author: PER CURIAM. BERGER, J.,

text:
    UCF ATHLETICS ASSOCIATION INC., Appellant, v. Enock PLANCHER as Personal, etc., Appellee.
    No. 5D11-2710.
    District Court of Appeal of Florida, Fifth District.
    Aug. 16, 2013.
    Certification Denied Sept. 6, 2013.

      Matthew J. Conigliaro and Joshua D. Moore, of Carlton Fields, P.A., St. Peters-burg, and Wendy F. Lumish, of Carlton Fields, P.A., Miami, for Appellant.
    Stacy D. Blank, of Holland & Knight, LLP, Tampa, and Christopher V. Carlyle and Shannon McLin Carlyle, of The Carlyle Appellate Law Firm, The Villages, for Appellee.
   PER CURIAM.

Ereck Plancher, II, a University of Central Florida (UCF) football player, collapsed and died during football practice after participating in a series of conditioning drills. After his death, Ereck’s parents (the Planchers) filed a negligence action against UCF and UCF Athletics Association, Inc. (UCFAA), the statutorily authorized direct-support organization responsible for administering UCF’s athletics department. After a three-week trial, the jury found UCFAA liable and awarded the Planchers damages in the amount of $10 million. UCFAA appeals the final judgment, arguing, inter alia, that the trial court erred when it denied UCFAA’s motion for summary judgment based on a release found in Paragraph M of the signed Medical Examination and Authorization Waiver and, again, when it denied UCFAA’s motion for partial summary judgment, and entered summary judgment against UCFAA, on the issue of limited sovereign immunity. While we agree with the trial court on the issue of the release, because we find UCFAA was entitled to limited sovereign immunity, we reverse the final judgment entered against it.

Standard of Review

The standard of review governing a trial court’s ruling on summary judgment is de novo. Kaplan v. Morse, 870 So.2d 934, 936 (Fla. 5th DCA 2004). Summary judgment is only proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

Analysis

The facts surrounding the untimely death of Ereck Plancher are disturbing. Nevertheless, we need not reiterate them here. As troubling as the circumstances involved in this young athlete’s death may be, our analysis is not dependent upon whether the evidence presented at trial was sufficient to establish that UCFAA’s negligence caused or contributed to the cause of his death. The only issues we must resolve are whether the release found in the agreement to participate clause of the Medical Examination and Authorization Waiver, which was signed by Ereck Plancher, absolved UCFAA of any future negligence and, if not, whether UCFAA was entitled to limited sovereign immunity pursuant to section 768.28(2) and (5), Florida Statutes (2011). We begin our discussion with the issues surrounding the release.

A. Release

Prior to being allowed to play football for UCF, UCFAA required its players to complete a number of forms, including an agreement entitled “UCFAA, INC. SPORTS MEDICINE DEPARTMENT Medical Examination & Authorization Waiver” (hereinafter the “Authorization”) and a scholarship agreement. The Authorization asked the players to acknowledge, affirm and represent their present physical condition, future complaints, steroid and other drug use, and use of supplements. The Authorization discussed UCFAA’s policies on body piercings, medical treatment, drug testing and medical insurance. The release at issue is located on the last page of the Authorization, in Paragraph M, under the heading “Agreement to Participate.” It provides the following:

I am aware that playing, practicing, training, and/or other involvement in any sport can be a dangerous activity involving MANY RISKS OF INJURY, including, but not limited to the potential for catastrophic injury. I understand that the dangers and risks of playing, practicing, or training in any athletic activity include, but are not limited to, death, serious neck and spinal injuries which may result in complete or partial paralysis, serious injury to virtually all bones, joints, ligaments, muscles, tendons, and other aspects of the muscular-skeletal system, and serious injury or impairment to other aspects of my body, general health and well-being. Because of the aforementioned dangers of participating in any athletic activity, I recognize the importance of following all instructions of the coaching staff, strength and conditioning staff, and/or Sports Medicine Department. Furthermore, I understand that the possibility of injury, including catastrophic injury, does exist even though proper rules and techniques are followed to the fullest. I also understand that there are risks involved with traveling in connection with intercollegiate athletics.
In consideration of the University of Central Florida Athletic Association, Inc. permitting me to participate in intercollegiate athletics and to engage in all activities and travel related to my sport, I hereby voluntarily assume all risks associated with participation and agree to exonerate, save harmless and release the University of Central Florida Athletic Association, Inc., its agents, servants, trustees, and employees from any and all liability, any medical expenses not covered by the University of Central Florida Athletic Association’s athletics medical insurance coverage, and all claims, causes of action or demands of any kind and nature whatsoever which may arise by or in connection with my participation in any activities related to intercollegiate athletics.
The terms hereof shall serve as release and assumption of risk for my heirs, estate, executor, administrator, assignees, and all members of my family.

In January 2007 and, again, in April 2007, Ereck Planeher initialed each page of the Authorization and signed it with an attestation that he both read and understood it. Based on this fact, UCFAA pled the release as an affirmative defense and moved for summary judgment, arguing that because the document Ereck signed contained a clear and unambiguous exculpatory clause, he waived his right to file any claim whatsoever against UCFAA. The trial court denied UCFAA’s motion finding that “there exists a legitimate disputed fact as to whether the [Agreement] constituted an unequivocal and unambiguous release of liability.” Later, the trial court precluded UCFAA from raising the issue at trial, finding that the exculpatory clause was unenforceable as a matter of law. On appeal, UCFAA argues it was entitled to summary judgment based on the clear language in the release. We disagree.

An exculpatory clause purports to deny an injured party the right to recover damages from a person negligently causing his injury. Cain v. Banka, 932 So.2d 575 (Fla. 5th DCA 2006) (citing Kitchens of the Oceans, Inc. v. McGladrey & Pullen LLP, 882 So.2d 270 (Fla. 4th DCA 2002)). They are disfavored in the law because they relieve one party of the obligation to use due care and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss. Applegate v. Cable Water Ski, L.C., 974 So.2d 1112, 1114 (Fla. 5th DCA 2008). Such clauses are strictly construed against the party seeking to be relieved of liability. Sunny Isles Marina, Inc. v. Adulami, 706 So.2d 920 (Fla. 3d DCA 1998). Thus, exculpatory clauses are enforceable only where and to the extent that the intention to be relieved from liability is made clear and unequivocal. Tatman v. Space Coast Kennel Club, Inc., 27 So.3d 108, 110 (Fla. 5th DCA 2009). The wording must be so clear and understandable that “an ordinary and knowledgeable person will know what he is contracting away.” Id. (quoting Gayon v. Bally’s Total Fitness Corp., 802 So.2d 420 (Fla. 3d DCA 2001)); see also Raveson v. Walt Disney World Co., 793 So.2d 1171 (Fla. 5th DCA 2001). A phrase in a contract is ambiguous when it is of uncertain meaning and may be fairly understood in more than one way. Tatman, 27 So.3d at 110 (citing Nagel v. Cronebaugh, 782 So.2d 436, 439 (Fla. 5th DCA 2001)).

The exculpatory clause at issue here did not expressly inform Ereck that he would be contracting away his right to sue UCFAA for its own negligence. This, alone, would be enough to render the clause unenforceable in any District in Florida other than ours. See Give Kids the World, Inc. v. Sanislo, 98 So.3d 759, 759 (Fla. 5th DCA 2012) (holding that an exculpatory clause need not have an express reference to negligence in order to render it effective as to negligence actions, and certifying conflict with the First, Second, Third, and Fourth District Courts of Appeal as to this issue), rev. granted, Sanislo v. Give Kids the World, Inc., No. SC12-2409, 2013 Fla. LEXIS 1249 (Fla. June 3, 2013). The problem here is that UCFAA immediately preceded the broad waiver language with a paragraph outlining the risks inherent in any sport, and stating:

Because of the aforementioned dangers of participating in any athletic activity, I recognize the importance of following all instructions of the coaching staff, strength and conditioning staff, and/or Sports Medicine Department. Furthermore, I understand that the possibility of injury, including catastrophic injury, does exist even though proper rules and techniques are followed to the fullest.

This preamble, when coupled with a clause that does not expressly state that Ereck would be waiving a negligence action, could have easily led Ereck to believe that UCFAA would be supervising his training and instructing him properly (non-negligently), and that he was only being asked to sign the exculpatory clause to cover injuries inherent in the sport-that could occur “even though proper rules and techniques are followed to the fullest.” The second district reached a similar conclusion in Murphy v. Young Men’s Christian Ass’n of Lake Wales, Inc., 974 So.2d 565 (Fla. 2d DCA 2008).

In Murphy, the plaintiff was injured while using exercise equipment at the YMCA’s exercise facility. 974 So.2d at 566. She sued the YMCA claiming it was negligent in failing to maintain, inspect, and repair its exercise equipment. Id. at 567. The trial court granted summary judgment in favor of YMCA based on an exculpatory clause found in the membership application. The clause provided:

I am an adult over 18 years of age and wish to participate in Lake Wales Family YMCA activities. In addition I give my children permission to participate in Lake Wales Family YMCA activities. I understand that even when every reasonable precaution is taken, accidents can sometimes still happen. Therefore, in exchange for the YMCA allowing me to participate in YMCA activities, I understand and expressly acknowledge that I release the Lake Wales Family YMCA and its staff members from all liability for any injury, loss or damage connected in any way whatsoever to my (or my children’s) participation in YMCA activities, whether on or off the YMCA’s premises. I understand that this release includes any claims based on negligence, action or inaction of the Lake Wales Family YMCA, its staff, directors, members and guests. I have read and am voluntarily signing this authorization and release.

Id. at 566 (emphasis added).

Here, the second district concluded the waiver was ambiguous and unenforceable due to the confusion caused by the juxtaposition of the “every reasonable precaution” provision with the provision for the release of “any claims based on negligence.” Id. at 568-69. Since a reasonable reader could believe that the liability waiver only extended to claims for injuries that were unavoidable “even when every reasonable precaution” had been taken, the court determined the waiver did not clearly and unequivocally release the YMCA from liability.

UCFAA argues that the confusion that existed in Murphy does not exist in this case because the two provisions are in separate paragraphs and not connected by the word “therefore.” Yet, when read together, the provisions underscoring the importance of following UCFAA’s rules and the risk of an accident regardless of whether the proper rules and techniques are followed, comes before the exculpatory clause, which could result in the reasonable reading asserted by the Planchers. This is because the reader is first assured, inferentially, that the proper rules and techniques will be implemented before he comes to the language waiving liability. Accordingly, we find no error in the trial court’s determination that the release was ambiguous.

We now turn to the issue of sovereign immunity and whether UCFAA is entitled to have the judgment reduced pursuant to section 768.28(5), Florida Statutes.

B. Sovereign Immunity

Section 768.28, Florida Statutes, provides for the waiver of sovereign immunity in tort actions and sets recovery limits. § 768.28(2) and (5), Fla. Stat. (2011). According to the statute, “[t]he state and its agencies and subdivisions are liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period before judgment.” § 768.28(5), Fla. Stat. (2011). Additionally, neither the state nor its agencies are liable to pay a claim or judgment by any one person that exceeds $200,000. Id.

Section 768.28(2), Florida Statutes, defines the state agencies or subdivisions entitled to limited sovereign immunity as follows:

As used in this act, “state agencies or subdivisions” include the executive departments, the Legislature, the judicial branch (including public defenders), and the independent establishments of the state, including state university boards of trustees; counties and municipalities; and corporations primarily acting as in-strumentalities or agencies of the state, counties, or municipalities, including the Florida Space Authority.

Neither party disputes UCF’s status as a state agency or that it is entitled to limited sovereign immunity pursuant to sections 768.28(2) and (5), Florida Statutes. At issue is UCFAA’s status. The Florida Supreme Court recently confirmed that private corporations primarily acting as agencies or instrumentalities of independent establishments of the State are included within this definition. See Keck v. Eminisor, 104 So.3d 359, 368 (Fla.2012) (“The State acts through its agencies and independent establishments, and a corporate instrumentality of an agency or independent establishment is an instrumentality of the state.”). Accordingly, the question we must answer is whether UCFAA is a corporation primarily acting as an instrumentality of UCF under section 768.28(2), so as to extend the immunity afforded UCF to UCFAA as well. We hold that it is.

In 2003, UCF created UCFAA as a University direct-support organization (DSO) for the purpose of administering its athletics department. UCFAA asserts that its corporate structure, constructed as directed by section 1004.28, makes it wholly subject to UCF’s governance and financial and operational control. UCFAA’s corporate documents appear to support this assertion.

UCFAA was incorporated pursuant to section 1004.28(l)(a)l., which allows a university to create a not for profit corporation under Chapter 617 that is approved by the Department of State. As required by statute, UCF certified that UCFAA was operating in a manner consistent with the university’s goals and in the state’s best interests. See § 1004.28(l)(a)3., Fla. Stat. (2011). Indeed, according to UCFAA’s articles of incorporation, UCFAA’s purpose is to promote the health and physical welfare of UCF students through intercollegiate athletics. UCFAA gives public notice of its board of directors meetings and holds them in public, consistent with Florida’s Sunshine Law, section 286.011, Florida Statutes (2011).

UCFAA’s bylaws provide for a board of directors of at least six members, four of whom are controlled by UCF. The board includes UCF’s President, who serves as chair of UCFAA’s board; the chair of UCF’s Board of Trustees or a designee; and the presidents of the UCF Alumni Association and Golden Knights Club or their designees. UCF’s President has the power to appoint an unlimited number of additional voting members from UCF’s administration, faculty, or student body. The bylaws also grant UCF’s President the authority to establish an unlimited number of special committees to accomplish any objectives affecting various interests and the welfare of UCFAA and UCF. Consequently, UCF controls UCFAA’s board and the bylaws may not be amended without UCF’s approval. UCF also has the exclusive power to dissolve UCFAA.

UCF and UCFAA entered into a written services agreement stating that UCFAA, at the request of UCF, administers UCF’s intercollegiate athletics program for the benefit of the university and its student athletes. The agreement further states it is not to be construed to create a joint venture, partnership, or other like relationship between the parties. By agreement, UCFAA’s employees are not employees of the State. UCFAA hires and fires its employees and pays their salaries. Additionally, UCFAA employees do not receive any State benefits.

Accordingly, UCFAA developed its own Policy Manual, Employee Handbook, Sports Medicine Policies, and UCFAA Athletic Business Office Policy and Procedures. Pursuant to the Policy Manual, the UCFAA Senior Management Team is responsible for both strategic planning and day-to-day operations. The Senior Management Team is made up of the UCFAA Athletics Director, who was hired by, reports to, and serves at the pleasure and direction of UCF’s President, and the Assistant and Associate Athletics Directors. UCFAA’s Senior Associate Athletics Director, Internal Operations, assists with day-to-day operations and supervises the sports medicine program, strength and conditioning program, and human resources and risk management departments. The Head Football Coach is employed by UCFAA and controls every aspect of the day-today operations of the football program. He recruits student-athletes, hires and fires assistant coaches and supervises football practices and the conditioning program. Likewise, the Head Football Trainer and Head Athletic Trainer, both UCFAA employees, control the day-today activities of the sports medicine department. Ultimately, however, based on UCF and UCFAA’s hierarchy, UCF’s President remains responsible for the athletics department.

UCFAA has its own Chief Financial Officer (CFO), who manages the day-to-day financial operations of UCFAA. While UCF does not supervise the CFO and the CFO reports directly to UCFAA’s Director of Athletics, as stated earlier, the Director of Athletics reports directly to UCF’s President. Likewise, although UCFAA maintains its own accounting records, has its own bank accounts, and files its own tax returns, the bylaws authorize UCF’s President to monitor and control the use of UCFAA’s resources, to exercise line-item veto over its budget, and to unilaterally modify its budget. Additionally, while UCFAA employees prepare the UCFAA budget, it must provide the UCFAA Board of Directors an overview of the budget.

Pursuant to the service agreement, UCFAA operates the athletics program in exchange for a fee paid by UCF. UCFAA does not receive any money directly from the State. Rather, the moneys are tunneled from the State through UCF. UCF pays UCFAA. an annual amount equal to the amount UCF receives in student athletic fees and loans money to UCFAA. Under the agreement, UCF has the right to audit the books and records of UCFAA,. If UCF chooses to dissolve UCFAA, the corporation’s assets must be distributed to the UCF Foundation, Inc., or as otherwise directed by UCF’s president.

UCFAA purchases its own private liability insurance with policy limits of $21 million. Accordingly, UCF is not involved in claims made against UCFAA. Furthermore, UCFAA and its employees are not covered through the State’s Risk Management Trust Fund. Indeed, the Services Agreement provides that “UCFAA assumes any and all risks of personal injury and property damage with respect to the negligent acts or omissions of UCFAA or other persons acting or engaged to act by UCFAA in furtherance of the obligations of UCFAA under this agreement.” Yet, it clarifies that nothing in the agreement should be construed or interpreted as “(1) denying to either party any remedy or defense available under the laws of the State of Florida[;] (2) the consent of the State of Florida or its agents and agencies to be sued; or (3) a waiver of sovereign immunity of the State of Florida beyond the waiver provided in Section 768.28, Florida Statutes.” (Emphasis added).

Based on these facts, UCFAA moved for summary judgment in the trial court, claiming it was entitled to limited sovereign immunity under section 768.28(2), Florida Statutes. The trial court denied UCFAA’s motion finding that UCFAA had been expanded beyond the limits allowable by the state and that the undisputed evidence demonstrated that UCFAA had not been substantially controlled by UCF in either day-to-day decisions or major programmatic decisions.

The key factor in determining whether a private corporation is an instrumentality of the state for sovereign immunity purposes is the level of governmental control over the performance and day-today operations of the corporation. See Prison Rehabilitative Indus. & Diversified Enters., Inc. v. Betterson, 648 So.2d 778 (Fla. 1st DCA 1994); Shands Teaching Hosp. & Clinics, Inc. v. Lee, 478 So.2d 77, 79 (Fla. 1st DCA 1985). The agency must be subject to something more than the sort of control that is exercised by the government in its regulatory capacity. Pagan v. Sarasota County Pub. Hosp. Bd., 884 So.2d 257, 267-68 (Fla. 2d DCA 2004) (citing United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976)). The control that flows from a simple contractual arrangement between the government and a corporate entity ordinarily will not be considered sufficient to establish that the contracting corporate entity is an instrumentality or agency of the state. Id. (citing Mingo, 638 So.2d at 86 (holding that contract defining corporate providers as independent contractors effectively “disavows [the corporation] as a corporation primarily acting as an instrumentality or agency of the state or its subdivisions”)). Similarly, the mere fact that a corporation is created by the government will not necessarily establish that it is a governmental agency or instrumentality. Id.

The issue of whether the state has sufficient control over a private corporation for the purposes of sovereign immunity was addressed in Shands Teaching Hospital & Clinics, Inc. v. Lee, 478 So.2d 77, 79 (Fla. 1st DCA 1985); Prison Rehabilitative Industries & Diversified Enterprises, Inc. v. Betterson, 648 So.2d 778 (Fla. 1st DCA 1994) and Pagan v. Sarasota County Public Hospital Board, 884 So.2d 257 (Fla. 2d DCA 2004). In Shands, the court concluded that Shands Teaching Hospital was not entitled to sovereign immunity because the Legislature intended to treat it as an “an autonomous and self-sufficient entity, one not primarily acting as an instrumentality on behalf of the state.” 478 So.2d at 79.

In Betterson, however, the court reached a different conclusion regarding the status of the non-profit corporation, Prison Rehabilitative Industries and Diversified Enterprises, Inc. (PRIDE). 648 So.2d at 778. The district court found that while the governing statute provided that correctional work programs “can best operate independently of state government,” it also recognized that “the state [has] a continuing interest in assuring continuity and stability” of the programs. Id. at 780 (quoting § 946.502(4), Fla. Stat. (2011)). Therefore, although PRIDE was allowed substantial independence in the running of the work programs, essential operations remained subject to a number of legislatively mandated constraints over its day-to-day operations. The court determined that these statutory constraints cumulatively constituted sufficient governmental control over PRIDE’s daily operations to require the conclusion as a matter of law that PRIDE has, from its inception, acted primarily as an instrumentality of the state. Id. at 780-81.

The Planchers argue that Betterson is distinguishable because PRIDE was subject to numerous legislative constraints establishing extensive government control over its day-to-day operations. For instance, PRIDE needed the Governor’s approval before selling manufactured goods and had to provide the Legislature an in-depth status report on its operations. Additionally, the Department of Corrections had to approve the company’s policies and procedures relating to the use of inmates. Finally, the Planchers point out that PRIDE received state funds from a trust fund administered by the Governor’s office.

Here, the statutes, the bylaws, and the Service Agreement allow UCF the discretion to control UCFAA’s day-to-day operations as much, or as little, as it sees fit. For example, section 1004.28(6), places limitations on UCFAA’s ability to enter into agreements. Additionally, just as PRIDE receives its funds directly from a fund administered by the Governor, UCFAA receives the majority of its funds from UCF, an entity the Planchers concede is an arm of the state.

Pagan is also instructive. 884 So.2d 257. Here the issue was whether the Hospital Board, a state entity, exercised sufficient control over First Physicians Group, a private corporation, for First Physicians Group to be considered an instrumentality of the state. The undisputed facts before the court established that:

First Physicians Group was created by the Hospital Board, initially funded by the Hospital Board, and remains partially funded by it. The Hospital Board has the power to dissolve First Physicians Group and to claim any remaining assets upon dissolution. The nine members of First Physicians Group’s board of directors are elected by the Hospital Board and serve at the pleasure of the Hospital Board. Under the bylaws and articles of incorporation of First Physicians Group, a majority of its board of directors must be composed of sitting Hospital Board members. The chief executive officer of the Sarasota Memorial Health Care System is required to also be president of First Physician Group. Approximately forty physicians have entered into employment agreements with First Physicians Group that provide for full-time employment with First Physicians Group and prohibit the maintenance of private practices or the treatment of any patients other than patients of First Physicians Group.

Id. at 263. On those facts, which all but mirror the formation of UCFAA, the second district held that First Physicians Group was entitled to sovereign immunity. While the Planchers argue Pagan is of little precedential value because the majority did not make a blanket ruling, we disagree, and find Judge Canady’s concurring opinion particularly instructive on how we should apply the facts in this case.

Judge Canady explained that when analyzing the issue of control in cases outside the sovereign immunity context where a principal-agent relationship exists, the focus is on the right to control, instead of actual control. Id. (citing Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842, 853 (Fla.2003)). As a result, in those cases, the existence of a principal-agent relationship turns on whether the principal has a sufficient right to control and not on the extent to which the principal exercises actual control. Id. at 270. He concluded that “[j]ust as an ordinary agency relationship can exist without the exercise of actual day-to-day control by the principal, so can a corporation be acting primarily as an instrumentality or agency of a sovereignly immune entity without that entity exercising actual control over the day-to-day operations of the corporation.” Id.

He further explained that:

It would be unfaithful to the plain meaning of section 768.28(2) to impose a requirement for control of a type that is inconsistent with the separate corporate existence of the entity acting primarily as an instrumentality or agency. The authorization of immunity for corporations under section 768.28(2) necessarily involves a recognition that those corporations will carry out their operations in a manner that is separate and distinct from the operations of the governmental entity to which they are related. The control of the governmental entity over the corporation necessary to establish an instrumentality relationship under section 768.28(2) does not require that the corporation be subsumed in the governmental entity.

Id. We adopt that reasoning here. In doing so, we reject the Planchers’ assertion that for UCFAA to have sovereign immunity, UCF had to actually control UCFAA’s day-to-day operations. Instead, we determine the power to control is sufficient.

Comparing the facts of this case to the facts set forth in Keck, Pagan, and Betterson, we find that UCFAA primarily acts as an instrumentality of UCF. While UCFAA is a private corporation, it is not an autonomous and self-sufficient entity. Rather, UCF created UCFAA in order to take advantage of a privatized athletics program and to accept private donations on behalf of the university from donors who wish to remain anonymous. UCFAA is wholly controlled by and intertwined with UCF, in that UCF created it, funded it and can dissolve it, in addition to oversee its day-to-day operations as much or as little as it sees fit. UCFAA certainly does not possess the power or ability to shut UCF out of its decision-making completely. UCFAA’s sole function is to receive, hold, invest, and administer property and to make expenditures to or for the benefit of UCF. Namely, the purpose of UCFAA is to promote education and science and to encourage, stimulate, and promote the health and physical welfare of the students of UCF by encouraging, conducting, and maintaining all kinds of intercollegiate athletics, games, contests, meets, exhibits, and field sports at UCF and other places in the state. The athletic teams are known as the UCF Knights and wear UCF uniforms. UCF provides UCFAA its facilities and pays UCFAA an amount equal to the amount received by UCF in student athletic fees and in loans. UCFAA holds the property owned by UCF with the power to dispose of or invest such property in such manner as, in the judgment of the board of directors, will best promote the purposes of UCFAA without limitation. Indeed, no amount of spin negates the fact that it is UCF that benefits from UCFAA’s work.

Accordingly, we conclude that UCFAA is entitled to limited sovereign immunity under section 768.28(2), as it functions primarily as an instrumentality of UCF. See also Elend v. Sun Dome, Inc., 370 F.Supp.2d 1206, 2005 U.S. Dist. LEXIS 35264 (M.D.Fla.2005) (ruling that Sun Dome, Inc., a DSO created by USF to operate the Sun Dome for USF’s benefit, is an arm of the state for the purposes of Eleventh Amendment immunity). We therefore reverse the order of the trial court and remand for further proceedings consistent with this opinion.

AFFIRMED, in part, REVERSED, in part, and REMANDED.

TORPY, C.J., and LAWSON, J„ concur.

BERGER, J.,

concurring in part, dissenting in part.

I agree with the majority that UCFAA is a corporation primarily acting as an instrumentality of the state, thereby entitling it to limited sovereign immunity. However, I do not agree with the majority view that the release found in Paragraph M of the Authorization is ambiguous. In my view, the release signed by Ereck Plancher was clear, unambiguous, and enforceable. Accordingly, I would reverse the order of the trial court denying summary judgment on this issue and remand for consideration of the avoidances raised by the Planehers.

Although exculpatory clauses are generally disfavored in the law, unambiguous exculpatory contracts are enforceable where the intention to be relieved from liability is made clear and unequivocal. Tatman v. Space Coast Kennel Club, Inc., 27 So.3d 108, 110 (Fla. 5th DCA 2009). While the wording must be so clear and understandable that “an ordinary and knowledgeable person will know what he is contracting away,” id. (quoting Gayon v. Bally’s Total Fitness Corp., 802 So.2d 420, 421 (Fla. 3d DCA 2001)); see also Raveson v. Walt Disney World Co., 793 So.2d 1171 (Fla. 5th DCA 2001), “the ability to predict each and every potential injury is unattainable and is not required to uphold an exculpatory provision within a release.” Give Kids the World, Inc. v. Sanislo, 98 So.3d 759 (Fla. 5th DCA 2012), rev. granted, No. SC12-2409, 2013 Fla. LEXIS 1249 (Fla. June 3, 2013).

Because the exculpatory clause at issue in this case does not expressly release UCFAA from its own negligence, the Planehers contend the release is unenforceable. They argue that because the exculpatory clause does not include the word “negligence” the release does not clearly and unambiguously waive actions of negligence. Although the other districts have adopted a “bright line” rule requiring such express language, Rosenberg v. Cape Coral Plumbing, Inc., 920 So.2d 61 (Fla. 2d DCA 2005); Witt v. Dolphin Research Ctr., Inc., 582 So.2d 27 (Fla. 3d DCA 1991); Levine v. A. Madley Corp., 516 So.2d 1101 (Fla. 1st DCA 1987); Van Tuyn v. Zurich Am. Ins. Co., 447 So.2d 318 (Fla. 4th DCA 1984), this court has repeatedly rejected the need for express language referring to a release of the defendant for “negligence” or “negligent acts” in order to render a release effective to bar a negligence claim. Cain v. Banka, 932 So .2d 575, 578 (Fla. 5th DCA 2006); see also Give Kids the World, Inc., 98 So.3d at 759; Lantz v. Iron Horse Saloon, Inc., 717 So.2d 590 (Fla. 5th DCA 1998). I continue to believe ours is the proper view. Because the word “all” is easily understandable, a release waiving “all claims, causes of actions or demands of any kind and nature whatsoever” clearly encompasses all claims, including claims of negligence, even though the term “negligence” is not specifically referenced.

Indeed, the following language in Paragraph M of the Authorization is consistent with language we have previously determined to be clear and unambiguous:

In consideration of the University of Central Florida Athletic Association, Inc. permitting me to participate in intercollegiate athletics and to engage in all activities and travel related to my sport, I hereby voluntarily assume all risks associated with participation and agree to exonerate, save harmless and release the University of Central Florida Athletic Association, Inc., its agents, servants, trustees, and employees from any and all liability, any medical expenses not covered by the University of Central Florida Athletic Association’s athletics medical insurance coverage, and all claims, causes of action or demands of any kind and nature whatsoever which may arise by or in connection with my participation in any activities related to intercollegiate athletics.

(Emphasis added). See Give Kids the World, Inc., 98 So.3d at 762 (language releasing “any and all claims and causes of action of every kind arising from any and all physical or emotional injuries” and “any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish” broad enough to encompass negligence claims); Cain, 932 So.2d at 579 (exculpatory clause absolving defendant of “any and all liability, claims, demands, actions, and causes of action whatsoever” was sufficient to encompass plaintiffs negligence); Lantz, 717 So.2d at 591-92 (exculpatory clause releasing appellant “from all, and all manner of action and actions, cause and causes of action, suits ... damages ... claims ... and demands whatsoever, in law or in equity, which [appellant] ever had, now has, ... hereinafter can, shall or may have, ... for upon or by reason of any matter, cause or thing whatsoever” sufficient to release claims based on negligence); Hardage Enters., Inc. v. Fidesys Corp., N.V., 570 So.2d 436, 437 (Fla. 5th DCA 1990) (determining that “any and all claims, demands, damages, actions, causes of actions, or suits in equity, of whatsoever kind or nature” encompassed negligence action).

Relying on this court’s decision in O’Connell v. Walt Disney World Co., 413 So.2d 444 (Fla. 5th DCA 1982), the Planch-ers argue that Paragraph M, in its entirety, only releases UCFAA from injuries associated with Ereck’s participation in activities related to intercollegiate athletics, not to injuries caused by UCFAA’s own negligence. O’Connell involved a negligence action against an amusement park to recover damages for injuries sustained to a child during a stampede allegedly caused by the negligent act of the park’s employees during a horseback ride. Id. In O’Connell, this court found that a claim of negligence was not barred by an express assumption of the risk clause that referred only to risks “inherent in horseback riding,” or an exculpatory clause, because there was evidence that the injury was caused, not by any inherent characteristic of horseback riding, but by the negligent conduct of appellee’s employees. Id. at 449. In other words, the language in the release did not bar recovery for injuries from the defendant’s active negligence because there was no express statement that encompassed negligence of a party that would not necessarily inhere in the sport of horseback riding. See also Hardage Enters., Inc., 570 So.2d at 438 (Fla. 5th DCA 1990) (distinguishing O’Connell by the lack of restrictive language in the exculpatory clause).

While the release in O’Connell was expressly limited to injuries sustained as a result of horseback riding, the release in the instant case provided that Ereck would “assume all risks associated with participation and agree to exonerate, save harmless and release [UCFAA], its agents, servants, trustees, and employees from any and all- liability ... and all claims, causes of action or demands of any kind and nature whatsoever which may arise by or in connection with [his] participation in any activities related to intercollégiate athletics.” (Emphasis added). Here, the clear language in the release not only waived risks inherent in playing sports and claims for injuries as a result of that activity, but also released UCFAA from all claims of any nature whatsoever arising from any activities related to athletics. Accordingly, it would be a strained interpretation to conclude that the exculpatory clause did not encompass any and all claims “whatsoever,” including negligence claims, connected to Ereck’s death that occurred while he was participating in football practice.

The Planchers also argue that language found in the first paragraph of Paragraph M, when read in pari materia with the second paragraph containing the exculpatory clause, leads to the reasonable interpretation that UCFAA is released, if at all, only for injuries that occur despite UCFAA’s adherence to its own rules and procedures. At issue is the following language in paragraph one:

Because of the aforementioned dangers of participating in any athletic activity, I recognize the importance of following all instructions of the coaching staff, strength and conditioning staff, and/or Sports Medicine Department. Furthermore, I understand that the possibility of injury, including catastrophic injury, does exist even though proper rules and techniques are followed to the fullest.

The language warns the risk of injury exists “even though proper rules and techniques are followed.” According to the Planchers, because the Authorization explicitly requires Ereck to follow UCFAA’s orders, it logically follows that the language concerning “proper rules and techniques” is an attestation that UCFAA will only implement the proper rules and techniques. Thus, by signing the Authorization, Ereck relied on UCFAA to keep him healthy and promised to follow UCFAA’s rules in order to remain healthy. In support of this proposition, the Planchers cite Goyings v. Jack & Ruth Eckerd Foundation, 403 So.2d 1144 (Fla. 2d DCA 1981) and Murphy v. Young Men’s Christian Ass’n of Lake Wales, Inc., 974 So.2d 565 (Fla. 2d DCA 2008), both of which I find distinguishable.

In Goyings, a young girl suffered mental and physical injuries requiring her to be hospitalized while attending a camp for children with emotional problems. The child’s mother sued the camp alleging that the camp’s failure to administer medication caused her daughter’s injuries. The trial court granted summary judgment in favor of the camp finding that an exculpatory clause in the contract released the camp from any liability. The pertinent language stated:

It is further agreed that reasonable precautions will be taken by Camp to assure the safety and good health of said boy/girl but that Camp is not to be held liable in the event of injury, illness or death of said boy/girl, and the undersigned, does fully release Camp, and all persons concerned therewith, for any such liability.

Id. at 1145-46.

On appeal, the second district determined that, by their own choice of words, the camp agreed to take reasonable precautions to assure the child’s safety. Id. at 1146. As such, the camp’s release from liability rested on its exercise of reasonable care to ensure the child’s safety and good health. Id. at 1147. Whether the camp fulfilled its duty presented a factual question that precluded summary judgment. Id.

I am not persuaded that Goyings requires affirmance. While the exculpatory clause in Goyings contained express language that the camp would use “reasonable precautions” to insure the safety and good health of its campers, the same cannot be said for UCFAA. The two paragraphs comprising Paragraph M of the Authorization contain no express language promising that UCFAA will use reasonable care to ensure the safety of its athletes, and such a factual distinction is significant in light of the clear language of the release.

Although the majority sees it differently, I am likewise not persuaded by the holding in Murphy. I agree with UCFAA that the confusion that existed in Murphy does not exist in the present case. Here, the sentence containing the phrase “I understand that the possibility of injury ... does exist even though proper rules and techniques are followed” is located in a separate and distinct paragraph from the exculpatory clause. Additionally, the language at issue does not immediately precede the paragraph containing the exculpatory clause; but rather is followed by a sentence acknowledging the risks associated -with traveling in connection with intercollegiate athletics. Paragraph one simply outlines the risks associated with intercollegiate athletics. It does not express or imply that UCFAA will employ proper rules and techniques or undertake to ensure Ereck’s safety while practicing or playing football.

Since the language in the Authorization does not expressly state that UCFAA will employ proper rules and techniques or take reasonable precautions to assure the safety and good health of its athletes, in order for me to conclude that the exculpatory clause is unenforceable, I must find that a reasonable reading of the language in Paragraph M indicates such duty was implicitly promised. For the reasons stated above, I am unwilling to draw such a conclusion.

      . § 1004.28, Fla. Stat. (2011).

      . The Planchers dismissed UCF as a party to the lawsuit on the first day of trial.

      .We find no merit in UCFAA's claim that it was denied a fair trial because of the trial court’s concerns over time management.

      . The Authorization was not among the forms sent to the players’ homes, but was distributed at a team meeting.

      . Ereck Planeher was eighteen years old when he signed the release. He graduated early from Lely High School with a 3.9 GPA and was a member of the National Honor Society.

      . The opinion in Keck, issued after this case was perfected on appeal, resolved, in UCFAA’s favor, some of the arguments raised by the Planchers in opposition to UCFAA's claim of entitlement to limited sovereign immunity. 104 So.3d at 359. The supreme court specifically rejected the argument that the lack of a statutory declaration precludes a corporation from being considered a state agency or subdivision pursuant to section 768.28(2), finding that a corporation formed by the Jacksonville Transit Authority was entitled to sovereign immunity as "a state agenc[y] or subdivision! ] under section 768.28(2) because it primarily acts as an instrumentality of JTA,” despite the lack of a statute specifically authorizing its formation. Id. at 368-69; see also Mingo v. ARA Health Servs., Inc., 638 So.2d 85, 86 (Fla. 2d DCA 1994) (recognizing that while the lack of an express statute granting sovereign immunity precludes such immunity as a matter of law, the entity in question could still be determined to be acting as an agency of the state under the facts and circumstances of a particular relationship).

      .Pursuant to section 1004.28(l)(a), Florida Statutes (2011), a "University direct-support organization” is an organization which is:
      1. A Florida corporation not for profit incorporated under the provisions of chapter 617 and approved by the Department of State.
      2. Organized and operated exclusively to receive, hold, invest, and administer property and to make expenditures to or for the benefit of a state university in Florida or for the benefit of a research and development park or research and development authority affiliated with a state university and organized under part V of chapter 159.
      3.An organization that a state university board of trustees, after review, has certified to be operating in a manner consistent with the goals of the university and in the best interest of the state. Any organization that is denied certification by the board of trustees shall not use the name of die university that it serves.

      . Notwithstanding the delegation of administration to UCFAA, the intercollegiate teams are die UCF Knights, not the UCFAA Knights, and UCF, not UCFAA, is a member institution of the National Collegiate Athletics Association.

      . The president of the university, or his desig-nee, must serve on the board of directors and the executive committee of the DSO. § 1004.28(3), Fla. Stat.

      . At one time, UCFAA received student athletic fees directly from UCF. However, in 2007, section 1004.28(l)(c), Florida Statutes, was amended to prohibit DSOs from receiving student athletic fees. Now, UCF holds the student athletic fees in an account, UCFAA submits third-party invoices to UCF and UCF pays those invoices from that account.

      . The DSO must comply with the rules imposed by the board of trustees in order to use property, facilities, or personal services at any state university. These rules shall provide for budget and audit review and oversight by the board of trustees. § 1004.28(l)(b), Fla. Stat. (2011).

      . The Planchers insist that this case does not implicate the concerns underlying sovereign immunity because the payment of the judgment will not adversely affect the State's orderly administration or its coffers, as UCFAA and its insurer, not the State or UCF, are responsible for the judgment. We reject this argument. As UCFAA correctly points out, section 768.28(5), Florida Statutes, specifically states that insurance coverage will have no effect on sovereign immunity liability limits.

      . The court’s reasoning, however, appears to be based, instead, on the lack of a specific statutory provision addressing sovereign immunity. The judge stated:
      The UCF Athletic Association is a direct-support organization authorized and organized pursuant to Florida Statute 1004.28. The legislature could have provided a direct provision for sovereign immunity for such organizations but did not, unlike, and I’ll give you some examples ... In every one of those instances the legislature specifically provided for sovereign immunity in the enabling statute.
      This obviously begs the question as to why didn’t the legislature address the question of sovereign immunity in Florida Statute 1004.28. The answer lies in the history of 1004.28. University direct-support organizations were formed to promote private fund-raising in support of public universities. It is unlikely that the legislature when authorizing 1004.28 envisioned the present scope of the UCF Athletic Association.
      As previously stated, however, the supreme court has already decided that a statute declaring a corporation to be an instrumentality of the state is not required for a corporation to be entitled to immunity under the statute.

      . While recognizing UCFAA was created by UCF, the Planchers argue that the agreement between UCF and UCFAA defeats UCFAA’s argument that it acts primarily as an instrumentality of UCF. Citing Mingo, the Planchers reference the language in the agreement expressly stating that nothing contained within it “shall be construed to create a joint venture, partnership, or other like relationship” between UCF and UCFAA. 638 So.2d at 86.
      In Mingo, the second district, looking specifically at the relationship between the healthcare provider and the county jail, found that the contract between the two parties disavowed the provider as a corporation primarily acting as an instrumentality or agency of the state because the contract expressly stated that the provider "was an independent contractor and is neither an agent, employee, partner nor joint venture of or with the SHERIFF or with the Board of County Commissioners for Hillsborough County, Florida.” Id. Although the Services Agreement in the present case states that it should not be construed to create a joint venture, partnership, or other like relationship, unlike Mingo, it does not expressly state that UCFAA is an independent contractor or that UCFAA is not an agent of UCF. Accordingly, we do not accept the Planchers' argument and find the Services Agreement does not disavow an instrumentality or agency relationship.

      . Betterson involved a negligence action instituted after the plaintiff suffered injury in a highway collision between a car and a cow owned by PRIDE. 648 So.2d at 779.

      . In what it called an “unusual action for declaratory relief,” the second district refused to issue a blanket ruling in Pagan. Id. at 262. Instead, it limited its ruling to the patients’ malpractice action against one doctor in First Physicians Group. Id. at 264.

      . The judgment entered against UCFAA shall be reduced to $200,000 in accordance with section 768.28(5), Florida Statutes. Any amount over the statutory cap must be sought by the Planehers in a claim bill filed in the Florida Legislature. See § 768.28(5), Fla. Stat.; Wagner v. Orange County, 960 So.2d 785, 787 (Fla.2007) (explaining that "a claim bill is not obtainable by right upon the claimant’s proof of entitlement, but rather is granted strictly as a matter of legislative grace.”).

      . The Planehers pled a number of avoidanc-es to the release that were never addressed below. Because the avoidances raise factual issues that must be resolved in the trial court, I decline to address them here. I note only that, if proven, any one of the pled avoidances could serve to invalidate the release.

      . One need only look to the plain meaning of the word "all" to reach this conclusion. "All” means “[t]he whole amount, quantity, extent ... [t]he entire number of; the individual constituents of, without exception .... [e]very ... [a]ny whatever ... [t]he greatest possible ,.. [everything; the totality _ every one of; the whole of; as much as ... [w]hole being, entirety, totality...." 1 Shorter Oxford English Dictionary 54-55 (5th ed. 2002).

      . The release in O’Connell set forth, in pertinent part:
      I consent to the renting of a horse from Walt Disney World Co. by Frankie, a minor, and to his/her assumption of the risks inherent in horseback riding. I agree, personally and on his/her behalf, to waive any claims or causes of action which he/she or I may now or hereafter have against Walt Disney World Co. arising out of any injuries he/she may sustain as a result of that horseback riding, and I will hold Walt Disney World Co. harmless against any and all claims resulting from such injuries.
      413 So.2d at 445.

      . My opinion regarding the enforceability of the release should not be interpreted to condone the egregious conduct of the UCFAA coaching staff. Indeed, as it appears and as the jury found, it was both the coaching staff's actions and inactions that led to the tragic death of Ereck Planchen It is difficult to comprehend how one human being can ignore another in obvious distress or prevent someone else from offering aid to one in distress, but, inexplicably, that is what happened here. In that regard, I would note that exculpatory clauses are unenforceable to the extent they attempt to release liability for intentional torts. See Loewe v. Seagate Homes, Inc., 987 So.2d 758 (Fla. 5th DCA 2008).


source: Caselaw Access Project

author: SHEPHERD, C.J.

license: Public Domain

text:
    Gary Lee WILLIAMS, Petitioner, v. The STATE of Florida, et al., Respondents.
    No. 3D13-739.
    District Court of Appeal of Florida, Third District.
    Aug. 21, 2013.
    Rehearing Denied Oct. 4, 2013.
    Gary Lee Williams, in proper person.
    Pamela Jo Bondi, Attorney General, Tallahassee, for respondents.
    Before SHEPHERD, C.J., and LAGOA and FERNANDEZ, JJ.
   ON ORDER TO SHOW CAUSE

SHEPHERD, C.J.

On March 14, 2013, Petitioner, Gary Lee Williams, filed a “Petition for Writ of Ha-beas Corpus Alleging Ineffective Assistance of Appellate Counsel” with this court. On April 4, 2013, we denied Williams’ petition and ordered him to show cause why he should not be prohibited from filing further pro se pleadings with this court concerning his February 1990 conviction and sentence arising from lower tribunal case number 88-33341. After carefully considering Williams’ response to this court’s show cause order, see State v. Spencer, 751 So.2d 47 (Fla.1999), and having reviewed the record, we now prohibit Williams from filing any additional pro se appeals, pleadings, motions, or petitions relating to these convictions and sentences.

FACTS

In May 1989, Williams was indicted for Count I, first-degree murder; Count II, attempted first-degree murder; and Count III, unlawful possession of a firearm while engaged in a criminal offense. After a jury trial, Williams was convicted of Counts I and III and was sentenced to life imprisonment with a minimum mandatory term of twenty-five years for the first-degree murder conviction. This court affirmed the convictions and sentences on direct appeal. Williams v. State, 591 So.2d 319 (Fla. 3d DCA 1991).

Since 1990, Williams has filed numerous petitions or motions for postconviction relief stemming from lower tribunal case number 88-33341. In the current appeal, Williams argues his appellate counsel was ineffective for failing to “discover fundamental error in instructing the jury on manslaughter -without ... defining the terms excusable or justifiable homicide, which, if raised in [the] merits brief, would have resulted in a new trial.” In his response to this court’s show cause order, Williams acknowledges “the claim submitted here is successive,” but contends, “frivolous it is not[.]” We disagree. Were the facts as Williams would have us believe, there indeed might be merit to his argument. However, they are not. After careful review of the exhaustive filings by Williams, and after thorough review of the case law, we disagree with Williams’ view that this latest proceeding is not frivolous. In fact, of the multiple cases Williams has filed with this court, none have been found to be meritorious.

FRIVOLOUS APPEALS BY PRISONERS

“We recognize that incarcerated persons should and do have a full panoply of procedural vehicles with which to challenge the lawfulness of their incarcerations.” Edwards v. State, 96 So.3d 1154, 1155 (Fla. 3d DCA 2012) (quoting Hepburn v. State, 934 So.2d 515, 517 (Fla. 3d DCA 2005)). There is, however, no constitutional right to file a frivolous lawsuit. See Hepburn, 934 So.2d at 517-18; see also Villalobos v. State, 96 So.3d 970, 971 (Fla. 3d DCA 2012). As this court stated in Edwards v. State, 96 So.3d 1154, 1155 (Fla. 3d DCA 2012), and Middleton v. State, 95 So.3d 385, 388 (Fla. 3d DCA 2012), “there comes a point where enough is enough.” Based upon careful review of Williams’ filings in this court, we believe he has reached that point.

CONCLUSION

We direct the Clerk of the Third District Court of Appeal to refuse to accept for filing in this court all further appeals, pleadings, motions, petitions, or other papers to Williams’ convictions and sentences in lower tribunal case number 88-33341, unless they are filed by a Florida Bar member in good standing.

Finally, we direct the Clerk to forward a certified copy of this opinion to the Department of Corrections for consideration by that institution of disciplinary measures against Williams, pursuant to sections 944.279(1) and 944.28(2)(a), Florida Statutes (2010). See Pettway v. McNeil, 987 So.2d 20 (Fla.2008).

      . See Williams v. State, 93 So.3d 1040 (Fla. 3d DCA 2012) (denying motion for rehearing); Williams v. State, 49 So.3d 255 (Fla. 3d DCA 2010) (table) (affirming denial of motion for postconviction relief); Williams v. State, 41 So.3d 910 (Fla. 3d DCA 2010) (table) (denying petition for writ of habeas corpus alleging ineffective assistance of counsel); Williams v. State, 19 So.3d 325 (Fla. 3d DCA 2009) (table) (affirming denial of motion for postconviction relief); Williams v. McNeil, 993 So.2d 533 (Fla. 3d DCA 2008) (table) (denying motion for reconsideration and petition for writ of habeas corpus); Williams v. State, 981 So.2d 1215 (Fla. 3d DCA 2008) (table) (affirming denial of motion for postconviction relief); Williams v. McDonough, 965 So.2d 141 (Fla. 3d DCA 2007) (table) (denying motion for rehearing en banc); Williams v. McDonough, 942 So.2d 889 (Fla. 3d DCA 2006) (table) (denying petition for writ of habeas corpus); Williams v. State, 941 So.2d 445 (Fla. 3d DCA 2006) (affirming denial of motion for postconviction relief); Williams v. State, 925 So.2d 427 (Fla. 3d DCA 2006) (denying motion for rehearing); Williams v. Crosby, 888 So.2d 42 (Fla. 3d DCA 2004) (table) (denying petition for writ of habeas corpus); Williams v. State, 840 So.2d 251 (Fla. 3d DCA 2003) (table) (affirming denial of motion for postconviction relief); Williams v. State, 795 So.2d 72 (Fla. 3d DCA 2001) (table) (affirming denial of motion for postconviction relief); Williams v. State, 768 So.2d 460 (Fla. 3d DCA 2000) (table) (affirming denial of motion for post-conviction relief); Williams v. State, 727 So.2d 937 (Fla. 3d DCA 1998) (table) (affirming denial of motion for postconviction relief); Williams v. Singletary, 665 So.2d 230 (Fla. 3d DCA 1995) (table) (affirming denial of petition for writ of habeas corpus); Williams v. Singletary, 599 So.2d 673 (table) (affirming denial of petition for writ of habeas corpus).


author: PER CURIAM.

text:
    Vincent L. MEEKS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-3194.
    District Court of Appeal of Florida, Third District.
    Aug. 21, 2013.
    Rehearing Denied Oct. 4, 2013.
    Vincent L. Meeks, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD, C.J., and ROTHENBERG and SALTER, JJ.
   PER CURIAM.

The court treats the appellant Vincent L. Meeks’ notice of appeal from the trial court’s August 8, 2012, “Order Denying Defendant’s petition for Writ of Habeas Corpus,” as a petition for belated appeal. The court grants the petition for belated appeal and affirms the August 8 order.

Under the same notice of appeal, Meeks also appeals from the trial court’s October 26, 2012, order imposing sanctions. We affirm the October 26 order as well.

Orders affirmed.


text:
    Dustin BOND, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3622.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2013.
    Rehearing Denied Oct. 18, 2013.
    Dustin Bond, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(5)(A).

VAN NORTWICK, SWANSON, and OSTERHAUS, JJ„ concur.


text:
    Vern GODING, Appellant/Cross-Appellee, v. CITY OF BOCA RATON and Corvel, Appellees/Cross-Appellants.
    No. 1D12-5387.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2013.
    Rehearing Denied Sept. 26, 2013.
    Bill McCabe, Longwood, and Henry S. Prettyman, Boca Raton, for Appellant/Cross-Appellee.
    Beth J. Leahy of Walton, Lantaff, Schroeder & Carson, L.L.P., Fort Lauder-dale, for Appellees/Cross-Appellants.
   PER CURIAM.

In this workers’ compensation appeal, Claimant argues the Judge of Compensation Claims (JCC) erred in denying his ongoing entitlement to permanent total disability (PTD) supplemental benefits, as well as attorney’s fees, costs, penalties, and interest. On cross-appeal, the Employer/Carrier (E/C) argues the JCC erred in finding the PTD supplemental benefits were payable through Claimant’s 66th birthday. Concluding that, under the plain language of the applicable statute and prior decisions of this Court, Claimant is entitled to ongoing PTD supplemental benefits, we reverse the order on appeal.

The pertinent facts are not in dispute. Claimant, who was born on September 12, 1945, was employed as a firefighter/paramedic and suffered a compensable heart attack on August 23, 1992. The E/C voluntarily accepted Claimant as being permanently and totally disabled on January 14, 1994; Claimant was 48 years of age. In addition to receiving PTD benefits, Claimant received PTD supplemental benefits, as provided for in section 440.15(l)(e)l., Florida Statutes (Supp. 1992). At age 62, Claimant began receiving social security retirement benefits. He applied for social security disability benefits twelve times and was denied each time. The E/C sua sponte ceased paying PTD supplemental benefits when Claimant was 66 years of age.

“Because we are reviewing the application of the law to undisputed facts, our review is de novo.” Braun v. Brevard Cnty., 44 So.3d 1216, 1217 (Fla. 1st DCA 2010). In construing a statute, courts must first look to its plain language. See Perez v. Rooms To Go, 997 So.2d 511, 512 (Fla. 1st DCA 2008). Section 440.15(l)(e)l., Florida Statutes (Supp.1992), which provides for PTD supplemental benefits, states: “Entitlement to these supplemental payments shall cease at age 62 if the employee is eligible for social security benefits under 42 U.S.C. ss 402 and 423, whether or not the employee has applied for such benefits.” (emphasis added). Section 402 relates to social security retirement benefits, and section 423 relates to social security disability benefits. Under the plain terms of the statute, an employee must be eligible for both social security retirement benefits and social security disability benefits for PTD supplemental benefits to cease at age 62. See Hillsborough Cnty. Sch. Bd. v. Ward, 913 So.2d 39, 42 (Fla. 1st DCA 2005) (holding that carrier seeking to cease payment of PTD supplemental benefits when claimant reaches age 62 must first establish claimant is eligible for both social security retirement benefits and social security disability benefits). Here, the unrefuted evidence showed that, when Claimant began receiving social security retirement benefits at age 62, he was not eligible — and never became eligible — for social security disability benefits. Because Claimant at no time after age 62 was eligible for both types of social security benefits, his entitlement to PTD supplemental benefits did not cease. See id.; Burger King Corp. v. Moreno, 689 So.2d 288, 289 (Fla. 1st DCA 1997) (affirming order finding claimant entitled to PTD supplemental benefits, where claimant was 69 years old at the time of injury, and no longer was eligible for social security disability benefits pursuant to federal law); cf. Wilkins v. Broward Cnty. Sch. Bd., 754 So.2d 50, 52 (Fla. 1st DCA 2000) (holding that claimant’s PTD supplemental benefits, lost when claimant turned 62 and was eligible for social security retirement and disability benefits, could not resume at age 65, when claimant no longer qualified for social security disability benefits).

The JCC erred in denying the claim for ongoing PTD supplemental benefits, and, for this reason, in denying the claims for penalties, interest, costs, and attorney’s fees, as well. Accordingly, we REVERSE the order on appeal and REMAND for entry of an order consistent with this opinion.

VAN NORTWICK, MARSTILLER, and RAY, JJ., concur.

      . This provision was amended in 2003, and now employs the disjunctive “or,” instead of the conjunctive “and” relative to eligibility for the two types of social security benefits. See ch. 03-412, § 18, at 3916, Laws of Fla.:
      These supplemental payments shall not be paid or payable after the employee attains age 62, regardless of whether the employee has applied for or is eligible to apply for social security benefits under 42 U.S.C. s.402 or s.403, unless the employee is not eligible for social security benefits under 42 U.S.C. s.402 or s.423 because the employee's compensable injury has prevented the employee from working sufficient quarters to be eligible for such benefits.
      (Emphasis added.)


text:
    David COLLINS, Appellant, v. MOSAIC FERTILIZER, LLC and Gallagher Bassett Services, Inc., Appellees.
    No. 1D12-4830.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2013.
    Rehearing Denied Oct. 2, 2013.
    Laurie Thrower Miles of Miles & Parrish, P.A., Lakeland, Susan W. Fox of Fox & Loquasto, P.A., Orlando, and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellant.
    Christopher L. Petruccelli of Petruccelli Law Group, Tampa, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant David Collins argues that the Judge of Compensation Claims (JCC) erred in rejecting of the medical opinion of an expert medical advisor (EMA), asserting that the JCC failed to find and articulate clear and convincing evidence that would overcome the presumptive correctness associated with the opinion of an EMA. Claimant also argues that the JCC erred in denying the requested benefits, which include additional medical care, additional indemnity benefits, and penalties, interest, costs, and attorney’s fees. For the following reasons, we reverse all issues.

Here, the EMA opined that the subdural hematomas, for which Claimant underwent emergency surgery one year after the compensable fall, were causally related to the fall. The JCC reasoned that clear and convincing evidence shows the EMA’s opinion is not supported by a factual foundation, because (1) an MRI performed four months after the work accident did not reveal the presence of any hematomas, (2) the EMA and both independent medical examiners agree that if a hematoma was caused by the work accident it “should have” been present on the MRI, and (8) the EMA found no cases in the literature in which the delay in the onset of hemato-mas was as long as the delay in Claimant’s case.

“The opinion of the [EMA] is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the [JCC].” § 440.13(9), Fla. Stat. (2009). “When the JCC rejects the opinion of an EMA, this Court reviews the record for competent, substantial evidence to support the JCC’s determination that clear and convincing evidence existed to contradict the EMA’s opinion.” Travelers Ins. v. Armstrong, 118 So.3d 865, 2013 WL 3441529 (Fla. 1st DCA Jul.9, 2013) (citing Arnau v. Winn Dixie Stores, 105 So.3d 669, 671 (Fla. 1st DCA 2013)). The record here supports the JCC’s findings of fact regarding the MRI results, the doctors’ opinions that the MRI should have revealed a hematoma, and the EMA’s impression of the literature. These findings of fact do not contradict the EMA’s opinion, however, because the EMA relied on the very same facts in forming his opinion. Although acknowledging the absence of any hematomas on the MRI, the EMA opined the fall caused the hematomas, based on the literature’s indication that hematomas could be delayed-onset, and the absence of any other cause for the hematomas, as well as his own examination of Claimant, his consideration of Claimant’s history, and his review of Claimant’s medical records. The absence of any hematomas on the MRI even though it should have been on the MRI, then, does not constitute “clear and convincing evidence to the contrary” of the EMA’s opinion.

Because the JCC failed to find and articulate clear and convincing evidence to the contrary of the EMA’s opinion, the JCC erred in denying the requested benefits. See id. at D1499 (citing Mobile Med. Indus. v. Quinn, 985 So.2d 33, 36 (Fla. 1st DCA 2008)). Accordingly, the order is REVERSED, and the matter REMANDED with directions for the JCC to accept the opinions of the EMA and award benefits.

PADOVANO, MARSTILLER, and MAKAR, JJ., concur.


author: EVANDER, J.

text:
    Eyal A. COHEN, etc., et al., Appellants, v. D.R. HORTON, INC., Appellee.
    No. 5D13-476.
    District Court of Appeal of Florida, Fifth District.
    Aug. 23, 2013.
    Rehearing Denied Sept. 23, 2013.

      Philip K. Calandrino, of Calandrino Law Firm, P.A., Orlando, for Appellants.
    Jamie Billotte Moses, of Fisher, Rush-mer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, and David M. Souders and Sandra B. Vipond, of Weiner Brodsky Kider PC, Washington, DC, Pro Hac Vice, for Appellee.
   EVANDER, J.

Appellants filed a timely notice of appeal seeking review of a non-final order denying their motion for relief from an order compelling arbitration. The trial court’s earlier order compelling arbitration was affirmed by this court approximately three years ago. Cohen v. D.R. Horton, 41 So.3d 913 (Fla. 5th DCA 2010). We conclude that the instant order is not appeal-able under Florida Rule of Appellate Procedure 9.130 and that, even if the notice of appeal is treated as a petition for certiora-ri, Appellants are not entitled to relief.

In February 2009, Appellants filed a putative class action against Horton alleging various violations of the Interstate Land Sales Full Disclosure Act, 15 U.S.C. §§ 1701-1720 (2006). Based on an arbitration clause in the parties’ contract, Horton moved to compel arbitration. In November 2009, the trial court granted Horton’s motion to compel arbitration and abated the case pending the conclusion of the arbitration. Appellants appealed that order, arguing that the arbitration clause was unenforceable because the attorneys’ fees provision contained therein was allegedly inconsistent with the federal statute. This court per curiam affirmed on August 10, 2010.

In March 2012, the trial court entered an order requiring the parties to report on the status of the arbitration. One month later, the trial court entered an Agreed Order Appointing Arbitrator. The stipulated order reflected that the arbitrator, attorney Gary Salzman, would be paid at the rate of $425.00 per hour plus expenses. The Agreed Order further provided:

3. Arbitration Deposits & Account Statements. The Parties shall pay the Arbitrator’s law firm an initial trust deposit in the total combined amount of Six Thousand and 00/100 Dollars ($6,000.00) within ten (10) days from the date of this Order. Once the final arbitration hearing is scheduled, the Arbitrator shall provide the Parties with written notice, increasing the initial trust deposit to include fees, costs, expenses and disbursements which the Arbitrator estimates will be incurred to complete the arbitration proceeding through and including the entry of a final award. Said increased trust deposit shall be paid by the Parties within ten (10) days from the date of the Arbitrator’s notice. The Arbitrator’s law firm shall provide the Parties’ counsel with monthly statements reflecting all fees, costs, expenses and disbursements incurred and applied against said trust deposits. The Arbitrator shall not be required to obtain the Court’s approval of any fees, costs, expenses and disbursements incurred prior to payment by the Parties or application of the Parties’ trust deposits.
4. Payments by the Parties. All total payments to the Arbitrator’s law firm as required hereunder shall be paid fifty percent (50%) by Plaintiffs and fifty percent (50%) by Defendant, but such payments may be awarded by the Arbitrator to the prevailing party in the arbitration proceeding.

On June 7, 2012, the arbitrator entered an Order on Preliminary Issues concluding that Appellants could not pursue the arbitration on behalf of a putative class. Two weeks later, the arbitrator entered a follow-up order setting the final arbitration hearing for December 10 and 11, 2012. On the same day, the arbitrator also e-mailed the parties’ counsel an estimate of his fee for the remainder of the proceedings— $28,050 (66 hours at $425.00/hour). When Appellants failed to pay their share of the deposit within the time period set forth in the Agreed Order, the arbitrator dismissed the arbitration without prejudice.

On January 18, 2018, shortly before a long-scheduled status conference hearing, Appellants filed a motion for relief from order compelling arbitration (hereinafter “motion for relief’), arguing that the trial court should determine that the contract arbitration provisions were unenforceable under the prohibitive cost doctrine. The prohibitive cost doctrine is derived from Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000). There, the Supreme Court recognized that an arbitration clause could be rendered unenforceable where the existence of substantial arbitration costs would otherwise preclude a litigant from effectively vindicating his or her federal statutory rights. Id. at 90, 121 S.Ct. 513; see also Fi-Evergreen Woods, LLC v. Estate of Vrastil, 118 So.3d 859 (Fla. 5th DCA July 5, 2013).

In their motion for relief, Appellants asserted that because the arbitrator had ruled that the case could not proceed as a class action, Appellants’ counsel was no longer willing to advance the costs of litigation and Appellants could not afford to pay the arbitrator’s requested deposit. “Personal Financial Statements” were attached as exhibits to the motion for relief purporting to reflect Appellants’ respective current financial conditions. These financial statements did not reflect Appellants’ current incomes and only set forth non-detailed summaries of their assets and liabilities.

A status conference hearing was held on January 22, 2013. Three days later, the trial court entered an order denying Appellants’ motion for relief and directing Appellants to pay the required deposit within ten days or the matter “shall be dismissed on the fourteenth (14) day following the date of this order without further order of the Court.” Appellants filed their Notice of Appeal on February 7, 2013.

Pursuant to Article V, section 4 of the Florida Constitution, district courts of appeal may hear appeals from non-final orders to the extent provided by rules adopted by the Florida Supreme Court. Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv) permits an appeal of orders that “determine ... the entitlement of a party to arbitration....” Thus, the first issue to be addressed is whether the trial court’s order denying Appellants’ motion for relief is an order “determining entitlement of a party to arbitration.”

In an analogous case, the First District Court of Appeal concluded that where the trial court had previously entered an order compelling arbitration, a subsequent order denying a motion to dispense with arbitration was not appealable under rule 9.130. Henderson v. Tandem Health Care of Jacksonville, Inc., 898 So.2d 1191 (Fla. 1st DCA 2005). Our sister court reasoned that the determination of entitlement to arbitration was made in the trial court’s original order referring the parties to arbitration and was not required to be remade in a subsequent order denying a motion to dispense with arbitration. Id. at 1192. We agree -with that rationale. Additionally, we would observe that to hold otherwise would create the potential for multiple interlocutory appeals from motions denying relief from arbitration. Given the strong policy against piecemeal appeals, we believe that when a party is seeking interlocutory appellate review of an order compelling arbitration, it should raise all of its challenges to the order in a single appeal.

Appellants argue, in the alternative, that this court treat their notice of appeal as a petition for writ of certiorari and grant relief. We conclude that certio-rari relief is not available in the instant case. Certiorari is an extraordinary remedy that should not be used to circumvent the interlocutory appeal rule that authorizes appeals from only a few types of non-final orders. Citizens Prop. Ins. Corp. v. San Perdido Ass’n, Inc., 104 So.3d 344, 349 (Fla.2012). An appellate court may grant a petition for certiorari only where the petitioner demonstrates (1) a departure from the essential requirements of the law (2) resulting in material injury for the remainder of the case (3) that cannot be remedied on post-judgment appeal. Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004). The last two elements are jurisdictional. Williams v. Oken, 62 So.3d 1129, 1132 (Fla.2011). Here, Appellants have failed to demonstrate a material injury for which there is no adequate remedy on plenary appeal. The inconvenience and expense of litigation after an allegedly incorrect interlocutory ruling does not constitute the kind of material harm or irreparable injury from which certiorari review is available. Mariner Health Care v. Griffith, 898 So.2d 982, 984 (Fla. 5th DCA 2005); see also Zabawa v. Penna, 868 So.2d 1292-1293 (Fla. 5th DCA 2004) (no irreparable harm found where appellant claimed he would be required to expend time and money on unnecessary arbitration).

APPEAL DISMISSED.

SAWAYA and BERGER, JJ., concur.


author: GRIFFIN, J.

text:
    David A. HARDY, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4844.
    District Court of Appeal of Florida, Fifth District.
    Aug. 23, 2013.
    Rehearing and Rehearing En Banc Denied Sept. 27, 2013.
    David A. Hardy, Bristol, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Appellant, David A. Hardy [“Hardy”], appeals the summary denial of his rule 3.800 motion to correct an illegal sentence. It appears that one issue arises out of a scrivener’s error, which the State agrees requires remand for correction.

In 2009, Hardy entered his plea to the bench on fifty separate counts of possession of child pornography. Each count is a third-degree felony. The original sentencing record reflects that the trial court intended to impose a twelve-year total sentence, which was a downward departure from the 16.6 year guidelines sentence. However, the 2009 sentence improperly imposed the twelve years concurrently on each third-degree felony. This error was corrected in a 2011 resentencing where Hardy received five years on Count 1, five years consecutive on Count 2, two years consecutive on Count 3, and five years concurrent on all remaining counts.

Hardy then sought to correct the credit for the time served portion of the sentence and the trial court, in granting the credit, erroneously re-imposed the twelve-year sentence on each third-degree felony. The State acknowledges that Hardy’s sentence should reflect twelve years total on the first three counts with the remaining counts running concurrently, together with credit for time served. Hardy need not be present to correct the current error.

Sentence VACATED and REMANDED for correction.

TORPY, C.J., and LAWSON, J., concur.

      . There is no merit to Hardy's second issue on appeal.


author: SUAREZ, J. SCHWARTZ, Senior Judge,

text:
    Paul and Fely SIGUENZA, Appellants, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    No. 3D12-1337.
    District Court of Appeal of Florida, Third District.
    Aug. 28, 2013.
    Rehearing Denied Oct. 8, 2013.
    Alvarez, Carbonell, Feltman, Alvarez, Jimenez & Gomez and Paul B. Feltman, for appellants.
    Jonathan Franklin, Miami, for appellee.
    Before SUAREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

The Siguenzas appeal the entry of final summary judgment in favor of Citizens Property Insurance in their breach of contract action. We conclude a material question of fact existed regarding notice of the alleged loss and accordingly reverse the order.

The appellant insureds, Mr. and Mrs. Siguenza, claim Hurricane Wilma damaged their residence in October 2005. At that time, the residence was insured under a homeowner’s policy issued by Citizens. The insureds claim to have given notice of the loss to the producer of the policy within two to four months of the loss. Citizens, however, alleges it received no notice of the alleged loss until the insureds’ public adjuster filed a claim in January 2009. Thereafter, Citizens inspected the premises but denied the claim based on the insureds’ failure to submit supporting documentation. The insureds later submitted documentation but Citizens maintained its denial, advising the documents were insufficient to determine what damages, if any, were caused by Hurricane Wilma. The insureds then filed the present suit for breach of contract. After limited discovery, Citizens filed a Motion for Final Summary Judgment, which the trial court granted. Although the trial court’s order is not detailed, it would appear from the hearing transcript that it determined the insureds did not give notice until January 2009, and that this late notice prejudiced Citizens.

The subject insurance policy requires the insureds to give “prompt notice to [Citizens], or [their] producer,” of any claim for damages. At deposition, Mrs. Siguenza claimed to have given notice two to four months after the loss. She testified that she reported the loss two times by phone to Citizens Insurance and the representatives she talked to both stated they would get back to her but never did. In support of its summary judgment motion, Citizens submitted an affidavit refuting Mrs. Siguenza’s testimony that she gave notice directly to the insurance company. The affidavit states Citizens has no record of telephonic contact from the Si-guenzas between the date of Hurricane Wilma and the date the public adjuster filed the claim in January 2009. In response, Mrs. Siguenza filed an affidavit stating she gave notice to the insurance agent that sold her the policy (i.e., producer).

At first glance, there would appear to be a contradiction between Mrs. Siguenza’s deposition testimony and her affidavit filed in opposition to Citizens’ Motion for Summary Judgment that would permit the trial judge to reject the affidavit and rely on the deposition testimony. See, e.g., Ellison v. Anderson, 74 So.2d 680, 681 (Fla.1954) (“[A] party when met by a Motion for Summary Judgment should not be permitted by his own affidavit ... to baldly repudiate his previous deposition so as to create a jury issue.... ”). The problem for purposes of summary judgment is that although Mrs. Siguenza stated during deposition that she notified the insurance company, it is clear on the face of the transcript that she considered the insurance company and the insurance agent to be the same entity. Therefore, her subsequent affidavit alleging she notified the agent, rather than the insurance company, did not necessarily contradict her previous testimony. The policy allows for the insured to notify either Citizens or the producer. We make no determination whether Mrs. Siguenza did or did not report the claim as she testified. Rather, we only determine her sworn allegations that she notified her insurance agent of the loss within two to four months created a question of material fact on the issue of notice that precluded the entry of summary judgment. See Moore v. Morris, 475 So.2d 666, 668 (Fla.1985) (“If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.”).

Accordingly, we reverse the final summary judgment and remand for further proceedings.

SALTER, J., concurs.

SCHWARTZ, Senior Judge,

dissenting.

As the majority points out, the policy requires the insured to give “prompt notice to Citizens or your producer.” Despite Mrs. Siguenza’s repetitive, unqualified deposition testimony that she called Citizens, the majority concludes that a material question of fact exists as to whether she actually notified the agent instead. It relies on the following dialogue during Mrs. Siguenza’s deposition:

Q. Do you recall if you called the actual insurance company or your insurance agent, the person that you obtained insurance from?
A. That’s the insurance company.
Q. Pardon?
A. The insurance company.
Q. You called the insurance company? A. M-hmm.

From this single answer — “[tjhat’s the insurance company” — the majority draws the inference that Mrs. Siguenza may have actually meant that she notified the insurance agent, which if true, would be inconsistent with her other deposition testimony, but consistent with her subsequently filed affidavit, and therefore would not be prohibited by the Ellison rule, disallowing attempts to create conflicting issues simply to avert summary judgment.

It is clear that when evidence before the court is conflicting or will permit different reasonable inferences, summary judgment is precluded. See Moore v. Morris, 475 So.2d 666 (Fla.1985); Rocamonde v. Marshalls of Ma, Inc., 56 So.3d 863 (Fla. 3d DCA 2011); Murciano v. Garcia, 958 So.2d 423 (Fla. 3d DCA 2007). However, it is also true that a party cannot take inconsistent positions in order to avoid that judgment. See Ellison, 74 So.2d at 681. That is what happened here. First of all, Mrs. Siguenza’s answer, “[tjhat’s the insurance company,” does not conflict with her other deposition testimony in such a way that raises a question of material fact as to this issue. If her answer was enough to be considered incongruent with her other deposition testimony, it would have also been enough, standing alone, to defeat summary judgment. The fact that it was not enough is shown by the Siguenzas’s decision to file an affidavit prior to the summary judgment hearing specifically (and suddenly) swearing that she called the agent, and only the agent. It is no coincidence that the plaintiffs considered the affidavit necessary to avoid summary judgment only after — during the period between the deposition and the summary judgment hearing — it was conclusively demonstrated, through its records and the testimony of its agents, that nobody called Citizens at all. Thus, the Siguenzas could win only if, despite the total lack of corroborating evidence, Mrs. Siguenza actually (twice) called the agent with no response. So that is what she had to say, and therefore, is what she said.

Second, the majority is not justified in drawing the conclusion from the deposition that Mrs. Siguenza may have called the agent in the first place. While every reasonable inference must be drawn in favor of the party against whom summary judgment is sought, the word “reasonable” is the important one. See Moore, 475 So.2d at 668. I disagree with the majority’s drawing of the treasonable inference that Mrs. Siguenza was flummoxed and may have meant to say, on the at-least seven occasions during her deposition that she was asked who she called to report the loss, that she notified the agent. Moreover, even if this inference were reasonably drawn, it was clearly overcome and refuted by the direct and unequivocal evidence that (as she explicitly stated over and over again) she called Citizens. See Paniello v. Smith, 606 So.2d 626, 627 (Fla. 3d DCA 1992) (quoting Alan & Alan, Inc. v. Gulfstream Car Wash, Inc., 385 So.2d 121 (Fla. 3d DCA 1980) (“It is a well-settled principle that a fact cannot be established by circumstantial evidence which is perfectly consistent with direct, uncon-tradicted, reasonable and unimpeached testimony that the fact does not exist.”)). See also Child v. Child, 474 So.2d 299 (Fla. 3d DCA 1985) (contrary and conclusive direct evidence overcomes circumstantial evidence) rev. denied, 484 So.2d 7 (Fla.1986).

Finally, while Mrs. Siguenza’s deposition testimony may or may not be contradictory itself, it is blatantly contradicted by her subsequently filed affidavit. Where there is no credible explanation for discrepancies between earlier and later inconsistent testimony, the latter may not be considered. See Ellison, 74 So.2d at 681 (Fla.1954); Elison v. Goodman, 395 So.2d 1201 (Fla. 3d DCA 1981); see also Arnold v. Dollar Gen. Carp., 632 So.2d 1144 (Fla. 5th DCA 1994) (a party to a lawsuit will not be allowed to baldy repudiate his or her prior deposition testimony by an affidavit executed by that party or by another person so as to create a jury issue without credible explanation in the affidavit or in the record itself). Mrs. Siguenza did not provide any (let alone credible) explanation as to the discrepancy between her earlier deposition testimony and the subsequently filed affidavit regarding which entity she gave notice to about the loss. Even in Soler v. Secondary Holdings, Inc., 771 So.2d 62 (Fla. 3d DCA 2000), where the plaintiff explained that the discrepancies in his testimony were due to the fact that he was “confused” and/or “intimidated” at his earlier deposition, this court found that the trial court properly disregarded his subsequent testimony on the basis that such assertions were unsupportable.

Thus, the evidence did not raise a viable question of material fact that Mrs. Siguen-za ever called the agent (or anyone) to report the loss. The court’s contrary conclusion represents an endorsement and approval of just the kind of game-playing with the truth the Ellison rule is designed to prevent. I therefore dissent.

      . Q. Do you recall if you called the actual insurance company or your insurance agent, the person that you obtained insurance from?
      A. That’s the insurance company.
      (Fely Siguenza Dep. 24: 11-14, May 17, 2010.)

      . For the purposes of this opinion, we need not address the merits of the issues Citizens raises regarding prejudice and the insureds’ alleged failure to comply with policy provisions.

      . During her May 17, 2010, deposition, Mrs. Siguenza testified:
      Q. Who did you call?
      A. The insurance. Citizens insurance.

      Q. Do you recall if you called the actual insurance company or your insurance agent, the person that you obtained insurance from?
      A. That’s the insurance company.
      Q. Pardon?
      A. The insurance company.
      Q. You called the insurance company?
      A. M-hmm.

      Q. Had he made those repairs prior to you calling the insurance company, or that you say you called the insurance company?
      A. I called them to let my, you know, from after the hurricane, I called Citizens insurance about the leakage and damage of the roof and the crack.

      Q. And who did you report the claim to?
      A. To Citizens insurance.

      Q. Are you sure that it was Citizens Property Insurance Company that you called?
      A. Yes.

      A. Did I call the insurance company? I called the insurance company.
      Q. You called the insurance company directly?
      A. Yeah, because I have the, you know, the policy number and everything.

      Q. You said, and correct me if I’m wrong, you said that you reported, you called Citizens for the first time—
      A. Yeah.

      Q. How long after Wilma did the ceiling start to leak?
      A. How long from after Wilma? From two to four months, because that’s the time I called Citizens.

      . In her affidavit, Mrs. Siguenza stated:
      8. I personally called the Insurance agent who sold my husband ... and I the subject insurance Policy approximately two (2) to four (4) months following the hurricane to report the damages.

      10. However, I did not receive a follow up call from the Insurance agent or the Insurance Company....
      11. I once again called the Insurance agent approximately one (1) month after the initial phone call. I explained to the insurance agent the extent of the damages to my Property due to the hurricane, as well as that I had previously called to report the damage.

        12. The Insurance agent yet again reassured me that they would get back to me concerning the claim.
      13. For the second time though the Insurance agent failed to contact me or my husband ... to follow up....
      14. I called the Insurance agent using phone line of the subject Property on both of the aforementioned phone calls.

      . See Ellison v. Anderson, 74 So.2d 680 (Fla.1954).

      . The contrast between the statement upon which the court relies in the deposition and the affidavit could not be more stark:
      Q. Do you recall if you called the actual insurance company or your insurance agent, the person that you obtained insurance from?
      A. That's the insurance company.
      Q. Pardon?
      A. The insurance company.
      Q. You called the insurance company?
      A. M-hmm.

      8. I personally called the Insurance agent who sold my husband ... and I the subject insurance Policy approximately two (2) to four (4) months following the hurricane to report the damages.
      11. I once again called the Insurance agent approximately one (1) month after the initial phone call. I explained to the insurance agent the extent of the damages to my Property due to the hurricane, as well as that I had previously called to report the damage.


text:
    Leroy PLUMMER, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    Nos. 1D12-3293, 1D12-3372.
    District Court of Appeal of Florida, First District.
    Aug. 28, 2013.
    Rehearing Denied Sept. 27, 2013.

      Luke Newman of Luke Newman, P.A., Tallahassee, for Appellant/Cross-Appellee.
    William N. Meggs, State Attorney, and Lauren T. Jones, Assistant State Attorney, Office of the State Attorney of Florida, Tallahassee; Pamela Jo Bondi, Attorney General, Giselle D. Lylen, Assistant Attorney General, and Trisha Meggs Pate, Bureau Chief, Office of the Attorney General, Tallahassee, for Appellee/Cross-Appellant.
   PER CURIAM.

Leroy Plummer appeals his conviction and the state cross appeals his sentence for trafficking in hydrocodone. We find no error in Issue I. As to Issue II, although the trial court erred by excluding evidence of the confidential informant’s purported threats, see Crumley v. State, 534 So.2d 909 (Fla. 1st DCA 1988), Everett v. State, 801 So.2d 189 (Fla. 4th DCA 2001), appellant failed to preserve the issue by proffering the excluded statements, Lucas v. State, 568 So.2d 18 (Fla.1990), Baker v. State, 71 So.3d 802 (Fla.2011).

We reverse appellant’s sentence, because the evidence was undisputed and the jury found that the amount of hydroco-done in the case was over 14 grams and under 28, which required a minimum mandatory sentence of 15 years and a fine of $100,000.00. § 893.135(l)(c)l.b, Fla. Stat. (2010). Nothing in the statute gave the trial court the discretion to impose a lower minimum mandatory and fine. See State v. Cuesta, 490 So.2d 239 (Fla. 2d DCA 1986); State v. DeMille, 890 So.2d 454 (Fla. 2d DCA 2004); State v. Delgado, 717 So.2d 1053 (Fla. 4th DCA 1998). Appellant conceded the trial court’s error on this point.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

PADOVANO, MARSTILLER, and MAKAR, JJ., concur.