text:
    MIAMI DADE COUNTY SCHOOL BOARD/Gallagher Bassett, Appellants, v. Oneal SMITH, Appellee.
    No. 1D12-4769.
    District Court of Appeal of Florida, First District.
    June 3, 2013.
    Rehearing Denied July 15, 2013.

      David Goehl of Charlie Martinez, P.A., Miami Lakes, for Appellants.
    R. Cory Schnepper of Levine, Busch & Schnepper, P.A., Miami, for Appellee.
   PER CURIAM.

In this workers’ compensation case, the Employer, a self-insured entity, and its workers’ compensation servicing agent (hereafter referred to collectively as the Employer) challenge an order of the Judge of Compensation Claims (JCC) awarding permanent total disability (PTD) benefits to Claimant, a long-term employee who continued to work for the Employer for approximately thirteen years after sustaining a compensable workers’ compensation injury to his right foot. The Employer raises five issues on appeal, the first four of which, in essence, challenge the JCC’s finding that Claimant sufficiently established his entitlement to PTD benefits under the standards set forth in section 440.15(l)(b) and 440.02(34), Florida Statutes (1997). We conclude that based on the record evidence before us, the JCC did not commit error in awarding PTD benefits to Claimant, and the JCC used the appropriate legal standards in determining Claimant’s entitlement to such benefits. Thus, the Employer fails to present a basis for reversal in the first four issues on appeal. Having established as much, we next turn to the Employer’s fifth issue relating to the JCC’s denial of the Employer’s motion to depose an authorized treating doctor whose opinions played a significant role in the JCC’s determination that Claimant is entitled to PTD benefits. Because we conclude that the JCC erred by denying the Employer the opportunity to take this treating doctor’s deposition and introduce such testimony into evidence, we reverse the order awarding PTD benefits and remand for further proceedings.

Background

The record facts in this case demonstrate that Claimant was employed by the Employer as a custodian for over twenty years, which work required prolonged standing and lifting. Claimant injured his right foot in a compensable workplace accident in 1998, and ultimately this injury necessitated the imposition of light-duty work restrictions, with limited standing and walking, and a need for frequent breaks from these activities. These work restrictions were accommodated by the Employer, and in 2005, Claimant was transferred from his position as a custodian and provided a modified job which he performed for the better part of six years. After working for the Employer for thirty years, Claimant “retired” for reasons that are disputed. Claimant alleged that he retired because he could no longer sufficiently perform even the modified job furnished by the Employer. The Employer, on the other hand, argued that Claimant retired simply because he had worked long enough to do so. After Claimant retired, he filed a petition for PTD benefits, which the Employer contested on the basis that there was no supporting vocational or medical evidence supporting the claim.

Approximately four months before the merits hearing scheduled on Claimant’s petition for PTD benefits — but notably, after Claimant filed the petition for PTD benefits — one of Claimant’s authorized treating physicians issued a report that imposed additional permanent work restrictions, which by all appearances were not in place when Claimant was working for the Employer. According to Claimant’s vocational expert (and ultimately the findings of the JCC) these additional restrictions, when combined with the previously imposed permanent work restrictions, prevented Claimant from sufficiently performing his past relevant work, or other jobs existing in significant numbers in the national economy. The Employer scheduled this doctor’s deposition and provided proper written notice as to the date, time, and location of the deposition — two months in advance of the intended date of deposition. On the date of the doctor’s deposition, the court reporter and counsel for the Employer timely appeared at the doctor’s Miami Lakes office, the location identified on the written notice provided two months prior. But, the deponent doctor and counsel for Claimant were at the doctor’s Plantation office — a location not referenced on the notice of deposition, but one where, according to counsel for Claimant, the doctor prefers to furnish his deposition testimony. Counsel for the Employer, finding himself enveloped in this geographical predicament, attempted to move forward with the deposition to be taken telephonically at the designated time with the parties positioned as they were; but the doctor declined because the court reporter was not in his presence. The Employer, having noticed the deposition properly and timely, then moved for the entry of an order to permit it to take the doctor’s deposition and question him about the newly imposed permanent work restrictions. At the hearing on this motion, counsel for the Employer explained that the doctor’s schedule did not permit the deposition to be taken prior to the scheduled final hearing, and thus, a request was made for a continuance, or alternatively that the Employer be allowed to take and submit the deposition post-hearing under the authority of Florida Administrative Code Rule 60Q-6.121(5). The JCC denied both requests based on his conclusion that the requested relief would disrupt the occurrence of an orderly hearing. The merit hearing was then conducted with the Employer being denied the right to challenge the subject doctor’s newly-imposed permanent work restrictions. Based on the evidence presented, the JCC found that Claimant could not perform his past relevant work or any other work existing in significant numbers in the national economy, which finding, among others, qualifies Claimant for PTD benefits.

Given these facts and for the reasons explained below, we conclude that the JCC erred by not permitting the Employer to examine Claimant’s treating physician, a witness critical to the factual issues in dispute.

Analysis

In no uncertain terms, the Legislature has expressed its “specific intent” that workers’ compensation cases be decided “on their merits.” See § 440.015, Fla. Stat. (1997); see also Burgess v. Buckhead Beef Fla., 15 So.3d 25, 27 (Fla. 1st DCA 2009). This court has further expressed that “[a]mong a litigant’s most important due process rights is the right to call witnesses.” Hernandez v. Paris Indus. Maint., 39 So.3d 466, 469 (Fla. 1st DCA 2010). Notwithstanding these jurisprudential principles, which support a litigant’s right to a full and fair trial of disputed issues of fact, Claimant argues that the JCC’s denial of the Employer’s right to depose the doctor at issue here is harmless error, because it is unlikely that examination of the doctor or inquiries regarding his opinions would render a different result. This court has held that the test for harmless error in workers’ compensation cases is whether “but for error, a different result may have been reached.” Witham v. Sheehan Pipeline Constr. Co., 45 So.3d 105, 109 (Fla. 1st DCA 2010). The bedrock of our adversarial system is a party’s right to examine or impeach a witness for the purpose of proving that facts are not exactly as the individual has testified. See Steel Dynamics Inc.-New Millennium v. Markham, 46 So.3d 641, 646 (Fla. 1st DCA 2010). In workers’ compensation cases, a JCC is the finder of fact, who like the juries of this state, may reject an expert’s testimony, or give it the weight deserved upon consideration of the expert’s knowledge, skill, experience, training, the reasons underlying the opinion, or based on a multitude of factors that may implicate the witnesses’ credibility. See White v. Bass Pro Outdoor World, LP, 16 So.3d 992, 994 (Fla. 1st DCA 2009) (explaining JCC’s, like the juries of this state, have broad fact-finding powers). Thus, although it may ultimately be so that, once the Employer has the opportunity to examine the doctor in question, the resulting findings of the JCC may be unchanged — this is not the test. Rather, the proper inquiry centers upon whether such examination may yield a different result; and, under our case law, it may. Inasmuch as the Employer was denied the opportunity to engage the legal means of testing the reliability of the opinions of this physician — whose opinions are critical to factual issues in dispute — it simply cannot be said that the deprivation visited on the Employer here is harmless. Cf. Witham, 45 So.3d 105 (reversing JCC’s denial of benefits where JCC improperly relied upon expert testimony that was “the focal point of the trial”).

Finally, we note under the rules of procedure governing workers’ compensation adjudications a JCC may admit post-hearing evidence “for good cause shown” (a standard not used by the JCC here), and under section 440.25(4)(b), a continuance may be granted where the requesting party demonstrates “that the reason for requesting the continuance arises from circumstances beyond the party’s control.” See Fla. Admin. Code R. 60Q-6.121(5); see also § 440.25(4)(b), Fla. Stat. (2012). Here, the reasons undergirding the Employer’s request for relief arose out of the treating physician’s preference to be deposed at a location other than the one properly noticed by the Employer, the doctor’s unwillingness to proceed with the deposition once the presumed error in communication was discovered, and the doctor’s schedule, which did not permit a timely correction of the coordination error (presumably made in good faith by all involved). Significantly, the record before us does not demonstrate that the Employer violated any rules of discovery or discovery orders, or acted in any way suggesting intentional or unreasonable conduct. Although we recognize that JCCs are provided, as is proper, broad discretion in conducting trial proceedings in workers’ compensation cases, we cannot ignore the Legislature’s “specific intent” that such proceedings be decided on their merits. And, although we do not endeavor to dictate whether the JCC here should have granted a continuance or allowed the admission of post-hearing evidence, we conclude that the Employer demonstrated grounds for either, and both. Thus, it was an abuse of discretion for the JCC to deny the Employer the opportunity to gather the evidence that it sought to develop, which ultimately prevented this case from being decided on its merits. We therefore REVERSE the order on appeal, and REMAND for additional proceedings consistent with this opinion.

BENTON, C.J., RAY and MAKAR, JJ„ concur.


source: Caselaw Access Project

author: ROTHENBERG, J.

license: Public Domain

text:
    GMT CONSTRUCTION, INC., a Florida corporation, and Ronald A. Smith, Individually and Severally, Appellants, v. GULFSIDE SUPPLY, INC., a Florida corporation d/b/a Gulfeagle Supply, Appellee.
    No. 3D12-732.
    District Court of Appeal of Florida, Third District.
    June 12, 2013.
    Rehearing Denied July 9, 2013.
    The Ticktin Law Group, P.A., and Peter Ticktin, Ejola Cook, and Kendrick Alma-guer, Deerfield Beach, for appellants.
    Andrew T. Trailor, P.A., and Andrew Trailor, Miami, for appellee.
    Before SUAREZ, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, J.

Gulfside Supply, Inc. (“Gulfside”) is a roofing supply company that supplied roofing materials to GMT Construction, Inc. (“GMT”) and Anderson Roofing (“Anderson Roofing”). The issue in this case is whether GMT and Ronald Smith, an officer of GMT, breached GMT’s contract with Gulfside by failing to pay for roofing materials purchased from Gulfside and charged to GMT’s account. For the reasons explained below, we reverse the trial court’s order granting summary judgment in favor of Gulfside.

Although GMT performed roof replacements and repairs, it also referred some of its roofing work to Anderson Roofing and Kent Spires (“Spires”) who was the vice-president of Anderson Roofing. The undisputed evidence is that Spires was given authority by GMT to purchase materials on GMT’s account when performing roofing work for GMT. Spires also had full authority to enter into contracts and purchase materials on Anderson Roofing’s behalf while vice-president of Anderson Roofing, and Anderson Roofing gave him a company debit card for that purpose.

While employed by Anderson Roofing, Spires was hired by Ocean Key Resort (“Ocean Key”) to apply a roofing product, Seal 0 Flex, to its facility. The contract, signed by Spires and Ocean Key, was rendered on Anderson Roofing’s letterhead, and Ocean Key’s initial payment for the work was deposited into Anderson Roofing’s checking account. It is also undisputed that GMT did not refer this particular project to Spires or Anderson Roofing and GMT was not involved with, or had any knowledge of, this project. Rather, the referral came from Juan Sotolongo, Gulfside’s manager, who had received a call from Ocean Key seeking a referral for the application of the roofing product. So-tolongo, who expected to receive compensation for the referral, accompanied Spires to bid on the project. After Spires’ bid was accepted, Spires purchased the necessary supplies from Gulfside and paid for the supplies using Anderson Roofing’s debit card.

After the Seal 0 Flex product was applied to the roof at the Ocean Key facility, Seal 0 Flex inspected the work, found that its product had been improperly applied, and demanded that the work be redone. In explaining the situation to Sotolongo, Spires told Sotolongo that he lacked the funds to purchase the necessary materials from Gulfside to redo the project. Soto-longo suggested that Spires charge the materials to GMT’s account and when Spires received final payment from Ocean Key, he could pay off the charges made to GMT’s account. Spires accepted Sotolon-go’s suggestion, and although GMT had no involvement in the project and did not authorize the use of its account for the charges made by Spires, Sotolongo, on behalf of Gulfside, processed the order. As Spires never completed the project, he received no further payments from Ocean Key, and, therefore, he failed to pay for the charges he made to GMT’s account, which were made without GMT’s knowledge or consent.

Gulfside submitted invoices to GMT for the materials Spires and Sotolongo charged to its account. When GMT failed to pay the invoices, Gulfside filed suit against GMT for breach of contract. GMT filed its answer, raising the affirmative defenses of estoppel, waiver, and unclean hands, and included a counterclaim for negligent supervision against Gulfside. Relevant to this appeal, Gulfside filed a motion for summary judgment, arguing that the credit agreement required GMT to provide Gulfside with a written: (1) revocation of Spires’ authority to purchase materials on its account; and (2) notice of any disputed charges within ten days of invoice — both of which GMT admitted it had not done.

GMT opposed Gulfside’s motion arguing that GMT had not authorized, purchased, or received the supplies; GMT had contested the charges; and the damages sought were incorrect because payments made by Anderson Roofing for some of the Ocean Key materials had not been properly credited to GMT’s account. After an unsuccessful mediation, the trial court entered a final judgment granting Gulfside’s motion for summary judgment and awarding Gulfside attorney’s fees and costs. GMT’s subsequent motion for rehearing was denied by the trial court, and this appeal followed.

DISCUSSION

The trial court’s ruling on summary judgment is subject to our de novo review. Progressive Am. Ins. Co. v. Gregory, Inc., 16 So.3d 979, 980-81 (Fla. 3d DCA 2009) (citing Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Bldg. Educ. Corp. v. Ocean Bank, 982 So.2d 37, 40 (Fla. 3d DCA 2008)). It is well-established that summary judgment is only proper where, after review of every inference in favor of the non-movant, no genuine issue of material fact remains. Bldg. Educ. Corp., 982 So.2d at 40 (citing Volusia Cnty., 760 So.2d at 130). The burden is on the party moving for summary judgment to establish that it is enti-tied to judgment as a matter of law. Calarese v. Weissfisch, 87 So.3d 1225, 1227 (Fla. 3d DCA 2012) (citing Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966)). Moreover, where affirmative defenses are plead, the movant for summary judgment is similarly burdened and must conclusively refute the affirmative defenses. Calarese, 87 So.3d at 1227 (citing O’Neal v. Brady, 476 So.2d 294, 294 (Fla. 3d DCA 1985)). Based on the foregoing principles of law, we reverse the trial court’s order awarding final summary judgment in favor of Gulfside because we find that (1) genuine issues of material fact remained; and (2) Gulfside failed to “conclusively refute, by disproving or establishing the legal sufficiency of,” GMT’s affirmative defenses. Calarese, 87 So.3d at 1227.

GMT specifically raised the affirmative defenses of waiver and estoppel in its answer to Gulfside’s complaint. To support its claim that Gulfside had waived the written notice requirement, GMT provided evidence in the form of deposition testimony by Smith that when he called Gulfside to contest the charges, Sotolongo told him not to worry about the invoice because Spires would pay the bill. See Mark v. Hahn, 177 So.2d 5, 8 n. 1 (Fla.1965) (holding that waiver of a contractual condition “may be inferred from conduct or acts putting one off his guard and leading him to believe that a right has been waived”) (quoting Rader v. Prather, 100 Fla. 591, 130 So. 15, 17 (1930)). Smith testified that he relied on Sotolongo’s verbal reassurance, which lulled him into not taking any further action to contest the charges. GMT also claimed that because Sotolongo, Gulfside’s manager, had represented to Smith that he actually knew that Spires, and not GMT, was liable for the supplies for the Ocean Key job, Gulfside was estopped from now claiming that GMT was liable for the same charges. Nunes v. Allstate Inv. Props., Inc., 69 So.3d 988, 991 (Fla. 4th DCA 2011) (holding that ex-wife who had actual knowledge of forgery of deed prior to purchase of the property by innocent buyer and allowed the sale to proceed was estopped from later asserting interest in the property). GMT’s answer also included an affirmative defense of unclean hands, alleging that Gulfside could not benefit from its employee’s fraudulent conduct. While GMT provided the testimony of Smith, Anderson, and Spires to support its position, Gulfside did not provide any evidence or affidavits to contradict or deny GMT’s affirmative defenses. Therefore, Gulfside failed to meet its burden of “showfing] there are no issues of material fact” as to GMT’s affirmative defenses and that it is “entitled to judgment as a matter of law.” Calarese, 87 So.3d at 1227.

In addition to Gulfside’s failure to conclusively refute GMT’s affirmative defenses, the record clearly evidences that issues of material fact remained. The un-rebutted testimony of Spires, Smith, and Anderson, was that: (1) GMT did not order or receive the supplies for which it was invoiced; and (2) Gulfside’s manager, Soto-longo, knew that Spires did not have authority to charge the materials on GMT’s account. The depositions of Smith, Anderson, and Spires, which raised issues of material fact, were filed with the trial court before the status conference and should have been considered by the trial court when ruling on Gulfside’s motion for summary judgment. Moreover, further issues of fact were raised as to: (1) whether Sotolongo had the apparent authority to release GMT from the written notice requirement of the credit agreement; and (2) whether Sotolongo’s actions constituted a waiver of the ten-day written objection requirement. Accordingly, summary judgment was precluded because issues of material fact remained. Bldg. Educ. Corp., 982 So.2d at 40. We, therefore, reverse the entry of summary judgment in favor of Gulfside and remand for further proceedings.

Reversed and remanded.

      . The credit agreement states that:
      3. Any disputed item, term or provision of GULFEAGLE SUPPLY’S printed invoice or statement, claim of damage or material defect or shortage must be made in writing by the customer and sent to GULFEAGLE SUPPLY, 1451 Channelside Drive, Tampa, FL 33605, Att: Director/Financial Services via certified mail within 10 days of date of invoice in order to be considered a reasonable claim....

      5. Unless express and specific written directions are given to GULFEAGLE SUPPLY to the contrary, all employees, office or jobsite personnel, or apparent agents of the customer shall be authorized to make purchases on the account, and/or accept material deliveries.


author: FERNANDEZ, J.

text:
    Anette SANTOS, Appellant, v. Carlos FLORES, Appellee.
    No. 3D12-1406.
    District Court of Appeal of Florida, Third District.
    June 12, 2013.

      Jorden Burt, LLP, Sonia Escobio O’Donnell and Clifton R. Gruhn, Miami, for appellant.
    Paula L. Schwartz, Fort Lauderdale, for appellee.
    Before SUAREZ, SALTER and FERNANDEZ, JJ.
   FERNANDEZ, J.

Anette Santos appeals the trial court’s order adopting the findings and recommendations of the General Magistrate on a motion for modification of child support. We reverse the order with directions to enter an order providing that the children are entitled to the child support award on a permanent basis.

Santos is a single mother of two severely handicapped children. She filed a pro se Petition for Modification of Child Support. She requested that the trial court increase the amount of child support from the father, appellee Carlos Flores, and extend his support responsibility until the children reached age twenty-five, due to a substantial change of circumstances. She further alleged that the modification was in the best interest of the children so as to increase their quality of life.

The mother, represented by counsel, then filed a motion for leave to amend her petition and attached a proposed amended petition. In her proposed amended petition, the mother requested that the trial court establish child support on a permanent basis due to a substantial change in circumstances. She also alleged that the request was in the best interests of the children because the children required constant care and supervision due to their severe disabilities. The trial court denied the motion for leave without prejudice. The trial court in its order did not provide any reasons for the denial. The mother thereafter moved for reconsideration of the denial of her motion. The trial court denied the motion.

At the hearing before the magistrate on the mother’s pro se petition, the mother and a school teacher testified. The children, one of whom was seventeen at the time of the hearing and the other who was fifteen, have the intelligence and ability of an infant and a toddler. One of the children must take antipsychotic medication to control his behavior. The children cannot speak, understand when spoken to, feed themselves, dress, bathe, or use the restroom alone. The children must wear diapers, and they both need assistance and supervision twenty-four hours a day. The children attend a school for profoundly mentally handicapped individuals whose IQs range between 0 and 20.

The magistrate found that there was substantial, competent evidence that the children required support and were dependent, and they were going to be dependent beyond the age of eighteen based upon their mental incapacity. The magistrate further found that the testimony regarding the handicap of the children was unrebut-ted. The magistrate extended the father’s child support obligation until the children reached the age of twenty-five. The magistrate further found that she would have extended the modification of child support on a permanent basis, but she was limited to the relief requested in the pending petition.

We agree with the mother that the denial of her motion for leave to amend constituted an abuse of discretion. Florida Rule of Civil Procedure 1.190(a), expressly states that leave to amend must be given freely when justice requires it. Any doubt as to whether a motion for leave should be granted should be resolved in favor of the amendment. Overnight Success Constr., Inc. v. Pavarini Constr., Co., 955 So.2d 658, 659 (Fla. Sd DCA 2007). A trial court abuses its discretion when it denies a motion for leave to amend, absent abuse of the privilege to amend, futility of amendment, or prejudice to the non-mov-ant. Kay’s Custom Drapes, Inc. v. Garrote, 920 So.2d 1168, 1171 (Fla. 3d DCA 2006).

It cannot be said that the mother abused the privilege to amend. Her motion for leave to amend was the first instance where she requested such relief. There is no issue of futility either. The mother clearly stated a claim for relief because the children undeniably have a mental incapacity that requires permanent support. Nor does the record reflect that the motion for leave to amend would have caused any prejudice to the father, the opposing party. Any prejudice would have certainly been remedied with a continuance, which the father did not request. The interests of justice would have been served under these circumstances where the mother mistakenly did not request child support on a permanent basis, to which she was entitled under these circumstances. See § 743.07, Fla. Stat. (2012).

Accordingly, we hold that the trial court abused its discretion when it denied the mother leave to amend her petition for modification of child support. Given that the record contains competent, substantial evidence to support the magistrate’s determination that the award should be on a permanent basis, it would be a waste of judicial resources to remand for another hearing on the amended petition.

We therefore reverse the order under review with directions to grant the mother’s motion for leave to amend her petition for modification of child support consistent with the evidence introduced at the hearing before the magistrate. We further direct the court to enter judgment in the mother’s favor and award her child support on a permanent basis due to the mental incapacity of the children.

Reversed and remanded with instructions.

      . The father did not file a written response to the mother’s motion for leave to amend, and he filed no answer brief on appeal.


author: PER CURIAM.

text:
    John VALDES-PINO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1417.
    District Court of Appeal of Florida, Third District.
    June 12, 2013.
    Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before WELLS, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

We reconsider on remand our opinion in Valdes-Pino v. State, 23 So.3d 871 (Fla. 3d DCA 2009), which was quashed by the Supreme Court of Florida following its decision in Valdes-Pino v. State, 75 So.3d 235 (Fla.2011). Pursuant to the Supreme Court’s mandate we reverse the defendant’s conviction and remand for a new trial.

The defendant was charged in 2005 with second-degree murder. At trial, the jury was given the same faulty, pre-2008-amendment manslaughter instruction that the Florida Supreme Court held to be fundamental error in State v. Montgomery, 39 So.3d 252 (Fla.2010). The jury found the defendant guilty as charged.

The defendant’s appeal from that conviction was before this Court, in the pipeline, when the First District Court of Appeal decided Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009), affirmed, 39 So.3d 252 (Fla.2010). The assistant public defender filed an amended brief to address that issue. This Court affirmed the conviction, 23 So.3d 871, but certified conflict with Montgomery. On review of the decision, the Florida Supreme Court reversed and remanded. 75 So.3d 235.

Following review of the assistant public defender and assistant state attorney’s briefs on the applicability of Montgomery, 75 So.3d 235, to this case, we hold that the defendant is entitled to a new trial. Here, as in Montgomery, the defendant’s second-degree murder conviction is only one step removed from the necessarily lesser-included offense of manslaughter. Because of that, “fundamental error occurred in his case which was per se reversible where the manslaughter instruction erroneously imposed upon the jury a requirement to find that [the defendant] intended to kill [the victim].” Montgomery, 39 So.3d at 259.

Based on this conclusion, we reverse the second-degree murder conviction, vacate the sentence and remand for a new trial. See Coiscou v. State, 43 So.3d 123 (Fla. 3d DCA 2010).

Reversed and remanded for a new trial.


text:
    Harry Livingston BETHEL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1091.
    District Court of Appeal of Florida, Third District.
    June 12, 2013.
    Harry Livingston Bethel, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before EMAS and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. This decision is entered without prejudice to Appellant filing a facially sufficient motion in the trial court.


text:
    Jean Maxon LATOUR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2659.
    District Court of Appeal of Florida, Third District.
    June 12, 2013.
    Michael B. Cohen, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before EMAS and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010), cited with approval in Hernandez v. State, — So.3d - (Fla.2012).


text:
    BRICKELL COMMERCE PLAZA, INC., et al., Appellants, v. Charles TAVARES, Appellee.
    No. 3D12-3086.
    District Court of Appeal of Florida, Third District.
    June 12, 2013.
    Damian & Valori and Peter F. Valori, Mary Claire Espenkotter and Russell Lan-dy, Miami, for appellant.
    Buchanan Ingersoll & Rooney and Jennifer Rodriguez, Richard A. Morgan, Kelley A. McGovern and Carl T. Williams, Miami, for appellee.
    Before EMAS and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Estate of Orlanis ex rel. Marks v. Oakwood Terrace Skilled Nursing & Rehab. Ctr., 971 So.2d 811 (Fla. 8d DCA2007).


author: KELLY, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Scott Christopher SIERGIEJ, Appellee.
    Nos. 2D11-3321, 2D11-4356.
    District Court of Appeal of Florida, Second District.
    June 14, 2013.

      Curtright C. Truitt, P.A., Fort Myers, and Elizabeth K. Russo of Russo Appellate Firm, P A., Miami, for Appellant.
    Elizabeth M. van den Berg of Goldstein, Buckley, Cechman, Rice & Purtz, P.A., Fort Myers, for Appellee.
   KELLY, Judge.

State Farm Mutual Automobile Insurance Company appeals from a $100,000 judgment entered in favor of its insured, appellee Scott Siergiej, in an action seeking uninsured motorist coverage. The judgment equals the coverage limit on the uninsured motorist policy State Farm issued to Mr. Siergiej. The jury’s verdict totaled $211,000. Before trial, State Farm waived its right to subrogation and consented to a settlement between Mr. Sier-giej and the tortfeasor, a self-insured governmental agency, for $50,000 when $100,000 in coverage was available. If the self-insured governmental agency is treated the same way as a standard liability insurer, as State Farm argues it should be, State Farm is entitled to a credit of $100,000 against the verdict, which together with the other credits State Farm claims, will reduce the judgment to an amount less than $100,000. See § 627.727(6)(c), Fla. Stat. (2003). We conclude, however, that State Farm is only entitled to a credit for the actual settlement amount, $50,000. Accordingly, we affirm.

After being involved, in a crash with a motorcycle operated by an employee of the Lee County Sheriffs Department, Mr. Siergiej sued the Lee County Sheriffs Department (the Sheriff) and State Farm, his uninsured motorist insurer, asserting two negligence claims against the Sheriff arising from the crash and seeking uninsured motorist benefits from State Farm. Mr. Siergiej eventually reached an agreement with the Sheriff to settle his claim for $50,000, which was less than the $100,000 in self-insured liability funds available from the Sheriff. Following the dictates of section 627.727(6), Mr. Siergiej obtained State Farm’s permission to settle his claim against the Sheriff for less than the full amount of available self-insurance.

The litigation between Mr. Siergiej and State Farm continued, the primary dispute being the cause of the injuries to Mr. Siergiej’s ankle and to a lesser extent the cause of the injuries to his back — liability was not at issue. At the conclusion of the three-day trial, the jury found that the accident had caused the injuries to both Mr. Siergiej’s neck and his ankle and it returned a verdict awarding him $211,000. Subsequently, State Farm asked the court to determine what amounts should be credited against the verdict. Specifically, State Farm wanted credit for the $100,000 in self-insured liability funds available from the Sheriff, less $13,101 the Sheriff had paid for property damage, for a total of $86,899; $26,780 in medical expenses awarded for the neck injury Mr. Siergiej’s workers’ compensation carrier had paid; $20,000 awarded for past lost wages, which was less than the $44,930 in lost wages and disability benefits the workers’ compensation carrier had paid; and $5000 in PIP benefits State Farm had paid under Mr. Siergiej’s policy. Ultimately, the court, without explanation, denied State Farm’s motion and entered a judgment in Mr. Siergiej’s favor in the amount of $100,000, State Farm’s policy limits.

On appeal State Farm argues that the trial court did not apply the proper credits and that had it done so the judgment would have been for $72,321.60. Of the possible credits to which State Farm claimed entitlement, the primary one at issue in this appeal is the credit for the $100,000 in coverage available to Mr. Sier-giej pursuant to the Sheriffs program of self-insurance. State Farm argues it is entitled to a credit for the full $100,000, minus the amount previously paid to Mr. Siergiej for his property damage claim.

In support of this argument, State Farm points to section 627.727(6)(e), which provides that an underinsured motorist insurer is entitled to a credit against its insured’s total damages in the amount of the underinsured motorist’s liability policy in cases where it has given its insured permission to settle with the underinsured motorist in an amount that does not fully satisfy its insured’s claim. Alternatively, State Farm points to section 627.727(1), which limits uninsured motorist coverage to amounts “over and above ... the benefits available” to the insured from the owner or operator of the uninsured motor vehicle. State Farm also relies on section 627.727(1) in support of its contention that it was entitled to credit for the amounts Mr. Siergiej received in workers’ compensation and PIP benefits.

Mr. Siergiej counters that section 627.727(6)(c) is inapplicable in this case because it governs settlements with liability insurers, not self-insured entities such as the Sheriff and that, therefore, State Farm is not entitled to credit under that section. Mr. Siergiej at least tacitly concedes, however, that under section 627.727(1), State Farm is entitled to a credit for the $50,000 he received from the Sheriff. Finally, Mr. Siergiej contends that while section 627.727(1) does provide for credits for PIP and workers’ compensation benefits, it does so only where the damages awarded by the jury duplicate those benefits. He contends State Farm did not prove that the amounts awarded by the jury duplicated the PIP and workers’ compensation benefits he had received.

Section 627.727 regulates under-insured and uninsured motorist coverage. Subsection 627.727(6) outlines the procedure an injured insured must follow if he elects to settle with a liability insurer and its insured in an amount that does not fully satisfy his claim for personal injuries so as to create an underinsured motorist claim. Subsection (c) states that “[t]he underin-sured motorist insurer is entitled to a credit against the total damages in the amount of the limits of the underinsured motorist’s liability policy in all cases to which this subsection applies.” § 627.727(6)(c). The underinsured motorist insurer is entitled to this credit even when the insured’s settlement with the liability insurer is for less than the full amount of the underinsured motorist’s liability policy. Id. State Farm argues that under subsection (6) it is entitled to a credit for the full $100,000 in self-insurance that was available from the Sheriff.

Mr. Siergiej points to Young v. Progressive Southeastern Insurance Co., 753 So.2d 80 (Fla.2000), and argues that because Young held that a self-insured motorist with a certificate of self-insurance with limits of liability lower than the damages sustained by the injured person is not an underinsured motorist as defined in section 627.727, subsection (6) is inapplicable; thus, State Farm is not entitled to a credit for the Sheriffs $100,000 in self-insurance. According to Young, as a self-insured, the Sheriff is considered to be “statutorily uninsured,” not underinsured:

[Bjecause a self-insurer is not a liability insurer under the Florida Insurance Code, a self-insured motorist cannot be considered an underinsured motorist based on the statutory language of section 627.727(3) that limits the definition of underinsured motorists to those having liability insurers.
... Because the Legislature defined an underinsured motorist in section 627.727(3) and left the term “uninsured” otherwise undefined in section 627.727(1), we must read these provisions together in order to arrive at a consistent and harmonious interpretation of the uninsured motorist statute. Section 672.727(3)[sic] sets forth the circumstances where an insured motor vehicle will be considered “uninsured,” such as when the vehicle is underinsured because the “liability insurer” provided limits of liability lower than the damages sustained. See § 627.727(3)(b). Reading section 627.727(3) in pari materia with section 627.727(1) leads to a logical and harmonious statutory interpretation of the term “uninsured” as a motorist without a “liability insurer,” who is not considered statutorily “underinsured” pursuant to 627.727(3). Thus, a motorist who is self-insured must be deemed statutorily uninsured.

Id. at 84-85.

State Farm counters Mr. Siergiej’s argument in the only way it can — it has urged us to find that Young does not control in this case because the issue in Young was the validity of a policy exclusion that excluded self-insured vehicles from the definition of uninsured or under-insured motor vehicles. Notwithstanding the fact that the issue in Young was different, we believe Young compels the conclusion that subsection (6), which pertains to underinsured motorist claims where the injured party has agreed to settle with a liability insurer, is inapplicable in this case because according to Young, the Sheriff as a self-insured is neither an underinsured motorist nor does its certifícate of self-insurance constitute a liability policy. See id. at 84-87. Young is unequivocal on this point. Not only does Young lack any qualifying language, in footnote 2 the court specifically discusses the procedure outlined in subsection (6) and states that the fact “this procedure only anticipates offers of settlement from a ‘liability insurer’ rather than a self-insured tortfeasor strongly suggests that the Legislature did not contemplate that a self-insured motorist could be considered ‘underinsured.’ ” Id. at 83 n. 2.

As additional support for its argument that subsection (6) should be read to include self-insured motorists, State Farm points to the fact that Mr. Siergiej invoked the settlement procedure set forth in that subsection, treating the Sheriff as though it was a liability insurer and seeking State Farm’s approval before accepting a settlement. In turn, State Farm consented to the settlement, thereby waiving its subro-gation rights. That the parties treated the statute as though it applied is not a basis for us to ignore Young. While it may seem unfair that Mr. Siergiej, having benefited from relying on subsection (6), should now be able to argue its inapplicability, thereby depriving State Farm of the protection afforded to an underinsured motorist carrier that relinquishes its right to subrogation by authorizing a settlement with the tortfeasor and his liability insurer, State Farm could have, but did not, raise an estoppel argument that may have precluded this result. We also note that State Farm’s policy contains a provision that tracks subsection (6). That policy provision imposes the same obligations on State Farm and its insured that subsection (6) imposes, and it confers the same benefits and protections. The policy, however, provides that it is applicable not only to vehicles lacking liability insurance but also to those without self-insurance or those with liability or self-insurance limits that are less than the insured’s total damages. State Farm never invoked its right under the policy to receive credit for the full amount of the limits of the Sheriffs self-insurance.

In the alternative, State Farm argues that under subsection (1) it should receive a credit for the full amount of the Sheriffs self-insurance. It also relies on subsection (1) as the basis for its claim that it is entitled to a credit for the PIP and workers’ compensation benefits Mr. Siergiej received. Subsection (1) states that the coverage provided for in section 627.727 is to cover the difference, if any, between the benefits available to the insured from other sources and the damages the insured has sustained, up to the limits of the policy:

The coverage described under this section shall be over and above, but shall not duplicate, the benefits available to an insured under any workers’ eompen-sation law, personal injury protection benefits, disability benefits law, or similar law; under any automobile medical expense coverage; under any motor vehicle liability insurance coverage; or from the owner or operator of the uninsured motor vehicle or any other person or organization jointly or severally liable together with such owner or operator for the accident; and such coverage shall cover the difference, if any, between the sum of such benefits and the damages sustained, up to the maximum amount of such coverage provided under this section.

Thus, the statute gives State Farm a credit against Mr. Siergiej’s damages to the extent the jury’s award duplicates the benefits available to Mr. Siergiej from workers’ compensation, PIP, or the Sheriff. See State Farm Mut. Auto. Ins. Co. v. Vecchio, 744 So.2d 570, 571 (Fla. 2d DCA 1999).

With respect to the benefits he received through PIP or workers’ compensation, Mr. Siergiej contends that State Farm was not entitled to a credit because it did not establish that the damages awarded by the jury for lost wages and past and future medical expenses duplicated those benefits. We find no merit to that contention. Accordingly, we conclude that State Farm was entitled to credits for those amounts.

Whether State Farm is entitled to a credit for the full amount of the Sheriffs self-insurance presents a more interesting question. State Farm is clearly entitled to credit for the $50,000 Mr. Siergiej received from the Sheriff. In the trial court, Mr. Siergiej acknowledged that State Farm was entitled to this credit, and on appeal, while not expressly conceding the point, he has not argued otherwise. Whether State Farm is entitled to credit for the remaining self-insurance coverage requires us to consider the meaning of “benefits available” as used in subsection (1).

In United Services Automobile Ass’n v. Phillips, 740 So.2d 1205, 1208-09 (Fla. 2d DCA 1999), this court discussed the meaning of the phrase “benefits available” in section 627.727(1) and stated that “benefits available” equated to a “legally enforceable right to recover which arises upon the occurrence resulting in the insured’s injury.” In Phillips, the injured party had settled with the tortfeasor, a government entity, for $100,000, which was the retained limit on its policy of liability insurance that provided for up to $2 million in coverage for amounts exceeding the retained limit of $100,000. USAA sought credit for the entire $2.1 million claiming it constituted “benefits available” to its insured. This court disagreed that the $2 million in excess liability was “available” stating that under the excess policy “no enforceable right to benefits arises upon an occurrence” because the policy benefits were payable only if the legislature passes a claims bill enacting a private relief act, which is not granted as a matter of right but rather as a matter of legislative grace. Id. at 1209. In this case, Mr. Siergiej did have an enforceable right to the $100,000 in self-insured liability coverage available from the Sheriff. Our analysis, however, does not end with Phillips.

Unlike subsection (6), which entitles an insurer to credit for the full amount of the underinsured motorist’s liability policy, whether or not the full amount has been paid to its insured, subsection (1) provides that uninsured motorist coverage “shall not duplicate” benefits available to the insured from other sources. Courts have consistently construed this language to require that the benefits not only be “available” but also that the damages awarded by the jury duplicate the available benefits. See, e.g., Hartford Accident & Indem. Co. v. Lackore, 408 So.2d 1040 (Fla.1982); Dewberry v. Auto-Owners Ins. Co., 363 So.2d 1077 (Fla.1978); Vecchio, 744 So.2d at 571; Aetna Cas. & Sur. Co. v. Langel, 587 So.2d 1370 (Fla. 4th DCA 1991); Allstate Ins. Co. v. Morales, 533 So.2d 952 (Fla. 5th DCA 1988); Centennial Ins. Co. v. Fulton, 532 So.2d 1329 (Fla. 3d DCA 1988); Bergmann v. Sentry Ins., 422 So.2d 972 (Fla. 4th DCA 1982). Thus, while the $100,000 may have been “available” as defined in Phillips, the jury’s award of damages can only duplicate the $50,000 settlement Mr. Siergiej received from the Sheriff — it cannot duplicate a payment that was never made. Phillips never reached the issue of duplication and thus it does not control the outcome in this case.

In conclusion, we agree with State Farm that it is entitled to credit against Mr. Siergiej’s damages for the $26,780 in medical expenses and $20,000 in past lost wages paid by workers’ compensation, the $5000 in PIP benefits, and the $50,000 settlement from the Sheriff. Under section 627.727(1), Mr. Siergiej is entitled to recover the difference between the amount of those benefits and his total damages of $211,000, up to the $100,000 limits of his State Farm policy. When the total amount of benefits available to Mr. Sier-giej is subtracted from the total damages awarded by the jury, $109,000 remains, $100,000 of which he is entitled to under his uninsured motorist policy. Because the judgment entered by the trial court was for $100,000, the amount of Mr. Sier-giej’s policy limits, we affirm the final judgment.

Affirmed.

ALTENBERND and DAVIS, JJ., Concur.

      . Subsection (6) provides:
      (6)(a) If an injured person or, in the case of death, the personal representative agrees to settle a claim with a liability insurer and its insured, and such settlement would not fully satisfy the claim for personal injuries or wrongful death so as to create an under-insured motorist claim, then written notice of the proposed settlement must be submitted by certified or registered mail to all underinsured motorist insurers that provide coverage. The underinsured motorist insurer then has a period of 30 days after receipt thereof to consider authorization of the settlement or retention of subrogation rights. If an underinsured motorist insurer authorizes settlement or fails to respond as required by paragraph (b) to the settlement request within the 30-day period, the injured party may proceed to execute a full release in favor of the underinsured motorist's liability insurer and its insured and finalize the proposed settlement without prejudice to any underinsured motorist claim.
      (b) If an underinsured motorist insurer chooses to preserve its subrogation rights by refusing permission to settle, the under-insured motorist insurer must, within 30 days after receipt of the notice of the proposed settlement, pay to the injured party the amount of the written offer from the underinsured motorist’s liability insurer. Thereafter, upon final resolution of the un-derinsured motorist claim, the underin-sured motorist insurer is entitled to seek subrogation against the underinsured motorist and the liability insurer for the amounts paid to the injured party.
      (c) The underinsured motorist insurer is entitled to a credit against total damages in the amount of the limits of the underin-sured motorist’s liability policy in all cases to which this subsection applies, even if the settlement with the underinsured motorist under paragraph (a) or the payment by the underinsured motorist insurer under paragraph (b) is for less than the underinsured motorist’s full liability policy limits. The term "total damages" as used in this section means the full amount of damages determined to have been sustained by the injured party, regardless of the amount of underinsured motorist coverage. Nothing in this subsection, including any payment or credit under this subsection, reduces or affects the total amount of underinsured motorist coverage available to the injured party.

      . Subsection (6) provides a significant benefit to an insured who seeks to settle with the underinsured motorist. It gives the underin-sured carrier thirty days to either authorize the settlement and waive its right to subrogation or, if it wishes to retain its right to subrogation, withhold authorization and pay to its insured the amount of the settlement offer. § 627.727(6)(a),(b). As explained in Hassen v. State Farm Mutual Automobile Insurance Co., 674 So.2d 106 (Fla.1996), to address the situation in which an injured party was denied immediate access to compensation because the uninsured motorist carrier refused to approve a settlement offer and waive its subrogation rights, the statute shifts "the financial burden from the injured party to the underinsured motorist carrier by requiring the carrier to pay its insured the full amount of any settlement offer by the tortfea-sor’s liability carrier, without the need for a determination of liability, in order to preserve subrogation rights.” Id. at 110.

      . Dicta in Allstate Insurance Co. v. Campbell, 842 So.2d 1031 (Fla. 2d DCA 2003), suggests that no posttrial setoff is available under subsection (1). Id. at 1033. It also suggests that the credit provided for in subsection (6) is only available where the uninsured award duplicates the liability payment from the uninsured motorist. Id. Campbell was concerned with whether the jury's award duplicated the settlement the Camp-bells had received from the tortfeasor’s insurer. Proceeds from a settlement with the tortfeasor or its insurer are one of the benefits listed in subsection (1), which gives the underinsured carrier a credit for those proceeds if they duplicate the juiy’s award. The outcome in Campbell was dictated by the duplication language of subsection (1)— it was not controlled by subsection (6), which defines the parties' rights and responsibilities when an insured wants to settle with an underinsured motorist. When Campbell states that there is no posttrial set-off under subsection (1), it is addressing the fact that there is no setoff against the amount of uninsured motorist coverage) it is not stating that there is no setoff against damages. Campbell should not be read to preclude the setoff from damages provided for in subsection (1), nor should it be read to limit the credit provided for in subsection (6) to something less than the full amount of the uninsured motorist’s liability policy.

      . We recognize that the wording of subsection (1) has changed over time; however, that change did not alter the duplication language in the statute — it altered the manner in which the duplicate benefits were set off clarifying that the setoff should be from the total damages awarded to the insured rather than from the amount of the uninsured motorist coverage.


author: GROSS, J.

text:
    HANDI-VAN, INC., a Florida corporation and Village Car Service, Inc., a Florida corporation, Appellants, v. BROWARD COUNTY, Florida, a political subdivision of the State of Florida, Appellee.
    No. 4D12-1549.
    District Court of Appeal of Florida, Fourth District.
    June 19, 2013.

      Keith T. Grumer of Grumer & Macaluso, P.A., Fort Lauderdale, for appellants.
    Joni Armstrong Coffee, Broward County Attorney, Andrew J. Meyers, Chief Appellate Counsel, Benjamin R. Salzillo and Ro-do Blanco Garcia, Assistant County Attorneys, Fort Lauderdale, for appellee.
   GROSS, J.

Between 2008 and 2009, Broward County redesigned a government program to realize over $11 million in savings for taxpayers. For this exercise of fiscal responsibility, the County was sued by the appellants, Handi-Van, Inc., and Village Car Service, Inc., two providers under the scrapped program, whose bids were too high for participation in the revamped program. Every federal and state judge who has ruled on the appellants’ various legal claims arising from this case has rejected them. We join these other courts and affirm the final summary judgment of the circuit court.

Under the Americans with Disabilities Act, all local governments that operate fixed-route transportation systems for the general public are required to provide alternative paratransit services for the physically or mentally disabled. While many governmental entities fulfill this requirement by developing in-house personnel, Broward County outsourced these services by contracting with private entities, including the appellants. Such relationships commenced in December 1996 and continued in December 2001, when in both instances the County entered into five-year contracts with the appellants, with the latter contract set to expire on December 31, 2006. At their peak, Village Car and Handi-Van performed 21% and 19% of the County’s paratransit services respectively.

In April 2006, as the last contract neared expiration, Broward County circulated a request for letters of interest to providers of paratransit services. When the procurement process took longer than expected, the County extended all existing paratransit contracts an additional year, through the end of 2007. Eventually, the County contracted with nine paratransit providers, including the appellants, and invited the parties to engage in negotiations.

After negotiations commenced, Broward County halted contracting with the appellants after becoming concerned that their addition might compromise the County’s ability to maintain a Disadvantaged Business Enterprise (“DBE”) program, a requirement for recipients of federal funding, since the appellants likely would not fall within the enumerated “good faith” exception. As a result, on January 30, 2008, the appellants initiated a lawsuit in the United States District Court for the Southern District of Florida, seeking declaratory and injunctive relief to prevent the County from considering minority character or membership when evaluating its bids.

With the federal suit pending, the County, in June 2007, entered into five-year contracts with the other seven paratransit providers at a higher rate than before. In addition, county commissioners voted to temporarily extend the appellants’ “contracts to allow time for the County Attorney to obtain guidance from the U.S. Department of Transportation (‘USDOT’) on whether [the appellants] had satisfied the good faith exception.” Handi-Van, Inc. v. Broward Cnty., Fla., 2010 WL 2382909, at *2 (S.D.Fla. June 14, 2010).

Four months later, Broward County received such guidance from the federal government, learning that “the USDOT did not require DBE goals in the paratransit contracts because federal funding was not being used for the paratransit program.” Id. With the hurdles thus removed, the parties once again engaged in negotiations.

The Change in the Economic Climate ■

In January 2008, while negotiations remained ongoing, Florida voters approved “Amendment One” to the Florida Constitution, which doubled homestead property tax exemptions, allowed homeowners to transfer their “Save Our Homes” benefit, and capped tax increases on commercial and other non-homestead property. The result was a $50 million loss to the County in property taxes, the primary source for the paratransit funding.

Facing an economic crisis, County Commissioners convened on February 5, 2008, to consider scaling back its costly para-transit system. At that point, Broward County maintained an award-winning “rider’s choice” paratransit system, which allowed users to select whichever provider they wished regardless of where the person was located or where he or she was heading. While much heralded, the system resulted in massive expenses; the new 2007 contract alone cost the County $28,945,745 in one year, making the para-transit system the county’s largest contractual service expense. Recognizing that such financial extravagance could no longer be maintained, the commissioners elected to terminate for convenience the contracts of all of its paratransit providers once a cheaper paratransit system had been developed.

The New Contract

With the decision to terminate the contracts in the future set in stone three weeks prior, the appellants signed a five-year contract with the County to apply retroactively to July 1, 2007, placing the appellants in the same position as the other seven paratransit providers. Much like the previous seven contracts, the appellants’ contract contained a termination for convenience provision, which permitted Broward County to terminate the contract for convenience upon ninety (90) days notice and identified consideration for the County’s right to so terminate. Unlike the previous seven contracts, however, the appellants’ contract differed in that it contained the following addendum, which memorialized the County Commission’s February 5, 2008 decision to terminate the contract once a less-costly paratransit system had been developed:

On February 5, 2008, the Broward County Board of County Commissions directed COUNTY staff to terminate for convenience contracts for paratransit services. No notice of termination has been sent to any provider of paratransit services, but it is expected that such notice will be provided at some point subsequent to the execution of the Agreement and this Addendum. Nothing in this Agreement or any addenda between the parties shall in any way affect the County’s right to terminate the Agreement (and the addenda and any subsequent amendments) for convenience, consistent with the terms and conditions of the Agreement.

Particularly when taken in conjunction with the parties’ documented correspondences, this provision demonstrates that the appellants entered into their contracts with full understanding of the County’s intention to terminate the contracts upon completion of the cost-saving system.

Termination and Development of the ‘Virtual Fleet”

Over the ensuing fifteen months, the County developed the concept of a “virtual fleet,” which differed from the previous “rider’s choice” model in that it functioned much like a taxi cab dispatch, assigning trips based on proximity and efficiency, rather than the users’ “choice.” The plan anticipated savings of $400,000 to $500,000 per month.

Once the system had been fine-tuned, the County requested interested paratran-sit providers to submit sealed bids, stating their cost to perform under the new “virtual fleet.” Twenty-four firms, including the appellants, submitted bids, and the County awarded the paratransit contracts to the five lowest bidders; Village Car and Handi-Van were not selected as they submitted the highest and fourth highest bids respectively. With the new contracts set, the County formally gave all nine para-transit providers 90-days notice of its plan to terminate their current contracts for convenience by the end of 2009.

The Current Case

Unhappy with their lot, the appellants filed another federal suit, this time claiming six grounds of relief, including the assertion that Broward County breached its contract by invoking its ability to terminate for convenience without a change in circumstances. See generally Handi-Van, Inc., 2010 WL 2382909. On appeal, the Eleventh Circuit Court of Appeals affirmed the district court’s decision to grant summary judgment in favor of Broward County on five of the claims, but remanded the breach of contract claim to be decided by a Florida court since the issue was one of state law. Handi-Van Inc. v. Broward Cnty., Fla., 445 Fed.Appx. 165, 170 (11th Cir.2011).

On remand, the appellants submitted an amended complaint which sought damages for Broward County’s wrongful termination/breach of contract. With the facts largely fleshed out in the federal courts, both parties filed motions for summary judgment.

In support of their motion for partial summary judgment, the appellants relied upon the previously-submitted affidavits of the president of Village Car and an officer of Handi-Van, both of whom alleged that once Broward County decided to terminate the paratransit contracts on February 5, 2008, the County “commenced negotiations with other providers in order to get them to increase their respective ridership.” However, “when these negotiations failed[, the County] commenced renegotiations with the [appellants.]” Thereafter, once the new contracts were agreed upon, Bro-ward County notified the appellants of its decision to terminate, despite relying on “the same grounds for termination (i.e., passage of ‘Amendment 1’) as were approved at its February 5, 2008 meeting more than one year before.”

Broward County, on the other hand, had previously submitted numerous affidavits from individual county commissioners and the minutes and transcripts of the meetings where the issues of this case were detailed. In their affidavits, the commissioners averred that the decision to terminate the appellants’ contracts stemmed from the passage of Amendment One and “was purely for financial reasons.” Under such straits, the commissioners decided to transform from the “rider’s choice” system to the “virtual fleet” model, since prognosticators had anticipated millions of dollars in annual savings. Such sentiment was backed by the transcripts of the meetings themselves.

After conducting a hearing, the trial court entered an order granting Broward County’s motion for final summary judgment, and denying that of the appellants. The trial court later entered a final judgment effectuating its prior ruling.

I

On appeal, the appellants contend the trial court erred in granting summary judgment in the County’s favor since allowing the County “to invoke the ‘termination for convenience’ clause ... without a new circumstance and for pre-contractual reasons, renders the contracts illusory.” To support this argument, the appellants contend that this Court should adopt the first of two standards that have developed primarily in the federal courts to analyze the propriety of a government entity’s decision to terminate for convenience: (1) whether there was a “change in circumstances” since entering into the contract which justified the termination or (2) whether the government entity exercised its right to terminate in “bad faith.” Since this issue presents a pure question of law, our review is de novo. Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000).

We conclude that the case is properly decided under state contract law. Even if we were to follow federal law, the “bad faith” standard would apply, so the result would not change — the trial court properly entered summary final judgment.

II

“Termination for convenience” clauses are contractual provisions which “permit one party to terminate a contract, even in the absence of fault or breach by the other party, without suffering the usual financial consequences of breach of contract.” Harris Corp. v. Giesting & Assocs., Inc., 297 F.3d 1270, 1272 (11th Cir.2002) (interpreting Florida law). While typically the product of the parties’ free negotiations, such provisions have become a mandatory fixture of federal government procurement contracts, necessitating the need for judicial limitation. See Capital Safety, Inc. v. State, Div. of Bldgs. & Constr., 848 A.2d 863, 866 (N.J.Super.Ct.App.Div.2004).

The conferment of such authority to terminate “dates back to the Civil War where it developed as a tool for the United States government to avoid costly military procurements that were rendered unnecessary by changing war-time technology or by the cessation of conflict.” Vila & Son Landscaping Corp. v. Posen Constr., Inc., 99 So.3d 563, 566 (Fla. 2d DCA 2012) (citing Krygoski Constr. Co. v. United States, 94 F.3d 1537, 1540 (Fed.Cir.1996)). Beginning with United States v. Corliss Steam-Engine Co., 91 U.S. 321, 23 L.Ed. 397 (1875), the Supreme Court conferred upon government contracting officers the inherent authority to suspend and terminate contracts during war-time, finding as grounds that “procuring agencies must have the power to settle contracts that have been subjected to great changes in expectation.” Torncello v. United States, 231 Ct.Cl. 20, 681 F.2d 756, 764 (1982). With such power in hand, the Corliss doctrine “expanded into a very important part of military procurement” during World War I, id., as Congress extended “the government’s power to terminate contracts into a right to terminate during wartime.” Stephen N. Young, Limiting the Government’s Ability to Terminate for Its Convenience Following Torncello, 52 Geo. Wash. L.Rev. 892, 894 (1984) (footnote omitted and emphasis added). Thereafter, following World War II, “the use of such termination for convenience provisions expanded into both peacetime military procurement and later into all other realms of Government procurement contracts.” Ginicorp v. Capgemi Gov’t Solutions, LLC., 2007 WL 1660364 (Va.Cir.Ct. Jan.2, 2007) (citing Torncello, 681 F.2d at 765). Termination-for-convenience clauses are presently included, either impliedly or expressly, in all United States government fixed-price or service contracts. See 48 C.F.R. § 49.502 (2012).

Limitations on the Government’s Authority to Terminate for Convenience

In its earliest “war-time” contemplation, “the consensus remained that the government’s right to terminate a contract was justified by the exigencies and uncertainties of armed conflict.” Questar Builders, Inc. v. CB Flooring, LLC, 410 Md. 241, 978 A.2d 651, 666 (2009). However, as such clauses became mandatory for government contracts at-large, the federal courts looked less to the exigencies surrounding the termination, and more to whether the government exercised its authority in bad faith. See, e.g., Jacobs v. United States, 239 F.2d 459, 461 (4th Cir.1956), cert. denied, 353 U.S. 904, 77 S.Ct. 666, 1 L.Ed.2d 666 (1957); Librach v. United States, 147 Ct.Cl. 605, 614, 1959 WL 7633 (1959); Kalvar Corp. v. United States, 211 Ct.Cl. 192, 543 F.2d 1298, 1301 (1976).

“[T]he high-water mark of [the] courts’ permissiveness in allowing the government to terminate for convenience,” Liman-Faye Constr. Co. v. Hous. Auth. of City of Camden, 49 F.3d 915, 924 (3d Cir.1995), was reached in Colonial Metals Co. v. United States, 204 Ct.Cl. 320, 494 F.2d 1355 (1974), a case “widely perceived as allowing the government to enter into illusory contracts without any limit on its discretionary right to terminate for convenience.” 5 Phillip L. Bruner & Patrick J. O’Connor, Jr., Bruner & O’Connor Construction Law § 18:47 (2012). In Colonial Metals, the Navy terminated its contract with a copper dealer one month after contracting when it found a cheaper source for such services. 494 F.2d at 1357. Although the Navy knew of the cheaper source before contracting with the plaintiff, the federal Court of Claims upheld the Navy’s right to terminate for convenience, reasoning that, unless bad faith on the part of the government has been shown, “[t]er-mination to buy elsewhere at a cheaper price is essentially such a termination as has repeatedly been approved.” Id. at 1361.

Recognizing the far-reaching and unrestricted ramifications of Colonial Metal’s holding, the Court of Claims revisited the issue just eight years later in Torncello, 231 Ct.Cl. 20, 681 F.2d 756. There, the plaintiff-contractor entered into a requirements contract with the Navy to provide insect and rodent control, with the plaintiff set to be paid $500 each time it was called. Id. at 758. As it turned out, the Navy only required assistance removing gophers from six housing projects, “work that was customarily much cheaper than $500”; thus, the Navy constructively terminated the contract for convenience by contracting with an alternative, cheaper source, in turn immediately diverting the bargained-for service away from the plaintiff. Id.

Sitting en bane, the Court of Claims ruled that the Navy breached its contract via four separate opinions, with the lead opinion garnering support from only three of the court’s six judges. In retreating from Colonial Metals, Judge Bennett, writing for the plurality, undertook a historical analysis of the federal government’s authority to employ termination-for-con-venienee clauses, centering upon the proposition that “the convenience termination clause developed as a wartime concept” to allow “the government to avoid the continuance of contracts that the rapid changes of war, or the war’s end, had made useless or senseless.” Id. at 763. Such history led Judge Bennett to reason, in dicta, that Colonial Metals was “an aberration in the precedents of the court” and “a clear break with all of the prior law on the subject,” since prior cases had permitted “termination for convenience only when the expectations of the parties had been subjected to a substantial change.” Id. at 766-68.

In conformity with this line of thought, Judge Bennett rejected the “bad faith” test used in Colonial Metals, explaining that such a test is a fagade where the government is presumed to act in good faith. Id. at 771. Thus, the infirmity that poisoned Colonial Metals and like precedent was two-fold. First, the government’s grant of plenary power to terminate subject to a “bad faith” limitation created an “illusory promise,” since “the government’s promise to turn to [the plaintiff] for all of its pest control work, if it was also implicit in the termination for convenience clause that the government could give [the plaintiff] none, was no promise at all.” Id. at 769. Second, in the absence of an independent source of consideration, the contract “would fail for the lack of any binding obligation.” Id. at 772. Thus, to quell both problems, the court read into termination for convenience clauses the requirement of “some kind of change from the circumstances of the bargain or in the expectations of the party.” Id.

Tomcello’s Reception and Eventual Detraction

Despite such concerns, “[i]n subsequent cases, the court of claims[, along with other federal courts,] has dismissed much of what it discussed in Torncello and ... clarified that bad faith, not changed circumstances, limits the government’s ability to terminate for convenience.” Vila & Son Landscaping, 99 So.3d at 568 (citing Krygoski, 94 F.3d at 1541-42). Eight years following Torncello, the United States Court of Appeals for the Federal Circuit, in Salsbury Industries v. United States, 905 F.2d 1518, 1521 (Fed.Cir.1990), limited Torncello’s holding, finding that it stood for the “the unremarkable proposition that when the government contracts with a party knowing full well that it will not honor the contract, it cannot avoid a breach claim by adverting to the convenience termination clause.” Likewise, in Caldwell & Santmyer, Inc. v. Glickman, 55 F.3d 1578, 1582 (Fed.Cir.1995), the Federal Circuit again approved such treatment, interpreting Salsbury to stand for the proposition that “bad faith ... is a prerequisite for a Torncello claim.”

Any doubt as to the applicable standard that may have remained was then eliminated by the Federal Circuit’s decision in Krygoski, 94 F.3d 1537. There, the court reviewed the termination for convenience jurisprudence, finding that it “discloses mixed signals about limiting terminations under the bad faith/abuse of discretion standard ... or the change of circumstances test in Torncello.” Id. at 1540. The court noted, however, that such “mixed signals” had been cleared up by its decision in Salsbury, which “revisited the dicta in the Torncello plurality opinion” and rejected its reasoning. Id. at 1543. As a result, much like Salsbury, the Krygoski court reaffirmed that termination for convenience disputes should be reviewed for bad faith, and that “Torncello applies only when the Government enters into a contract with no intention of fulfilling its promise.” Id. at 1545 (citing Salsbury, 905 F.2d at 1521) (emphasis added). Subsequent cases have followed suit. See TigerSwan, Inc. v. United States, 110 Fed.Cl. 336, 345 (2013) (“The Federal Circuit-and the former Court of Claims-have recognized that an improper termination for convenience may give rise to a breach of contract claim when the agency (1) terminates the contract in bad faith or (2) abuses its discretion in its decision to terminate the contract.” (citations omitted)); T & M Distribs., Inc. v. United States, 185 F.3d 1279, 1284 n. 4 (Fed.Cir.1999) (“We have in fact rejected the suggestion that dicta of a plurality opinion in Tomcello imposed a special requirement of ‘changed circumstances’ on the government’s right to terminate for its convenience.”); Custom Printing Co. v. United States, 51 Fed.Cl. 729, 734 (2002) (“Only evidence that the contracting officer acted in bad faith or engaged in a clear abuse of discretion will be sufficient to merit summary judgment for the contractor.” (citations omitted)).

The appellants thus rely on a case that has been substantially limited by the federal courts.

The Termination Clause Was Supported by Consideration

As can be seen through this jurisprudence’s development, while the federal government’s authority to invoke termination-for-convenience provisions has been “broadly construed ... to authorize termination for any reason that is in the best interests of the government,” Capital Safety, Inc., 848 A.2d at 866, limitations upon such power are necessary to protect contracting parties from the government’s otherwise “open license to dishonor contractual obligations.” Maxima Corp. v. United States, 847 F.2d 1549, 1553 (Fed.Cir.1988); Kisco Co. v. United States, 221 Ct.Cl. 806, 610 F.2d 742, 754 & n. 6 (1979). The concerns necessitating such jurisprudence, therefore, derive not from the government’s status as a “government entity,” but as an effort to reign back on the government’s non-negotiable, statutorily-conferred entitlement to terminate its contracts as it pleases. See Questar, 978 A.2d at 669. Notably, if the bad faith limitation were not in place, all parties seeking to contract with the federal government would be forced, without the benefit of negotiation, to endure termination at the government’s whim, even if such decision proved patently unjustifiable.

In this case, the contractual landscape facing the appellants was quite different. Contrary to the appellants’ assertions, Broward County lacked the legislative authority to terminate its contracts with the appellants, as the County was only required to add termination-for-convenience clauses for construction contracts. See Broward County, Florida Admin. Code § 21.70 (2012) (“All construction contracts for Broward County shall contain clauses allowing for the termination of the contract for convenience and prescribe methods in which the vendor may calculate cost of work already performed, and termination settlement costs.” (emphasis added)). The contracts here at issue are not construction contracts. As a result, reliance upon the federal cases is inappropriate, since the appellants were placed on equal footing with the County to negotiate the inclusion, or exclusion, of the termination clause.

Absent the plenary power conferred upon the United States government through the federal procurement statutes, the contracts here at issue are best analyzed under Florida contract law. See Vila & Son Landscaping, 99 So.3d at 566. Applying such principles, “[i]t is well settled that courts may not rewrite a contract or interfere with the freedom of contract or substitute their judgment for that of the parties thereto in order to relieve one of the parties from the apparent hardship of an improvident bargain.” Beach Resort Hotel Corp. v. Wieder, 79 So.2d 659, 663 (Fla.1955) (citations omitted). Moreover, such freedom of contract “includes freedom to make a bad bargain.” Posner v. Posner, 257 So.2d 530, 535 (Fla.1972).

As applied to the termination provision at hand, “Florida courts have upheld the unilateral right of one party to cancel a contract as long as consideration exists,” even where mutuality of termination is lacking. Avatar Dev. Corp. v. De Pani Constr., Inc., 834 So.2d 873, 875 (Fla. 4th DCA 2002). Such consideration “need not be money or anything having monetary value, but may consist of either a benefit to the promisor or a detriment to the promisee.” Real Estate World Fla. Commercial, Inc. v. Piemat, Inc., 920 So.2d 704, 706 (Fla. 4th DCA 2006) (quoting Lake Sarasota, Inc. v. Pan Am. Sur. Co., 140 So.2d 139, 142 (Fla. 2d DCA 1962)). Thus, the requirement that one party fore-go exercising its contractual right to terminate until after proper notice has been given has been deemed sufficient consideration to support execution of a termination clause. See, e.g., Bossert v. Palm Beach Cty. Comprehensive Comm. Mental Health Ctr., Inc., 404 So.2d 1138, 1139 (Fla. 4th DCA 1981) (finding the requirement of two weeks notice of the right to terminate or restrict to be sufficient consideration as to avoid a lack of mutuality); Rollins Servs. v. Metro. Dade Cty., 281 So.2d 520, 521 (Fla. 3d DCA 1973) (upholding Miami-Dade County’s contractual right to terminate a contract “at any time,” since the provision required the county to give written notice to the contractor ten days prior to termination).

Here, Broward County’s contracts with the appellants required that 90 days written notice be given prior to termination. Such written notice, by itself, constituted sufficient consideration to uphold the provision’s enforcement. In addition, at the time they were entered into, the contracts obviously contemplated early termination and included $10 as “special consideration” for the County’s right to terminate for convenience, a separate basis to enforce the provision. The trial court’s order granting summary judgment was proper.

The Termination Provision Did Not Create an Illusory Contract

Given the existence of consideration, the appellants’ corollary argument that the termination-for-convenience clause constitutes an illusory promise is equally unfounded. “A contract is illusory under Florida law when ‘one of the promises appears on its face to be so insubstantial as to impose no obligation at all on the promisor-who says, in effect, ‘I will if I want to.’ ” Princeton Homes, Inc. v. Virone, 612 F.3d 1324, 1331 (11th Cir.2010) (quoting Johnson Enters. of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290, 1311 (11th Cir.1998)). “[W]here the consideration for a promise of one party is the promise of the other, there must be absolute mutuality of engagement, so that each party has the right to hold the other party to a positive agreement.” Miami Coca-Cola Bottling Co. v. Orange-Crush Co., 291 F. 102, 103 (S.D.Fla.1923), aff'd, 296 F. 693 (5th Cir.1924). However, “where there is any other consideration for the contract, mutuality of obligation is not essential.” LaBonte Precision, Inc. v. LPI Indus. Corp., 507 So.2d 1202, 1203 (Fla. 4th DCA 1987) (citing Wright & Seaton, Inc. v. Prescott, 420 So.2d 623, 626 (Fla. 4th DCA 1982)).

In this case, Broward County’s termination-for-convenience clause was independently supported by consideration, debunking any claim of its illusory nature. See Vila & Son Landscaping, 99 So.3d at 568 (finding a similar argument to “fail[ ] because under Florida law a provision requiring written notice, such as that contained in the termination clause in question here, prevents the promise made by the party with the right of termination from being regarded as illusory in nature”). Since Broward County properly exercised its contractual right to terminate the appellants’ contract for convenience, the trial court’s order must be affirmed.

Ill

Nevertheless, even if we were to follow the federal courts in this case, summary judgment would have been proper since Broward County did not act in bad faith. Under federal jurisprudence, “[t]he contractor’s burden to prove the Government acted in bad faith ... is very weighty.” Krygoski, 94 F.3d at 1541 (citing Kalvar, 543 F.2d at 1301). While government officials, “when ... contract[ing] with their citizens, are controlled by the same laws that govern the citizen in that behalf,” United States v. Bostwick, 94 U.S. 53, 66, 12 Ct.Cl. 67, 24 L.Ed. 65 (1876), they are also “presumed to act in good faith, and ‘it requires well-nigh irrefragable proof to induce the court to abandon the presumption of good faith dealing.’ ” T & M Distribs., 185 F.3d at 1285 (quoting Kalvar, 543 F.2d at 1301-02). This standard “sets a high hurdle for a challenger seeking to prove that a government official acted in bad faith,” and has been “equated with evidence of some specific intent to injure the plaintiff.” Am-Pro Protective Agency, Inc. v. United States, 281 F.3d 1234, 1240 (Fed.Cir.2002) (quoting Kalvar, 543 F.2d at 1302). “Due to this heavy burden, contractors have rarely succeeded in demonstrating the Government’s bad faith.” Krygoski, 94 F.3d at 1541.

In bringing such a suit, “the contractor must present clear and convincing evidence that the government’s termination was made with the ‘intent to injure’ the contractor.” TigerSwan Inc., 110 Fed.Cl. at 345 (citing Am-Pro Protective Agency, Inc., 281 F.3d at 1239-40); see also N. Star Alaska Hous. Corp. v. United States, 76 Fed.Cl. 158, 187 (2007). While this is typically the case, recent cases, relying upon Krygoski, have found liability to also be warranted “where the government has engaged in some form of improper self-dealing for its own benefit or to benefit another contractor,” in other words, preventing the government from repeating the infirmity of Colonial Metals and Torncello. TigerSwan, 110 Fed.Cl. at 347; see also Questar Builders, Inc., 978 A.2d at 668 (stating that Krygoski’s holding “add[ed] some teeth to the ‘bad faith/abuse of discretion’ standard”). However, when this exception is implicated, a showing of prior “government knowledge that it will not honor the contract is a prerequisite.” TigerSwan, 110 Fed.Cl. at 347 (citing Caldwell, 55 F.3d at 1582).

In the case at hand, if Broward County were to be found liable at all, it would have to be under the latter exception, since the appellants failed to evince any facts depicting the County’s intent to “injure” them. While the addendum to the appellants’ contract evidences the County’s intent to terminate the contract within the five-year period, it also demonstrates the intent to honor the contract until a change in circumstance, namely the development of the “virtual fleet,” occurs. This fact distinguishes this case from the onerous situation presented in Colonial Metals and Torncello, where the government crushed the contractor’s bargained-for expectations by entering into the contract despite knowing it would not honor á portion of it at all. Here, the appellants’ eyes were open when they entered into the contracts, as they knew, per the addendum, that their contract would be terminated at a later point based on the County’s good faith economic reason for so acting.

IV

As their final issue, the appellants contend that the trial court erred in granting summary judgment since issues of fact remained as to whether they were entitled to “reliance damages” for the amount they had spent upgrading their fleet to conform with the contract. In Florida, to show entitlement to damages under a breach-of-contract theory, the plaintiff must “prove by a preponderance of the evidence the existence of a contract, a breach, and damages flowing from the breach.” Carpenter Contractors of Am., Inc. v. Fastener Corp. of Am., Inc., 611 So.2d 564, 565 (Fla. 4th DCA 1992) (citing Knowles v. C.I.T. Corp., 346 So.2d 1042 (Fla. 1st DCA 1977)) (emphasis added). Here, the appellants facially failed to meet this burden since Bro-ward County did not breach its contract by invoking its right to terminate. Id.

In reality, the appellants attempt to invoke the federal doctrine which, relying upon federal statutes, entitles the terminated party to certain costs upon application of the termination-for-convenience clause. However, even with federal contracts, “[w]here the government terminates a private contractor pursuant to a termination for convenience clause in a contract, ... the contractor’s recovery is defined by the termination for convenience clause.” Linan-Faye Constr. Co., 49 F.3d at 923 (emphasis added). Here, since Florida’s statutes do not supply an alternative remedy after a termination clause is executed, the appellants are left to their bargained-for, contractual remedy of ninety-day notice and payment “for any services performed to the date the Agreement is terminated.” See, e.g., EDO Corp. v. Beech Aircraft Corp., 911 F.2d 1447, 1453 (10th Cir.1990) (stating that where the concerns of the federal cases is lacking, “we will enforce a contract freely entered into by two competent parties” when supported by consideration). Appellants were paid in full for all work performed under the contract prior to termination, making millions of dollars in the process. The remedies conferred under the contract were effectively met making summary final judgment appropriate.

Affirmed.

FORST, J., and ROSENBERG, ROBIN, Associate Judge, concur.

      . See 42 U.S.C. §§ 12.101-12.213 (2006).

      . While traditional mass transit systems such as buses and subways run on set schedules, paratransit services envision "transportation ... upon request by the handicapped individual,” including, but not limited to, "wheelchair-accessible vans.” Walter v. Se. Penn. Transp. Auth., 434 F.Supp.2d 346, 351 (2006) (quoting ADAPT v. Skinner, 881 F.2d 1184, 1186 n. 1 (3d Cir.1989)).

      . “Generally speaking, to qualify as a DBE, the owner must be a citizen of the U.S., a woman or racial or ethnic minority, who is socially and economically disadvantaged.” Handi-Van, Inc. v. Broward Cnty., Fla., 2010 WL 2382909, at *1 (S.D.Fla. June 14, 2010). "Through the DBE program, it has been the longstanding policy of the United States Department of Transportation to expend not less than 10 percent of the amounts authorized to be appropriated for certain federal ... programs with small business concerns owned and controlled by socially and economically disadvantaged individuals.” Cache Valley Elec. Co. v. State of Utah Dept. of Transp., 149 F.3d 1119, 1121 (10th Cir.1998) (citations and internal quotations omitted).

      . Specifically, the contract provided as follows:
      15.1 This Agreement may be terminated for cause by action of the Board or by CONTRACTOR if the party in breach has not corrected the breach within fourteen (14) days after written notice from the aggrieved party identifying the breach, or for convenience by action of the Board upon not less than ninety (90) days written notice. ...

      15.4 In the event this agreement is terminated for convenience, CONTRACTOR shall be paid for any services performed to the date the Agreement is terminated; however, upon being notified of COUNTY’S election to terminate, CONTRACTOR shall refrain from performing further services or incurring additional expenses under the terms of this Agreement. CONTRACTOR acknowledges and agrees that Ten Dollars ($10.00) of the compensation to be paid by COUNTY, the receipt and adequacy of which is hereby acknowledged by CONTRACTOR, is given as special consideration to CONTRACTOR for COUNTY'S right to terminate this Agreement for convenience.

      . While the court’s finding is generally true, it should be noted that there are instances where gopher removal may be costly, particularly when animal-shaped C4 explosives are required. See Caddyshack (Orion Pictures 1980) (chronicling groundskeeper Carl Spack-ler’s extensive attempts to exterminate a gopher, resulting in the destruction of Bush-wood Country Club).

      . As Judge Bennett explained:
      [T]he government’s obligation to act in good faith hardly functions as the meaningful obligation that it may be for private persons. Since good faith is presumed unless bad faith is shown, the government is prevented only from engaging in actions motivated by a specific intent to harm the plaintiff. It does not seem enough to support the government’s claim for otherwise unlimited convenience termination for the government only to promise not to use it specifically to damage the contractor.

        Torncello, 681 F.2d at 771.