author: WALLACE, Judge. NORTHCUTT, J., BLACK, J.,

text:
    In re Petition of Jane DOE for a Judicial Waiver of Parental Notice of Termination of Pregnancy. Jane Doe, Appellant.
    No. 2D12-5713.
    District ‘Court of Appeal of Florida, Second District.
    Nov. 26, 2012.

      Ita M. Neymotin, Regional Counsel, Second District, and Eve Greenberg, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.
   BY ORDER OF THE COURT.

By the opinion attached, the Second District Court of Appeal has reversed the order entered by the Honorable Harvey A. Kornstein, Circuit Judge of the Tenth Judicial Circuit, in and for Polk County, Florida, in Case Number 2012-DP-000536-0000-00, dismissing a petition for a judicial waiver of parental notice under section 390.01114(4)(c), (d), Florida Statutes (2012). The minor may consent to the performance or inducement of a termination of pregnancy without notice to a parent or guardian.

WALLACE, Judge.

Jane Doe, a minor, challenges the final order dismissing her petition for judicial waiver of parental notification under section 390.01114(4)(c) and (d), Florida Statutes (2012). We find no error in the circuit court’s determination that Doe failed to establish by clear and convincing evidence that it would not be in her best interest to notify a parent under section 390.01114(4)(d). However, we reverse the order of dismissal because the circuit court abused its discretion in concluding that Doe is not sufficiently mature to terminate her pregnancy under section 390.01114(4)(c).

I. THE FACTUAL AND PROCEDURAL BACKGROUND

At the hearing on the petition, Doe testified that she is seventeen years old. She will become eighteen years of age early in 2013. Doe is currently a senior in high school; she expects to graduate at the end of the school year. Doe receives A’s and B’s in her course work at school. She is not currently involved in any extracurricular activities.

Doe has planned an educational and career path. After graduating from high school, she plans to attend a community college first and then transfer to a four-year institution to complete her degree. After college, she hopes to obtain an advanced degree and to enter one of the professions.

Doe has already begun to implement her educational plan by arranging to take the Scholastic Aptitude Test (SAT) next year. She has also applied or is preparing to apply to two colleges within the State of Florida.

Doe lives in the Tenth Judicial Circuit with her mother and a younger sibling. She assumes a substantial amount of responsibility at home. Doe characterizes her relationship with her mother as “distant.” Doe’s mother and father separated many years ago, and Doe does not have a significant relationship with her father.

Doe has never been employed, but she has recently submitted numerous applications for employment to various local businesses. During the summer, Doe performs volunteer work, which is related to her career interests, at a nonprofit institution. Doe has no savings. She receives a small weekly allowance from her mother that she uses for the purchase of clothing, personal items, and entertainment.

Doe became pregnant in an isolated incident following overindulgence in alcohol at the home of some acquaintances. Doe expressed regret about this incident in her testimony. At the time of the hearing, Doe had known for about two weeks that she was pregnant. Doe did not seem to have adult acquaintances in whom she could confide. However, she had spoken with a slightly older friend, who offered to help her. Doe had also spoken with the seventeen-year-old father with whom she has no continuing relationship. He was unable to help her financially, and he suggested that she seek an abortion. Doe stated that she does not feel pressure from anyone to seek an abortion and that the decision is her own.

At the time of the hearing, Doe had not yet consulted a physician about her pregnancy. She was scheduled to see a doctor the following week. Doe had considered both raising the child and seeking an abortion. She concluded that her educational and career goals and responsibilities at home were incompatible with having a child.

Doe discussed the possibility of having an abortion with a nurse at a local clinic. She was aware of the procedures available to her and expressed some understanding of the benefits and risks associated with each, as well as their cost. Doe did not anticipate experiencing an adverse emotional reaction from the procedure, but said that she would seek counseling if she did. In response to questions from the circuit court, Doe said that if she had a severe reaction to the procedure, she would go to the emergency room. For a less serious problem, she would return to the clinic. Doe testified that neither she nor her family have any religious beliefs or attitudes that would impact her decision to have an abortion. Nevertheless, she anticipated an extremely negative reaction from her mother if her mother was informed about Doe’s pregnancy.

At the conclusion of the hearing, Doe affirmed that she has decided that she wants to terminate her pregnancy. If she is unable to have an abortion, then she plans to place the child for adoption.

The circuit court conducted the hearing on Doe’s petition within the required time frame. After the conclusion of the hearing, the circuit court promptly entered an order dismissing Doe’s petition, finding that she failed to prove by clear and convincing evidence either of the grounds alleged. This appeal followed.

II. THE APPLICABLE LAW

Under section 390.01114(3)(a), a physician is required to notify a minor’s parent or legal guardian at least forty-eight hours in advance of performing an abortion on that minor. The statute excuses the notice requirement under five circumstances, but the pertinent provision applicable to this case provides for judicial waiver of the notice requirement in the event the minor successfully petitions a circuit court to waive that requirement. See § 390.01114(3)(b)(5). This type of waiver, commonly referred to as a judicial bypass, must be granted if the circuit court finds: (1) “by clear and convincing evidence, that the minor is sufficiently mature to decide whether to terminate her pregnancy”; (2) “by a preponderance of the evidence, that the [minor] is the victim of child abuse or sexual abuse inflicted by one or both of her parents or her guardian”; or (3) “by clear and convincing evidence!,] that the notification of a parent or guardian is not in the best interest of the [minor].” §§ 390.01114(4)(c), (d). Here, Doe based her petition on the grounds that she is sufficiently mature to decide whether to terminate her pregnancy and that notification of her parent is not in her best interest.

Historically, courts have struggled with defining the concept of maturity in the context of whether a minor is sufficiently mature to have an abortion without notifying her parents, noting that such a decision is “‘difficult, yet delicate and important.’ ” In re Doe, 973 So.2d 548, 551 (Fla. 2d DCA 2008) (quoting In re Doe 2, 166 P.3d 293, 295 (Colo.App.2007); Ex parte Anonymous, 806 So.2d 1269, 1274 (Ala. 2001)). In Doe, 973 So.2d 548, this court discussed the difficulty inherent in this maturity determination, finding that the determination must be made on a case-by-case basis and examining the various ways other courts have defined maturity in this context. See id. at 551-52 (providing a myriad of factors other courts have considered in assessing the maturity of a minor). For example, one court noted:

Manifestly, as related to a minor’s abortion decision, maturity is not solely a matter of social skills, level of intelligence or verbal skills. More importantly, it calls for experience, perspective and judgment. As to experience, the minor’s prior work experience, experience in living away from home, and handling personal finances are some of the pertinent inquiries. Perspective calls for appreciation and understanding of the relative gravity and possible detrimental impact of each available option, as well as realistic perception and assessment of possible short term and long term consequences of each of those options, particularly the abortion option. Judgment is of very great importance in determining maturity. The exercise of good judgment requires being fully informed so as to be able to weigh alternatives independently and realistically. Among other things, the minor’s conduct is a measure of good judgment. Factors such as stress and ignorance of alternatives have been recognized as impediments to the exercise of proper judgment by minors, who because of those factors “may not be able intelligently to decide whether to have an abortion.” Am. Coll. of Obstetricians & Gynecologists v. Thornburgh, 737 F.2d 283, 296 (3d Cir.1984).

Doe, 973 So.2d at 551 (quoting H— B— v. Wilkinson, 639 F.Supp. 952, 954 (D.Utah 1986)).

In grappling with the definition of maturity, the First District said:

Factors which evidence sufficient maturity include, but are not limited to, the minor’s physical age, her understanding of the medical risks associated with the procedure as well as emotional consequences, her consideration of options other than abortion, her future educational and life plans, her involvement in civic activities, any employment, her demeanor and her seeking advice or emotional support from an adult.

In re Doe, 924 So.2d 935, 939 (Fla. 1st DCA 2006). Similarly, in 2010, this court, in evaluating maturity, examined the minor’s age, her academic performance, her educational and career goals, her consultation of the father and an adult about her decision, her consultation of a medical professional, her understanding of the medical procedure and its side effects and risks, her contingency plan in the event of complications, her plan to pay for the abortion, and her consideration of alternatives to abortion. In re Doe, 36 So.3d 164, 165 (Fla. 2d DCA 2010).

The numerous criteria considered by various courts in assessing whether a minor is sufficiently mature to determine whether to terminate her pregnancy, while perhaps a starting point, did not provide for consistent application of the bypass provision of section 390.01114. See, e.g., Doe, 973 So.2d at 552. It is against this backdrop that the Florida legislature amended section 390.01114 in 2011 to provide a list of factors a trial court must consider when determining whether a minor is sufficiently mature. These factors include the minor’s:

a. Age.
b. Overall intelligence.
c. Emotional development and stability-
d. Credibility and demeanor as a witness.
e. Ability to accept responsibility.
f. Ability to assess both the immediate and long-range consequences of the minor’s choices.
g. Ability to understand and explain the medical risks of terminating her pregnancy and to apply that understanding to her decision.

§ 390.01114(4)(c)(l). In addition, the trial court must consider “[wjhether there may be any undue influence by another on the minor’s decision to have an abortion.” § 390.01114(4)(c)(2).

While this statutory list does not appear to limit the factors a trial court may consider, it does limit the trial court’s discretion by prescribing several factors it is required to address. Moreover, not only must the trial court consider these factors in its determination of maturity, its final order must include “factual findings and legal conclusions relating to the maturity of the minor” in view of these specific factors. § 390.01114(4)(e)(2). In light of these factors, we review the circuit court’s findings in this case for an abuse of discretion.

III. EXAMINATION OF THE STATUTORY FACTORS

The circuit court’s order contains findings of fact and conclusions of law. The findings of fact generally summarize Doe’s testimony at the hearing. Although the circuit court’s order contains a recital that it has considered each of the factors outlined in section 390.01114(4)(c), the order actually only addresses some of the statutory factors while ignoring others. In the following discussion, we will use the statutory factors as a framework to address the circuit court’s findings and conclusions in the light of the record.

Section 390.01114-(4-)(c)(1)(a): The minor’s age. Doe is seventeen years of age, and she will reach the age of eighteen in a few months. This factor tends to support a determination of maturity. See Doe, 36 So.3d at 165 (finding that a minor whose age is over seventeen is one factor supporting a petition to waive parental notice); In re Doe, 932 So.2d 278, 284 (Fla. 2d DCA 2005) (observing that “age bears positively on the [maturity] inquiry” when the minor is within months of reaching adulthood); Doe, 921 So.2d at 756 (noting that the minor’s “age, which places her less than one year from being outside the scope of the parental notification law is, if anything, a factor that weighs positively in support of her position”). Although the circuit court’s order accurately states Doe’s age, the order does not reflect that the circuit court gave any consideration to Doe’s relative proximity to the age of majority in assessing her maturity.

Section 390.011UU)(c)(l)(b): The minor’s overall intelligence. Doe’s school grades, her educational and career plans, and the general tenor of her testimony tend to establish that her overall intelligence is above average. See Doe, 36 So.3d at 165 (considering a minor’s good grades and educational and career goals as a factor that weighed in favor of a finding of maturity). The circuit court’s order summarizes Doe’s testimony concerning her school work and her educational and career objectives. Nevertheless, there is nothing in the circuit court’s order to indicate that it considered these factors in reaching its determination that she lacked sufficient maturity under the statute.

Section S90.011UW(c)(l)(c): The minor’s emotional development and stability. A fair reading of the record supports the conclusion that Doe’s emotional development and stability are appropriate to her age and circumstances. Nothing in the record suggests that she has any emotional problems or instability. The circuit court’s order fails to address this factor.

Section 390.0111JfU)(c)(l)(d): The minor’s credibility and demeanor as a witness. The circuit court expressly addressed the factor of Doe’s credibility and demeanor in two separate sections of its order, but its findings are contradictory and inconsistent. Initially, the circuit court described Doe positively as “neat, well dressed and courteous,” and “soft spoken.” The circuit court also noted that Doe appeared to be “somewhat insecure,” but this is not surprising under the circumstances. However, later in its order, the circuit court criticized Doe as being “rather cavalier in her demeanor and responses concerning her overall depth of thoughtfulness to this extremely important decision.”

The circuit court’s finding about Doe’s “cavalier” demeanor is inconsistent with the circuit court’s earlier characterization of Doe as “courteous,” “soft spoken,” and “somewhat insecure.” The adjective “cavalier” is defined as: “1. Showing arrogant or offhand disregard; dismissive: a cavalier attitude toward the suffering of others; 2. Carefree and nonchalant; jaunty.” The American Heritage Dictionary of the English Language 296 (4th ed.2000) (emphasis in original). Clearly, Doe could not be “courteous,” “soft spoken,” and “somewhat insecure” while displaying an arrogant or offhand disregard toward others. And Doe was certainly not carefree, nonchalant, or jaunty about her predicament or the difficult choices facing her.

Moreover, the circuit court’s assessment of Doe’s demeanor as “cavalier” is simply without support in the record. Doe’s testimony demonstrated that she had carefully considered the impact of an unplanned pregnancy in light of her educational and career goals and her other responsibilities. After such consideration, she had reached the decision that terminating the pregnancy is the best choice for her. Doe, 921 So.2d at 756 (rejecting the trial court’s assessment of the minor’s demeanor because it failed to describe “any articulable facts supporting the conclusion that [the minor’s] demeanor was indicative of immaturity”). To the extent that the assessment of Doe’s demeanor as “cavalier” reflects the circuit court’s disagreement with Doe’s decision, the circuit court based its finding on inappropriate considerations. See Doe, 982 So.2d at 285; Doe, 924 So.2d at 940.

Section 390.011U(i)(c)(l)(e): The minor’s ability to accept responsibility. The circuit court accurately summarized the substantial responsibilities assumed by Doe at home but did not otherwise consider this factor. The circuit court failed to note or otherwise consider Doe’s testimony about the steps she normally took to avoid the consumption of alcohol and participation in sexual relationships.

Section 390.0111h.(k)(c)(l)(f): The minor’s ability to assess both the immediate and long-range consequences of the minor’s choices. The circuit court’s only finding on this factor focused on the incident that led to Doe’s pregnancy. The circuit court said: “The court finds that such conduct was indicative of poor judgment in crucial decision making settings. The court further finds that the choices she made on the day of conception were impulsive and immature.”

We conclude that the circuit court misapprehended and misapplied this factor. Doe was not required to prove that she possesses the same maturity as an adult, “[rjather, she was called upon to demonstrate that she is ‘sufficiently mature’ to make the decision whether to terminate her pregnancy.” Doe, 932 So.2d at 284 (emphasis added). To be sure, a minor’s behavior that results in an unplanned pregnancy may be indicative of poor decision-making. Nevertheless, such behavior is not determinative on the issue of the minor’s maturity. If careless behavior resulting in an unplanned pregnancy is conclusive proof of immaturity, then very few minors could ever qualify as sufficiently mature to warrant a waiver of the parental notification requirement.

Here, Doe expressed regret for the isolated incident that resulted in her pregnancy and displayed substantial maturity in addressing its consequences. The circuit court’s narrow focus on the incident to the exclusion of the larger picture was improper. See Doe, 921 So.2d at 756 (stating that a minor’s acknowledgment of the immature decision that led to her pregnancy supported her belief that she had sufficient maturity to decide whether to terminate her pregnancy). In assessing Doe’s judgment and decision-making, the circuit court simply failed to consider the substantial evidence of the maturity she displayed in understanding and addressing the consequences of her actions.

Section 390.0111k(U)(o)(l)(g): The minor’s ability to understand and explain the medical risks of terminating her pregnancy and to apply that understanding to her decision. On this factor, the circuit court found that Doe “was only superficially able to advise the court of any medical complications that may result from the termination procedure.” Once again, the evidence does not support this finding. When asked about the risks of the procedures available to her, Doe responded appropriately based on the information provided by the nurse with whom she had spoken at the clinic, and Doe was able to provide the court with sufficient details regarding the available procedures and their associated risks. This was hardly a “superficial” response, and an average adult could do no more. The circuit court’s characterization of Doe’s response as “superficial” is particularly unfair in this case. Additionally, at the hearing, the circuit court questioned Doe closely about various other matters. However, the circuit court did not ask Doe for any details about her understanding of the risks of the available procedures and gave no hint that it considered Doe’s response inadequate. Thus neither Doe nor her counsel had an opportunity to address the issue further.

Section 390.01111p(U)(c)(2): Whether there may be any undue influence by another on the minor’s decision to have an abortion. The circuit court accurately summarized Doe’s testimony that the seventeen-year-old father had suggested that she get an abortion. There was no evidence that anyone else had urged Doe to have an abortion. Although the circuit court made no express finding on this factor, there was no suggestion of undue influence in this case. Doe’s reasons for seeking an abortion were personal and unrelated to the suggestion of the father, with whom she has no continuing relationship.

IV. DISCUSSION

Our review of the statutory factors in the context of this case establishes that the circuit court addressed some of the factors while ignoring ■ others. The factors that the circuit court did not address directly point to the conclusion that Doe is sufficiently mature to make the decision to seek an abortion without parental notification. To the extent that the circuit court did expressly address some of the statutory factors, its findings were either unsupported by the record or based on inappropriate considerations. Here, the circuit court’s discretion is limited in the sense that it must be exercised in a manner consistent with the applicable statute. See Wilson v. Robinson, 917 So.2d 312, 313 (Fla. 5th DCA 2005). For these reasons, we conclude that the circuit court abused its discretion in ruling that Doe lacked sufficient maturity for a waiver of the parental notification requirement.

We find additional support for our decision in this court’s 2010 decision in Doe, 36 So.3d 164 (2010 Doe decision). In the 2010 Doe decision, this court reversed a circuit court order denying a minor’s petition for a waiver of the parental notification requirement. The facts in the 2010 Doe decision are remarkably similar to the facts in this case. Although the circuit court’s order indicates its study of this court’s decisions in Doe, 932 So.2d 278, and Doe, 973 So.2d 548, it does not mention our 2010 Doe decision. Like cases should be decided alike. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) (“Judges dealing with cases essentially alike should reach the same result. Different results reached from substantially the same facts comport with neither logic nor reasonableness.”). The circuit court’s failure to follow this court’s controlling precedent also constitutes an abuse of discretion.

V. CONCLUSION

For these reasons, we reverse the circuit court’s order, and Doe’s petition for judicial waiver of the parental notification required by section 390.01114 is deemed granted. See Fla. R.App. P. 9.110(n). The clerk shall place a certificate to this effect in the file and provide Doe with a certified copy for delivery to her physician. This court’s mandate shall issue simultaneously with this opinion, and no rehearing motion shall be entertained.

Reversed.

NORTHCUTT, J., Concurs with opinion.

BLACK, J., Dissents with opinion.

NORTHCUTT, J.,

Concurring.

I fully endorse the thoughtful majority opinion. I write separately to more fully explain my reasons for concluding that the circuit court abused its discretion in this matter.

Three decades ago, the Florida Supreme Court issued Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), in which it expounded on the nature of judicial discretion and the standard of review for reviewing discretionary rulings. Courts and litigants often invoke Canakaris for the proposition that an abuse of judicial discretion may be found only when no reasonable person would agree with the lower court’s ruling. Id. at 1203. But they frequently overlook the critically important central components of that “reasonableness” test:

The trial court’s discretionary power is subject only to the test of reasonableness, but that test requires a determination of whether there is logic and justification for the result. The trial courts’ discretionary power was never intended to be exercised in accordance with whim or caprice of the judge nor in an inconsistent manner. Judges dealing with cases essentially alike should reach the same result. Different results reached from substantially the same facts comport with neither logic nor reasonableness.

Id.

Of course, in addition to the notions that there must be some logic and justification for a discretionary ruling, and that similar cases should lead to similar results, judicial discretion is constrained by another important parameter that is applicable to all judicial rulings: it must comport with the law and the evidence. Under the circumstances presented in this case, the circuit court’s conclusion that Doe was not sufficiently mature to decide for herself whether to terminate her pregnancy failed the reasonableness test.

As the majority opinion points out, the circumstances of this case are substantially similar to those in In re Doe, 36 So.3d 164 (Fla. 2d DCA 2010), in which we held that the record did not support the circuit court’s determination that the petitioner was not sufficiently mature to decide to terminate her pregnancy. There are two seeming differences between the cases. First, in the 2010 ease the petitioner had consulted a trusted adult relative about her decision; there is no evidence of such in this case. Some courts have considered it a hallmark of maturity that a petitioner has sought such counsel. But, obviously, her failure to do so is not necessarily evidence of immaturity, and it could have no practical significance at all in the absence of proof that she had a trusted adult confidante available to her. Because there was no such proof here, this factor was irrelevant to the question of Doe’s maturity.

I acknowledge that the other difference between this case and the prior one is, at least superficially, more significant. In the earlier case, the circuit court’s order made no mention of the petitioner’s demeanor as a factor affecting the court’s assessment of the petitioner’s maturity. In this case, however, the court weighed Doe’s purported demeanor heavily against her:

The court finds that the Petitioner does not fully appreciate the depth of the magnitude of this life altering choice. In fact, the court finds that the Petitioner was rather cavalier in her demeanor and responses concerning her overall depth of thoughtfulness to this extremely important decision.

Yet, the evidence was uncontested that this young woman had investigated the medical risks associated with the termination procedure and that she had weighed them against the relative gravity of her alternatives. Doe had considered what she would do if she developed physical complications, i.e., she would return to the clinic or go to an emergency room. If she experienced emotional difficulties, she said, she would seek counseling or find someone to talk to. (The circuit court’s findings mentioned this testimony but omitted Doe’s reference to counseling.)

Doe’s testimony also reflected her awareness that abortion is a controversial procedure about which many people have strong feelings; she reported that her mother was “completely against” it, to the point that Doe believed her mother would banish her from their home if she learned of her intention to terminate the pregnancy. Finally, she recognized that childrear-ing, or merely a full-term pregnancy, would substantially interfere with or altogether thwart her educational and career plans as well as her ability to meet her significant responsibilities at home — particularly those involving her younger sibling, whom she was helping to rear. In other words, in Doe’s view, a decision not to terminate the pregnancy would be life altering.

In light of the uncontradicted evidence, it is impossible to dispute that assessment. Doe’s concerns were not the insubstantial worries of a frivolous schoolgirl. They related directly to her ability to carry out her important existing responsibilities and to accomplish specific educational and professional objectives that would determine the quality of the rest of her life. As the United States Supreme Court has observed:

[T]he potentially severe detriment facing a pregnant woman, see Roe v. Wade, [410 U.S. 113, 153, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) ], is not mitigated by her minority. Indeed, considering her probable education, employment skills, financial resources, and emotional maturity, unwanted motherhood may be exceptionally burdensome for a minor. In addition, the fact of having a child brings with it adult legal responsibility, for parenthood, like attainment of the age of majority, is one of the traditional criteria for the termination of the legal disabilities of minority. In sum, there are few situations in which denying a minor the right to make an important decision will have consequences so grave and indelible.

Bellotti v. Baird, 443 U.S. 622, 642, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979).

It is difficult, then, to fathom what the circuit court meant by its assertion that Doe did not sufficiently appreciate the “depth of the magnitude of this life altering choice,” or its criticism of her “overall depth of thoughtfulness to this extremely important decision.” To the contrary, the unmistakable import of the evidence was that this young woman knew precisely what is at stake for her. I can only surmise, without knowing, that the court’s remarks referred not to the accuracy of Doe’s assessment of the choices available to her, but to her failure to express ethical or moral ambivalence about her decision to terminate the pregnancy. Notably, she was not questioned on the topic. But if this is what gave the court pause about Doe’s “depth of thoughtfulness,” I submit that the court demanded more of her than the law permits.

In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, the United States Supreme Court addressed the constitutionality of the Texas abortion statute. The Court prefaced its analysis with a lengthy examination of the widely disparate views, both historical and contemporary, about the beginning of life. The Court concluded that “[i]n view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake.” Id. at 162. The Court ultimately concluded that the state’s interest in regulating abortion is confined to protecting the mother’s health after the first trimester of pregnancy and protecting “the potentiality of human life” after the second trimester. Id. at 162-63. During the first trimester, the Court held, the decision whether to terminate a pregnancy is strictly a matter between the pregnant woman and her physician, free of interference or regulation by the state. Id. at 163. In other words, a pregnant woman is constitutionally entitled to elect between proceeding with her pregnancy or terminating it consistent with her own ethical, moral, or religious convictions, or lack thereof — and unburdened by the state’s assertion that she should feel differently about it.

Jane Doe has that very right, and if she is sufficiently mature, she is entitled to invoke it without consulting a parent. The parental notification requirement is justified only by the state’s interest in protecting immature minors who lack the ability to intelligently and independently weigh their choices. The Supreme Court has observed that it is rational for the state to assume that the family will “strive to give a lonely or even terrified minor” guidance to assist her with her decision. Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 520, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990). It would be irrational to hold that a woman who is only a few weeks shy of her eighteenth birthday, who is fully aware of the position her parent would take, and who has made a different choice for herself based on sound, realistic reasoning, is not mature enough to do so because she is not sufficiently overwrought or ambivalent about her decision. The circuit court’s conclusion to that effect failed the reasonableness test, and therefore it was an abuse of discretion.

BLACK, J.,

dissenting.

I respectfully dissent. Having observed and questioned the petitioner, the trial judge determined that she lacked the maturity to decide to terminate her pregnancy without notifying her parent, and he issued a well-reasoned, detailed order supporting his conclusion. Because competent, substantial evidence supports the trial court’s findings of fact and conclusions of law, I would affirm. See In re Doe, 67 So.3d 268, 268 (Fla. 2d DCA 2011). Sufficient maturity must be shown by clear and convincing evidence, and this court reviews the trial court’s order for an abuse of discretion. Clear and convincing evidence is evidence of “‘such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.’ ” In re Doe, 973 So.2d 548, 556 (Fla. 2d DCA 2008) (Casanueva, J., concurring in denial of rehearing en banc) (quoting In re Davey, 645 So.2d 398, 404 (Fla.1994)). Both the clear and convincing and abuse of discretion standards are statutory. § 390.01114(4)(b)(2), (4)(c). These heightened standards of review denote the legislature’s strong position that judicial waiver is clearly to be an exception to the notice requirement.

The trial court issued a detailed order in this case. While it is true that the trial court did not undertake a point-by-point review of the statutory factors, as does the majority, it is clear that the court was familiar with the statute and the factors and considerations announced in case law when determining whether the petitioner met her burden by clear and convincing evidence. See In re Doe, 67 So.3d at 268. The court specifically considered the petitioner’s demeanor, a factor previously focused on by this court as the single most important consideration in a minor’s ability to decide whether to terminate her pregnancy. Compare In re Doe, 67 So.3d at 268 (“Significantly, the trial court made specific findings and expressed particular concern regarding the minor’s demeanor, and the court considered that factor important in this case.”) with In re Doe, 36 So.3d 164, 165 (Fla. 2d DCA 2010) (reversing the trial court’s dismissal and specifically noting “the circuit court’s order made no mention of the minor’s demeanor”), and In re Doe, 932 So.2d 278, 285 (Fla. 2d DCA 2005) (reversing the trial court’s dismissal and noting that petitioner’s demeanor might have been the “one possible exception” to the maturity evidence). Judge Altenbernd has previously observed, “[mjaturity is often evidenced by demean- or, composure, tone of voice, and body language.” In re Doe, 973 So.2d at 574 (Altenbernd, J., dissenting on denial of rehearing en banc). In addition, “[i]f the issue is ‘maturity to decide,’ then it would seem to rest heavily upon factors of demeanor and matters that cannot be gleaned from an appellate record in the absence of.findings by the trial judge.” Id. at 575.

In its order, the trial court referred to petitioner’s demeanor and responses as “cavalier.” Although the court indicated petitioner was neat, well dressed, and courteous, it also noted that she appeared “somewhat insecure.” The court also found that petitioner’s demeanor and responses evidenced a lack of thoughtfulness and a failure to “fully appreciate the depth of the magnitude” of her choice.

In addition to having the invaluable benefit of personally observing and speaking with the petitioner, the court considered the petitioner’s testimony in light of the case law discussing and attempting to define “sufficiently mature” for purposes of section 390.01114(4)(c). Of those identified by the court, the most striking to me is the immaturity exhibited by petitioner on the day of conception. Petitioner readily admitted to succumbing to peer pressure to drink alcohol. She became intoxicated and had sexual intercourse — an act she testified she would not have engaged in had she been sober. In fact, petitioner only “vaguely recalls” the sex that resulted in her pregnancy; she did not indicate that she and the father were in a relationship and she does not anticipate having any future relationship with the father. Cf. In re Doe, 932 So.2d at 284. In these cases, a “ ‘minor’s conduct is a measure of good judgment’ ” and “ ‘judgment is of very great importance in determining maturity.’ ” In re Doe, 973 So.2d at 551 (quoting H— B— v. Wilkinson, 639 F.Supp. 952, 954 (D.Utah 1986)). Here, petitioner’s actions illustrate poor judgment and are the antithesis of the necessary maturity to decide to terminate her pregnancy.

In addition, petitioner’s understanding of her options and the termination methods available to her — including the potential medical complications that may result from a pregnancy termination — were superficial and evidenced a lack of understanding. “Significantly, the minor failed to demonstrate any knowledge regarding any specific immediate or long-term physical, emotional, or psychological risks of having an abortion.” In re Doe, 973 So.2d at 552. In fact, the majority of petitioner’s answers were inarticulate in terms of reasoning. See id.; cf. In re Doe, 36 So.3d at 165. Her knowledge of potential risks and consequences was both limited and inaccurate. For instance, she described termination by pill as resulting in a “normal period” and cited the potential for “getting sick” and urinary tract infections as the risks associated with surgical termination of pregnancy. “If maturity and good judgment are measured by one’s attempt to become fully informed of all of the options available and the possible consequences of those options, the instant record does not demonstrate that this petitioner exhibited such maturity.” In re Doe, 932 So.2d at 289 (Davis, J., dissenting). In fact, petitioner’s testimony evidences a lack of awareness, appreciation, and consideration of the risks associated with abortion. See In re Doe, 973 So.2d at 552; In re Doe, 932 So.2d at 281.

And although she had one telephone conversation with a Planned Parenthood nurse, she has not sought the emotional support or counsel of any adult. Cf. In re Doe, 36 So.3d at 165. When asked what options she had considered, she stated abortion and raising the child. She continued: “And it would just be very, very, very hard for me with going to school, and not having a job, and still living with my mom, and having other responsibilities, like taking care of my [younger sibling], and so I just figured abortion would probably be the — the best way to go.” This evidence fails to advise the trial court of the “depth or duration of [petitioner’s] deliberative process.” In re Doe, 973 So.2d at 557 (Casanueva, J., concurring in denial of rehearing en banc). And while the majority takes issue with the court’s lack of followup questions in this regard, it is not the responsibility of the court to solicit testimony from the petitioner; the petitioner bears the burden of proof. See In re Doe, 973 So.2d at 550.

I note, too, that petitioner’s testimony as to whether she has discussed her pregnancy with someone other than the father is conflicting. When directly asked whether she had discussed the pregnancy with anyone other than the father she answered “no.” However, when asked how she would pay for the termination, she stated a friend of hers “was going to help her out.”

Other facts considered by the court included that the petitioner has never worked outside of her home, has never earned any money other than a small weekly allowance, and has had very little exposure to handling personal finances. These facts are evidence of lack of the required maturity. Cf. In re Doe, 973 So.2d at 550; In re Doe, 967 So.2d 1017, 1020 (Fla. 4th DCA 2007). In addition, while it is true that petitioner expressed educational and career aspirations and makes good grades in school, the court took notice at the hearing that petitioner’s high school is a nontraditional, on-line school, and that petitioner does not take advanced placement classes.

Peculiarly, the majority asserts that the facts of our case are “remarkably similar” to In re Doe, 36 So.3d 164. I disagree and note that in direct contrast to the 2010 Doe decision, the trial court here addressed petitioner’s demeanor and petitioner here has not consulted any adult about her situation. In reviewing our past decisions, these factors have been deemed arguably the most significant in reaching the maturity determination. In addition, at the time of the hearing our petitioner had not visited a medical clinic and she evidenced a lack of understanding about the termination procedures. Therefore, the majority’s reliance on the 2010 Doe decision as authoritative in this case is unpersuasive.

It appears to me that the majority is substituting its conclusions regarding the minor’s maturity for the trial court’s, without the benefit of observing the tenor of the proceedings or petitioner’s body language, tone of voice, and demeanor. These are assessments necessary to the determination of maturity which are impossible to glean from a cold record. By statute, this court may only overturn the trial court’s ruling when the trial court has abused its discretion. Here, by necessity, the majority must resort to a dictionary definition of cavalier, whereas the trial judge’s findings of fact, in his well-reasoned order, reflect that he knew it because he saw it. Finally, I believe the majority departs from this court’s opinion in In re Doe, 67 So.3d 268, by effectively reviewing the testimony de novo rather than determining whether the testimony supports the trial court’s findings.

In my opinion, there is competent, substantial evidence to support the trial court’s ruling, and in dismissing the petition the court acted well within its discretion.

      . In the circuit court, the minor chose to be identified by her initials rather than a pseudonym. We have elected to use this pseudonym in place of the minor’s initials to further protect her privacy.

      . The dissent perceives other differences that are certainly immaterial to the question whether this young woman is sufficiently mature to assess and choose from among her alternative courses. For instance, it quibbles that, unlike the petitioner in the earlier case, at the time of the hearing below Doe had not yet consulted a physician. But she did have an appointment for the following week. The significance vis-a-vis the question of her maturity is that she recognized the importance of obtaining medical advice and-had arranged to do so. As I have observed in the past, it is not the specific purpose of the maturity determination to apprise minors of the medical risks associated with terminating their pregnancies. That function is served by another statute that requires this information to be given to every woman, young or old, as part of her informed consent to a termination procedure. See § 390.0111(3), Fla. Stat. (2012). In re Doe, 973 So.2d 548, 570 n. 15 (Fla. 2d DCA 2008) (Northcutt dissenting).

      . There were other instances in which the order portrayed evidence in terms that effectively mischaracterized it. For example, the evidence reflected that Doe prepares her family's meal every night and does much of the household cleaning. Weekdays, she is responsible for waking her younger sibling and getting [him/her] ready for and off to school. (For obvious reasons, I avoid specifying the sibling’s gender to further protect Doe’s identity.) When the sibling returns home in the afternoon, Doe assigns [him/her] chores and oversees homework. The uncontestable import of the evidence is that Doe bears significant responsibility for running the household and rearing her sibling, and she does so largely independently of her mother, with whom she has only a distant, passing relationship. But on this topic the court’s order recounted merely that Doe "takes care of her [sibling] when her mother is at work. She fixes meals for [him/her] and helps with homework.” The dissent, as well, contains similarly inaccurate representations of the evidence. Thus it remarks that Doe "described termination by pill as resulting in a ‘normal period’.” In fact, Doe’s testimony clearly imparted her understanding that the pill achieves its purpose by inducing a miscarriage.
      By these observations I intend no criticism of my colleagues on either this court or the circuit court, both of whom undertook this important matter in a considered, professional manner while under severe time restraints. However, neither the presumption of correctness in favor of a lower court’s ruling nor the abuse of discretion standard of review authorize an appellate court to accept findings that are at odds with uncontested facts in the record.

      . On the other hand, the courts have long recognized that the medical risks associated with a first trimester termination are less or no greater than those attendant to childbirth. See Roe v. Wade, 410 U.S. at 163, 93 S.Ct. 705.
      Moreover, after conducting a comprehensive review of credible studies, the American Psychological Association Task Force on Mental Health and Abortion reported that
      the prevalence of mental health problems observed among women in the United States who had a single, legal, first-trimester abortion for nontherapeutic reasons appeared to be consistent with normative rates of comparable mental health problems in the general population of women in the United States. Consider, for example, the overall prevalence of depression among women in the [National Longitudinal Survey of Youth: 1992], a longitudinal national survey of a cohort of men and women aged 14-21 years in 1979. Among all women in the NLSY, irrespective of reproductive history and without controlling for any covari-ates, 22% met criteria for depression in 1992 (i.e., scored above the clinical cutoff on the CES-D). Among women who reported one abortion, the corresponding percentage was 23%.
      American Psychological Association, Task Force on Mental Health and Abortion, Report of the Task Force on Mental Health and Abortion at 91 (2008). The APA Task Force concluded that “among women who have a single, legal, first-trimester abortion of an unplanned pregnancy for nontherapeutic reasons, the relative risks of mental health problems are no greater than the risks among women who deliver an unplanned pregnancy.” Report of the Task Force at 92.


source: Caselaw Access Project

author: KHOUZAM, Judge.

license: Public Domain

text:
    Anthony SERRANO, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-1050.
    District Court of Appeal of Florida, Second District.
    Dec. 21, 2012.

      James Marion Moorman, Public Defender, and Joshua Schoen, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   KHOUZAM, Judge.

Anthony Serrano appeals his convictions and sentences for trespass, battery, and criminal mischief. Because the trial court did not renew the offer of counsel at sentencing after Serrano represented himself at trial, we reverse and remand for resen-tencing. We affirm as to the remaining issues.

Prior to trial, Serrano requested to waive his right to counsel and represent himself. In response, the trial judge conducted a Faretta, inquiry. At each and every subsequent pretrial hearing, and on the morning of trial, the court renewed the offer of counsel. Serrano persisted in requesting to proceed pro se, and eventually represented himself at trial. Despite the court’s repeated offers of counsel before trial, after the jury announced its verdict the trial judge immediately proceeded to sentencing, unfortunately without renewing the offer of counsel.

Once a defendant waives the right to counsel in a criminal case, the court must renew the offer of counsel at each subsequent critical stage of the proceedings, one of which is sentencing. See, e.g., Hays v. State, 63 So.3d 887, 888 (Fla. 5th DCA 2011); see also Fla. R.Crim. P. 3.111(d)(5) (“If a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.”). Because the trial court did not do so here, we must vacate Serrano’s sentence and remand for resentenc-ing.

Judgment affirmed, sentence vacated, and case remanded for resentencing.

ALTENBERND and LaROSE, JJ., Concur.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


author: CASANUEVA, Judge.

text:
    Nicole VELASCO, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2513.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 2013.

      Nicole Velasco, pro se.
   CASANUEVA, Judge.

Nicole Velasco appeals the order summarily denying her motion to correct illegal sentence filed under Florida Rule of Criminal Procedure 3.800(a). We find no merit to her argument that the length of her sentence is illegal. See Yegge v. State, 88 So.3d 1058, 1059 (Fla. 2d DCA 2012) (holding that a youthful offender who commits a substantive violation of probation, such as by committing a new offense, can be sentenced up to the maximum sentence for the original offense; the six-year sentence limit for youthful offenders is no longer applicable). However, we agree that the trial court erred in failing to continue Ms. Velasco’s designation as a youthful offender. See Tidwell v. State, 74 So.3d 503 (Fla. 2d DCA 2011) (holding that one’s status as a youthful offender cannot be revoked based on a violation of probation); Lee v. State, 67 So.3d 1199, 1202 (Fla. 2d DCA 2011) (“ ‘Once a circuit court has imposed a youthful offender sentence, it must continue that status upon resen-tencing after a violation of probation or community control.’ ” (quoting Blacker v. State, 49 So.3d 785, 788 (Fla. 4th DCA 2010))). Accordingly, we reverse the post-conviction court’s order and remand for amendment of Ms. Velasco’s sentence to reflect her youthful offender status.

Reversed and remanded with directions.

NORTHCUTT and VILLANTI, JJ., Concur.


author: MORRIS, Judge.

text:
    Rudolph HEINY, Appellant/Cross-Appellee, v. Fran Pupello HEINY, Appellee/Cross-Appellant, Rudolph Heiny, Appellant, v. Fran Pupello f/k/a Fran Pupello Heiny, Appellee.
    Nos. 2D09-4924, 2D10-4408.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 2013.

      Kristin A. Norse, Stuart C. Markman, and Robert W. Ritsch of Kynes, Markman & Felman, P.A., Tampa, for Appellant/Cross-Appellee.
    Ellen E. Ware of Ware Law Group, P.A., Tampa, for Appellee/Cross-Appel-lant.
   MORRIS, Judge.

In these consolidated appeals, Rudolph Heiny, the husband, and Fran Pupello, the wife, both appeal a final judgment of dissolution entered in 2009 and a final judgment of attorneys’ fees entered against the husband in 2010. The husband argues that the trial court made four errors in the equitable distribution plan and in ordering him to pay 100% of the wife’s fees as a sanction against him. In her cross-appeals, the wife argues that the trial court made three errors in the equitable distribution plan. She also argues that the trial court abused its discretion in failing to award costs on the same basis as attorneys’ fees and in permitting the husband to pay the attorneys’ fee award in monthly installments. We agree that the trial court made errors in the equitable distribution plan, specifically regarding the wife’s premarital home, the debt on the marital rental property, funds paid by the parties to the pool business, and the Mercantile Bank savings account. We also conclude that the trial court erred in ordering the husband to pay all of the wife’s attorneys’ fees as a sanction and in its calculation of the amount of fees to be paid by the husband. To this extent only, we reverse the judgments of the trial court. We affirm in all other respects.

I. Introduction

The parties married in 1996. They had two children during the marriage. The husband is a pool contractor, and the wife is an accountant. During the marriage, they worked together in the husband’s pool construction business. Before the parties married, they signed an antenup-tial agreement. The general purpose and intent of the agreement was to protect each party’s premarital assets as separate property. The antenuptial agreement contained a specific provision regarding the wife’s premarital home, which is discussed in further detail below. During the marriage, the parties and their two minor children resided in the wife’s premarital home. The parties bought adjacent property and made improvements to both the wife’s premarital home and the adjacent property for the benefit and use of the family.

At the time of the dissolution, the marital property subject to equitable distribution included the property adjacent to the wife’s premarital home; rental property (the Genessee property); various investment, retirement, and bank accounts; a car; and other personal property. The parties also sought a determination regarding the husband’s interest in the wife’s premarital home and the wife’s interest in the pool business. The parties’ marital debts consisted of a home mortgage with a balance of $276,000 and a mortgage on the Genessee property with a disputed balance somewhere between $36,000 and $60,000.

In the final judgment, the trial court awarded the wife her premarital home as a nonmarital asset. As part of the equitable distribution plan, the trial court awarded the husband a one-half interest in the appreciation of the wife’s premarital home. The trial court awarded the wife the adjacent pool property in the equitable distribution plan. The trial court awarded the husband the pool business as a nonmarital asset. The trial court then ordered the husband to pay 100% of the wife’s attorneys’ fees based on his litigation misconduct.

As noted in the final judgment of dissolution, the parties did not litigate the time-sharing schedule and parenting plan involving the children, but the final judgment contained rulings regarding child support, which neither party challenges on appeal.

II. Discussion

A. The wife’s premarital home

The antenuptial agreement provides in relevant part:

6. Agreements Concerning Fran’s House. The parties hereto intend to reside in Fran’s house.... The House shall be and remain titled in Fran’s name alone and, except as specifically provided in Section 6, Rudy shall have no right, title or interest in and to the House or any of Fran’s Separate Property contained herein. Further, with respect to the House, the parties agree as follows:
(a) If a petition for dissolution of marriage is filed by either of the parties hereto after the date the parties are married, upon the entry of an order dissolving the marriage of the parties, Fran shall pay to Rudy a sum equal to one-half of all principal payments and any capital improvements made with respect to the House between the date of the marriage of the parties and the date on which a petition for dissolution of marriage was filed.

In the proceedings below, the parties agreed that the antenuptial agreement was valid and enforceable.

In the final judgment of dissolution, the trial court assigned the wife’s premarital home an equity value of $285,000 at the time of the marriage in 1996. The trial court found that the home’s equity value had appreciated in the amount of $272,813 to have an equity value of $557,813 at the time of the dissolution. The trial court then found that “[o]ne half of those capital improvements would be $136,406.50,” awarding the husband that amount in the equitable distribution calculations.

On cross-appeal, the wife asserts that the trial court misinterpreted the terms of the antenuptial agreement and that pursuant to the terms of the agreement, the husband was only entitled to credit for one-half of the costs of capital improvements and one-half of the principle mortgage payments made during the marriage.

A trial court’s interpretation of an antenuptial agreement “ ⅝ reviewed de novo, as such agreements are governed by the law of contracts.’ ” Murley v. Wiedemann, 25 So.3d 27, 29 (Fla. 2d DCA 2009) (quoting Taylor v. Taylor, 1 So.3d 348, 350 (Fla. 1st DCA 2009)). “When interpreting a contract, the court must first examine the plain language of the contract for evidence of the parties’ intent.” Id. (citing Royal Oak Landing Homeowner’s Ass’n v. Pelletier, 620 So.2d 786, 788 (Fla. 4th DCA 1993); Knott v. Revolution Software, Inc., 181 Ohio App.3d 519, 909 N.E.2d 702, 712 (2009)). We conclude that the trial court erred in interpreting the antenuptial agreement to provide that the husband is entitled to half of the appreciated value of the property resulting from capital improvements. The plain language of the agreement clearly limits the husband’s interest in the wife’s premarital home to one-half of principal payments and one-half of capital improvements made by the parties during the marriage. The trial court’s calculation erroneously took into consideration the appreciation of the premarital home, which was not contemplated by the terms of the antenuptial agreement. The husband’s benefit regarding the wife’s premarital home was limited to one-half of the cost of the improvements and one-half of the amount of the principal payments made during the marriage. Accordingly, we reverse the trial court’s finding that the husband was entitled to one-half of the appreciated value of the wife’s home. We remand for the trial court to reconsider the husband’s interest in the premarital home according to the terms of the ante-nuptial agreement.

[3] Additionally, the trial court erred in its finding regarding the premarital value of the wife’s premarital home, as argued by the husband on appeal. The undisputed testimony was that the home was worth $341,000 when the parties married, but the trial court found that the home was worth $375,000 at the time of the marriage. There appears to be no support in the record for the trial court’s finding; therefore, we reverse on this matter. See Tucker v. Tucker, 966 So.2d 25, 26 (Fla. 2d DCA 2007) (“The trial court’s valuation of marital assets must be supported by competent, substantial evidence.” (citing § 61.075(3), Fla. Stat. (2005)). We note that the value of the wife’s premarital home is likely irrelevant to the overall equitable distribution plan in light of our conclusion above that the husband has no interest in any appreciated value of the home.

B. The Genessee rental property

The trial court awarded the husband the Genessee rental property, valued at $103,898.69. On appeal, the husband argues that the trial court failed to make findings regarding the mortgage debt on the property that he paid off during the dissolution proceedings. The wife responds that even though the husband would be entitled to credit for the amount of debt he satisfied by paying off the mortgage, he failed to produce any evidence to show the source of the funds he used to pay off the debt.

While it is undisputed that there was a marital mortgage on this property, there was conflicting evidence regarding the balance of the mortgage when it was paid off by the husband. The wife’s accountant testified at trial that according to the wife’s financial affidavit, the Genessee rental property had a mortgage in the amount of $60,000 at the time the wife filed for divorce. The wife acknowledged that the husband paid off the debt and that he would be entitled to credit, depending on the source of the funds he used to pay off the debt. The husband testified that he paid off the $60,000 loan. Regarding the funds he used, he testified to the following:

A. I paid off the indebtedness by borrowing the money from my uncle. I used part of the money that was repaid from the Bustamante loan....
Q. How much money did you borrow from your uncle to pay off the foreclosure?
A. I had, I think, 27,000 or 17,000 or whatever the difference was from the Bustamante loan to get to the 60 I had to borrow....

The husband did not produce any documentation to support his assertion that he paid off the loan with nonmarital funds. In addition, his financial affidavit listed the Genessee rental property mortgage as having a $36,000 balance. The record further indicates that when the parties fell behind on their payments on the loan, the wife’s father bought the note and filed suit to foreclose the mortgage. The assignment of the note to the wife’s father indicates that the principal amount of the note was $40,000.

Although this property was distributed to the husband in the final judgment as part of the equitable distribution plan, the marital mortgage debt on this property that was satisfied by the husband was not credited to the husband or mentioned in the final judgment. Section 61.075, Florida Statutes (2009), requires a trial judge to identify all marital assets and liabilities as defined therein, value them, and distribute them equitably between the parties. A trial court’s failure to include all marital assets or debts in an equitable distribution plan violates section 61.075 and requires reversal. See Wolf v. Wolf, 979 So.2d 1123, 1125 (Fla. 2d DCA 2008) (“It is reversible error for the trial court to fail to identify and distribute each marital asset and liability.”); Ritter v. Ritter, 690 So.2d 1872, 1375-76 (Fla. 2d DCA 1997) (reversing an equitable distribution judgment because the trial court failed to include and value undisputed marital loans made against life insurance policies in equitable distribution). Accordingly, we reverse this portion of the equitable distribution plan. On remand, the trial court shall make findings regarding the amount of debt the husband paid on the Genessee rental property and whether the husband used non-marital or marital funds to pay the debt. The trial court shall factor the findings into the overall equitable distribution plan.

C. $75,000 paid to the pool business

In the final judgment, the trial court found that the parties had loaned $75,000 to the pool business. The trial court awarded the husband the pool business as a nonmarital asset, “with the exception of the one-half of the $75,000 investment ($37,500) that shall be made payable back to the [wjife.” On appeal, the husband contends that the trial court erred in including this amount in the equitable distribution plan because the evidence showed that after the parties paid the money to the pool business, the parties used the money to pay for business and personal expenses.

On this issue, the wife, who is an accountant, testified that when the parties refinanced the marital home in 1999, they put $75,000 of the loan proceeds into the pool business to pay business debts and some of their personal expenses associated with “the pool improvements” to the marital property adjacent to the wife’s premarital home. The evidence demonstrates that both parties jointly depleted the $75,000, and the trial court erred in treating it as a marital asset subject to equitable distribution. The wife testified that this money was loaned to the company and claimed that it was a receivable marital asset. But there was no loan document, written promise, or any other indication that the company had any legal obligation to repay that money. The evidence demonstrated, and the trial court found, that the business employed both parties, paid both parties’ salaries, and paid “for many of the couple’s personal and household expenses during the marriage.” See Mobley v. Mobley, 18 So.3d 724, 726-727 (Fla. 2d DCA 2009) (holding that it was error to distribute a depleted asset in equitable distribution absent a finding that the asset was depleted due to misconduct). In light of the undisputed evidence that both parties jointly used the $75,000 and in the absence of evidence that the $75,000 was loaned to the business with the intention of being repaid by the business, the trial court erred in treating the $75,000 as a receivable marital asset subject to equitable distribution. Cf. Bell v. Bell, 68 So.3d 321, 326 (Fla. 4th DCA 2011) (recognizing that loans that will eventually be repaid may be labeled marital assets subject to equitable distribution). We reverse the equitable distribution plan and remand for the trial court to delete the $75,000 from the parties’ marital assets.

D. Mercantile Bank savings account

On cross-appeal, the wife argues that the trial court erred in including the $48,933 Mercantile Bank savings account in the equitable distribution plan and in assigning it to the wife because the funds in the account were spent on family expenses during the litigation. See Mobley, 18 So.3d at 727; Austin v. Austin, 12 So.3d 314, 316-17 (Fla. 2d DCA 2009) (“When a spouse depletes marital assets during the pendency of dissolution proceedings to pay for support, living expenses and litigation expenses, it is error to include the assets in the equitable distri-button plan in the absence of misconduct”). The husband concedes that the trial court erred in this regard. Accordingly, we reverse the equitable distribution plan and remand for the trial court to delete this account from the marital assets.

E. Attorneys’fees

The trial court ordered the husband to pay 100% of the wife’s reasonable attorneys’ fees, totaling $210,810, as a sanction for his misconduct in the underlying litigation. On appeal, the husband contends that the trial court erred in failing to consider the amount of increased litigation caused by the husband’s misconduct. We conclude that the trial court erred in ordering the husband to pay 100% of the wife’s fees.

In Pietras v. Pietras, 842 So.2d 956, 962-68 (Fla. 4th DCA 2003), the Fourth District reversed a trial court order requiring the husband to pay all of the wife’s attorneys’ fees as a sanction for “litigious behavior.” The court held that the fees imposed as a sanction must be based on the “additional work” that resulted from the husband’s litigious behavior. Id. at 962-963. In remanding the ease, the court directed the trial court to “apportion a reasonable amount of [the wife’s] attorney’s fees based on a finding that [the husband’s] ‘litigious behavior’ caused some additional work.” Id. at 963; see Elliott v. Elliott, 867 So.2d 1198, 1200-02 (Fla. 5th DCA 2004) (reversing in part because of trial court’s failure to “directly quantify the portion of the wife’s attorney’s fees incurred as a result of the husband’s purported misconduct”); see also Moakley v. Smallwood, 826 So.2d 221, 227 (Fla.2002) (holding that trial judge has inherent authority to award fees as a result of the bad faith conduct of an attorney or litigant but that “the amount of the award of attorneys’ fees must be directly related to the attorneys’ fees and costs that the opposing party has incurred as a result of the specific bad faith conduct” of the attorney or litigant).

We note that the misconduct of the husband in this case is obvious, and we affirm the trial court’s finding in that regard. Nonetheless, after finding that the husband engaged in misconduct, the trial court was required to apportion the wife’s award of fees based on the additional work caused by the husband’s misconduct. The trial court found that the dissolution should not have taken four years to resolve, noting the husband’s various instances of litigation misconduct, but as indicated by this court’s decision, the husband raised legitimate legal arguments in the dissolution proceedings. Considering the legitimate issues before the trial court, the entirety of the wife’s legal fees could not have been the direct result of the husband’s misconduct. Accordingly, we reverse the final judgment on attorney’s fees and remand for further proceedings consistent with this opinion.

The husband also claims that the trial court erred in its calculations regarding the balance the husband is required to pay the wife in order to equalize the equitable distribution awards and satisfy the fee award. He claims that the final fee judgment charged the husband for an amount of temporary fees ($36,908) for which he was responsible but that this amount had already been charged against him in the equitable distribution equation. The wife concedes error on this point, and we reverse the final judgment of attorneys’ fees and remand for the trial court to strike this amount from its final determination of fees.

III. Conclusion

In conclusion, we reverse the equitable distribution plan in the final judgment of dissolution as outlined above, and we remand for further proceedings in accordance with this opinion. On remand, the trial court may make any necessary adjustments to the equitable distribution plan. We also reverse the final judgments as they relate to attorneys’ fees and remand for further proceedings consistent with this opinion. We affirm the final judgments in all other respects.

Affirmed in part; reversed in part; remanded.

LaROSE and CRENSHAW, JJ., Concur.

      . This valuation does not include the adjacent property, which the trial court referred to as the pool property. The trial court found that the pool property was worth $255,060.

      . There was some evidence that the parties had made two loans to someone named Bus-tamante but "they were received and paid during the marriage and split equally between the parties.”

      . We note that the trial court found that the husband himself, and not the husband’s counsel, engaged in litigation misconduct. We also note that the husband’s appellate counsel did not represent him in the litigation below.

      . The trial court found the following:
      This is a four[-]year[-]old dissolution case with a history of contempt and sanctions against the [hjusband, who has willfully and repeatedly stalled litigation throughout the course of these proceedings; the [h]us-band has been forced to comply with mandatory discovery and disclosure by court order on several occasions (in addition to having repeatedly been found in contempt regarding his support obligations). Because of this well[-]documented history, the Court finds that the [w]ife is entitled to attomey[']s fees for this action, payable in full by the [h]usband, as a sanction for his behavior in litigation.


author: ALTENBERND, Judge.

text:
    Kay Y. SMYTH, as Personal Representative of the ESTATE OF Edward E. SMYTH, Jr., Appellant, v. INFRASTRUCTURE CORP. OF AMERICA and Department of Transportation, Appellees.
    No. 2D10-5520.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 2013.

      Roy D. Wasson of Wasson & Associates, Chartered, Miami; and David S. Becker of Heintz & Becker, Bradenton, for Appellant.
    Caryn L. Bellus and Barbara Fox of Kubicki Draper, Miami, for Appellees.
   ALTENBERND, Judge.

Kay Y. Smyth, as personal representative of the Estate of Edward E. Smyth, Jr., appeals a summary final judgment in favor of Infrastructure Corporation of America (ICA) and the Florida Department of Transportation (DOT). This case involves a tragic automobile accident in which Mr. Smyth died. As explained below, his Estate maintains that the accident was caused by the negligence of the operator of a large mowing tractor, who was driving in the fast lane of an interstate highway at less than 30 miles per hour at 9:00 p.m. in November, long after sunset. The tractor was owned and operated by an uninsured and unauthorized subcontractor, Titan Lawn Service. Its employee, Franklin Williamson, was mowing the interstate right-of-way under a contract between DOT and ICA. Although the trial court did not explain its reasons for granting this summary judgment, DOT and ICA maintain that the driver of the mowing tractor either was not negligent as a matter of law or that his negligence did not cause the accident. They further maintain that they are not legally responsible for the actions of this subcontractor.

From our review of this unusually limited record, DOT and ICA clearly have not established the absence of a question of fact as to the negligence of the operator of the tractor or his causal role in this accident. See Christian v. Overstreet Paving Co., 679 So.2d 839, 840 (Fla. 2d DCA 1996); Snyder v. Cheezem Dev. Corp., 373 So.2d 719, 720 (Fla. 2d DCA 1979) (“If the record reflects the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.”). In fairness to the trial court, we doubt that it granted summary judgment on this theory.

The more challenging issue is whether the duty to use reasonable care in the operation of such large mower tractors on the paved portions of interstate highways is the type of activity for which the duty should be nondelegable. The trial court apparently determined that the record in this case established as a matter of law that this duty could be delegated and had been successfully delegated to Titan. We have considered holding that such an operation is nondelegable as a matter of law in this case. However, given the limited record, we simply hold that the trial court erred in determining that the duty could be delegated and had been successfully delegated to Titan. On remand, the trial court should allow the record to be fully developed concerning the operation of these tractors and then should make a determination as to these issues.

I. THE ACCIDENT

On November 15, 2006, at approximately 9:00 p.m., Edward E. Smyth was driving south on 1-75 near Riverview. His car was one of several cars that were driving in a closely spaced group in the fast lane. The fourth or fifth car in this pack happened to be a state trooper. The trooper testified that the first car slammed on its brakes and that the second or third car veered into the right-hand lane. That car, operated by Mr. Smyth, slammed into a slower moving tank truck carrying fuel. The impact locked Mr. Smyth’s car to the tank truck and breached the tank. At first, the driver of the truck did not realize what had happened. He continued to drive down the interstate with Mr. Smyth’s car trapped to the rear of his trailer. The truck’s large fuel tank caught fire. Mr. Smyth died in the inferno.

The trooper testified that immediately in front of the car that slammed on its brakes, there was a “giant lawn mower type tractor on the interstate.” Although the operator of this tractor had turned on the lights required for normal use of such a mowing rig, the tractor was not mowing on the right-of-way, but rather was physically on the roadway in the fast lane traveling at approximately 25 miles per hour in the dark of night. This is the tractor that was owned by Titan Lawn Service and operated by the owner of Titan, Mr. Williamson.

Further investigation indicated that the vehicle behind Mr. Smyth had been unable to come to a stop when the cars all slammed on their brakes. That pickup truck hit Mr. Smyth’s car on its left rear bumper, presumably propelling Mr. Smyth into the lane where he collided with the tank truck.

We note that the record in this case is very unusual for an appeal of a summary judgment of an automobile accident resulting in death. There are no photographs of the accident in the record. There are no photographs of the mower tractor or other vehicles. Although law enforcement was required to complete a Florida Traffic Crash Report, Long Form, pursuant to section 316.066, Florida Statutes (2006), no such report is contained in our record. No deposition of the investigating officer or of any expert is in our record. Most of the depositions in the record are partial copies or excerpts of depositions. Oddly, there is no information about or deposition from the first driver in this pack who came upon the tractor. There are no affidavits concerning the issue of negligence.

The only report in the record describing the accident is a report prepared by Mes-ser R. Gilchrist. He is a retired DOT safety manager who is employed by ICA as a safety officer. That report describes the accident as follows:

On Thursday I received a call from Ernie Molina informing me that a vehicle crash involving one of ICA’s mowing contractors resulting in a fatality, and injuries to private parties that occurred the previous evening and requesting I conduct an investigation.
I arrived at the Tampa office Friday morning and conducted an investigation of the incident.
I interviewed Ernie Molina and Randy Eddings and was advised of the particulars of this incident. Based on these interviews and my investigation here is a description of what occurred:
At approximately 9:00 PM on Wednesday, November 15, 2006 a large tractor with a batwing mower attached, operated by Franklin Scott Williamson, the owner of Titan Lawn Service, was mowing the median in the south bound lanes of 1-75 traveling northbound. Just north of Gibsonton Drive the operator decided that he was finished and was going to park the mower on the west side of the Interstate. He turned the mower around and now heading southbound moved into the inside lane at approximately 30 MPH attempting to cross three lanes of traffic. This caused traffic to have to dodge the tractor. He continued south for approximately 2 miles and then pulled back into the median. At this time a southbound Hyundai saw the tractor, panic braked to avoid the tractor and was struck in the rear by a southbound Toyota Tundra pick up truck. The impact caused the Hyundai to skid into the side of a passing gasoline tanker truck. This collision caused the two vehicles to catch fire. The driver of the tanker truck pulled the truck off the west side of the road with the Hyundai jammed underneath it. The driver of the tanker truck stopped the vehicle and exited the truck just before the tanker exploded. The driver of the Hyundai was killed in the fire. Causative Factors:
Contract mower operating mower during the hours of darkness and in violation of the hours permitted in the contract. Mower attempting to cross three lanes of fast moving traffic driving at a slow speed in a high speed lane. Mr. Williamson stated that he did not know that he was not permitted to mow at night.

The driver of the tractor apparently has given varying statements about the location of his tractor and his actions at the time of this accident. To the extent that his testimony is needed for summary judgment, it is subject to issues of credibility. The ICA employee who entered into the subcontract with Titan admitted in his deposition that he believed that it was negligent to operate a mower tractor on the interstate at nighttime.

II. THE MOWING CONTRACTS AND THE ASSOCIATED INSURANCE COVERAGE

Much of the discovery in our record addresses the contractual arrangements for mowing this section of the interstate. It appears undisputed that ICA entered into a seven-year contract with DOT, identified as B-C 680, on June 7, 2000. This contract is a “highway asset management” contract that involved maintenance of rest stops, bridges, and activities in addition to mowing. This is a multi-million dollar contract. Including exhibits, this contract is about forty-five pages in length and it adopts by reference many additional manuals and publications applicable to ICA’s activities. The additional manuals and publications are generally not in our record.

In the opening pages of the DOT contract, ICA agrees for separate consideration to defend and indemnify DOT for all claims arising out of the actions of its employees or subcontractors. ICA further agrees to maintain a policy of general liability insurance with a company authorized to do business in Florida affording public liability insurance with limits of at least $1,000,000 per person and $5,000,000 for each occurrence. These limits, of course, are well above the limited liability of the DOT under sovereign immunity. See § 768.28(5), Fla. Stat. (2006).

Section 7 of the contract addresses “assignment and subcontractors.” It requires ICA to maintain “adequate and competent staff’ and permits ICA to utilize subcontractors. As to subcontractors, the contract provides:

The Contractor [ICA] is fully responsible for satisfactory completion of all subcontracted work. The Contractor, however, shall not sublet, assign or transfer any work under this Agreement to other than subcontractors specified in the proposal, bid and/ or Agreement without the written consent of the Department.

It is undisputed that ICA subcontracted with “Titan Lawn Service” in 2006 for Titan to perform mowing services in the region where this accident occurred. Titan was not a listed potential subcontractor, and it is undisputed that ICA did not obtain consent from the DOT to enter into this subcontract.

ICA entered into a very basic contract with Titan on August 7, 2006. This agreement was supplemented with a longer agreement on November 9, 2006. The agreement does not expressly require Titan to fulfill all of ICA’s performance requirements for mowing under the DOT contract, although that may have been ICA’s intent. Like the DOT contract, it has an indemnity clause requiring Titan to defend and indemnify both ICA and DOT.

The ICA contract with Titan requires Titan to maintain insurance. Oddly, it does not require insurance that fulfills its obligations under the DOT contract. Instead it requires $100,000 per person and $500,000 per occurrence. Apparently in August 2006, Titan provided a certifícate of insurance to ICA. This document is nearly illegible in the record. It is, however, only an informational certificate. ICA was not named as an additional insured or given any assurances that it would be notified in the event of a cancellation. To the extent it is legible, the certificate appears to state that Titan has $1,000,000 per occurrence coverage, which is 20 percent of the coverage required by DOT. •

Apparently, Titan had not disclosed to its insurer that it had a contract to perform “lawn service” on interstate rights-of-way. When its insurance company discovered the work that Titan was performing, it allegedly cancelled the insurance. We say “allegedly” because the record does not contain any deposition of any representative of an insurance company. It does not contain the notices of cancellation. Instead, it contains deposition testimony about this development, which testimony may be hearsay. The record does not even disclose the date on which this coverage was cancelled. Apparently, ICA was not directly notified of the cancellation by the insurance company because it was not an additional insured on the policy.

The ICA supplemental contract, which is dated only a few days before this accident, expressly required Titan to include ICA as an additional insured on the policy. From the record, it is unclear why ICA did not take steps under its contract to assure that this coverage was in place before the accident on November 15. The record is unclear on the subject, but it appears likely that Titan’s coverage was not cancelled between November 9 and November 15. It presumably was cancelled prior to the supplemental contract. The record does not rule out the probability that ICA had actual notice that the coverage was not in place on the day of this accident. The record does not explain why ICA entered into the supplemental contract before it actually received the required proof of coverage. In early November 2006, it actually appears that ICA should have suspended Titan’s services until Titan obtained coverage. It should not have allowed Titan to operate without coverage during the daylight, much less at night.

Concerning safety, the ICA supplemental contract has only three subsections. It incorporates by reference the “Florida Department of Transportation Accident Prevention Procedures Handbook.” Based on the testimony in the record, ICA did not provide a copy of that accident prevention handbook to Titan or conduct safety training of any sort,for Titan’s employees ór require that Titan conduct its own safety training.

Section 4.3.2 of the ICA supplemental contract provided:
In general, all maintenance work shall be performed between the hours of 9 a.m. to 4 p.m. For special operations, night work may be allowed between the hours of 7 p.m. to 5 a.m., with proper lighting, if so authorized by the written approval of the ICA Resident Maintenance Engineer. No work shall be done when weather conditions limit good visibility to less than five hundred (500) feet.

Despite this contractual requirement, there is a dispute in the record about whether Mr. Williamson knew he should not work after dark. He claimed to be unaware of the prohibition against such unauthorized night work. The record contains no forms that he might have used to obtain approval for this night work. It contains no examples of such written approval prior to this accident.

There is some dispute in the record as to why Mr. Williamson was working late on November 15. He claimed that he was trying to get ahead to give workers extra time at Thanksgiving. While the testimony may not have been admissible in its present form, at the time of summary judgment there was also some evidence that he may have been out mowing at night to work off “steam” following an argument. There is at least some discussion in the evidence that Titan may have had difficulty fulfilling the full scope of the contract during normal work hours.

III.THE LAWSUIT

Kay Y. Smyth, as personal representative of the Estate of Mr. Smyth, filed this wrongful death action against the owner and the driver of the pickup truck that was behind Mr. Smyth’s car, and against Mr. Williamson, Titan Lawn Service, ICA, and DOT. The case as to the owner and driver of the pickup has been resolved. The claim against Titan has been discharged in bankruptcy.

The claims against DOT and ICA are virtually identical. The Estate maintains that each defendant negligently failed to supervise or instruct Mr. Williamson in the safe operation of this mower rig adjacent to an interstate highway. It also maintains that both DOT and ICA have a non-delegable duty to maintain the right-of-way in a manner that is reasonably safe for motorists traveling on the interstate.

The Estate unsuccessfully sought to obtain a summary judgment on liability. Thereafter, DOT and ICA, who have joint representation, sought summary judgment. Based on the depositions and documents in the record, the trial court granted that summary judgment. The Estate has appealed that summary judgment.

IV. THIS CASE WAS NOT RIPE FOR SUMMARY JUDGMENT ON THE NEGLIGENCE OF THE TRACTOR OPERATOR

Although the judgment does not explain the trial court’s reasoning, from the transcript of the hearing it does not appear that this experienced trial judge granted a summary judgment on the theory that the driver of the mower could not be found negligent for operating a slow-moving mowing rig in the fast lane of the interstate in the dark. ICA correctly argues that the Estate cannot directly explain, without at least one inference from circumstantial evidence, why Mr. Smyth applied his brakes because Mr. Smyth is dead and is not available to testify. His death is not a basis for entry of summary judgment. See Majeske v. Palm Beach Kennel Club, 117 So.2d 531 (Fla. 2d DCA 1959).

In light of the eyewitness testimony of the trooper, there is strong direct and circumstantial evidence that the first car, if not all of these cars, was taking evasive action to avoid the tractor. This is the conclusion that even ICA’s own safety investigator reached. In light of the limited record on this issue, DOT and ICA simply have not presented the evidence needed to fulfill the heavy burden placed on a mov-ant for summary judgment in this type of negligence case. See Jiminez v. Faccone, 98 So.3d 621 (Fla. 2d DCA 2012).

V. THIS CASE WAS NOT RIPE FOR SUMMARY JUDGMENT ON THE ISSUE OF NONDELEGABILITY

The general rule that a landowner or other employer of an independent contractor is not liable for the negligent acts of the independent contractor is subject to numerous exceptions. See Webb v. Priest, 413 So.2d 43, 47 n. 2 (Fla. 3d DCA 1982); Restatement (Second) of Agency § 214 (2006). The exceptions most relevant in this case are those that address work that creates special or exceptional risks.

Although there may be occasion for this issue to be one of fact, the courts tend to treat this issue as a question of legal duty and, thus, as a question of law. See Estate of Johnson ex rel. Johnson v. Badger Acquisition of Tampa, 983 So.2d 1175 (Fla. 2d DCA 2008). As such; when the circumstances warrant, courts determine whether a particular risk creates a nondel-egable duty. See Am. Home Assurance Co. v. Nat’l R.R. Passenger Corp., 908 So.2d 459, 468 (Fla.2005) (holding that transportation of a large turbine created nondelegable duties). The difficulty we have in this case is that the facts concerning this mowing operation are not well developed in the record.

In this case, the Estate would have this court hold that all highway maintenance involving large mowers creates non-delegable duties. The facts of this case do not warrant such a broad holding. In remanding this case to the trial court, we would encourage the trial court to focus on the dangers created by such mowers on the paved portion of interstate highways or other similar limited access highways.

The operation of these mowers arguably falls within the definition of an inherently dangerous activity. In Atlantic Coast Development Co. v. Napoleon Steel Contractors, Inc., 385 So.2d 676 (Fla. 3d DCA 1980), for example, the court reconfirmed the established law in Florida that the risks associated with the operation of cranes is nondelegable because such conduct is “inherently dangerous.”

The supreme court recently described the nature of inherently dangerous activity in American Home, 908 So.2d at 468:

An activity is inherently dangerous if the “danger inheres in the performance of the work,” such that “in the ordinary course of events its performance would probably, and not merely possibly, cause injury if proper precautions were not taken.” Florida Power & Light Co. v. Price, 170 So.2d 293, 295 (Fla.1964) (involving worker injured while working on wires charged with high voltage electricity); see also Channell v. Musselman Steel Fabricators, Inc., 224 So.2d 320 (Fla.1969) (involving plaintiff injured by steel beams being used in construction of building when the cable of equipment lifting a load of steel snapped); Baxley v. Dixie Land & Timber Co., 521 So.2d 170 (Fla. 1st DCA 1988) (involving an individual killed at a logging site when a sapling struck him in the head after a log was removed from the sapling that was bowed and under tension; trial court had found “the cutting, loading and delivering of logs” to be “inherently dangerous work”).

American Home involved a collision between a train and a special truck rig that was carrying a very heavy combustion turbine engine across the tracks. The truck crew needed to adjust the height of the hauler to clear the railroad tracks. It failed to do so and the hauler got stuck on the tracks, resulting in the collision. Id. at 462-64.

The legal theory that conduct is inherently dangerous, as in the case of a crane or the transport of a large turbine, does not mean that accidents are inevitable or unavoidable. Instead, it is probably a fair description of this common law doctrine that it examines and evaluates risks that create a much higher than usual likelihood of accidents in which there is a much higher than usual likelihood of major loss, injury or damage. While the doctrine does not heighten anyone’s standard of care from the normal negligence standard, it recognizes that the consequences of negligence in these special circumstances justify placing an economic incentive on landowners and primary contractors to assure that work on such highly dangerous activity is safely performed by trained workers who have the financial responsibility to compensate persons injured by these unusual risks. Although this record at least suggests that operating these mowers on the paved portion of the interstate may create an unusually high risk of accidents involving major losses, we are unconvinced that the record was sufficient to support a summary judgment on this issue for either side.

The law relating to inherently dangerous work and nondelegable duties is extensively discussed in the Restatement (Second) of Torts. The American Home decision, for example, was based, in part, on section 427 of the Restatement (Second) of Torts (1965), which states:

§ 427. Negligence As To Danger Inherent In The Work
One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.

Although section 427 may also apply in this case, we have also considered section 416 of the Restatement (Second) of Torts, which describes a somewhat narrower set of risky circumstances in which liability is nondelegable:

§ 416. Work Dangerous In Absence Of Special Precautions
One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.

Restatement (Second) of Torts § 416 (1965).

There are other sections of the Restatement that were not considered when the trial court granted summary that the trial court may wish to consider in making its decision on remand. See, e.g., Restatement (Second) of Torts §§ 417, 422, 423, 424, 427A, 428, 429 (1965). Section 418 of the Restatement (Second) of Torts, for example, is entitled “Maintenance of Public Highways and Other Public Places” and it states:

(1) One who is under a duty to construct or maintain a highway in reasonably safe condition for the use of the public, and who entrusts its construction, maintenance, or repair to an independent contractor, is subject to the same liability for physical harm to persons using the highway while it is held open for travel during such work, caused by the negligent failure of the contractor to make it reasonably safe for travel, as though the employer had retained the work in his own hands.
(2) The' statement in Subsection (1) applies to any place which is maintained by a government for the use of the public, if the government is under the same duty to maintain it in reasonably safe condition as it owes to the public in respect to the condition of its highways.

Whether “maintenance” should include the activities involved in this case is not a matter that we can resolve from this record.

Section 426 of the Restatement (Second) of Torts provides that an employer will not be responsible for negligence caused by an independent contractor when (1) the contractor’s negligence consists solely in the improper manner in which he does the work, (2) it creates a risk of such harm which is not inherent or normal to the work, and (3) the employer had no reason to contemplate the contractor’s negligence when the contract was made. Again, from the record, we are uncertain how this provision may apply in this case.

Of particular concern to this court has been the lack of information about the frequency with which such tractor mowing rigs need to cross multiple lanes of interstate traffic or travel along the roadway in order to perform these maintenance contracts. Anyone who has ever attempted to cross an interstate highway on foot realizes that estimating speeds and appreciating the timing on this activity is not easy. Anyone who has ever driven on an interstate realizes that the speed of extremely slow vehicles can be very difficult to estimate. The record does not establish what, if any, training has been required by DOT or ICA concerning this activity. The record simply is insufficient to determine how to resolve this case under the applicable law.

We have provided detailed information about the contracts and insurance in this case for two reasons. First, it appears that DOT is already working under the assumption that this activity involves non-delegable duties. It bargained with ICA and entered into a contract that included indemnity provisions and extensive insurance coverage. DOT is essentially the only landowner that must address these risks and it has already paid to have protection for the risks arising from nondele-gable duties.

Second, even if DOT can successfully delegate the duty of care to ICA in this instance, we question whether ICA has successfully delegated its duty of care to Titan. In this case, it appears that ICA breached its contract with DOT when it allowed Titan to perform this work. If ICA had complied with its contractual requirements, it would have given DOT notice of this subcontractor. Had ICA complied with this requirement, there is little question that DOT would and should have taken the normal steps to assure that the insurance for which it had already paid would either cover the subcontractor or that additional insurance would be obtained. ICA clearly has not satisfied its burden at summary judgment to establish that it fully and successfully delegated its responsibilities for these risks to Titan under these circumstances.

Accordingly, we reverse the summary final judgment on appeal and remand for further proceedings consistent with this opinion.

KELLY, J., and LEVY, DAVID L, Associate Senior Judge, Concur.

      . It appears from the record that Mr. Gilchrist took photographs of the scene that he attached to his report. None of his photographs are in the record.

      . The record contains a guide to roadside mowing prepared by the DOT and a DOT loss prevention manual.

      . As described earlier, ICA is contractually obligated to insure and defend DOT. This joint representation is a direct result of that contract. Given that DOT required ICA to procure insurance to cover claims like this claim, one can reasonably question what position DOT would itself take if it had independent representation in this case.

      . See Fla. Std. Jury Instr. (Civ.) 401.14(c).

      . Although we do not rely on the reasoning of cases involving a landowner’s nondelegable duty to maintain its property, it is worth considering that this accident arises out of such maintenance activities. See Armiger v. Associated Outdoor Clubs, Inc., 48 So.3d 864 (Fla. 2d DCA 2010); U.S. Sec. Servs. Corp. v. Ramada Inn, Inc., 665 So.2d 268 (Fla. 3d DCA 1995).

      . A nondelegable duty is not a type of vicarious liability. This distinction is well explained in Armiger v. Associated Outdoor Clubs, Inc., 48 So.3d 864, 874-75 (Fla. 2d DCA2010).