ALDONIA MOOTRY, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF RUSSELL MOOTRY, JR., Appellant/Cross-Appellee, v. BETHUNE-COOKMAN UNIVERSITY, INC., AND TRUDIE KIBBE REED, Appellees/Cross-Appellants. 5th District. Case No. 5D17-2182. Opinion filed August 2, 2019. Appeal from the Circuit Court for Volusia County, Christopher A. France, Judge. Counsel: David A. Vukelja and Jarett A. de Paula, of David A. Vukelja, P.A., Ormond Beach, for Appellant/Cross-Appellee. Scott A. Cole and Alexandra Valdes, of Cole, Scott & Kissane, P.A., Miami, for Appellees/Cross-Appellants.

(EVANDER, C.J.,) Aldonia Mootry, as personal representative of the Estate of Russell Mootry, Jr. (“Mootry”), appeals a final judgment entered in favor of Bethune-Cookman University, Inc. (“BCU”) following a jury’s determination that BCU did not breach an employment contract. Mootry raises several issues on appeal, one of which compels reversal. The trial court erred in permitting BCU’s counsel to make a highly improper argument during his closing. Accordingly, we reverse and remand for a new trial.

Most of the relevant background facts of this case were set forth in Mootry v. Bethune-Cookman University, Inc. (Mootry I), 186 So. 3d 15 (Fla. 5th DCA 2016).

Mootry began teaching at BCU in 1977 and except for a brief period from 1979-1982, was continuously employed there until 2009 when his employment was terminated and this litigation ensued. In 1995, Mootry was awarded tenure and in 2005, he was appointed Dean of the School of Social Sciences. As a tenured professor, Mootry and BCU entered into annual contracts each year for his employment. Pertinent to this appeal, Mootry’s employment contract provides that BCU has “the power and authority to terminate this contract at any time for malfeasance, inefficiency, neglect of duty, or contumacious conduct.”

BCU also had a faculty handbook, which provided that a tenured faculty member may be terminated for cause and listed numerous grounds that constituted cause, including moral turpitude and violation of BCU’s policies regarding sexual harassment. The handbook explained the process that occurs following a complaint of sexual harassment, including the requirement that BCU promptly establish a committee to investigate the complaint. The faculty handbook also recognized that BCU would uphold “[t]he rights prescribed by the American Association of University Professors (“AAUP”) when not in conflict with the policies of BCU.” The AAUP manual contained provisions pertaining to charges of sexual harassment that included the right to confront an accuser, an opportunity to cross-examine an accuser and witnesses, and the right to have specific charges to respond to and formulate a defense.

In May 2009, Reed [the University’s President] hired Bo Brewer (“Brewer”) to conduct interviews related to staffing for the Academic Affairs Department at BCU. During the course of conducting interviews with BCU faculty members, Brewer was advised of alleged widespread sexual harassment of students by Mootry and other professors in the Department of Social Sciences. Brewer advised Reed of this possible problem and Reed, rather than appoint a committee to investigate as required by the BCU handbook, directed Brewer to investigate these allegations of sexual harassment. In conducting his investigation, Brewer promised anonymity to those individuals with whom he spoke. Brewer would thereafter periodically meet with Reed and when discussing his investigation, intentionally withheld from Reed the names of the individuals making the allegations of sexual harassment. Moreover, Brewer destroyed his notes that identified the individuals he interviewed in order to ensure the previously promised confidentiality.

On May 15, 2009, Mootry received written notice from Reed that he had been suspended from his employment without pay, based upon allegations of improper conduct with female students. In this notice, Mootry was advised of the ongoing investigation and was ordered to meet with Brewer to discuss the investigation. Mootry met with Brewer, denied the allegations of sexual harassment, and inquired of Brewer the names of the individuals making the accusations against him. Brewer did not disclose to Mootry the names of these students.

At the conclusion of his investigation, Brewer prepared a written report summarizing his findings and presented the report to Reed. None of the individuals making the allegations of sexual harassment were named in the report. Brewer’s report also summarized his interviews with members of the BCU faculty. The report does not indicate that any of the interviewed faculty members actually witnessed the alleged sexual harassment by Mootry.

On May 29, 2009, after Reed received Brewer’s report, BCU terminated Mootry’s employment and tenure “for cause.” The termination letter specifically provided that Mootry was terminated for “moral turpitude, violation of the university’s policies regarding sexual harassment, violation of ethical code, conduct in violation of commonly accepted standards of morality, and failure to cooperate within the bounds of accepted standards.” Mootry administratively appealed his termination with BCU. During the appeal process, Mootry claimed that he had never been provided with Brewer’s report and had no information as to who was accusing him of sexual harassment. The appeal committee upheld Mootry’s termination, and Mootry filed the instant suit.

Id. at 18-19.

In the first trial in this cause, BCU was erroneously permitted to introduce Brewer’s investigative report into evidence, notwithstanding that it contained numerous hearsay statements. The trial court recognized that the report contained statements of unidentified individuals detailing acts of sexual harassment allegedly committed by Mootry, but determined that the report was admissible for the limited purpose of showing that BCU had acted reasonably during its investigation and in making the decision to terminate Mootry’s employment. Id. at 19-20. The jury rendered a verdict in favor of BCU.

In Mootry I, we reversed, observing that whether BCU acted reasonably in terminating Mootry’s employment was not a material issue:

We find that the trial court erred in determining that BCU’s “reasonableness” is essentially a material issue to this breach of contract action. Here, Mootry could be properly terminated under his faculty agreement with BCU only if he had breached its provisions. Whether BCU acted reasonably or in good faith in terminating his contract for cause is not a defense.

Id. at 20.

We also found that the trial court erred in allowing BCU’s outside counsel, Kelly Parsons Kwiatek (“Kwiatek”), to testify on matters that were for the jury to decide. Id. at 21. Specifically, Kwiatek opined to the jury that BCU had cause to terminate Mootry’s contract and that BCU had provided Mootry with due process. Id. We observed that an expert witness should be prevented from expressing his or her opinion when the opinion “only tells the jury how to decide the case and does not help the jury to determine what occurred.” Id.

Mootry passed away prior to the second trial in this cause. His testimony at the second trial was compiled from a videotaped deposition and testimony from the first trial. Mootry denied that he had ever made any sexually explicit statements, questions, or jokes to any students or employees and likewise denied engaging in inappropriate comments, staring, or touching of students. Similarly, Mootry denied ever having violated the sexual harassment policy as defined in BCU’s handbook.

In response, BCU called witnesses who testified as to events they allegedly witnessed firsthand, which, if taken in the light most favorable to BCU, would support the decision to terminate Mootry’s employment.¹ BCU also presented testimony from Brewer and Kwiatek. Brewer was permitted to testify generally as to the actions he took during his investigation, but his report was not admitted into evidence. Additionally, Brewer did not testify as to statements he received from unnamed complainants during his investigation. Kwiatek testified that she had reviewed the evidence provided to Brewer before recommending to BCU’s president that Mootry’s employment be terminated.²

During BCU’s closing argument, the following occurred:

[BCU]: I’ll say to you, I think the reason why we don’t agree on the question, if I might ask — if I might suggest to you, and I think the reason he wants to argue whether or not there’s sufficient evidence is because in a setting like this, in the court system that we’re in, with the rules of evidence that we have, you are not afforded the same opportunities that the University had with regard to making the decisions it has made, and you you’ve seen that. You’ve seen the objections as it relates to that.

So you don’t have the same evidence the University had, so we can’t present that to you. And that’s not fair to us if that’s the question.

[Mootry]: Objection, Your Honor.

[BCU]: It’s argument, Judge.

The Court: Overruled.

(emphasis added). Counsel for BCU reiterated these improper comments two additional times during his closing argument:

[BCU]: So, okay, I don’t have to prove to you — the answer, going back to the question the judge is going to ask you: Was there a material breach? No. But, okay. Is there sufficient evidence? I’m going to play the game. Is there sufficient evidence? I don’t have to prove this to you, and I can’t show you everything. You haven’t seen everything.

. . . .

[BCU]: And you know what? When that happens, change the question; right? Divert the ball to another question. So what are they asking you to do? They’re asking you all to disregard the judgment, the decision that was made by his peers, the president of the university, outside learned counsel, and all the other people involved, who, in all fairness, have the benefit of more information than you because of the system that we’re here.

They want to disregard that. That’s not fair. That’s not fair to the process. It’s not fair to Bethune-Cookman, but that’s what they’re asking you to do.

(emphasis added).

BCU’s argument was improper and highly prejudicial. See, e.g., Diaz v. State, 139 So. 3d 431, 432 (Fla. 3d DCA 2014) (holding that it is improper for prosecutor to suggest during closing argument that there are other witnesses who would corroborate state’s case had they been called to testify); see also Westbrook v. Bacskai, 103 So. 2d 241, 242 (Fla. 3d DCA 1958) (“Arguing facts not in evidence or not warranted from the evidence is not permitted in trial courts of this state. Although counsel is allowed a broad latitude in presenting his case to the jury, he should at all times confine his argument to the evidence and issues presented, with the logical deductions therefrom.”). BCU’s argument advised the jury that BCU had evidence that had not been presented to the jury and improperly stated that the jury’s inability to receive that evidence was “unfair” to BCU. BCU’s argument also impermissibly implied that this additional evidence would have been favorable to BCU and that, in reaching its verdict, the jury should recognize that BCU “had the benefit of more information” in deciding whether to terminate Mootry’s employment. The trial court should have sustained Mootry’s objection. Its failure to do so resulted in harmful error.³

We affirm as to the other issues raised in the appeal and cross-appeal. In the proceedings below, both parties filed motions for summary judgment and motions for directed verdict that were denied by the trial court. The denials of these motions are the subject of both Mootry’s appeal and BCU’s cross-appeal. We conclude that because of the existence of several disputed material issues of fact, the trial court properly denied both parties’ motions for summary judgment and motions for directed verdict.

In addition, BCU challenges the trial court’s determination, prior to the first trial, that, by their conduct, the parties had made the faculty handbook (or portions thereof) part of Mootry’s employment contract. The trial court permitted both parties (at both trials) to argue to the jury the portions of the faculty handbook that they believed were part of the employment contract. BCU did not challenge this decision by the trial court in its cross-appeal in Mootry I. Accordingly, we conclude that it has waived its right to challenge that decision in this subsequent appeal. See Airvac, Inc. v. Ranger Ins. Co., 330 So. 2d 467, 469 (Fla. 1976), receded from in part by Fla. Dep’t of Transp. v. Juliano, 801 So. 2d 101, 106-07 (Fla. 2001); see also Philip Morris USA, Inc. v. Naugle, 182 So. 3d 885, 886 (Fla. 4th DCA 2016) (“On the cross-appeal, the appellee waived the comparative fault issue by failing to cross-appeal that point in Naugle I.”).

AFFIRMED in part; REVERSED in part; and REMANDED FOR NEW TRIAL. (EISNAUGLE and SASSO, JJ., concur.)

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¹We reject Mootry’s argument that BCU could only present testimony regarding his alleged improper conduct from witnesses whose complaints were made known to BCU prior to the termination of Mootry’s employment. “[A]n employer may use after-acquired evidence of employee misconduct in defense of a breach of contract case if the employer can demonstrate that it would have fired the employee had it known of the misconduct.” Teter v. Republic Parking Sys., Inc., 181 S.W.3d 330, 339 (Tenn. 2005). See also McDill v. Environamics Corp., 757 A.2d 162, 166 (N.H. 2000) (“We agree that in a breach of contract action ‘after-acquired evidence of employee misconduct is a defense to a breach of contract action for wages and benefits lost as a result of discharge if the employer can demonstrate that it would have fired the employee had it known of the misconduct.’ ”); Gassmann v. Evangelical Lutheran Good Samaritan Soc., Inc., 933 P.2d 743, 745 (Kan. 1997) (holding that employee was not entitled to any relief if employer could establish after-acquired evidence sufficient for termination); Schuessler v. Benchmark Mktg. & Consulting, Inc., 500 N.W.2d 529, 540 (Neb. 1993) (holding that in breach of contract action, company’s former vice president could not recover any damages for alleged wrongful termination if employer was able to prove, through post-termination evidence, that he engaged in misconduct (sexual harassment of employee) prior to his dismissal that would have resulted in justified termination).

²Because Mootry did not properly preserve his objection to this particular testimony from Kwiatek, we decline to consider whether this testimony should have been presented to the jury.

³The trial court further erred in overruling Mootry’s objection to BCU’s argument that the jury should consider what would happen if BCU did not “get rid of Dr. Mootry” and another student was “harassed or abused.” As we stated in Mootry I, Mootry could only be properly terminated if he breached the provisions of his faculty agreement. Whether BCU acted reasonably or in good faith in terminating Mootry’s employment was not a defense. Mootry I, 186 So. 3d at 20.