession to USF. In March 2019, the trial court entered its findings of fact, conclusions of law, and judgment in favor of Dr. Rowsey. The trial court concluded that because the obligations in paragraphs 2(b) and 2(c) were included in the Settlement Agreement, which was drafted by USF's general counsel's office, even though they were not a subject of the previous negotiations between Dr. Rowsey and USF, they could be interpreted "from the view point of" Dr. Rowsey to encompass only those AAO reports, correspondence, and communications that he had in his personal, physical possession. The trial court also concluded that paragraphs 3(b) and 11 created a latent ambiguity for which parol evidence was admissible to resolve. The trial court found that Dr. Fouraker's testimony regarding his meeting with Dr. Silbiger was credible and that the "other scheduled compensation" due to Dr. Rowsey under paragraph 3(b) included a payment of $75,000 according to Dr. Fouraker's discussions with Dr. Silbiger. USF timely appealed.
"The interpretation of a contract involves a pure question of law for which this court applies a de novo standard of review." Dezer Intracoastal Mall, LLC v. Seahorse Grill, LLC, 277 So. 3d 187, 190 (Fla. 3d DCA 2019) (quoting Dirico v. Redland Estates, Inc., 154 So. 3d 355, 357 (Fla. 3d DCA 2014) ). "When interpreting a contract, a court should give effect to the plain and ordinary meaning of its terms." Golf Scoring Sys. Unlimited, Inc. v. Remedio, 877 So. 2d 827, 829 (Fla. 4th DCA 2004) (citing Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 132 (Fla. 2000) ). "[T]he parol evidence rule prevents the terms of a valid written contract or instrument from being varied 'by verbal agreement or other extrinsic evidence where such agreement was made before or at the time of the instrument in question.' " Farrey's Wholesale Hardware Co., Inc. v. Coltin Elec. Servs., LLC, 263 So. 3d 168, 176 (Fla. 2d DCA 2018) (quoting J.M. Montgomery Roofing Co. v. Fred Howland, Inc., 98 So. 2d 484, 485 (Fla. 1957) ). The rule prohibits the use of parol evidence "to contradict, vary, defeat, or modify a complete and unambiguous written instrument, or to charge, add to, or subtract from it, or affect its construction." Duval Motors Co. v. Rogers, 73 So. 3d 261, 265 (Fla. 1st DCA 2011) (quoting J.M. Montgomery Roofing Co., 98 So. 2d at 486 ).
The trial court improperly relied on parol evidence to alter the terms of the Settlement Agreement because paragraphs 2(b) and 2(c) are not ambiguous. They require Dr. Rowsey "to provide any and all report(s) prepared or disseminated" by the AAO and "to provide all copies of any and all correspondence or communications between [Dr. Rowsey] and the AAO from January 1, 1997," to September 29, 1999. In contrast, paragraph 2(d) requires Dr. Rowsey to provide all university documents and records "which are in his possession or custody and control." Dr. Rowsey argues that paragraphs 2(b) and 2(c) only required him to provide those documents which were in his physical possession at the time he entered the Settlement Agreement because those paragraphs did not include the phrase "possession or custody and control" that appears in paragraph 2(d).
Rather than limiting the scope of paragraphs 2(b) and 2(c), the absence of the phrase "possession or custody and control" confirms that the scope of Dr. Rowsey's performance obligations in paragraphs 2(b) and 2(c) is more expansive. Cf. Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So. 2d 911, 914 (Fla. 1995) (declining to "imply [a term] where it ha[d] been excluded" when the term had been used in one section of a statute but not another). Paragraphs 2(b) and 2(c) require Dr. Rowsey to provide "all" responsive documents, without the qualifying language that appears in paragraph 2(d) limiting the requirement to those documents that Dr. Rowsey has in his physical possession or custody and control.
Dr. Rowsey misidentifies the words "or custody and control" within the phrase "possession or custody and control" as an expansion of what would otherwise be a narrow requirement to only provide that which is within one's personal possession. To the contrary, the entire phrase serves as a limitation on what would otherwise be a broader scope of production—simply "all official records or documents of the University" relating to his service in the department and related to his duties as a member of the college. (Emphasis added.)
In other words, without the qualifying phrase "which are in his possession or custody and control," Dr. Rowsey would be obligated under paragraph 2(d) to track down responsive documents that were neither in his physical possession nor that of an agent. With the qualification, "all" in paragraph 2(d) is limited to those documents that are in his possession or custody and control. That limitation was not included in paragraphs 2(b) and 2(c); there, the word "all" is unqualified and would require Dr. Rowsey to retrieve responsive documents from whatever source that is available, including an agent such as a lawyer or a third party such as the AAO itself if necessary. Therefore, the trial court erred by interpreting paragraphs 2(b) and 2(c) as requiring Dr. Rowsey to provide only those AAO documents in his physical possession.
Assertions of the improbability that Dr. Rowsey had obligated himself to track down AAO reports, communication, and correspondence that were in the possession or control of others or arrange for those other individuals and entities to provide copies to USF are belied by the plain language of the agreement he entered into. See Lincare Holdings, Inc. v. Ford, 307 So. 3d 905, 910 (Fla. 2d DCA 2020) ("Where contracts are clear and unambiguous, they should be interpreted as written, and the court can give them no other meaning." (quoting Khosrow Maleki, P.A. v. M.A. Hajianpour, M.D., P.A., 771 So. 2d 628, 631 (Fla. 4th DCA 2000) )); Famiglio v. Famiglio, 279 So. 3d 736, 740 (Fla. 2d DCA 2019) (" '[I]t is never the role of the court to rewrite a contract to make it more reasonable for one of the parties,' or, in the guise of interpretation, relieve a contracting party from the consequences of a bad bargain. ..." (first quoting Barakat v. Broward Cnty. Hous. Auth., 771 So. 2d 1193, 1195 (Fla 4th DCA 2000) ; and then citing Prestige Valet, Inc. v. Mendel, 14 So. 3d 282, 283 (Fla. 2d DCA 2009) )). This court need not assess the reasonableness of USF's expectation that—consistent with the language of the Settlement Agreement—Dr. Rowsey would be responsible for assuring that USF received all the enumerated documents, whether that required Dr. Rowsey to dig them out of storage, contact his lawyer, or contact a third-party entity for copies of records it retained pertaining to Dr. Rowsey's case. Speculation regarding the intentions of the contracting parties is irrelevant when those intentions are already embodied in the plain language of the agreement.
Additionally, Dr. Rowsey's personal belief that he had an ethical obligation to keep the documents and correspondence confidential under the AAO code of ethics does not relieve him of his performance obligation under the Settlement Agreement. The Settlement Agreement obligated Dr. Rowsey to provide all enumerated AAO communications and documents to USF. By entering into the contract, Dr. Rowsey agreed that his entitlement to payment from USF was contingent upon his completing this performance obligation—even if, by doing so, he would violate what he believed to be an ethical duty he owed to a third party. Thus, by failing to perform, it was not he whose obligation was excused. Rather, it was Dr. Rowsey's breach of the agreement that excused USF's obligation to pay him. See Small v. State, 249 So. 3d 675, 676 (Fla. 2d DCA 2018) ("It is a well-established principle of contract law that one party's material breach relieves the other party of his obligations under the contract." (citing Green Tree Servicing, LLC v. Milam, 177 So. 3d 7, 14 (Fla. 2d DCA 2015) )).
Dr. Rowsey concedes that USF's contention that the AAO code of ethics did not prohibit his disclosure of the investigatory documents "is probably accurate" but argues that the "proper interpretation of the code is irrelevant" because "the AAO code specifically states the documents are confidential" and "Dr. Rowsey treated them as confidential."
Had the trial court given effect to the plain meaning of paragraphs 2(b) and 2(c), it would have concluded that Dr. Rowsey had not completed all his performance obligations under the Settlement Agreement because Dr. Rowsey admitted he had not provided "all copies of any and all correspondence or communication" between him and the AAO, having refused to arrange for the production of copies of AAO correspondence in his attorneys' possession. Further, the letter from the president of the AAO that Dr. Rowsey's attorney provided to USF in December 1999 indicates that sometime between April 1999 and September 20, 1999, Dr. Rowsey received notice of the Board's determination that Dr. Rowsey had violated the AAO code of ethics. However, the Ethics Committee's written notice of its recommendation to the Board, the Board's written notice of its decision in Dr. Rowsey's case, and Dr. Rowsey's letter seeking an appeal of the Board's decision are not included in the record and were not provided to USF prior to or during the pendency of this litigation. Thus, it is clear from the record that Dr. Rowsey did not perform his obligations under the Settlement Agreement.
The trial court also erred in concluding that paragraph 3(b) of the Settlement Agreement was latently ambiguous and in admitting parol evidence to interpret the meaning of "other scheduled compensation due to [Dr. Rowsey] through October 1, 1999 as an employee of the University pursuant to the College of Medicine Clinical Faculty Compensation Policy." Contractual language is ambiguous when it "can reasonably be interpreted as having more than one meaning." Prime Homes, Inc. v. Pine Lake, LLC, 84 So. 3d 1147, 1151 (Fla. 4th DCA 2012) (citing Smith v. Shelton, 970 So. 2d 450, 451 (Fla. 4th DCA 2007) ). "There are two types of ambiguities—patent and latent. Patent ambiguities are on the face of the document, while latent ambiguities do not become clear until extrinsic evidence is introduced and requires parties to interpret the language in two or more possible ways." Id. at 1151–52 (citing Nationwide Mut. Fire Ins. Co. v. Pollinger, 42 So. 3d 890, 892 (Fla. 4th DCA 2010) ). "Parol evidence is inadmissible to contradict, vary, or modify terms which are unambiguously contained within a written agreement." Id. at 1152. If there is a latent ambiguity, parol evidence is admissible to interpret the meaning of the ambiguous terms in the contract. Morrison v. Morrison, 247 So. 3d 604, 607 (Fla. 2d DCA 2018) (quoting Mac-Gray Servs., Inc. v. Savannah Assocs. of Sarasota, LLC, 915 So. 2d 657, 659 (Fla. 2d DCA 2005) ). However, parol evidence is not admissible to interpret a patent ambiguity. Emergency Assocs. of Tampa, P.A. v. Sassano, 664 So. 2d 1000, 1002 (Fla. 2d DCA 1995).
Here, Dr. Rowsey argued that paragraphs 3(b) and 11 of the Settlement Agreement create a latent ambiguity because paragraph 3(b) provides that USF will pay Dr. Rowsey any amount he is due as an employee under the Clinical Faculty Compensation Policy and paragraph 11 provides that Dr. Rowsey is not entitled to any additional compensation under the Clinical Faculty Compensation Policy except that which has been paid in accordance with the terms and conditions of the Settlement Agreement. Dr. Rowsey argues that because he has not yet been paid under the Settlement Agreement, there is a latent ambiguity arising from an inconsistency between paragraphs 3(b) and 11. He also argues that the term "other scheduled compensation" is not clearly defined in the Settlement Agreement and therefore the trial court properly admitted parol evidence to interpret the term.
However, paragraphs 3(b) and 11 do not create an ambiguity because paragraph 3(b) provides for Dr. Rowsey to receive compensation due as an employee under the Clinical Faculty Compensation Policy through October 1, 1999, and paragraph 11 provides that Dr. Rowsey is not entitled to any additional compensation beyond what is provided for under paragraph 3(b). The fact that Dr. Rowsey has not yet been paid compensation under paragraph 3(b) does not render the paragraph ambiguous. Paragraph 11 merely provides that the compensation due to Dr. Rowsey is limited to the amounts expressly provided for under the terms of the Settlement Agreement. And even if paragraphs 3(b) and 11 created an ambiguity, the ambiguity would be patent, not latent, because the purported inconsistency in providing that Dr. Rowsey has a contractual right to compensation under the Clinical Faculty Compensation Policy and then providing that Dr. Rowsey is not entitled to additional compensation under the same compensation policy would be apparent from the face of the contract. Therefore, the trial court erred in admitting parol evidence of the meaning of paragraph 3(b).
The Settlement Agreement is unambiguous and sufficient to direct the parties in their performance obligations. Paragraphs 3(a) and 3(b) contain the entire settlement payment due to Dr. Rowsey and must be read together. Paragraph 3 provides that, in consideration for Dr. Rowsey's performance of his obligations under paragraph 2, USF must pay Dr. Rowsey a $125,000 lump sum settlement payment and "other scheduled compensation due to [Dr.] Rowsey through October 1, 1999 as an employee of the University pursuant to the College of Medicine Clinical Faculty Compensation Policy."
In light of the lump sum payment already provided for in the previous subsection, paragraph 3(a), it is reasonable to read "other scheduled compensation due ... as an employee" in paragraph 3(b) as something different than an additional lump sum payment of an undisclosed amount. The language of the latter paragraph indicates payment for services rendered in the ordinary course of his employment. We must "give an undefined contractual term its plain and ordinary meaning." See State Farm Florida Ins. Co. v. Crispin, 290 So. 3d 150, 152 (Fla. 5th DCA 2020). Unlike salaries or commissions in exchange for services rendered, a lump sum settlement payment cannot be said to be "due" to Dr. Rowsey "as an employee." A settlement payment is not made in exchange for an employee's labor; rather, it is made to settle a legal claim the employee has against the employer. See id. (admonishing that courts may not "add meaning that is not present" in the language of a contract).
Neither does an undisclosed lump sum payment fit within the ordinary meaning of "scheduled" in the context of compensation due to an employee, which instead indicates pre-arranged, periodic, or formulaic payments for work performed. See Kel Homes, LLC v. Burris, 933 So. 2d 699, 702 (Fla. 2d DCA 2006) ("[W]ords in a contract are presumed to have been used with their ordinary and customary meaning." (quoting Emergency Assocs. of Tampa, P.A., 664 So. 2d at 1003 )). The term "scheduled" would not logically include an ad hoc payment necessitated by a lawsuit—an event that is typically as unscheduled as it is unwelcome. Additionally, inclusion of the phrase "pursuant to the College of Medicine Clinical Faculty Compensation Policy" belies Dr. Rowsey's argument, as that policy does not provide for the settling of lawsuits but rather for the compensation of faculty members for medical services provided to patients through USF's College of Medicine.
The timing prescribed for the two payment obligations also supports USF's understanding of the document. The $125,000 lump sum settlement amount in paragraph 3(a) is due "after Rowsey's last date of employment," which was set by paragraph 2(a)'s requirement that Dr. Rowsey resign effective October 1, 1999. (Emphasis added.) The "other scheduled compensation ... as an employee" in 3(b) refers to that which is "due to Rowsey through " the last date of his employment. (Emphasis added.) It does not make sense that the latter paragraph would include an additional post- resignation lump sum settlement payment akin to that described in the former.
A fair reading of the unambiguous language of paragraph 3 of the Settlement Agreement does not permit the possibility of an additional, unwritten lump sum settlement payment, and the trial court erred by considering parol evidence to write the alleged $75,000 payment obligation into the Settlement Agreement. The plain meaning of the language of paragraph 2 does not confine Dr. Rowsey's AAO-document production obligation to only those within his personal possession, and the trial court erred when it failed to find that Dr. Rowsey's breach of that obligation excused USF's failure to perform. We therefore reverse the judgement entered in favor of Dr. Rowsey and remand for entry of judgment in favor of USF consistent with this opinion.
Reversed and remanded.
VILLANTI and BLACK, JJ., Concur.