author: POLEN, J. LEVINE, J.,

text:
    CLAIRE’S BOUTIQUES, INC., Appellant, v. Amy LOCASTRO, individually and as parent and natural guardian of Alexis Locastro, a minor, Appellee.
    No. 4D09-968.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2012.

      Richard A. Sherman Sr. and James W. Sherman of the Law Offices of Richard A. Sherman, P.A., Fort Lauderdale, and Jodi G. Barrett of Adams, Coogler, Watson, Merkel, Barry & Kellner, P.A., West Palm Beach, for appellant.
    Steven P. Befera of the Befera Law Firm, Miami, for Amy Locastro, individually.
    Marlene S. Reiss of Marlene S. Reiss, P.A., Miami, for Amy Locastro, as parent and natural guardian of Alexis Locastro, a minor.
   On Motions fob Rehearing, Rehearing En Banc, and fob Certification

POLEN, J.

We grant appellant/cross-appellee, Claire’s Boutiques, Inc. (Claire’s) motion to consider this case en banc, and for certification. Upon en banc consideration, the following is the opinion of the court:

We are presented with two issues that are the subject of this appeal and cross-appeal: whether the trial court correctly denied a directed verdict for Claire’s on the Loeastros’ negligence claim and whether the trial court correctly entered summary judgment for Claire’s on its claim of contractual indemnity. We affirm the trial court’s denial of Claire’s motion for a directed verdict on the Loeastros’ negligence claim but reverse the trial court’s entry of summary judgment on Claire’s claim of contractual indemnity.

In August 2006, Amy Locastro took her thirteen-year-old daughter, Alexis, to Claire’s to get Alexis’s ear cartilage pierced. After the piercing, Alexis developed an infection in the cartilage of the ear that required hospitalization and extensive medical treatment. Alexis’s ear has been permanently disfigured.

At trial, the Loeastros introduced evidence of the ear piercing process used at Claire’s. All employees watched a video prior to being permitted to pierce a customer’s ears. The video did not provide any training on sterilization of equipment. Employees, however, were instructed as to the increased risks regarding piercing of cartilage and the longer healing period required. Finally, employees were required to receive a perfect score on a written test before being permitted to perform ear piercings. Stacy Smith, the loss prevention manager for Claire’s, further testified as to the piercing procedure. She testified that employees would use gloves and alcohol wipes to clean a customer’s ears and the ear piercing instrument. An employee would then mark the area to be pierced with a surgical pen, but Claire’s employees were not required to sterilize the surgical pen between customers.

The employee who performed the piercing on Alexis, Erica Stokes, may or may not have had such training. No evidence of her training or testing was found in her employee file. No one at trial testified to training Stokes or seeing proof of such prior training. Ms. Locastro also testified to not seeing Stokes wash her hands prior to piercing her daughter’s ear.

A disclosure form was signed by Ms. Locastro that included a release from liability provision, as well as an indemnity provision. Ms. Locastro agreed to the following provisions:

I am the parent or legal guardian of a minor under 18 years of age, and I hold only myself liable and hereby release and waive any and all claims that I or the minor may make as a result of this ear piercing. I further agree that I shall indemnify and hold Claire’s harmless with respect to any and all claims that I or my minor child may make as a result of this ear piercing, even if due to the sole or joint negligent acts or omissions of Claire’s Boutiques, Inc., its agents, or employees.

In the same form, Ms. Locastro acknowledged the aftercare requirements of a cartilage piercing, although Alexis testified that she was not instructed about the care for her piercing after the procedure. Ms. Locastro and Alexis both testified to cleaning the ear cartilage around the piercing for days after the piercing. Although there was some redness and swelling, Ms. Locastro did not notice anything unusual until Alexis complained about pain in the ear at a doctor’s office nine days after the piercing. Alexis’s doctor, Dr. Jantunen, prescribed an antibiotic for the infection. A few days later, with the pain continuing, Dr. Jantunen instructed Alexis to continue taking antibiotics. After a third visit, Dr. Jantunen referred Alexis to a specialist. The specialist immediately sent her to the emergency room, where the wound in her ear was drained due to a severe infection. Surgery was performed on her ear, and Alexis remained in the hospital for eight or nine days. Alexis testified to having no feeling in the top of the ear. At trial, there was medical testimony that Alexis suffered permanent cartilage deformities as a result of the infection.

At trial, Dr. Jantunen’s deposition testimony was entered into evidence. He stated that it was inappropriate for Claire’s to reuse a surgical marking pen without having it sterilized and that it was negligent for employees to pierce ears without washing their hands. Dr. Jantunen felt, at a minimum, Claire’s should have had a hand-washing sink at the piercing station. Dr. Jantunen concluded that the infection and resulting damage was “most probably caused by the ear piercing” within a reasonable degree of medical probability, and Claire’s negligence made the infection more likely to occur.

Dr. Nachman, a pediatric infectious disease specialist, testified that she did not believe that Alexis’s infection could have been caused by the surgical marking pen. Likewise, she believed the infection could not have been caused by hand contamination since the type of bacteria causing Alexis’s infection does not “colonize on your hands.” Moreover, this type of bacteria would have recolonized the area within one day, so the fact that Alexis’s infection did not manifest for several days indicates the bacteria came from another source. Dr. Nachman concluded that Claire’s had “nothing to do” and was not associated “in any way” with Alexis’s infection.

After a trial, the jury returned a verdict for Alexis, finding Claire’s 75% negligent. The jury awarded Alexis $7,012 in past medical expenses, $72,987 in past pain and suffering and $20,000 in prospective damages. The final judgment against Claire’s was for $69,740. The trial court denied a motion for new trial on the negligence claim.

Separate from the trial of the negligence claim, Claire’s filed a cross-motion for summary judgment to compel Ms. Locas-tro to indemnify Claire’s for the negligence claim pursuant to the agreement. Ms. Locastro also filed a motion for summary judgment, claiming that she was immune from liability because she did not have liability insurance and parents are “immune from suit by their children and could be held liable only to the extent of available liability coverage.” The trial court found the indemnity provisions valid against Ms. Locastro in her individual capacity, but not in her capacity as Alexis’s mother, and entered a judgment against Ms. Locastro for $200,274, inclusive of defense costs, attorney’s fees, and the judgment against Claire’s. From the denial of the motion for directed verdict and motion for new trial on the claim of negligence and the summary judgment on the enforcement of the indemnity provision, this appeal ensues.

A trial court’s order on a motion for a directed verdict is to be reviewed de novo on appeal. Dep’t of Children & Family Servs. v. Amora, 944 So.2d 431, 435 (Fla. 4th DCA 2006). A directed verdict is improper if “any evidence” will support a verdict for the non-moving party. Id. The trial court should direct a verdict in favor of the defendant only “where the facts are unequivocal, such as where the evidence supports no more than a single reasonable inference.” McCain v. Fla. Power Corp., 593 So.2d 500, 504 (Fla.1992).

In the present case, Claire’s urges that a directed verdict should have been granted since there was insufficient evidence that its actions “caused” the infection and resulting injuries. In negligence cases, like the present one, “Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiffs injury.” Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1018 (Fla.1984). If sufficient evidence is offered to meet this standard, the remaining questions of causation are to be resolved by the trier of fact. Wallace v. Dean, 3 So.3d 1035, 1047 n. 18 (Fla. 2009).

The Florida Supreme Court in Gooding cited to Professor Prosser as to the plaintiffs burden of proving causation:

On the issue of the fact of causation, as on other issues essential to his cause of action for negligence, the plaintiff, in general, has the burden of proof. He must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result.

Gooding, 445 So.2d at 1018 (quoting William Prosser, Law of Torts § 41 (4th ed. 1971)). “In other words, the plaintiff must show that what was done or failed to be done probably would have affected the outcome.” Id. at 1020. Expert testimony is not an absolute requirement to establish causation. See Atkins v. Humes, 110 So.2d 663, 666 (Fla.1959) (“[J]urors of ordinary intelligence, sense and judgment are, in many cases, capable of reaching a conclusion, without the aid of expert testimony... .”); State Farm Mut. Auto. Ins. Co. v. Penland, 668 So.2d 200, 202-03 (Fla. 4th DCA 1995) (“[T]he opinion of an expert should be excluded where facts testified to are of a kind that do not require any special knowledge or experience in order to form a conclusion.”). If a plaintiff does offer expert testimony, the expert need not incant any talismanic phrases to survive a motion for directed verdict, and the expert’s testimony should be considered as a whole. See Edwards v. Simon, 961 So.2d 973, 974-75 (Fla. 4th DCA 2007) (finding a medical expert’s testimony on the standard of care sufficient to withstand summary judgment where the expert never specifically opined as to whether the physician’s actions fell below the standard of care).

Based upon the testimony of Dr. Jantunen, there was evidence that the actions of Claire’s in failing to have a sink with warm water for hand washing and in failing to sterilize the reusable surgical marker in between uses was a substantial factor in bringing about Alexis’s injury. In addition, there was also Ms. Loeastro’s testimony of Stokes’s failure to wash her hands before the piercing. Together, this would be a sufficient quantum of “any evidence” of causation to survive a directed verdict. Simply, the testimony of the Claire’s employees, Dr. Jantunen, Ms. Lo-castro, and Alexis presented sufficient evidence that the trial court did not err when it denied Claire’s motion for directed verdict and motion for new trial. While Dr. Nachman disagreed with Dr. Jantunen, her testimony created an issue of fact for the jury to resolve. Considering all of the evidence presented at trial, we cannot conclude that the facts are so “unequivocal” that the evidence “supports no more than a single reasonable inference” regarding causation. Accordingly, we affirm the order denying a directed verdict for Claire’s.

As to the issue raised on cross-appeal, the trial court’s entry of summary judgment in favor of Claire’s on its claim of contractual indemnity, we reverse. We conclude that a parent’s indemnification of a third party for the third party’s negligent conduct causing injury to the parent’s child violates public policy.

This indemnification agreement between a commercial activity provider and a parent, requiring the parent to indemnify the commercial entity for its own negligence when the commercial provider injures the child of the parent, is invalid. Such an onerous provision conflicts with the public policy expressed in Kirton v. Fields, 997 So.2d 349 (Fla.2008), that requires the state “to assert its role under parens patri-ae to protect the interests of the minor children” where a parent’s release, or in this case indemnity, would impact a child’s well-being and leave a parent with the prospects of bearing the financial burden caused by the negligence of the activity provider, thus protecting only that provider’s interest and not the overall welfare of the child. It also conflicts with the public policy pronouncements of both Ard v. Ard, 414 So.2d 1066 (Fla.1982), and Joseph v. Quest, 414 So.2d 1063 (Fla.1982).

Parents are generally immune from tort claims brought by their children. Herzfeld v. Herzfeld, 781 So.2d 1070, 1072 (Fla.2001). Such immunity has been premised on public policies that favor harmonious familial relations and parental discretion over discipline while discouraging the depletion of family resources from frivolous suits, among others. Id. at 1072-73, 1076-77. “To reduce the available assets of the family through a straight suit is to reduce the amount available for support, education, and protection of the family as a whole.” Ard v. Ard, 414 So.2d 1066, 1067 (Fla.1982). Ard also teaches that:

Protecting the family unit is a significant public policy behind parental immunity. We are greatly concerned by any intrusion that might adversely affect the family relationship. Litigation between family members would be such an intrusion.

In a case decided on the same day as Ard, the supreme court held that a parent could be liable for contribution where the parent’s negligence was a cause of injury to the child but only to the extent of existing liability insurance coverage for the parent’s tort against the child. The court further explained why a parent should not be generally liable for contribution for injuries sustained by their children:

Minors and infants must bring suits through a representative, next friend, or guardian ad litem. Fla.R.Civ.P. 1.210(b). See Youngblood v. Taylor, 89 So.2d 503 (Fla.1956). Logically, an infant injured through the combined negligence of a parent and a third party would in most cases bring suit through his parents. If the parents feared possible liability through contribution then it would be their decision and not the child’s to withhold suit.
Any award that the child received would be his and not a part of the family treasury. The parents would be responsible for using it for the child’s welfare or holding the award in trust for the child until he reached the age of majority. And, of course, the parents could not use any of that money as a setoff for their liability. This fact alone can cause a chilling effect on the parents when considering whether to sue where their own negligence is a factor.

Joseph v. Quest, 414 So.2d 1063, 1064 (Fla. 1982). Thus, public policy prohibits even a negligent parent from being compelled to contribute to his or her child’s damages because of the strain it would place on the family relationship.

This is even truer with an indemnification agreement such as the one in this case. Under this agreement, not only would the non-negligent parent be responsible for the entire amount of the child’s damages, thus depleting the family treasury, but Amy, the mother, is also required to repay all of Claire’s costs and legal fees, which in this case amounted to almost three times the amount of damages. Thus, for a $72,000 damage award, Amy is liable for over $200,000. What parent would even attempt to bring suit when the recovery would be so catastrophic to the family fortunes? Thus, the burden of the provider’s negligence would fall, not on the responsible party, but on the family and, if they could not provide for the injured child, on the state and its taxpayers. When the agreement induces a parent to act contrary to the child’s welfare, the state as parens patriae must step in and void such an agreement.

Kirton v. Fields also compels this result, as its public policy pronouncements relating to the prohibition of parental releases for injuries to children by negligent commercial providers applies as well to parental indemnity agreements. In Kirton, our supreme court held that public policy concerns preclude parents from executing a pre-injury release on behalf of a minor or the minor’s estate in a tort action arising from injuries suffered in participating in a commercial activity. The court noted that a majority of other states have held that such releases are unenforceable. The court hearkened back to the same public policy arguments made in Herzfeld involving the problem of the financial burden to the family where a release precludes a minor from recovering for injuries suffered through a third party’s negligence:

It cannot be presumed that a parent who has decided to voluntarily risk a minor child’s physical well-being is acting in the child’s best interest. Furthermore, we find that there is injustice when a parent agrees to waive the tort claims of a minor child and deprive the child of the right to legal relief when the child is injured as a result of another party’s negligence. When a parent executes such a release and a child is injured, the provider of the activity escapes liability while the parent is left to deal with the financial burden of an injured child. If the parent cannot afford to bear that burden, the parties who suffer are the child, other family members, and the people of the State who will be called on to bear that financial burden.

Kirton, 997 So.2d at 357.

When a parent agrees to indemnify the third party for its negligence causing injury to the minor child, the same burden shifting occurs. Indemnification “shifts the entire loss from one ... to another who should bear the costs” for damages resulting from tortious activity. Houdaille Indus., Inc. v. Edwards, 374 So.2d 490, 493 (Fla.1979). Indemnification may be arranged by contract, whereby “the promisor agrees to protect the prom-isee against loss or damages by reason of liability to a third party.” Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 643 (Fla.1999).

Kirton leads to the conclusion that a parental indemnification agreement is vio-lative of public policy. In reaching its result, Kirton cited with approval to a number of out-of-state cases holding parental releases unenforceable, which cases also disapproved of parental indemnification agreements based upon public policy. In Johnson v. New River Scenic Whitewater Tours, Inc., 313 F.Supp.2d 621 (S.D.W.Va.2004), the court held that a parent could neither waive liability on behalf of his child nor indemnify a third party against the parent’s minor child for liability for conduct that violated a state safety statute. Id. at 631-32. The court in Johnson also recognized a necessary tension that would arise if an indemnification agreement like that in the instant case were enforced:

[Allowing a parent to indemnify a third party for its tortious conduct towards the parent’s minor child would result in a serious affront to the doctrine of parental immunity. If a parent could enter into a binding contract of indemnification regarding tort injuries to her minor child, the result would be that the child, for full vindication of his legal rights, would need to seek a recovery from his parent. This would clearly abrogate the strong West Virginia public policy to “preserve the peace and tranquility of society and families by prohibiting such intra-family legal battles.”

Id. at 632 (citations omitted).

In Childress By and Through Childress v. Madison County, 777 S.W.2d 1 (Tenn. App.1989), also cited in Kirton, the court likewise declared a parental indemnity agreement invalid as against public policy, stating that indemnity provisions were on a similar footing with pre-injury releases. The court noted the conflict which would arise between the parent and child where the parent must indemnify the tortfeasor:

Indemnification agreements executed by a parent or guardian in favor of tort feasors, actual or potential, committing torts against an infant or incompetent, are invalid as they place the interests of the child or incompetent against those of the parent or guardian. See Valdimer v. Mt. Vernon Hebrew Camps, Inc., 9 N.Y.2d 21, 210 N.Y.S.2d 520, 172 N.E.2d 283, 285 (1961). “Clearly, a parent who has placed himself in the position of indemnitor will be a dubious champion of his infant child’s rights.” Id.See also Ohio Casualty Insurance Co. v. Mallison, 223 Or. 406, 354 P.2d 800, 802-803 (1960).

Childress, 777 S.W.2d at 7.

Finally, Kirton cited to Hawkins ex rel. Hawkins v. Peart, 37 P.3d 1062 (Utah 2001), which also held that a parental indemnity agreement was against public policy. First noting that the common law disfavors agreements to indemnify parties against their own negligence, the court agreed with the New York Court in Valdi-mer that an indemnity agreement places the parent and child at “cross-purposes” which would tend to motivate the parent to discourage the prosecution of the minor’s claim because of the financial burden it would place on the family unit, the same reasoning by which Kirton held the pre-injury release as violative of public policy. Moreover, Hawkins also held that the indemnity agreement was inconsistent with a parent’s duty to protect the child’s best interests.

We agree with these out-of-state cases and hold that they are consistent with the supreme court’s analysis in Kir-ton as well as being cited with approval by the court. Allowing a parent to agree to indemnify a third party for any damages suffered by her child seriously undermines the parent-child relationship and places undue financial burden on the family unit in the same way a pre-injury release compromises those same interests. Thus, such an indemnification agreement is void and unenforceable.

The dissent applies contractual principles and claims freedom of contract requires . that the indemnity agreement be upheld. But where that freedom interferes with a child’s welfare by reducing the ability of that child to find redress for the negligence of others, then the state as parens patrie must step in. That is what Kirton required with respect to the parental release of the minor’s claim, and the same public policy principles of Kirton, Ard, and Joseph compel the voiding of the indemnity agreement in this case.

The indemnification agreement is not merely a bad bargain as the dissent suggests. It is an agreement made by the parent which is injurious to the child’s best interest, harming a third party — the child. The indemnification agreement will make it likely that, when the child is injured, the parent as natural guardian will not initiate proceedings to recover for injuries, however grievous, because of the concern for the parent’s exposure to those damages. Joseph. If the child were rendered a quadriplegic as a result of a commercial provider’s negligence, who would pay for those expenses? Will the child’s life be compromised because of the parent’s agreement with the negligent activity provider? Will the state and its taxpayers be required to step in and pay for treatment? The indemnity agreement in this case makes the likely answer to those questions “yes.”

The dissent suggests that it is more appropriate to await legislative direction as to whether these indemnity agreements violate public policy. However, the public policy concerns regarding the parent-child relationship and parental immunity and releases developed over the last hundred years as part of the common law through court decisions. See Herzfeld, 781 So.2d at 1072. For most of that time, statutes have not been enacted to either codify or disaf-firm court decisions in this area. After Kirton, however, the legislature passed a statute to limit its holding by permitting parents to release a commercial activity provider for a child’s injuries occurring as a result of the inherent risk of the activity under certain circumstances. See § 744.301(3) Fla. Stat. (2010). Those circumstances do not include releasing the commercial activity provider from liability for its own negligence. We think that this limited release clearly evinces a Legislative public policy choice that commercial providers should be liable for their own negligence when minors are injured. In fact, the Senate Staff analysis of the statutory amendment permitting limited releases states that “the bill does not recognize releases signed by natural guardians that waive negligence, gross negligence, or intentional conduct.” Fla. Staff An. S.B. 2440 3/17/2010. Thus, the legislature did not intend to permit commercial activity providers to avoid the consequences of their own negligence when children are injured, recognizing the essential holding of Kirton. Validating this parental indemnity agreement would be contrary to that intention. Therefore, holding this agreement invalid is consistent with the expression of the public policy of this state through its statutes.

In respect to the arguments made by the dissent, and upon Claire’s motion, we certify the following question as being of great public importance:

Whether an indemnification agreement executed by a parent agreeing to indemnify a commercial activity provider for its own negligence in causing injury to the parent’s child is enforceable?

Affirmed in part; Reversed in part; Question Certified.

WARNER, STEVENSON, GROSS, TAYLOR and CIKLIN, JJ., concur.

LEVINE, J., concurs in part and dissents in part with opinion, in which MAY, C.J., DAMOORGIAN, GERBER and CONNER, JJ., concur.

HAZOURI, J., recused.

LEVINE, J.,

concurring in part and dissenting in part.

I agree with the majority’s finding that the trial court correctly denied a directed verdict for Claire’s on the Locastros’ negligence claim, as the Locastros presented sufficient evidence of causation to establish a prima facie claim of negligence. However, I respectfully disagree with the majority’s conclusion that the trial court erred in granting summary judgment for Claire’s on its claim of contractual indemnity. I agree with the majority’s certification to the supreme court.

The majority relies on a line of cases which states that parents are generally immune from tort claims brought by their children. See generally Herzfeld v. Herzfeld, 781 So.2d 1070 (Fla.2001) (describing the doctrine of parental immunity); Ard v. Ard, 414 So.2d 1066, 1069 (Fla.1982) (expressing policy of avoiding “depletion of the family assets at the expense of the other family members”). Applying these cases, the majority makes Ms. Locastro, as the parent, immune from any counterclaims asserted by Claire’s, the third party, for injuries sustained by Alexis due to Claire’s negligence. These arguments are, of course, very appealing. “To reduce the available assets of the family ... is to reduce the amount available for support, education, and protection of the family as a whole.” Ard, 414 So.2d at 1067. Such an “intrusion ... might adversely affect the family relationship.” Id.

It is important to note, however, that Ms. Locastro freely executed this indemnity agreement. Parties are free to negotiate contracts for indemnity. See Horowitz v. Laske, 855 So.2d 169,174 (Fla. 5th DCA 2008) (“The right to indemnity arises through express or implied contract.”). Although Florida courts generally “view with disfavor contracts that attempt to indemnify a party against its own negligence,” such a contract will be upheld where the language in the indemnification provision states in “clear and unequivocal terms” that the party’s intent is to indemnify another for the indemnitee’s own tor-tious acts. Zeiger Crane Rentals, Inc. v. Double A Indus., Inc., 16 So.3d 907, 914 (Fla. 4th DCA 2009).

While the majority is persuaded by the “public policy” behind the parental immunity doctrine, I find other considerations to be more persuasive. The Florida Supreme Court once explained as follows:

When a particular contract, transaction, or course of dealing is not prohibited under constitutional or statutory provision, or prior judicial decision, it should not be struck down on the ground that it is contrary to .public policy, except it be clearly injurious to the public good or contravene some established interest of society. Courts, therefore, should be guided by the rule of extreme caution when called upon to declare transactions void as contrary to public policy and should refuse to strike down contracts involving private relationships on this ground, unless it be made clearly to appear that there has been some great prejudice to the dominant public interest sufficient to overthrow the fundamental public policy of the right to freedom of contract between parties sui juris.

Bituminous Cas. Corp. v. Williams, 154 Fla. 191, 17 So.2d 98, 101-02 (1944) (citations omitted); accord Mazzoni Farms, Inc. v. E.I. DuPont De Nemours & Co., 761 So.2d 306, 311-12 (Fla.2000). While the majority has highlighted a generalized public policy concern that would invalidate the indemnity agreement, the freedom of contract would weigh, on the other hand, in favor of enforcing the indemnification agreement at issue.

“A fundamental tenet of contract law is that parties are free to contract, even when one side negotiates a harsh bargain.” Barakat v. Broward Cnty. Hous. Auth., 771 So.2d 1193, 1195 (Fla. 4th DCA 2000); accord Posner v. Posner, 257 So.2d 530, 535 (Fla.1972) (“Freedom to contract includes freedom to make a bad bargain.”). Ms. Locastro freely entered this agreement in exchange for the services provided to Alexis. Her signature on the document was not procured by fraud or duress. Ms. Locastro was free not to enter into this contract. See Yachting Promotions, Inc. v. Broward Yachts, Inc., 792 So.2d 660, 663 (Fla. 4th DCA 2001) (noting that the “freedom of contract entails the freedom not to contract”) (citation omitted). Ms. Locas-tro did not have to utilize the services of Claire’s for her daughter and could have walked away from the transaction. She did not, and instead she executed the contract.

The law cannot and will not presume that a party intended to form an illegal or unenforceable contract. Neiman v. Galloway, 704 So.2d 1131, 1132 (Fla. 4th DCA 1998) (citing Edwards v. Miami Transit Co., 150 Fla. 315, 7 So.2d 440, 442 (1942)). Likewise, I will not assume that Ms. Lo-castro entered into an illegal contract, and this court should not relieve Ms. Locastro of her contractual duties because her agreement “turn[ed] out to be a bad bargain.” Barakat, 771 So.2d at 1195.

The indemnity agreement signed by Ms. Locastro with the indemnification provision is an otherwise valid contract, and there is no statutory or precedential reason not to enforce it. Ms. Locastro admitted to signing the indemnity form provided to her by Claire’s. She should be held to her obligation, notwithstanding our desire to empathize with her situation.

Further, the trial court enforced the indemnification against Ms. Locastro as an individual, not against Ms. Locastro as Alexis’s mother. The monies awarded for Alexis as a judgment in this case would be separate and distinct from the judgment awarded for Claire’s as a result of the indemnity agreement signed by Ms. Locas-tro as an individual. Ms. Locastro may not use these funds to satisfy her own obligations and may use those funds to support Alexis only with court authorization. §§ 744.361(6)(a), 744.397(8), Fla. Stat. Thus, a judgment against Ms. Locastro does not vitiate the judgment in favor of Alexis.

The majority references Kirton v. Fields, 997 So.2d 349 (Fla.2008). Kirton stands for the proposition that a “pre-injury release executed by a parent on behalf of a minor child is unenforceable against the minor or the minor’s estate in a tort action arising from injuries resulting from participation in a commercial activity.” Id. at 358. The Florida Supreme Court asserted that the “parent’s decision in signing a pre-injury release impacts the minor’s estate and the property rights personal to the minor.” Id. at 357 (citation omitted). In the present case, the trial court protected the rights of the minor by finding the indemnity provisions valid against Ms. Locastro individually, not in her capacity as a parent. Again, the judgment entered on behalf of Alexis was separate and distinct from any monies the trial court determined that Ms. Locastro owed in her individual capacity to indemnify Claire’s. By safeguarding the judgment entered on behalf of Alexis, the trial court followed the spirit and the letter of Kirton by protecting the property rights of the minor child. Id. at 357-58.

I also disagree with the majority’s conclusion that the issue in this case involves the doctrine of parens patriae, as the parent-child relationship is not per se involved. This case does not involve a situation where a child has sued her parent. Instead, the child sued a third party, and the third party asserted a counterclaim against the parent. While the state can intervene in the parent-child relationship in limited instances when necessary to protect the child, the state has no legal authority to intervene in a contract between Ms. Locastro individually and Claire’s. Though Kirton relied on the doctrine of parens patriae, Kirton involved a parent signing a waiver on the child’s behalf. Thus, the parent-child relationship was involved. In contrast, Ms. Locastro, by signing the indemnification agreement, bound only herself.

The majority also suggests that the enforcement of executed and enforceable indemnification agreements could possibly discourage parents from pursuing lawsuits on behalf of their children. Of course, this speculation, which may or may not prove to be true, still does not overcome the basic premise that Ms. Locastro would not have had to confront this decision of whether to pursue a lawsuit if she had not utilized the services offered, if she had not executed the indemnification agreement, or if she found a business that did not require the execution of such an agreement. After all, piercing services are hardly the type of services that constitute adhesion contracts. Ms. Locastro and Alexis could have kept walking in the mall from this business to another store for the services, or they could have skipped having Alexis’s ear cartilage pierced altogether.

I would note that the majority’s invalidation of a freely executed indemnification agreement as an extension of “public policy” is a decision that would be best determined by the legislature. It is axiomatic that the courts are not in the best position to determine the most effective course for the furtherance and extension of public policy as a whole. Further, court decisions should not turn on “the philosophy or predilection of judges as to what the law ought to be.” Ball v. Branch, 154 Fla. 57, 16 So .2d 524, 525 (1944).

If the legislature wanted to foreclose the use of indemnification agreements by parents when contracting with third parties for services for their minor children, then the legislature would have acted. For instance, the Florida Supreme Court noted that “[t]he Legislature has chosen to authorize court protection of children’s interests as to [the settlement of] extant causes of action, but has not exercised its prerogative as parens patriae to prohibit arbitrátion of those claims.” Global Travel Mktg., Inc. v. Shea, 908 So.2d 392, 403 (Fla.2005). In Shea, the court upheld an arbitration agreement signed by the parent on behalf of a minor child or minor child’s estate arising out of a tort action. “In the absence of legislation restricting agreements to arbitrate the potential claims of minors, enforcement of these agreements in commercial travel contracts is not contrary to the public policy of protecting children.” Id. at 405. It is significant that in Shea, the Florida Supreme Court found that the absence of legislative restriction was effectively an approval of arbitration agreements executed by parents on behalf of their children.

The legislature has, in fact, acted in response to Kirton. Section 744.301, Florida Statutes, has been recently amended to authorize a parent “to waive and release, in advance, any claim or cause of action against a commercial activity provider ... which would accrue to a minor child for personal injury, including death, and property damage resulting from an inherent risk in the activity.” § 744.301(3), Fla. Stat. (2010). At the same time, the legislature also implicitly excluded from this explicit grant of power the right of a parent to waive his or her child’s negligence claims against the activity provider. § 744.301(3)(a)2., Fla. Stat. It is clear that the legislature can give statutory guidance regarding settlement of a minor’s legal claims, as demonstrated by Shea. The legislature has also offered guidance by specifying a class of claims that a parent may waive, as evidenced by the statute enacted in response to Kirton. In the present case, the legislature has not exercised that same authority to prohibit parents from signing indemnification agreements with third parties who provide commercial services to minors. One could postulate, based on Shea, that the lack of legislative restriction could be just as reasonably interpreted as an approval of the indemnification agreement at issue in the present case.

The majority states that “public policy concerns regarding the parent-child relationship and parental immunity and releases” have “developed over the last hundred years as part of the common law.” Although it is true that the courts in general, when interpreting the common law, may “properly extend old principles to new conditions,” it is also equally true that “it is the province of the legislature and not of the court to modify the rules of the common law.” State v. Egan, 287 So.2d 1, 6 (Fla.1973). In Egan, the Florida Supreme Court concluded that “[ujnder our constitutional system of government, however, courts cannot legislate. They cannot abrogate, modify, repeal, or amend rules long established and recognized as parts of the law of the land.” Id. at 7.

In the past when courts “extended” common law principles to newer conditions,

the prevailing image of the common law was that of a preexisting body of rules, uniform throughout the nation (rather than different from state to state), that judges merely “discovered” rather than created. It is only in this century ... that we came to acknowledge that judges in fact “make” the common law, and that each state has its own.

Antonin Scalia, Commorv-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution & Laws, in A Matter of In terpretation: Federal Courts & the Law 10 (Antonin Scalia & Amy Gutmann eds., 1997). Thus, as Justice Souter has stated, “in most cases where a court is asked to state or formulate a common law principle in a new context ... the law is not so much found or discovered as it is either made or created.” Sosa v. Alvarez-Ma-chain, 542 U.S. 692, 725, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004).

However, Justice Scalia recognized the inevitable tension in the “uncomfortable relationship of common-law lawmaking to democracy (if not to the technical doctrine of the separation of powers).” Scalia, supra, at 10. Recognizing this tension, judges have long acknowledged that courts are not free agents in how they decide cases and apply the common law which has developed over time. As then-Judge Cardozo explained:

The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, metho-dized by analogy, disciplined by system, and subordinated to the “primordial necessity of order in the social life.” Wide enough in all conscience is the field of discretion that remains.

Benjamin N. Cardozo, The Nature of the Judicial Process 141 (1921) (footnote omitted). The judge is constrained by the history and experience of the applicable common law principle. “The life of the law has not been logic — it has been experience.” Oliver Wendell Holmes, The Common Law 1 (1881). Thus, the foundation of the common law is the actual customs and practices of the people over time. “Indeed, it is contrary to our common-law experience not to bring the common law into accord with the actual customs and practices of its citizens.... ” Woodman, 785 N.W.2d at 44 (Markman, J., concurring). There is no evidence in this record that demonstrates that the execution of an indemnification agreement by a parent on behalf of her child is inconsistent with the actual custom or practices of the citizenry of this state.

To “create” new extensions in the common law by invalidating an otherwise valid indemnity provision in the absence of any legislative guidance would be to impose a “preferable” or more “equitable” result by judicial fiat, to the detriment of the enforcement of a freely negotiated contract. As Justice Holmes once stated,

Nowhere is the confusion between legal and moral ideas more manifest than in the law of contract.... The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it, — and nothing else. If you commit a tort, you are liable to pay a compensatory sum. If you commit a contract, you are liable to pay a compensatory sum unless the promised event comes to pass, and that is all the difference.

Oliver Wendell Holmes Jr., The Path of the Law, 10 Harv. L. Rev. 457, 462 (1897). As “harsh” as the result may appear, I find no legal reason to find the indemnity agreement unenforceable, and Ms. Locas-tro should therefore be liable to Claire’s pursuant to the agreement she freely executed.

For all the foregoing reasons I would affirm the judgment of the trial court in its entirety.

MAY, C.J., DAMOORGIAN, GERBER and CONNER, JJ., concur.

      . Though the Florida Supreme Court has recognized an exception to the general rule of parental immunity for negligence actions brought by children where the parent is insured against the parent's own negligent conduct, this exception does not apply in the instant case because Ms. Locastro had no insurance which would cover the claim. Ard, 414 So.2d at 1067.

      . Kirton involved the negligent activity of a commercial activity provider. As Justice An-stead noted in his concurrence, the holding of the majority opinion was narrow and directed at "commercial providers who wrongfully and negligently cause injury to a child but seek to be relieved of liability for their misconduct by securing a pre-activity release from the child's parent.” Id. at 358. Nevertheless, language in the majority opinion caused the Legislature’s concern over the impact of the decision on parental rights, thus permitting a parent to release a commercial provider for inherent risks of an activity.

      . It should be noted that the original version of the statute introduced in the House of Representatives provided for parental waiver even for claims of negligence. See HB 285 (on file at www.myfloridahouse.gov). The House then adopted Senate Bill 2440 as a committee substitute, recognizing parental releases only for inherent risks of commercial activities. Id.

      . The majority places reliance on the supreme court's citation of Johnson v. New River Scenic Whitewater Tours, Inc., 313 F.Supp.2d 621 (S.D.W.Va.2004). In Johnson, the court held that an activity provider who violates a state safety statute and causes harm to a minor cannot enforce an indemnity agreement executed by the parent. Claire’s has not been accused of failing to comply with a comparable legislative enactment. Moreover, the court in Johnson was not professing the public policy of any jurisdiction. That court merely "predict[ed] what [the West Virginia Supreme Court] would decide were it confronted with this issue.” Id. at 631. A federal-court sitting in diversity "write[s] in faint and disappearing ink,” because its opinion is little more than an educated guess rather than a definitive pronouncement of state law or policy. McMahan v. Toto, 311 F.3d 1077, 1079-80 (11th Cir.2002) (citation omitted).
      The majority also relies on Childress ex rel. Childress v. Madison County, 777 S.W.2d 1, 7 (Tenn.Ct.App.1989), which recognized the “good and logical reasons for giving effect to exculpatory and indemnification clauses executed by parents and guardians on behalf of infants and incompetents. Risk is inherent in many activities that make the lives of children richer. A world without risk would be an impoverished world indeed.” The Childress court postulated that if the rule they annunci-ated was "other than as it should be, we feel the remedy is with the Supreme Court or the legislature.” Id. at 8.

      .Justice Markman of the Michigan Supreme Court, commenting on the parent-child relationship, has stated:
      The common-law rule that parents are empowered to make important decisions regarding their children was recognized in In re Rosebush, 195 Mich.App. at 682-683, 491 N.W.2d 633 [ (Mich.Ct.App. 1992)]. See also In re L.H.R., 253 Ga. 439, 445, 321 S.E.2d 716 ([Ga.] 1984) ("The right of the parent to speak for the minor child is ... imbedded in our tradition and common law_"). Moreover, as previously indicated, caselaw holds that parents are presumed to act in the best interests of their children and are entitled to make judgments and decisions concerning risks to their children.

      A majority of the justices forbid parents under all circumstances to undertake even a perfectly rational decision to assess the risks and benefits when determining what is in the best interests of their children. Instead, such decision-making will now be monopolized by judges, and the answer will always be the same: "No. The parent cannot be permitted to make such a determination.”

        Woodman ex rel. Woodman v. Kera LLC, 486 Mich. 228, 785 N.W.2d 1, 36-37 (2010) (Markman, J., concurring).

      . The separation of governmental powers was aptly described by Justice Pariente as being the "cornerstone of American democracy.” Bush v. Schiavo, 885 So.2d 321, 329 (Fla. 2004).

      . Legal commentators have, at times, written about the intended and unintended consequences of judicial decisions. For instance, at least one writer has opined on the effects of Kirton. Jordan A. Dresnick, The Minefield of Liability For Minors: Running Afoul of Corporate Risk Management in Florida, 64 U. Miami L. Rev. 1031, 1058 (2010).

      . The amendment is a direct response to the holding in Kirton. Fla. S. Comm, on Judiciary, CS/SB 2440 (2010) Staff Analysis 10 (Mar. 21, 2010) (on file at http://www. myfloridahouse.gov/). Although not directly addressed by the senate bill, the legislature acknowledged the fact that "indemnification clauses” are "[e]xculpatory clauses [that] extinguish or limit liability.” Id. at 4.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Michael Ray BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6914.
    District Court of Appeal of Florida, First District.
    April 25, 2012.
    Michael Ray Baker, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

WOLF, RAY, and MAKAR, JJ., concur.


text:
    Andre Tavaris PRIM, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4557.
    District Court of Appeal of Florida, First District.
    April 26, 2012.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

DAVIS, WETHERELL, and SWANSON, JJ., concur.


author: COHEN, J.

text:
    Rick Harold DUPLANTIS, Appellant, v. BROCK SPECIALTY SERVICES, LTD., et al., Appellees.
    No. 5D11-620.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2012.

      Karl E. Pearson of Powell & Pearson LLP, Winter Park, for Appellant.
    Michael R. D’Lugo and Kurt M. Spengler of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Orlando, for Appellee, Brock Specialty Services, Ltd.
   COHEN, J.

Rick Harold Duplantis (“Duplantis”) appeals from a final order taxing attorney’s fees and costs against him based upon his rejection of an offer of judgment in a personal injury action. We reverse.

Duplantis was injured when his vehicle was struck by a pickup truck driven by Anthony Todd Russo (“Russo”). The truck was owned by the Donlen Trust, which leased to it to Brock Enterprises Texas, LLC (“Brock Enterprises”), which in turn assigned it to its wholly owned subsidiary, Brock Specialty Services, Ltd. (“Brock Specialty”). Duplantis brought suit against Russo for his negligent operation of the vehicle, and against the Donlen Trust and Brock Specialty as owners vicariously liable for Russo’s negligent operation. Duplantis further alleged that Brock Specialty, as Russo’s employer, was vicariously hable for the acts of its employee.

In November 2009, Brock Specialty served an amended offer of judgment upon Duplantis. In the amended offer, Brock Specialty proposed to pay Duplantis $300,000 in settlement of any and all claims against it, but conditioned the settlement on execution of a release in favor of all named defendants, as well as their affiliates. A copy of the proposed release was attached to the offer and stated that it was being made pursuant to Florida Rule of Civil Procedure 1.442 and section 768.79, Florida Statutes (2009). The relevant provisions of the offer read as follows:

3. The Defendant will pay the total sum of Three Hundred Thousand Dollars and 00/100 ($300,000.00) in full settlement of all of the Plaintiffs claims of whatever nature which have been or could have been asserted against the Defendant as a result of the matters described in Plaintiffs Complaint and any amendments to the Complaint.
4. As a condition of this Proposal, the Plaintiff shall execute the attached release in favor of all named Defendants, i.e., ANTHONY TODD RUS-SO; BROCK SPECIALTY SERVICES, LTD; and DONLEN TRUST; all Defendants’ privies, parents, subsidiaries, affiliates, employees, agents, directors, and officers; and Defendants’ insurers, if any. A true and correct copy of the Release is attached hereto as Exhibit A.
6. As a further condition of this Proposal, the Plaintiff shall dismiss this cause with prejudice as to all named Defendants, i.e. ANTHONY TODD RUSSO; BROCK SPECIALTY SERVICES, LTD; and DONLEN TRUST.

Duplantis did not respond to the offer of settlement, and it was deemed to have been rejected. Fla. R. Civ. P. 1.442(f)(1).

The case was tried before a jury which returned a verdict in Duplantis’ favor of only $18,400, after apportionment of fault. Judgment was entered against Russo, Brock Enterprises and Brock Specialty, jointly and severally, in that amount. Du-plantis was also awarded costs of $35,496.11. Russo, Brock Enterprises, and Brock Specialty then moved for an award of fees and costs based upon the earlier offer of judgment. The trial court granted the motion and awarded Brock Specialty attorney’s fees of $80,816.16.

In this appeal, Duplantis argues that the offer of judgment made by Brock Specialty was invalid because it was, in fact, a joint proposal that failed to state the amount and terms attributable to each defendant, as required by Florida Rule of Civil Procedure 1.442. This requirement was addressed in Lamb v. Matetzschk, 906 So.2d 1037, 1042 (Fla.2005), in which the supreme court held that an offer of judgment must apportion the offer among the parties, even when one party’s liability is purely vicarious. The offer found invalid in Lamb was an undifferentiated offer of judgment directed towards two defendants, one of whom was vicariously liable for the negligence of the other. The court explained that the undifferentiated offer made it impossible for the defendants to know the extent of their financial responsibility and independently evaluate the offer. In response to the problematic issues raised in vicarious liability cases, the court opined:

It may take some creative drafting to fashion an offer of settlement when one party is only vicariously liable. However, we are confident that the lawyers of this State can and will draft an offer that will satisfy the requirements of the rule, that is, state the amount and terms attributable to each party when the proposal is made to more than one party.

Id. at 1041. Perhaps the offer of judgment in this case was in response to that invitation.

We have previously approved a joint offer of judgment made by two defendants to a single plaintiff which was conditioned on the dismissal of a defendant who was not an offeror. See Andrews v. Frey, 66 So.3d 376 (Fla. 5th DCA 2011). However, in upholding the offer of judgment involved in Andrews, we took great pains to note that vicarious liability was not disputed. Id. at 379. Thus, the liability of the defendants was coextensive and there was no independent claim to be evaluated by the plaintiff. Cf. Lamb, 906 So.2d at 1044 (Pariente, C.J., specially concurring) (“[Wjhere the liability of one defendant is based on vicarious liability and the issue of vicarious liability is undisputed, apportionment of the offer between the active tortfeasor and the vicarious tortfeasor is problematic because the liability of both defendants is not apportioned but is coextensive.”).

The offer of judgment made in this case stands on different footing because vicarious liability was contested by the offeror. The issue was not conceded until trial began. Under these circumstances, we believe that Duplantis was entitled to separate offers from each defendant, which would have permitted him to independently and intelligently assess and evaluate each offer.

There are many legitimate defenses to vicarious liability, both in the context of a motor vehicle owner and from the perspective of an employer. To allow an undifferentiated offer when independent claims exist would open the door to potential manipulation. The difficulty can be demonstrated by the following hypothetical. Assume a severely injured plaintiff has a claim that is worth $800,000, but vicarious liability is doubtful. Because the claim against it is weak, the employer makes an offer of judgment of $1,000, but conditions it upon dropping the claim against the driver, who makes no separate offer of judgment. An inequity arises if the jury returns a verdict against the driver for $300,000, but finds no vicarious liability as to the employer. The plaintiff must pay the employer’s fees, even though the plaintiff was never offered full compensation for his or her injuries. It is not enough to say that the plaintiff improperly valued the employer’s liability, because the plaintiff had no means of accepting the employer’s offer without foregoing a valid but uncompensated claim against the employee. The only potential remedy would be for the plaintiff to make his or her own offer of judgment to the employee, which we do not think the plaintiff should be forced to make.

Brock Specialty relies upon Alioto-Alexander v. Toll Bros., 12 So.3d 915 (Fla. 4th DCA 2009), for the proposition that an undifferentiated offer from one defendant, conditioned upon dismissal of the entire suit, does not transform an offer into a proposal for settlement made by multiple offerors. It is unclear from Toll Bros. whether the remaining defendant’s liability was vicarious, and if so, whether that liability remained in dispute. While it would be convenient to articulate a bright-line rule, a plaintiff in Duplantis’ position should not be required to compromise legitimate claims against defendants whose liability is independent of the offeror to avoid an award of attorney’s fees. This defeats the intent of the offer of judgment statute and rule.

REVERSED.

ORFINGER, C.J., and EVANDER, J„ concur.

      . During the time the offer of judgment was still open, Duplantis filed a second amended complaint by agreement of the parties. That complaint added Brock Enterprises as a defendant and dropped the Donlen Trust. Brock Enterprises' alleged liability was solely vicarious, based on the dangerous instrumentality doctrine and respondeat superior.

      . The total verdict was $20,000, but the jury found that Duplantis was eight percent at fault, while defendant Russo was determined to be ninety-two percent at fault.

      . The Florida Supreme Court has now amended the rules to permit a joint offer by those derivatively or vicariously liable. Effective January 1, 2011, Florida Rule of Civil Procedure 1.442 has been amended to provide that "[njotwithstanding subdivision (c)(3), when a party is alleged to be solely vicariously, constructively, derivatively, or technically liable, whether by operation of law or by contract, a joint proposal made by or served on such a party need not state the apportionment or contribution as to that party.” The amendment is inapplicable in this case because the offer of judgment at issue was made in 2009 and was conditioned on the dismissal of a defendant who was not an offeror.


text:
    Tammy L. FROST, As Personal, etc., Appellant, v. LORILLARD TOBACCO COMPANY, et al., Appellees.
    No. 5D10-2004.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2012.
    Christopher V. Carlyle, B.C.S., and Shannon McLin Carlyle, B.C.S., of The Carlyle Appellate Law Firm, The Villages, Rod Smith and Dawn M. Vallejos-Nichols of Avera & Smith, LLP, Gainesville, for Appellant.
    David L. Ross, Elliott H. Scherker and Brigid F. Cech Samóle of Greenberg, Traurig, P.A., Miami, for Appellee Loril-lard Tobacco Co.
    Karen H. Curtis of Clarke Silverglate, P.A., Miami, for Liggett Group LLC and Vector Group, Ltd., Inc.
    David B. Thorne and Jennifer M. Voss of Shook, Hardy & Bacon, L.L.P., Tampa, and William P. Geraghty and Frank Cruz-Alvarez of Shook, Hardy & Bacon, L.L.P., Miami, and Jeffrey E. Bigman of Smith, Hood, Loucks, Stout, Bigman & Brock, P.A., Daytona Beach, for Appellee Philip Morris USA, Inc.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant Appellant’s motion for rehearing, withdraw our earlier opinion, and substitute the following opinion in its place.

Appellant challenges the summary judgment in favor of Lorillard Tobacco Company, Vector Group, Ltd., Inc., and Liggett Group, LLC (collectively “Appellees”) in this Engle-progeny case. Appellant argues that: (1) summary judgment was premature; (2) summary judgment was improper because Appellees did not prove the absence of fact issues; and (3) summary judgment was improper as to the civil conspiracy count. We affirm the trial court’s summary judgment on all counts, except the civil conspiracy count. As to that count, we adopt the well-reasoned opinion of our sister court in Rey v. Philip Morris, Inc., 75 So.3d 378 (Fla. 3d DCA 2011).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

GRIFFIN, TORPY and LAWSON, JJ., concur.

      . Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla.2006).

      . At oral argument, counsel alerted this Court that Vector Group, Ltd., had not been a defendant in Engle and might have other defenses not yet addressed below. For clarity, our decision today only addresses issues that were properly before us.


text:
    Robert Allen PERRINE, Devon Perrine, et al., Appellant, v. Robert Eugene HENDERSON, Swell Construction, etc., Appellee.
    No. 5D11-1367.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2012.

      Kristen H. Emerson and L. Gary Sanders, of Barbas, Nunez, Sanders Butler & Hovsepian, Tampa, for Appellant.
    Matthew C. Scarborough and Mindy L. Miller, of Scarborough, Hill & Miller, PL, Tampa, for Appellee.
   PER CURIAM.

Robert Allen Perrine appeals an order of dismissal in favor of Robert Eugene Henderson and Swell Construction Company, Inc. On appeal, Mr. Perrine alleges that the trial court abused its discretion by dismissing his complaint for fraud on the court. After two thorough hearings, the trial court dismissed Mr. Perrine’s case, concluding that he had made numerous material misrepresentations regarding his medical history and current injuries, all of which were core issues in the case. We affirm.

Trial courts have the inherent authority to dismiss an action as a sanction when the plaintiff has perpetrated a fraud on the court. Wenwei Sun v. Aviles, 53 So.3d 1075, 1076-77 (Fla. 5th DCA 2010). However, this power should be exercised cautiously, sparingly, and only on a clear showing of fraud. Ramey v. Haverty Furniture Cos., 993 So.2d 1014, 1018 (Fla. 2d DCA 2008). Courts act cautiously in dismissing on this basis because the Florida Constitution guarantees court availability to every person to redress injury. Wen-wei Sun, 58 So.3d at 1076-77; Granados v. Zehr, 979 So.2d 1155 (Fla. 5th DCA 2008).

In Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998), this Court set forth the applicable test to dismiss a case for fraud:

The requisite fraud on the court occurs where it can be demonstrated, clearly and convincingly, that a party has sen-tiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense. When reviewing a case for fraud, the court should consider the proper mix of factors and carefully balance a policy favoring adjudication on the merits with competing policies to maintain the integrity of the judicial system. Because dismissal sounds the death knell of the lawsuit, courts must reserve such strong medicine for instances where the defaulting party’s misconduct is correspondingly egregious. The trial court has the inherent authority, within the exercise of sound judicial discretion, to dismiss an action when a plaintiff has perpetrated a fraud on the court, or where a party refuses to comply with court orders. Because dismissal is the most severe of all possible sanctions, however, it should be employed only in extreme circumstances.

(Internal quotations and citations omitted). Misconduct that falls short of the rigors of this test, including inconsistency, nondisclosure, poor recollection, dissemblance and even lying, is insufficient to support a dismissal for fraud, and, in many cases, may be well-managed and best resolved by bringing the issue to the jury’s attention through cross-examination. Bologna v. Schlanger, 995 So.2d 526, 528 (Fla. 5th DCA 2008); Granados, 979 So.2d at 1158; Gehrmann v. City of Orlando, 962 So.2d 1059, 1062 (Fla. 5th DCA 2007). Hence, there must be clear and convincing evidence of a “scheme calculated to evade or stymie discovery of facts central to the case.” Bologna, 995 So.2d at 528. That evidence was present here.

Having reviewed the entire record thoroughly, we conclude the trial court did not abuse its discretion by dismissing Mr. Per-rine’s action based on his significant and repeated misrepresentations.

AFFIRMED.

ORFINGER, C.J., PALMER and COHEN, JJ., concur.

      . The derivative claim brought on behalf of Mr. Perrine's children was also dismissed.


author: WOLF, J.

text:
    T.D.B., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4719.
    District Court of Appeal of Florida, First District.
    April 27, 2012.

      Nancy A. Daniels, Public Defender, and Diana L. Johnson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant challenges an adjudication of delinquency for criminal mischief. Appellant argues the trial court erred in denying his motion for judgment of dismissal. We agree and reverse.

The State alleged appellant caused damage to a pool. One State witness testified she saw appellant “playing with” a weight in the pool, and she saw him drop the weight into the pool. A second witness testified that when she confronted appellant, he stated he caused damage to the pool by accident. The State failed to present any evidence that appellant acted with malice, as required by section 806.13, Florida Statutes (2010). Evidence that damage resulted from appellant’s actions alone is insufficient. See J.R.S. v. State, 569 So.2d 1323, 1325 (Fla. 1st DCA 1990) (finding evidence that a juvenile damaged a door lock while attempting to gain entry into his locked home was insufficient to demonstrate malice).

Further, the State’s evidence was entirely circumstantial. The State failed to present evidence that was inconsistent with appellant’s reasonable hypothesis of innocence that he damaged the pool by accident. See State v. Law, 559 So.2d 187, 188 (Fla.1989) (“Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.”). As such, we reverse.

REVERSED.

BENTON, C.J., and VAN NORTWICK, J., concur.


author: BENTON, C.J.

text:
    A. H., Father of A.H. and A. H., Minor Children, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 1D11-4454.
    District Court of Appeal of Florida, First District.
    May 1, 2012.

      Lara A. Mason, Jacksonville, for Appellant.
    Ward L. Metzger, Appellate Counsel, Jacksonville, for Appellee.
    Kelley Schaeffer, Appellate Counsel, Guardian ad Litem Program, Tavares.
   BENTON, C.J.

A.H. appeals an order terminating parental rights as to his two daughters, each of whose initials are also A.H. We agree with his contention that none of the five statutory grounds on which the trial court relied to terminate his parental rights are supported by competent, substantial evidence which could reasonably be found to be clear and convincing, and reverse.

On November 28, 2008, when he was a year-and-a-half, the only son of appellant A.H. and S.S. was admitted to a hospital intensive care unit with a brain injury. Three days later he died. Because the Child Protection Team concluded the brain injury was “diagnostic of abuse,” the Department of Children and Family Services (Department) filed a shelter petition resulting in the dead child’s two sisters’ being placed with their maternal grandmother. At some point, appellant consented to the trial court’s adjudicating the sisters, his daughters A.H. and A.H., “dependent.” S.S., the children’s mother, was eventually arrested and charged criminally in connection with the son’s death.

The Department did not offer S.S. a case plan, and filed an expedited petition for termination of her parental rights. (“Time is of the essence for permanency of children in the dependency system.” § 39.621(1), Fla. Stat. (2009).) But the Department’s case plan for appellant A.H. originally had as its primary goal his reunification with his daughters. Nine months after his initial case plan was adopted, however, the trial court ruled that appellant had not substantially complied with his case plan, and changed the permanency goal for the two sisters to adoption, after termination of A.H.’s parental rights. The Department then filed a petition for termination of parental rights, initiating the present proceeding.

As grounds for termination, an amended petition alleged that: under section 39.806(l)(b), Florida Statutes (2009), appellant had abandoned the children; under section 39.806(l)(c), appellant and S.S. had engaged in conduct toward the children demonstrating that their continuation as parents threatened the life, safety, well-being, or physical, mental, or emotional health of the children; under section 39.806(l)(e), appellant had failed to substantially comply with his case plan; under section 39.806(l)(f), appellant and S.S. had engaged in egregious conduct or knowingly failed to prevent egregious conduct that threatened the life, safety or physical, mental, or emotional health of the children; under section 39.806(l)(g), appellant and S.S. had subjected a child and/or sibling to aggravated child abuse; and under section 39.806(l)(h), S.S. had murdered a sibling. After a hearing that took place in fits and starts on various dates spanning more than a year, the trial court terminated appellant’s parental rights on all five grounds alleged against him in the petition.

A.H. argues that the trial court’s findings are not supported by competent, substantial evidence as to any ground. “To terminate parental rights, the State must establish: (1) the existence of one of the statutory grounds set forth in Chapter 39; (2) that termination is in the best interest of the child; and (3) that termination is the least restrictive means of protecting the child from harm.” R.L. v. Dep’t of Children & Families, 63 So.3d 920, 921-22 (Fla. 5th DCA 2011). The Department must prove these elements by clear and convincing evidence. See N.L. v. Dep’t of Children & Family Servs., 843 So.2d 996, 999 (Fla. 1st DCA 2003). “Where the trial court’s findings that the evidence is clear and convincing are supported by competent substantial evidence, and the appellate court cannot say that no one could reasonably find such evidence to be clear and convincing, the finding will not be set aside on appellate review.” Id. at 1000 (footnote omitted). We consider each ground and the evidence adduced in support, in turn.

Section 39.806(l)(f)

First, appellant disputes the trial court’s ruling that he knowingly failed to protect his son from the traumatic brain injury the child’s mother, S.S., inflicted. Under section 39.806(l)(f), parental rights can be terminated if the “parent or parents engaged in egregious conduct or had the opportunity and capability to prevent and knowingly failed to prevent egregious conduct that threatens the life, safety, or physical, mental, or emotional health of the child or the child’s sibling.”

In this connection, the trial court found that appellant “had knowledge that the child ... previously suffered a broken leg in March 2008 under suspicious circumstances and he continued to leave all four children alone with the mother.” The evidence clearly supported the finding that appellant’s son had suffered a broken femur in March of 2008. An investigator with the Department testified that the Department investigated the broken bone and deemed it “diagnostic of abuse,” but could not ascertain the cause, so sought to remove none of the children from their parents’ custody or care at that time. The investigator was able to determine that the broken leg had occurred sometime between Friday and Monday — the child had attended a day care center on Friday and on Monday — and that appellant had not been home over the weekend.

A Departmental investigator testified that appellant told her he found it suspicious that the child was injured twice (the second injury being the fatal, brain injury) while in the mother’s care. But appellant voiced these suspicions only after the child received the second injury. The Department presented no evidence that appellant was actually suspicious — and no clear and convincing evidence that he had reason to be suspicious — of the mother before the brain injury. See N.L., 843 So.2d at 1001 (record contained no evidence that mother was physically present when child was abused and no evidence showed “long — term abuse or a pattern of abuse of [the child] which might form a basis for a finding that N.L. ‘knowingly failed to prevent’ the abuse of’ the child).

A parent’s knowing failure to prevent egregious conduct where he has an opportunity to prevent it is a sufficient basis to terminate parental rights under section 39.806(1)(f), see In re B.S., 697 So.2d 914, 917 (Fla. 2d DCA 1997), but the evidence does not support a finding of such a failure in the present case. The Department argues that, while it was clear that S.S., not appellant, was at home with their son when he broke his leg, appellant engaged in “egregious conduct” by allowing the children to remain with the mother thereafter. The Department did not show, however, that appellant then knew that S.S. had abused the children or that he should have known that she was likely to abuse the children in the future. A witness for the Department testified that the Department — who presumably had the same information appellant had — was not able to determine how the child broke his leg and, for that reason, did not remove the children from S.S.’s care after their investigation. The Department did not prove that appellant knew anything the Department did not also know.

Section 39.806(l)(g)

Next, appellant disputes the trial court’s conclusion that he “subjected a child and/or sibling to aggravated child abuse as defined in s[ection] 827.03.” Aggravated child abuse occurs when a person: “(a) Commits aggravated battery[] on a child; (b) Willfully tortures, maliciously punishes, or willfully and unlawfully cages a child; or (c) Knowingly or willfully abuses a child and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the child.” § 827.03(2), Fla. Stat. (2009). The Department argues that, because appellant failed to protect the deceased child, he subjected him to aggravated child abuse. In the wake of the second injury, the record plainly supports a finding that the mother S.S. committed aggravated child abuse. But, for the same reasons the record does not support a finding that appellant knowingly failed to protect his son from S.S., the evidence did not establish that he “subjected [him] to aggravated child abuse.”

Section 39.806(l)(e)

Parental rights can be terminated when the record establishes that a parent did not comply with the essential tasks required by a case plan. See M.S. v. Dep’t of Children & Families, 765 So.2d 152, 153 (Fla. 1st DCA 2000). Under section 39.806(l)(e), termination of parental rights is allowable:

When a child has been adjudicated dependent, a case plan has been filed with the court, and:
1. The child continues to be abused, neglected, or abandoned by the parent or parents. The failure of the parent or parents to substantially comply with the case plan for a period of 9 months after an adjudication of the child as a dependent child or the child’s placement into shelter care, whichever occurs first, constitutes evidence of continuing abuse, neglect, or abandonment unless the failure to substantially comply with the case plan was due to the parent’s lack of financial resources or to the failure of the department to make reasonable efforts to reunify the parent and child.

(Emphasis supplied.) Substantial compliance means “the circumstances which caused the creation of the case plan have been significantly remedied to the extent that the well-being and safety of the child will not be endangered upon the child’s remaining with or being returned to the child’s parent.” § 39.01(73), Fla. Stat. (2009).

“ ‘[T]he “substantially comply” language contained in section [39.806] ... is a term of art [that] requires more than just a determination that the case plan has not been completed.’ ” R.A. v. Dep’t of Children & Families, 30 So.3d 722, 723 (Fla. 5th DCA 2010) (quoting B.L. v. Dep’t of Children & Families, 950 So.2d 1264, 1266 (Fla. 5th DCA 2007)). Although there was evidence that appellant did not complete all the case plan requirements, there was no evidence that, as a consequence, the well-being and safety of the children would in any way be endangered if they were returned to appellant. See id. at 723-24 (“The trial court is required to determine whether the cause that led to the dependency ‘ha[d] not been significantly remedied to the extent that the well being and safety of [J.A.] will be endangered upon the child ... being returned to the [father].’ ... While substance abuse was part of the father’s history, there was no indication, as the trial court specifically found, that the father’s substance abuse caused harm to J.A.” (citation omitted)). The Department specifically concedes that the evidence did not establish that appellant’s continuing involvement in his children’s lives threatened their safety or well-being. The Department failed to prove that appellant failed to “substantially comply” with his case plan within the meaning of section 39.806(l)(e).

Section 39;806(l)(b)

Abandonment is “a situation in which the parent ... makes no provision for the child’s support and has failed to establish or maintain a substantial and positive relationship with the child.” § 39.01(1), Fla. Stat. (2009). The trial court found that appellant had failed to maintain regular and meaningful visitation with the children for several months, failed to provide a stable home, provided minimal support for the children, and failed to evince a settled purpose to assume all parental responsibility for the children since their removal. The maternal grandmother, with whom the children have been living since their removal, testified, however, that appellant visited the children about four times a week, provided them with food and clothing, helped with maintenance around the house, and gave her money whenever she asked. The guardian ad litem and two case workers the Department assigned to the case corroborated her testimony. Cf. L.W. v. Dep’t of Children & Families, 71 So.3d 221, 223-24 (Fla. 4th DCA 2011) (competent, substantial evidence supported trial court’s finding that mother abandoned children when she made no contact with them for four years and never supported them). Both the Department and the guardian ad litem have conceded that the trial court’s findings regarding abandonment are unsupported by competent, substantial evidence.

Section 39.806(l)(c)

Finally, appellant challenges the trial court’s finding that his continued involvement with his children would threaten their life, safety, or health. Parental rights can be terminated when parents have “engaged in conduct toward the child ... that demonstrates that the continuing involvement of the parent or parents in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services.” § 39.806(l)(c), Fla. Stat. (2009). Again, the Department and the guardian ad litem concede that the evidence presented at the hearing was insufficient to support termination on this ground. Again we agree.

The Department did introduce evidence of drug use by appellant in the past, but no evidence that appellant had engaged in any conduct that posed any risk to the children. See, e.g., M.H. v. Dep’t of Children & Families, 866 So.2d 220, 228 (Fla. 1st DCA 2004) (finding evidence insufficient to terminate mother’s rights under section 39.806(l)(c), as “there was no evidence that her children suffered harm as a result of her [drug] addiction, nor that [the mother] failed to meet their needs while they were in her care”).

In sum, the evidence was not sufficient to prove clearly and convincingly any of the statutory grounds on which the trial court relied in terminating appellant’s parental rights. Accordingly, we reverse.

VAN NORTWICK, J., concurs.

WOLF, J., concurs in result only.

      . The mere fact that the mother’s parental rights were terminated under section 39.806(h), does not authorize or require automatic termination of appellant's parental rights. See § 39.81 l(6)(e), Fla. Stat. (2009).

      . The Department did offer "voluntary services” to appellant and S.S.

      . The mother was the only one at home at the time of the brain injury, and several witnesses testified that her conflicting accounts of how the child received his injuries were all inconsistent with the actual injuries he sustained. The boy was admitted to the hospital with a severe hematoma, retinal hemorrhages, and swelling in his brain. Doctors believed his injuries were a result of child abuse, and the medical examiner who performed the autopsy determined that he died from abusive head trauma, the result of blunt force injury. But it was undisputed that appellant was not at home at the time of the brain injury, either, and only the mother was arrested for the death.

      . "A person commits aggravated battery who, in committing battery: 1. Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or 2. Uses a deadly weapon.” § 784.045(l)(a), Fla. Stat. (2009).

      . Subject means "to cause to undergo or endure.” The Merriam-Webster Dictionary 712 (New ed. 2004).


author: PER CURIAM. MAKAR, J.

text:
    Paula FOSTER and Edward Foster, Appellant, v. STATE FARM MUTUAL INS. CO., a Foreign Insurance Company, Appellee.
    No. 1D11-928.
    District Court of Appeal of Florida, First District.
    May 1, 2012.
    Rebecca Bowen Creed and Bryan S. Gowdy of Creed & Gowdy, P.A., Jacksonville, for Appellant.
    Rhonda B. Boggess and Marsa S. Beck of Taylor, Day, Currie, Boyd & Johnson, Jacksonville, for Appellee.
   PER CURIAM.

AFFIRMED.

BENTON, C.J., and MARSTILLER, J., CONCUR. MAKAR, J., specially concurs with written opinion.

MAKAR, J.

(Specially concurring).

I concur in the affirmance, but write to discuss two of the means by which the defendant, State Farm, challenged the evidence regarding the permanency of injuries sustained by the plaintiff, Paula Foster. By utilizing these two means, State Farm created an issue for the jury under Wald v. Grainger, 64 So.3d 1201 (Fla. 2011). As Wald made clear, the “[d]eter-minations about the permanency of an injury are generally made by juries.” Id. at 1204 (emphasis in original). Despite this general pronouncement, the Florida Supreme Court in Wald upheld a trial court’s directed verdict on the permanency of the plaintiffs thigh injury because both the plaintiffs and defendant’s experts agreed the injury was permanent in nature. Id. at 1206 (“the record actually shows that the medical experts agreed on the permanency of the thigh injury.”). In this case, plaintiff Foster claims the trial court should likewise have directed a verdict in her favor on the permanency of her injuries.

But this case does not present the harmonious agreement of experts on the permanency issue as in Wald; nor does it present wholly conflicting or contradictory evidence either. Instead, it lies somewhere in between. The plaintiff presented testimony and evidence from a number of experts on the permanency of her injury thereby handily meeting the requirement in Wald that the permanency claim be established within a reasonable degree of medical probability. Id. at 1205. In response, the defense presented the testimony and evidence of one expert, Dr. Hof-mann, to create a jury issue on permanence.

Primary in this appeal is the question of whether the defendant, through Dr. Hof-mann, established some “reasonable basis in the evidence” to create a jury question on permanence. In this undertaking, the type of evidence permitted under Wald, though not unbounded, is relatively broad. As Wald noted:

This can include conflicting medical evidence, evidence that impeaches[] the expert’s testimony or calls it into question, such as the failure of the plaintiff to give the medical expert an accurate or complete medical history, conflicting lay testimony or evidence that disputes the injury claim, or the plaintiffs conflicting testimony or self-contradictory statements regarding the injury. For example, when a medical expert’s opinion is predicated on an incomplete or inaccurate medical history, the jury is free to reject the expert medical testimony, even without conflicting medical testimony, if there is conflicting lay testimony.

Id. at 1206. In providing these parameters, the Court did not cast in stone the only permissible ways by which a defendant can create a jury issue on permanence; it simply laid out the most common ones that form a reasonable basis for doing so.

In the instant case, State Farm used two categories of evidence to create uncertainty about the permanence of Foster’s injury. First, its expert, Dr. Hofmann, called into question the permanency of Foster’s injuries when he testified that “no new objective findings after the 2006 accident” existed when “compared to what was there before.” Though he would not unequivocally state that Foster did not have a permanent injury from the 2006 accident, Dr. Hofmann testified he was “confident in saying” that “the majority of her symptoms” and surgery “was a result of the other conditions, previous conditions.” A “majority” of symptoms, of course, does not cover all symptoms, leaving open the possibility that some symptoms related to the 2006 incident. Yet his broader testimony that “no new objective findings” supported a finding of permanence is enough to create a jury question. While the trial court was hesitant to find this testimony sufficient — finding it “very slim” — it cannot be concluded that a directed verdict was required under Wald.

Second, Dr. Hofmann performed what is called “Waddell’s testing” on Foster, the purpose of which is to test the credibility and consistency of a patient’s complaints of physical pain. He described the testing as a means “to verify a patient’s complaints as being legitimate or not or truthful or not.” Though not much was made of it in the parties’ briefs, this type of testing creates a potential tool for a defense expert to substantially undermine a plaintiffs claimed injuries and potentially create a jury issue on permanence. The test itself has been recognized or applied in many courts including federal courts in Florida. See, e.g., Partida v. Astrue, 2012 WL 695671(M.D.Fla. January 26, 2012) (discussion and application of Waddell test); Brinson v. Astrue, 2010 WL 419402 (N.D.Fla. January 28, 2010) (“Waddell test involves signs for nonorganic sources of lower back pain.”); see also Walgreen Co. v. Carver, 770 So.2d 172, 174 n. 3 (Fla. 1st DCA 2000) (referencing a Waddell functional capacity evaluation).

Yet its efficacy and importance can be subject to question, even if applied correctly. As an example, a Florida court recently remanded a social security determination in which an administrative law judge overvalued the results of a Waddell test:

While an ALJ may consider a positive Waddell’s test in assessing the credibility of subjective reports about a claimant’s symptoms, in this case, the ALJ took out of context and in isolation the importance of the meaning of Plaintiffs “positive Waddell test” as “evidence of symptom magnification during the physical examination.”

Gibson v. Commissioner of Social Sec., 725 F.Supp.2d 1347, 1353 (MJD.Fla.2010) (footnotes omitted). Similarly, but with a slightly different outcome, is Rush v. Jostock, 710 N.W.2d 570, 575 (Minn.App.2006), which addressed whether the use of the “Waddell’s signs” is misleading and prejudicial or clinically insignificant. The Court of Appeals of Minnesota upheld the admission of physician testimony on the results of Waddell testing, noting that its weight is subject to the results of cross-examination of the physician. Id. at 1353.

Given that the Waddell test is apparently used with some degree of regularity in litigation (and may be on the increase), care must be exercised in according it appropriate, versus conclusive, weight. If this case turned solely upon the results of Waddell testing on Foster, an even closer question on permanency would have confronted the trial judge.

      . The Court's opinion is internally inconsistent, stating in its background discussion that the testimony or evidence must "severely impeach” a plaintiff's expert”, id. at 1204 (citing Third District case), but later saying that evidence that simply "impeaches” the expert's testimony is reasonable for that purpose. Id. at 1206.


text:
    Tracy Edward SQUAIRE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D11-0126.
    District Court of Appeal of Florida, First District.
    May 1, 2012.
    Nancy A. Daniels, Public Defender, and Maria Ines Súber, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Kirkland v. State, 67 So.3d 1147 (Fla. 1st DCA 2011).

BENTON, C.J., WOLF and VAN NORTWICK, JJ., concur.


text:
    PHILIPS LAKE WORTH, L.P., a New York limited partnership, Appellant, v. BANKATLANTIC, a federal savings bank; and Pier 1 Imports (U.S.), INC., a Delaware corporation, Appellees.
    Nos. 4D11-1300, 4D11-3015.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2012.

      Kendall B. Coffey and Kevin C. Kaplan of Coffey Burlington, Miami, for appellant.
    Martin B. Woods of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Fort Lauderdale, for appellee BankAtlantic, a federal savings bank.
   PER CURIAM.

Philips Lake Worth, L.P. (“Landlord”), appeals from a final summary judgment entered in favor of BankAtlantic. We agree with the Landlord that the contracts entered into by the parties, when read together, are ambiguous as to BankAtlantic’s right of termination, and we reverse.

The Landlord had an existing lease agreement with Pier 1, but entered into negotiations with BankAtlantic, which wished to build a bank in the space occupied by Pier 1. According to the parties’ pre-trial stipulation, BankAtlantic obtained site plan approval on July 12, 2007. On July 31, 2007, the parties signed two agreements. One was the Termination Of Lease agreement (“TOLA”), signed by the Landlord, BankAtlantic, and Pier 1. The other was a lease agreement (“Lease”), signed by the Landlord and BankAtlantic.

The TOLA states that the term “Existing Lease” refers to the lease between Pier 1 and the predecessor in interest to the Landlord, and that the term “Lease” refers to the lease between the Landlord and BankAtlantic. The TOLA provides the following in part:

... Whereas, upon BankAtlantic providing Pier 1 sixty (60) days written notice electing to terminate the Existing Lease (“Termination Notice”), the Existing Lease shall terminate as provided in this Termination Agreement and, upon the termination of the Existing Lease, Pier 1 will immediately vacate the Premises and shall be deemed released of all obligations under the Existing Lease accruing after termination.
2. On or before February 29, 2008 or such later date as the Landlord, Tenant and BankAtlantic may mutually agree upon (“Outside Date”), BankAtlantic shall have the right to deliver the Termination Notice to Pier 1.
3. In that event, BankAtlantic shall deliver the Termination Notice to Pier 1 and deliver to Escrow Agent the “Termination Fee” ..., then the Existing Lease shall be deemed terminated and null, void and of no further force and effect as of sixty (60) days after delivery of the Termination Notice to Pier 1 (with a copy to Landlord) and such Termination Fee to the Escrow Agent (“Termination Date”) and, in such event Pier 1 shall be required to vacate the Premises on or before the Termination Date.
... (a) In the event BankAtlantic does not deliver the Termination Notice to Pier 1 and deliver the Termination Fee to Escrow Agent on or before the Outside Date, then and in that event, the Lease shall terminate and Landlord and Ban-kAtlantie shall be released of all further obligations each to the other under the Lease and the Existing Lease shall remain in full force and effect.

The Lease includes the following relevant provisions:

Section 3.01 The Term and Tenant’s obligation to pay rent shall commence upon the termination of that certain lease agreement dated July 6, 1989 between ... (Landlord’s predecessor in interest), as landlord, and ... (Pier 1), as tenant, ... with respect to the Demised Premises, which termination shall be made pursuant to that certain termination of lease agreement (the “Termination of Lease Agreement”) dated as of the date hereof between Landlord, Tenant and Pier 1 (the “Commencement Date”).
Section 3.05 Notwithstanding anything contained in this Lease to the contrary, if within ninety (90) days of the execution of this Lease by both Landlord and Tenant, Tenant fails to obtain site plan approval for Tenant’s new building contemplated for construction on the Demised Premises, which failure is due solely to the non-compliance with an applicable legal requirement of a portion of the Shopping Center outside of the Demised Premises and outside of the scope of Tenant’s site plan, then Tenant shall notify Landlord within such ninety (90) day period of Tenant’s failure to obtain site plan approval, which notice shall include evidence that such failure was a result of the Shopping Center non-compliance together with all documentation reasonably necessary to evidence same. Landlord may, in its sole discretion, pursue site plan approval on behalf of Tenant and at Tenant’s cost and expense. Landlord shall have a period of six (6) months to obtain site plan approval on behalf of Tenant. In the event Landlord fails to obtain site plan approval within such six (6) month period but Landlord is diligently pursuing same, the six (6) month period shall be extended so long as Landlord is diligently pursuing the site plan approval. In the event that (a) Landlord was unable to obtain site plan approval or (b) Landlord does not wish to pursue site plan approval on behalf of Tenant, Landlord or Tenant may terminate this Lease on thirty (30) days written notice to the other party and in such event, this Lease shall terminate and be of no further force and effect as of the date of such termination. If Tenant fails to deliver the Termination Notice within the ninety (90) day period set forth above, Tenant’s right to terminate this Lease pursuant to this Section shall be null and void and of no further force and effect. Notwithstanding anything contained in this Section 3.05 to the contrary, if Tenant delivers to Pier 1, their Termination Notice (as defined in the Termination of Lease Agreement), Tenant’s right to cancel this Lease shall be null and void and of no further force and effect and Tenant shall have no right to terminate this Lease pursuant to this Article. In addition, in the event Tenant terminates this Lease, Tenant shall have no right to deliver the Termination Notice to Pier 1 in accordance with the provisions of the Termination of Lease Agreement, and Tenant shall indemnify, defend and hold Landlord harmless from and against any and all damages, costs and expenses incurred as a result of Tenant delivering the Termination Notice to Pier after Tenant has terminated this Lease. Landlord and Tenant acknowledge that Tenant’s right to possession of the Demised Premises under this Lease is subject and subordinate to Pier l’s rights under the Pier 1 Lease, and Landlord shall have no liability to Tenant, and Tenant shall have no right to withhold Rent under this Lease, in the event Pier 1 fails to vacate the Demised Premises.

Additionally, Section 39 of the Lease provides in part that the Lease is “effective as a Lease only upon execution and delivery thereof by both Landlord and Tenant.” According to the parties’ pretrial stipulation, the Lease was delivered and executed in September of 2007.

On January 3, 2008, BankAtlantic provided notice by letter that it did not intend to proceed with the Lease because of a change in expansion plans. The letter states that pursuant to paragraph 4(a) of the TOLA, BankAtlantic had elected not to terminate Pier l’s lease, and thus the Lease was null and void.

Subsequently, the Landlord filed a complaint alleging multiple counts, including breach of contract/specific performance, promissory estoppel, and declaratory judgment. BankAtlantic filed a motion for partial summary judgment, based on paragraph 4(a) of the TOLA. The Landlord also filed a motion for summary judgment.

At the hearing on the motions, the Landlord argued that the court should consider extrinsic evidence of email communications between the parties’ representatives, as well as deposition testimony of BankAtlantic’s representatives. However, the court granted BankAtlantic’s motion, finding that the language of paragraph 4(a) of the TOLA “unambiguously provides that in the event BankAtlantic does not issue a Termination Notice and deliver a Termination Fee by the Outside Date, the Lease terminates and the parties are released from all further obligations ... There is no conflict between the provisions that justifies reliance on extrinsic evidence.”

We review an order granting summary judgment de novo. PNC Bank, N.A. v. Progressive Emp’r Servs. II, 55 So.3d 655, 658 (Fla. 4th DCA 2011) (citation omitted). The question of whether contract language is ambiguous is also reviewed de novo. Torwest, Inc. v. Killilea, 942 So.2d 1019, 1020 (Fla. 4th DCA 2006) (citations omitted). Where an agreement comprises more than one document, the documents should be considered together in interpreting the parties’ agreement. J.G. Wentworth, S.S.C., L.P. v. Safeco Life Ins. Co., 755 So.2d 138, 138 (Fla. 4th DCA 1999). If contract language is unambiguous, the language reflects the parties’ intent. Fecteau v. Se. Bank, N.A., 585 So.2d 1005, 1007 (Fla. 4th DCA 1991). However, “[w]hen a contract is ambiguous and the parties suggest different interpretations, the issue of the proper interpretation is an issue of fact requiring the submission of evidence extrinsic to the contract bearing upon the intent of the parties.” Id. (quoting Bacardi v. Bacardi, 386 So.2d 1201, 1203 (Fla. 3d DCA 1980)).

Here, the provisions of the TOLA and the Lease, when read together, are open to more than one reasonable interpretation as to BankAtlantic’s right of termination. BankAtlantic’s reading of paragraph 4(a) of the TOLA as a right of termination at any time, even if it obtains site plan approval, is at odds with the portions of Section 3.05 that give the Landlord up to a year to obtain site plan approval if BankAtlantic is not successful, and that restrict BankAtlantic’s right of termination.

Because the provisions of the Lease and TOLA are ambiguous when read together, summary judgment was not appropriate. We reverse and remand so that the Landlord may present appropriate extrinsic evidence. We reverse the costs judgment as well, and affirm the denial of the Landlord’s motion for summary judgment.

Affirmed in part, reversed and remanded in part.

POLEN, HAZOURI and LEVINE, JJ., concur.