author: SALTER, J.

text:
    ARCHBISHOP COLEMAN F. CARROLL HIGH SCHOOL, INC., etc., Archdiocese of Miami, Inc., etc., Archdiocese of Miami through Archbishop John Favolora, United National Insurance Company and The National Catholic Risk Retention Group, Inc., Appellants/Cross-Appellees, v. Jose Luis MAYNOLDI and Olga Maynoldi, individually, and as legal guardians of Gabriel Maynoldi, Appellees/Cross-Appellants.
    No. 3D08-1648.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 2010.
    Rehearing and Rehearing En Banc Denied April 14, 2010.

      Gaebe, Mullen, Ajntonelli, Esco & Dimat-teo, and Michael A. Mullen, Benjamin M. Esco and Anne C. Sullivan, Coral Gables; Carlton Fields, and Wendy F. Lumish, Miami, Alina Alonso and Andrew D. Man-ko, Tallahassee, for appellants.
    Deehl & Carlson, and David L. Deehl, Michele K Feinzig, and Joanne R. Telis-chi, Coral Gables, for appellees.
    Carr Allison, and Harold R. Mardenbor-ough, Jr., as Amicus Curiae, for appellants.
    Before RAMIREZ, C.J., and SUAREZ and SALTER, JJ.
   SALTER, J.

In this appeal and cross-appeal we review a parochial high school’s alleged liability for the tragic results of a 17-year-old student’s consumption of alcohol at, and operation of an automobile after, an end-of-school-year party at a private residence. Despite three novel circumstances presented by the trial record, we conclude again that:

At some point, we believe that a school’s obligation of reasonable supervision must come to an end and the parent or guardian’s duty of supervision must resume. That logical point, we think, should be when the student leaves the school’s premises during non-school hours and is no longer involved in school-related activities.

Based on this well-settled principle and other points detailed in this opinion, we reverse the verdict and amended final judgment below, and we direct the entry of a judgment in favor of the appellants. We review the factual record in the light most favorable to the appellees, and then consider in turn these legal issues:

1. Was the after-school event school sponsored or school related?
2. Did the principal’s visit to the front of the private residence during the party, or the school’s handbook regarding such parties, create a duty on the part of the school pursuant to the undertaker’s doctrine?
3. Did the trial court correctly interpret section 768.36, Florida Statutes (2001), “alcohol or drug defense,” as applied to the facts of this case?
4. Did the trial court abuse its discretion in sustaining an objection to the admissibility of records regarding the injured student’s (the driver’s) prior treatment for alcohol dependence, including an admission that a few months before the accident the eleventh-grade student had consumed 24 beers in 24 hours?

Our analysis and conclusions on these issues render moot a fifth argument by the school regarding the appellees’ counsel’s alleged misconduct during the course of the trial. A sixth issue raised by the school, the entitlement of the appellees to attorney’s fees and costs (whether as prevailing parties or “under the doctrine of ‘equitable conduct’ as an appropriate sanction”), is not ripe for our review on this record. The trial court reserved jurisdiction to make a limited award of attorney’s fees and costs incurred by the appellees’ counsel as a consequence of the school’s delay in producing certain original documents and notes. At such time, if any, as the appellees move for and obtain a judgment in the ti'ial court fixing the amount of such an award and establishing how any fees awarded are attributable to the alleged delay in production of the documents, that issue will become ripe for appeal.

In the cross-appeal, Gabriel Maynoldi (the tragically-injured high school student) and his parents assert as error the trial court’s denial of a motion to strike the school’s pleadings; the court’s failure to direct a verdict precluding any percentage of comparative negligence on the part of the parents; the court’s allowance of a $1.1 million setoff based on the separate settlement with the school principal; and the denial of a motion for additur for $537,009 in past services provided Gabriel by his parents. We find no abuse of discretion by the trial court regarding the first of these issues in the cross-appeal, and our decision in the main appeal renders moot the remaining issues.

I. Background

A. The “Praty” Invitation

June 12, 2001, was the next-to-last day of school at the high school. During the day, the school administration became aware that various students had received copies of a card inviting them to an end-of-year party the following day at a residence several miles away from the school. Although the card itself carried a more unusual font and variations in the size of various words, the text read:

A.M.L.P.P.
ABC ONLY! ABC ONLY!
WE PROMISED IT SINCE THE BEGINNING
OF THE YEAR.NOW ITS HERE... COME
END THE SCHOOL YEAR THE RIGHT WAY!
PLACE: [Residence Address]
TIME: 1:00 P.M. TILL IT ENDS
RIGHT AFTER SCHOOL*BRING YOUR BATHING
SUITS... $5.00 DOLLAS EVER-1, EXCEPT COMPS
FOR INFO CALL: [Telephone Numbers]
SPECIAL THANKS TO ANDY & RUDY.. SORRY BOUT THA PIC
PRATY 6
POOL PRATY XXX BIKINI CONTEST XXX ALL ACCESS

Testimony at trial disclosed that “ABC” referred to Archbishop Carroll School; the residence address was that of two students at the school; the two telephone numbers were private numbers for those two students; the “Praty” was to begin an hour after students taking final exams were to be dismissed for the year from the school property (June 13, 2001); and “6” was a reference to prior student-organized, off-school premises “praties.” The cards were not prepared or distributed by the school, its faculty, or administration. Counsel for the appellees reported to the trial judge that “A.M.L.P.P.” was an extremely crude Spanish-language sexual reference, but there was no evidence that this reference was known by the school.

The testimony and documentary evidence at trial also included a smaller “COMPPASS” (apparently, a free pass to the “praty”) also bearing the acronym “A.M.L.P.P.,” “ABC ONLY!” and “POOL PRATY.” On some of the invitations or passes, a bottle of liquor was faintly visible in the background.

B. The “Skit” — “Bv,sting a Party!”

On the morning before the party, the school principal had the two students (brothers) at whose home the party was to take place brought into his office so he could question them. He testified that the students told him that that their parents would be at the party as chaperones.

The principal and school administrative staff also read a “skit” over the school public address system that morning. The principal composed the script, entitled “Busting a Party!” He testified that the skit was a parody intended to let students know that the administration had become aware of the party and might put a damper on it. The complete script (including typographical errors), an exhibit introduced into evidence at trial by the appel-lees, was:

BUSTING A PARTY!
Principal: Mr. [Staff 1]. Are you going to the party?
Staff 1: What party?
Principal: Come on, [Staff 1], get with it! You know that there is only one party happening this afternoon!
Staff 1: Oh yes, I know! THAT Party! The ABC Party!
Staff 2: Yes, that’s the one! It’s going to be really cool! Party! Pai*ty!
Staff 1: [Staff 2], are you planning to be there?
Staff 2: I most certainly am! I wouldn’t want to miss it for the world.
Staff 3: I'll be there.
Principal: You mean you plan to be there all of the party?
Staff 2: Well, most of it! Did you guys get your bathing suits?
Staff 1: Yes, I have one in the car.
Principal: Me too. I can hardly wait. I’m gonna have [football coach] bring Ammo and Lisa too!
Staff 1: Who is Ammo and Lisa!
Principal: Ammo is [the coach’s] retired police dog. You know, the one that doesn’t like people! And Lisa is the dog that does body drug searches! You remember, the one that was at the bus when we took the juniors to Islands of Adventure!
Staff 1: Oh yeah, now I remember. Gee, if they are there, this party could turn out to be a real bummer! Sounds like this might not be a real fun party after all!
Staff 3: Really bad downer!
Principal: Oh come on! We’ll really enjoy it! Wonder why it says $5 for ever one, except COPS! Does that mean the police will get in free?
Staff 1: No, they meant COMPS. I guess that means us. Ha! Ha!
Staff 2: I think we should invite the rest of the faculty! The invitation does say ABC ONLY! ABC ONLY! I think the faculty would enjoy this!
Staff 4: Did someone say something about an ABC party? I’ll be there!
Staff 2: If you students think we are kidding about going to this party, your are mistaken. We really do plan to go and see what is happening! If anything looks strange, we’ll have the necessary backup to make it un-hap-pen real quick!
All: We’re gonna party! We’re gonna party! PARTY! PARTY!

C. Dismissal; the Party; and the Principal’s Visit

School was dismissed for the year following the second of two final exam periods, at 12:20 p.m. Students began to arrive at the home where the pai-ty was to take place after 1:00 or 1:30 p.m. The mother of the “hosting” students arrived at the home some time between 1:45 p.m. and 3:30 p.m., but went to her room by the pool and stayed there with the blinds drawn. She testified that after she was there 30 to 45 minutes, she called her husband to come home. Neither parent called the police or attempted to stop the party prior to the time Gabriel Maynoldi and his classmate drove away from the party.

Alcohol was consumed in the pool area at the back of the house and in cars. Gabriel and his classmate, though minors, had obtained two twelve-packs of beer and a vodka drink from a convenience store and arrived at the party between 2:00 and 2:30 p.m. Gabriel and the classmate drank in Gabriel’s car for a half-hour to an hour, and then went into the party with whatever alcoholic drinks remained.

At about 4:00 p.m., the principal and a school employee (who drove him to the residence) arrived at the party. The principal testified that he wanted to follow through on his threat to visit, that he wanted to personally see that things were okay, and that he confirmed from one of the students living at the home that his mother was home. After a few minutes, the principal and employee left and returned to the school. They did not notify police, visit the back of the home, call any parents (including the owners of the home at which the party was underway), consume or provide alcohol, participate in the party themselves, or direct any students to leave.

D. The Accident

Some 30 to 45 minutes after the principal and school employee left the home where the party was in progress, Gabriel and his friend got into Gabriel’s car and drove away. Several miles away from the party and from the school, the vehicle struck a tree (travelling in a residential area at a speed estimated by police to have been between 80 and 100 miles per hour) and split in half, killing the friend and catastrophically injuring Gabriel. Two hours after the accident, Gabriel had a blood alcohol level of ,09%. He is now a quadriplegic, and he suffered traumatic brain injury as well.

E. The School’s Parent and Student Handbook

The School’s parent and student handbook for school year 2000-2001 was admitted into evidence. A section entitled “Outside (Home) Parties” states:

This is our advice and recommendation. Parents should be positive that responsible adults properly supervise activities that their child attends. We recommend the parents call the hosting family to ensure the activity has been planned for their home and that they plan to chaperone the event. In advance, if the school becomes aware of any party that involves illegal or immoral activities we will inform the proper authorities. We would ask that any parent who learns of any such party or event contact the administration so we could help prevent any tragedy that might result. THE SCHOOL WILL NOT BE RESPONSIBLE FOR ANY EVENT THAT IS NOT OFFICIALLY SANCTIONED BY THE ADMINISTRATION. We also strongly discourage allowing students to stay out after any official function is completed, or to rent facilities after any function, especially a dance or prom.

The handbook also contains a substance abuse policy applicable to alcoholic beverages proscribing the use or possession of such beverages “by any student on school property or while attending or participating in any school sponsored activity or at any time the student is wearing a school uniform.” The consequences of a violation were specified: “[t]ransgression of this rule will result in disciplinary action, which may include dismissal from school, even for a first offense.” Another section stated:

The use, possession, or sale of alcoholic beverages or drugs is prohibited at all times on school premises before, during or after school hours or at school-sponsored events. ANY STUDENT WHO APPEARS TO HAVE CONSUMED ALCOHOLIC BEVERAGES, USED DRUGS, DISTRIBUTED DRUGS, OR ANY STUDENT WHO BRINGS SUCH SUBSTANCES ON THE SCHOOL PREMISES OR PLACE OF A SCHOOL SPONSORED FUNCTION IS SUBJECT TO DISMISSAL FROM SCHOOL, EVEN FOR A FIRST OFFENSE. The determination of “use” will by necessity be a judgmental decision by any staff or faculty member who may observe the behavior.

Other sections addressed the rules applicable to field trips and required parental permission forms, approved clubs and extracurricular activities.

F. The Circuit Court Case

The appellees commenced the lawsuit in the trial court in September 2004. After substantial discovery and additional investigation, they amended the complaint. The third amended complaint named six defendants: the school (a non-profit Florida corporation), the religious diocese alleged to control the school, the principal of the school, the parents of the two students who hosted the party (owners of the residence at which the party took place), and the convenience store alleged to have sold the alcoholic beverages consumed by the underage students.

Before and during trial, the appellees settled separately with the principal and dismissed all defendants other than the school and the diocese. During trial, the school sought admission of records from a local hospital’s addiction treatment center. The records pertained to Gabriel’s prior treatment for marijuana and alcohol abuse, and they had been ordered to be produced after careful in camera analysis by a general magistrate, a circuit judge, and this court. The records and the deposition testimony of the addiction treatment center counselor who treated Gabriel established that Gabriel had been treated in 2000 and early 2001 for marijuana and alcohol abuse (including a self-reported consumption of 24 beers within a single 24-hour period), and that he and his family had been counseled on post-treatment care and avoiding situations where alcohol would be available. At trial, the court excluded this evidence, but allowed the school’s counsel to ask the parents whether they knew that “before the day of the accident” Gabriel had consumed alcohol.

During trial, the court also struck the school’s affirmative defense based on section 768.86(2), Florida Statutes (2001). That statute provides:

(2) In any civil action, a plaintiff may not recover any damages for loss or injury to his or her person or property if the trier of fact finds that, at the time the plaintiff was injured:
(a) The plaintiff was under the influence of any alcoholic beverage or drug to the extent that the plaintiffs normal faculties were impaired or the plaintiff had a blood or breath alcohol level of 0.08 percent or higher; and (b) As a result of the influence of such alcoholic beverage or drug the plaintiff was more than 50 percent at fault for his or her own harm.

The trial court accepted the appellees’ argument that the statute does not apply to a minor plaintiffs impairment and claim for damages, though no reported decision has reached such a conclusion. The court concluded that the injured student’s parents were the plaintiffs, not the student, so that the statute should not be applied.

After motions by the school and diocese for directed verdict were denied, the jury rendered a verdict awarding over $55 million in damages, apportioning 53% of the negligence to Gabriel and his parents; 25% to the school; 20% to the parents at whose home the party took place; and 2% to the person who purchased alcohol for Gabriel and his classmate. Post-trial motions were filed and heard. The trial court allowed certain setoffs and ultimately entered an amended final judgment against the school and diocese for $12,950,197.50. The amended final judgment granted the appellees’ motion for sanctions for an unspecified “discovery violation” and reserved jurisdiction to consider an application to fix the amount of attorney’s fees and costs as an appropriate sanction.

II. Analysis

A. “School Sponsored or School Related”

Concepcion and several other Florida cases establish appropriate legal standards for a school’s legal duties to students engaged in off-premises activities. Two primary standards have been articulated: a school’s on-premises duty of supervision may continue when an off-premises activity is “school sponsored” or “school related.” No view of the record in this case satisfies either test. The “sponsor” of an event, according to any dictionary and common usage, is one who pays for it or takes responsibility for it. No resources of the school were used to conduct the party in this case. High schools may be said to “sponsor” a prom away from the school premises, but the event is on official school calendars; faculty and staff ordinarily attend and chaperone; and the boundaries of liability are normally the boundaries of the school-sponsored venue.

The broader standard, “school related,” requires some connection to the school’s academic and extracurricular programs. A school athletic team’s participation in a scheduled competition at another location is obviously “school related.” Similarly, in Rupp v. Bryant, 417 So.2d 658 (Fla.1982), a school club’s off-premises meeting was held to be school related, subjecting the school to liability for negligence. In that case, the activity that caused a student’s tragic injury was officially prohibited by the school (a hazing ceremony). The school’s duty of supervision extended to the activity, however, because the club in question was officially sponsored by the school and the school had reserved to itself the authority to control the activities of the club. Id., 417 So.2d at 667.

In this ease, however, there was no “club” recognized, endorsed, or supervised in any way by the school. The off-premises activity was planned, hosted, and attended by a collection of students having no name, group identity known to the school, or school related purpose. Of the students attending, only two had been firmly identified (the students whose address was listed on the “praty” invitation) by the school, and those two had told the school that their parents would be present. The Wo student “hosts” did not ask for or obtain the school’s permission to conduct the event, and the academic school year was complete when the students left the school premises (before the event began).

A similar tragedy is recounted in Rhea v. Grandview School District No. JT 116-200, 39 Wash.App. 557, 694 P.2d 666 (1985). A high school senior class met in the school gymnasium just before graduation. Before their faculty adviser joined the group, the students planned an off-campus party to be held on one of the “release” days when seniors were not required to attend school. When the faculty adviser learned that the students were planning to bring beer to the party, “the adviser admonished the students and reported the incident to the principal.” Id. at 667.

One of the seniors attended the party consumed alcoholic beverages in the course of it, and was killed instantly in a collision while driving her car home. At the time of her death, the student’s blood alcohol level was .13 percent. In the ensuing lawsuit, the trial court granted summary judgment to the school district and the Washington Court of Appeals affirmed, despite the school principal’s and faculty adviser’s knowledge and inaction. Rhea followed other cases determining that “the nexus between an assertion of the school district’s authority and potential tort liability springs from the exercise or assumption of control and supervision over [a student] organization and its activities by the appropriate agents of the school district.” Id. at 668.

In this case, there was no extracurricular or student “organization” over which the school or principal could have exercised control; concomitantly, there is no duty to do so. Rupp, 417 So.2d at 666-67. Nor can the skit, “Busting a Party,” be considered sponsorship, endorsement, or recognition of any school related purpose. To the contrary, the use of the term “busting” in the introduction, and the concluding lines of the skit, convey disapproval.

B. The Undertaker’s Doctrine

The appellees also assert that the principal and school “undertook” duties that they breached. Florida’s common law “undertaker’s doctrine” is detailed in a recent decision by our Supreme Court, Wallace v. Dean, 3 So.3d 1035 (Fla.2009). This “well-developed, entrenched aspect of Florida tort law” essentially follows sections 323, 324, and 324A of the Restatement (Second) of Torts (1965). 3 So.3d at 1051.

The application of the doctrine to this case involves a series of separate inquiries. First, did the school undertake to render services to Gabriel Maynoldi and his parents regarding the off-premises “praty” which the school should have recognized as necessary for Gabriel’s protection? If so, and second, did the school fail to exercise reasonable care in rendering those services? If so, and third, did the school’s failure to exercise such care increase the risk of harm to Gabriel or did Gabriel and his parents suffer harm because of their reliance on the school’s undertaking?

We have already concluded, as the Washington Court of Appeals concluded in Rhea, that mere knowledge of the off-premises party is not a basis for liability. But in this case, two additional facts require consideration: the school handbook and the visit by the principal and an employee to the off-premises residence at which the party took place.

With regard to the “Parent and School Handbook” section on “Outside (Home) Parties,” the appellees allege that the school undertook to notify “the proper legal authorities” because the school became aware, in advance, that the party “involves illegal or immoral activities.” Before this sentence, however, the handbook discusses the obligation of parents to be “positive that responsible adults properly supervise activities their child attends” and the recommendation that “the parents call the hosting family to ensure the activity has been planned for their home and that they plan to chaperone the event.” More significantly, the school disclaimed responsibility for unauthorized home parties in an all-capitalized disclaimer in the same section: “THE SCHOOL WILL NOT BE RESPONSIBLE FOR ANY EVENT THAT IS NOT OFFICIALLY SANCTIONED BY THE ADMINISTRATION.” The party in question was not officially sanctioned.

Finally, the school’s policy in the handbook “does not change the fact that the incident occurred at a time when the school had no duty to supervise the students.” Matallana v. School Bd. of Miami-Dade County, 838 So.2d 1191, 1192 (Fla. 3d DCA 2003).

With regard to the visit to the off-premises party site by the principal and employee, neither of these visitors undertook a special duty to care for Gabriel. The principal and employee were not invitees of the owners of the residence, and they never spoke to the student hosts’ mother. They did not offer a ride to anyone, offer to call Gabriel’s parents, take his keys, or otherwise “render services” to Gabriel or his parents. Nor was Gabriel under these visitors’ authority, control, or supervision. School was out.

These indisputable facts may be contrasted with the facts in the Wallace case. Ms. Wallace was the personal representative of the estate of her mother, who had died after falling into a diabetic coma in her home. The incident at the center of the lawsuit occurred several days before the death, when two sheriffs deputies responded to a 911 call to the mother’s home. Ms. Wallace, who lived out of state, had called a neighbor of her mother after numerous phone calls by Ms. Wallace to her mother went unanswered. The neighbor “repeatedly knocked on the doors and windows of the decedent’s home, and when she received no response, called 911.”

The deputies entered the home with the neighbor of Ms. Wallace’s mother and the neighbor’s father. They found Ms. Wallace’s mother on a couch, breathing but unresponsive. They openly discussed the possibility that the mother might be in a diabetic coma, and the neighbor suggested that they call an ambulance. The deputies did not call for medical assistance, suggesting instead that they would return to check on the mother later and that the neighbor should leave the mother’s door unlocked.

After the deputies left, [the neighbor] called Ms. Wallace and told her that the decedent was sleeping. The next morning, [the neighbor] again found the decedent unresponsive, and once more called 911. Emergency medical personnel responded to the call and transported the decedent to the hospital where she died, several days later, without regaining consciousness.

Wallace v. Dean, 970 So.2d 864, 866 (Fla. 5th DCA 2007).

Our Supreme Court applied the analysis embodied in sections 323-324A of the Restatement (Second) of Torts and concluded that “the officers either increased the risk of harm to the injured party or induced third parties — who would have otherwise rendered aid — to forbear from doing so.” Wallace, 3 So.3d at 1040. In the present case, however, the school (including its principal and employee in their brief visit to the front of the residence where the party took place) did not increase the risk of harm to Gabriel or his parents, and did not induce any third party to forbear from assisting Gabriel or his parents. This conclusion is not based on a balancing of any evidence presented at trial; there is simply no record evidence that either of these elements of the undertaker’s doctrine existed. In Wallace, the deputies heard from the neighbor’s father the possibility that Ms. Wallace’s mother might be in a diabetic coma, and in response they (a) decided, as officials vested with authority in matters of public safety, that no emergency medical response was necessary, and (b) told the neighbor and her father that they would return to check up on Ms. Wallace’s mother.. These are rather classic examples of increasing risk and inducing reliance.

In evaluating the special risks that are involved in the toxic combination of minors, residential open house parties, and alcoholic beverages, the legislature has not been silent. Parents and guardians are primarily responsible for the supervision of them minor children, of course. Machin v. Walgreen Co., 835 So.2d 284, 285 (Fla. 3d DCA 2002) (“parents have a constant and continuous duty as ordinary, prudent persons to watch over, supervise, and protect their children who are too young to exercise judgment to care for themselves.”); K.C. v. A.P., 577 So.2d 669, 671 (Fla. 3d DCA 1991). But in 1988, the legislature also enacted a special statute applicable to “open house parties” at which alcoholic beverages or drugs are consumed by minors. As in effect in 2001, the statute provided:

No adult having control of any residence shall allow an open house party to take place at said residence if any alcoholic beverage or drug is possessed or consumed at said residence by any minor where the adult knows that an alcoholic beverage or drug is in the possession of or being consumed by a minor at said residence and where the adult fails to take reasonable steps to prevent the possession or consumption of the alcoholic beverage or drug.

§ 856.015(2), Fla. Stat. (2001).

At the time of the off-campus party attended by Gabriel, the application of this criminal provision was well settled. See, e.g., Newsome v. Haffher, 710 So.2d 184 (Fla. 1st DCA 1998) (describing the purpose and effect of the statute); Trainor v. Estate of Hansen, 740 So.2d 1201 (Fla. 2d DCA 1999) (adult host set up kegs of beer outside his home for consumption by minor guests at his daughter’s 16th birthday, thereby exposing himself to both criminal and civil liability for the death of a passenger in a car driven by an intoxicated minor guest).

In contrast to the well-established and statutory duty of the residence owners not to allow their sons to host a party where minors would be served alcohol, the school principal’s and employee’s legal rights to supervise attendees, or even to enter upon the residential property without the permission of the adult owners, were non-existent. The principal’s lack of authority to issue directives to the student attendees at the residence is readily distinguishable from the authority of the uniformed deputies carrying out their appointed public safety duties in Wallace.

Similarly, the principal and employee cannot be said to have induced third parties who might have otherwise rendered aid to Gabriel to forbear from doing so. On this record, no one was led to believe by the principal or the employee that a call to the police or to Gabriel’s parents, or taking away his keys, or offering to serve as a designated driver, was forbidden or a waste of time. The principal and employee did not undertake to “check back later,” whether for Gabriel or any other student.

We decline, for these reasons, to apply the undertaker’s doctrine in a way that would effectively make a principal or the school an insurer if the principal stops by the site of a student open house party to ask whether a parent is present in the residence. This would, in the trite but apt phrase, let no good deed go unpunished.

C. Alcohol Defense — Section 768.36

As noted, the trial court struck the school’s affirmative defense raising the bar of section 768.36, “alcohol or drug defense.” The applicability of the bar set forth in that statute raises two separate questions. First, does it bar Gabriel’s claim for damages based on the fact that, “at the time the plaintiff was injured ... .the plaintiff had a blood or breath alcohol level of .08 percent or higher; and [a]s a result of the influence of such alcoholic beverage or drug the plaintiff was more than 50 percent at fault for his or her own harm?” Second, does it in any way bar Gabriel’s parents’ claims for damages resulting from Gabriel’s injuries? The trial court held that the statute did not apply as a matter of law to this scenario because Gabriel was not the “plaintiff’ — his parents were the plaintiffs in their individual and representative capacities.

In this case, it is undisputed that Gabriel’s blood alcohol level exceeded .08 percent some two hours after the single car crash. The fact that the accident was a single-vehicle, excessive speed crash strongly suggests that Gabriel’s actions and omissions were the immediate cause of the accident and injuries. The jury found' — albeit without instruction regarding the statute and without the important fact, discussed below, that Gabriel had a very significant and recent history of problems with alcohol before the accident — that the “plaintiffs” were responsible for 53% of the comparative, apportioned fault.

In Griffis v. Wheeler, 18 So.3d 2 (Fla. 1st DCA 2009), a personal representative brought a wrongful death action against the owner and operator of a vehicle that collided with the decedent’s vehicle. The evidence established that the decedent’s blood alcohol level exceeded .08 percent at the time of the accident. The defendants affirmatively defended on various grounds including section 768.36. The plaintiff moved to strike the statutory defense, arguing that it did not apply to a claim in which a personal representative, not the alcohol-impaired driver, brought the claim.

The trial court and district court held, and we agree, that this “[statutory interpretation cannot be stretched to an absurd result.” Id. at 3. Their application of the statute to the personal representative’s derivative claims apply with equal force to parents’ claims arising entirely from their minor child’s accident and injuries. The derivative claimant should not acquire greater rights than the decedent (or in this case, the minor) could ever have had, assuming the requirements of the statute as to blood alcohol and fault were met.

But for our reversal on the issue of liability, the case would have been remanded for a new trial including consideration of the statutory affirmative defense.

D. The Addiction Treatment Evidence

Similarly, the trial court’s exclusion of the records and testimony relating to Gabriel’s significant and recent treatment for alcohol abuse was an abuse of discretion. The prior treatment and Gabriel’s admissions regarding his abuse of alcohol were directly relevant to, and probative of, the specific knowledge of the parents, their level of supervision of Gabriel, his access to a motor vehicle, and the jury’s allocation of comparative fault. Metropolitan Dade County v. Cox, 453 So.2d 1171 (Fla. 3d DCA 1984). While it is certainly true that the proffered evidence is prejudicial to the appellees’ claims, that is no basis for refusing to allow the jury to consider it in this case. That evidentiary ruling would also require, were it not for our reversal as to liability, reversal and remand for a new trial.

III. Conclusion

No conscientious juror or judge could (or can now) feel anything but the deepest sympathy for the tragic results of Gabriel’s accident. But our legal system requires more than heartfelt sympathy and demonstrable damages as predicates for the compensation of injured persons. Although this case involves three novel aspects that were not considered in Concepcion — the school’s interception of the “praty” invitations and “skit” in response, the parent and student handbook provisions, and the visit by the principal and employee to the residence where the party was underway — we conclude that these circumstances were insufficient as a matter of law to impose upon the school a duty to supervise, or a duty under the undertaker’s doctrine, regarding Gabriel’s acquisition and consumption of alcohol, attendance at the party, and fatal decision to get behind the wheel.

The amended final judgment below is reversed and remanded for the entry of judgment for the appellants. Upon remand, the trial court may also exercise the jurisdiction reserved in the amended final judgment with respect to an award of appropriate attorney’s fees and costs to the appellees as a sanction for the delayed production of certain discovery. On the cross-appeal, we affirm the trial court’s refusal to strike the appellants’ pleadings. The remaining points on cross-appeal are moot.

Reversed and remanded, with directions.

      . Concepcion v. Archdiocese of Miami, 693 So.2d 1103, 1105 (Fla. 3d DCA 1997).

      . The appellees also asserted that the school principal testified falsely on two collateral matters, further supporting sanctions. In view of the principal's separate settlement with the appellees (and the resultant stipulated dismissal), that aspect of the sanctions ruling is also moot.

      . A blood alcohol level of .08% or higher subjects the vehicle operator to a criminal charge of driving under the influence; § 316.193, Fla. Slat. (2001). That level is also the critical threshold in section 768.36, Florida Statutes, barring a recovery of civil damages under certain circumstances (and discussed in greater detail below).

      . Archbishop Coleman F. Carroll High School, Inc. v. Maynoldi, Case No. 3D08-247 (certio-rari granted Feb. 8, 2008).

      . The verdict form allocated 25% of the total to Gabriel; 13% to his father; and 15% to his mother.

      . The club in Rupp had a faculty adviser, and it was undisputed that the school had "authorized and sponsored” the club. Our Supreme Court recognized that high school service clubs “can have an important socializing benefit to students.” Rupp, 417 So.2d at 667-68.

      . Fernandez v. Florida National College, Inc., 925 So.2d 1096 (Fla. 3d DCA 2006), involved a tragic accident during an off-campus excursion to celebrate the end of the school year. A summary judgment for the college was affirmed because the teacher who drove the group did so in his individual capaciLy, after classes were officially concluded, and without authorization by the school.

      . Wallace v. Dean, 970 So.2d 864, 866 (Fla. 5th DCA 2007). This was the district court opinion reviewed by our Supreme Court in 2009.

      . Unauthorized entry onto real property is a trespass. See Coddington v. Staab, 716 So.2d 850, 851 (Fla. 4th DCA 1998).


source: Caselaw Access Project

author: LAGOA, J.

license: Public Domain

text:
    COASTAL MASONRY, INC., a Florida corporation, Appellant, v. Bayardo GUTIERREZ, Appellee.
    No. 3D09-2063.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 2010.
    Rehearing and Rehearing En Banc Denied April 7, 2010.

      Knecht & Knecht and Harold C. Knecht, Jr., for appellant.
    Mark L. Zientz, Miami, for appellee.
    Before WELLS, LAGOA, and SALTER, JJ.
   LAGOA, J.

Coastal Masonry, Inc. (“Coastal”), appeals from the trial court’s non-final order denying a summary judgment motion. The trial court’s order found that Coastal was not entitled to a workers’ compensation exclusivity defense as a matter of law. For the following reasons, we affirm the trial court’s order.

1. FACTUAL AND PROCEDURAL HISTORY

Bayardo Gutierrez (“Gutierrez”) filed a petition seeking workers’ compensation benefits from his employer, Coastal, for injuries sustained while lifting concrete blocks. In response to the petition for benefits, Coastal denied the claim in its entirety including that Gutierrez’s condition “is not the result of an injury by accident arising out of and in the course and scope of employment.” Specifically, the denial of benefits stated:

The carrier has denied the claim in its entirety. The claimant did not report the alleged injury to the employer in a timely manner, as required by F.S. 440.185(1). The present condition of the claimant is not the result of an injury by accident arising out of and in the course and scope of employment. There is no accident or occupational disease. The condition complained of is not the result of an injury, as defined by F.S. 440.02(1). The claimant’s medical condition is the result of a pre-existing condition or disease. The claimant’s medical condition is personal, pre-existing and/or idiopathic in nature.

(emphasis added). It is undisputed that Coastal paid no benefits to Gutierrez.

As a result of Coastal’s denial, Gutierrez voluntarily dismissed his petition and filed a negligence action against Coastal. In his complaint, Gutierrez alleged that Coastal had denied his workers’ compensation claim “on the basis that the accident and injuries did not arise out of [his] employment and were not covered by workers’ compensation.” Coastal’s answer admitted this allegation, and further denied that Gutierrez was a Coastal employee. Notwithstanding its denial that Gutierrez was an employee, Coastal denied that it had waived workers’ compensation immunity and further asserted that immunity as an affirmative defense. Subsequently, Coastal filed a motion for summary judgment based on workers’ compensation exclusivity. The trial court denied the summary judgment motion, finding that Coastal was not entitled to workers’ compensation exclusivity as a matter of law. This appeal ensued.

II. ANALYSIS

On appeal, Coastal asserts that the trial court erred in ruling that it was estopped as a matter of law from raising a workers’ compensation exclusivity defense. It is well settled that the workers’ compensation scheme is the exclusive remedy for an injured employee unless the employer fails to obtain workers’ compensation insurance or commits an intentional tort which results in injury or death. However, an employer may be equitably estopped from raising a workers’ compensation exclusivity defense if the employer denies the employee’s claim by asserting that the injury did not occur in the course and scope of his or her employment. See Schroeder v. Peoplease Corp., 18 So.3d 1165 (Fla. 1st DCA 2009); Byerley v. Citrus Publ’g, Inc., 725 So.2d 1230, 1232 (Fla. 5th DCA 1999); Elliott v. Dugger, 579 So.2d 827, 828 n. 1 (Fla. 1st DCA 1991) (stating that “had [coverage] been denied on the basis that [the employee’s] alleged injury was not encompassed within the Act or on the basis that he was injured under other situations not covered by the Act, ... he might have been free to pursue common law remedies”); Elliott v. Dugger, 542 So.2d 392, 394 (Fla. 1st DCA 1989) (same). “Florida law, however, makes it clear that judicial estoppel is a narrow exception to workers’ compensation immunity and only available when the employer attempts to take inconsistent positions.” Ashby v. Nat’l Freight, Inc., No. 809-cv-582-T-30MAP, 2009 WL 1767620, at *3 (M.D.Fla. June 23, 2009) (emphasis added).

Here, the record shows that Coastal has taken inconsistent positions. Coastal denied Gutierrez’s claim for workers’ compensation benefits, stating that “[t]he present condition of the claimant is not the result of an injury by accident arising out of and in the course and scope of employment.” In this case, however, Coastal asserted as an affirmative defense that it was entitled to the exclusivity defense because the accident arose in the course and scope of Gutierrez’s employment. Not only is the defense inconsistent with Coastal’s position in the workers’ compensation action, it is inconsistent with Coastal’s Answer in this case itself. In paragraph 4 of its Answer, Coastal specifically denied that Gutierrez was a Coastal employee, and in paragraph 7 of its Answer Coastal admitted that it “denied the claim on the basis that the accident and injuries did not arise out of Plaintiffs employment and were not covered by workers’ compensation.”

Because we find that Coastal has indeed taken inconsistent positions, we now turn to whether, as a matter of law, Coastal is estopped from raising a workers’ compensation exclusivity defense.

In order to establish equitable es-toppel for the purpose of workers’ compensation exclusivity, the following must be shown:

(1) a representation by the party es-topped to the party claiming the estop-pel as to some material fact, which representation is contrary to the condition of affairs later asserted by the estopped party; (2) a reliance upon this representation by the party claiming the estop-pel; and (3) a change in the position of the party claiming the estoppel to his detriment, caused by the representation and his reliance thereon.

Francoeur v. Pipers, Inc., 560 So.2d 244, 245 (Fla. 3d DCA 1990) (quoting Quality Shell Homes & Supply Co. v. Roley, 186 So.2d 837, 841 (Fla. 1st DCA 1966)); see also Schroeder, 18 So.3d at 1168; Tractor Supply Co. v. Kent, 966 So.2d 978, 981 (Fla. 5th DCA 2007); Specialty Employee Leasing v. Davis, 737 So.2d 1170 (Fla. 1st DCA 1999).

As a result of Coastal’s denial of Gutierrez’s claim, Gutierrez: (1) dismissed the worker’s compensation claim; (2) incurred medical expenses; and (3) filed a negligence action to recover damages resulting from his injury. Because the record establishes the elements of estoppel, the trial court correctly ruled that Coastal was not entitled as a matter of law to workers’ compensation immunity. See Byerley, 725 So.2d at 1232; see also Quality Shell Homes, 186 So.2d at 840-41 (holding that employee’s tort action was not barred when employee relied on employer’s statement that no workers’ compensation coverage existed and did not make a workers’ compensation claim and received no compensation benefits); cf. Fly & Form, Inc. v. Marquez, 19 So.3d 403 (Fla. 3d DCA 2009) (holding that employer is not es-topped from asserting exclusivity defense when it denied employee further workers’ compensation benefits); Coca-Cola Enters., Inc. v. Montiel, 985 So.2d 19 (Fla. 2d DCA 2008) (same); Ashby, 2009 WL 1767620 (ruling that employer is not es-topped from asserting exclusivity defense when it denied claim for benefits based on employee’s failure to file claim timely).

It must be noted, however, that it is not merely the denial of benefits that may permit an employee to seek damages in a venue other than a workers’ compensation proceeding. As the Fifth District stated in explaining its decision in Byerley:

Byerley involved the denial of a comp claim on the ground that the injury did not arise in the course and scope of the employment relationship. Byerley holds that expressly asserting that an injury did not occur in the scope and course of employment estops the employer from defending a subsequent tort action on the ground that the claim arose in the course and scope of employment. It is not simply the denial, but rather the irreconcilable positions asserted, that led to the result in Byerley.

Kent, 966 So.2d at 980-81.

Accordingly, because Coastal asserted irreconcilable positions as to whether Gutierrez’s injury occurred in the course and scope of his employment, we affirm the trial court’s judgment.

Affirmed.

      . Pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(v), we have jurisdiction.

        . See § 440.11(1), Fla. Slat. (2006); Cabrera v. T.J. Pavement Corp., 2 So.3d 996 (Fla. 3d DCA 2008); Ruiz v. Aerorep Group Corp., 941 So.2d 505, 507-08 (Fla. 3d DCA 2006); Byer-ley v. Citrus Publ'g, Inc., 725 So.2d 1230 (Fla. 5th DCA 1999); Francoeur v. Pipers, Inc., 560 So.2d 244 (Fla. 3d DCA 1990).

      . We find Coastal's argument that it denied the claim because the injury arose from preexisting factors without merit. First, Coastal failed to preserve this issue for appellate review. Indeed, the first lime Coastal raised this argument was in its reply brief. See Roth v. Cohen, 941 So.2d 496, 500 (Fla. 3d DCA 2006) (" For an issue to be preserved for appeal, ... it 'must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.’ ”). However, even if the issue were preserved, there is no record basis to reverse the trial court's order and remand for a determination of material factual issues as to Coastal’s intent in denying benefits. In Schroeder, 18 So.3d at 1165, the employer denied benefits for several reasons and the First District reversed and remanded finding disputed issues of fact as to estoppel. Schroeder is distinguishable because the employer in that case filed an affidavit asserting that the intent of the notice was "neither to assert a lack of an employment relationship nor to allege that [the employee's] incident occurred outside the scope of the employment relationship.” Schroeder, 18 So.3d at 1167. Here, Coastal did not file an affidavit as to the intent of its denial, admitted Gutierrez's allegation that the accident and injuries did not arise out of his employment and were not covered by workers’ compensation, and further denied that Gutierrez was a Coastal employee.


author: SHEPHERD, J.

text:
    HERMITAGE INSURANCE COMPANY, Appellant, v. OXYGEN IN THE GROVE, etc., et al., Appellees.
    No. 3D08-1542.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 2010.

      Pivnik & Nitsche and Jerome A. Pivnik, for appellant.
    Keith Chasin, for appellees.
    Before GERSTEN, SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

This is an appeal by a post-judgment intervenor, Hermitage Insurance Company, from an order granting Plaintiff Melvin Rivera’s motion to vacate a final judgment entered against Hermitage’s insured, Oxygen in the Grove, Inc. We reverse the order vacating the final judgment. A brief summary of the facts is necessary to explain our decision.

FACTS AND PROCEDURAL BACKGROUND

This action arises out of injuries suffered by Melvin Rivera on the premises of a local bar and club, Oxygen in the Grove, allegedly at the hands of one or more of its bouncers. The complaint alleges after an evening of revelry, Rivera left the premises and then returned for his wallet, which he thought he left inside. Because the club had closed for the night, Rivera knocked on the door and was greeted by a bouncer, who said he would look for the wallet. After what seemed to Rivera to be an inordinate time, Rivera again knocked on the door. At that point, Rivera alleges the bouncer reappeared and, without provocation, assaulted and battered him.

Upon being served with the complaint, Oxygen forwarded it to Hermitage with a demand for a defense under the terms of a comprehensive general liability insurance policy issued to it by Hermitage. Hermitage denied coverage on the basis the complaint alleged an intentional tort, assault and battery, which are expressly excluded from coverage under the policy. Oxygen then proceeded to defend the case with private counsel, ultimately resolving the dispute in a voluntary binding arbitration proceeding in which the arbitrator awarded Rivera $30,850.08. The award entered by the arbitrator also expressly found Oxygen to be negligent. At the behest of Rivera, on May 23, 2007, the trial court confirmed the award and separately entered a final judgment on the award.

Seven months later, on March 25, 2008, Rivera filed a “Motion to Amend the Complaint to Comport with the Final Judgment.” In a transparent effort to obtain insurance coverage for the incident, Rivera alleged, for the first time, Oxygen “was negligent in its care and treatment of [Rivera] in that [Rivera] was struck in the face with a door when one of the bouncers opened it, and as a result of said negligence, [Rivera] sustained personal injuries.” Rivera also sought leave to add Hermitage as a defendant in the case. The motion was heard on April 23, 2008. An order entered on that date indicates the trial judge initially denied the motion, but then lined through that ruling and wrote, “Motion is withdrawn at this time and may be renewed.”

Eight days later, on May 1, 2008, Rivera filed an unsworn “Motion to Vacate Final Judgment,” asserting as his sole ground, “Due to inadvertence or error, the arbitration award (sic) should not have been entered [on May 23, 2007] because the liability carrier, Hermitage Insurance Company, should be made a party to this claim.” Although Hermitage was not eligible to be named as a defendant in the final judgment at this time, see § 627.4136(4), Fla. Stat. (2008); C.A. Seguros Catatumbo v. Hemra, 812 So.2d 576, 577 (Fla. 3d DCA 2002) (“Under the terms of [section 627.4136(4), Florida Statutes], the motion to add the insurer must be made prior to, or at the time of, entry of judgment against the tort defendant.”), the trial court granted the motion at a hearing held on May 15, 2008, for the sole reason it was “unopposed” by Oxygen. By this time, Hermitage had obtained local counsel who appeared at the hearing, but the court declined to consider Hermitage’s argument in opposition to the motion because Hermitage was not yet a party to the action. Thirteen days later, the court entered an order granting Hermitage leave to intervene as a party and also to file a declaratory judgment action on the coverage issue. Hermitage has appealed the order vacating the final judgment.

ANALYSIS

Although Rivera cited no rule or authority to support his motion to vacate the final judgment in this case, relief from final orders, judgments or decrees is governed by Florida Rule of Civil Procedure 1.540 (2008). Fla. Nat. Bank v. Domans-ka, 486 So.2d 1384, 1385-86 (Fla. 3d DCA 1986) (“A final judgment cannot be disturbed by the trial court except on a properly filed motion for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540.”). Subsection (b) of the rule authorizes the trial court, in its discretion, to vacate a final judgment on the basis of negligent mistake or error:

Rule 1.540. Relief From Judgment, Decrees, or Orders

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect ... The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment ... was entered or taken,

(emphasis added). However, the rule is not intended to spare counsel from his own tactical errors or mistakes. See Fla. High Sch. Activities, Inc. v. Latimer, 750 So.2d 762, 763 (Fla. 3d DCA 2000) (“This rule is not intended to relieve a party from its own tactical mistakes.”) (citing State Farm Mut. Auto. Ins. Co. v. Isom, 681 So.2d 1170, 1172 (Fla. 5th DCA 1996) (“[R]ule 1.540 does not provide relief for judgmental mistakes nor tactical errors of counsel nor from mistakes of law. This rule merely provides relief from judgments based on mistakes which result from oversight, neglect or accident.”)). That is the nature of the error pled in this case.

Reversed.

      . The certificate of service on the proposed amended complaint indicates a copy of the proposed amended complaint was mailed to a Hermitage claims adjuster in White Plains, New York. There is no record evidence Hermitage was provided with a motion or had any notice of the hearing.


author: PER CURIAM.

text:
    Charles PITTS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2740.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 2010.
    Rehearing Denied April 16, 2010.
    Charles Pitts, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, GERSTEN, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See State v. McBride, 848 So.2d 287 (Fla.2003).


author: KAHN, J.

text:
    COVENTRY FIRST, LLC, a Delaware Limited Liability Company, Appellant, v. STATE of Florida OFFICE OF INSURANCE REGULATION an Agency of the State of Florida, Appellee.
    No. 1D09-804.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2010.

      Daniel C. Brown and Joseph H. Lang, of Carlton Fields, P.A., Tallahassee, and Frank J. Santry, of Frank J. Santry, P.L., Tallahassee, for Appellant.
    Christopher Meadows and Jeffrey W. Joseph, of Office of Insurance Regulation, Tallahassee, for Appellee.
   KAHN, J.

Coventry First, L.L.C. (Coventry), appeals a final order denying its second amended complaint for injunctive relief and a declaratory judgment. Coventry contends the trial court erred as a matter of law by retroactively applying chapter 2007-249, section 1, Laws of Florida, an amendment to section 624.319, Florida Statutes (the 2007 amendment), to certain work papers submitted by Coventry to the appellee, the Office of Insurance Regulation (OIR), in the course of a regulatory investigation. Coventry also asserts error in the trial court’s treatment of “trade secret” objections to the publication of certain work papers. Because the trial court failed to apply the proper analysis to determine whether the application of the 2007 amendment impaired Coventry’s vested property rights, and erred in finding the trade secrets issue moot, we reverse the final order.

I. FACTUAL AND PROCEDURAL BACKGROUND

Coventry is a privately held viatical (life settlement) provider that purchases life insurance policies. The OIR is the state agency charged under the Florida Insurance Code in chapter 624, Florida Statutes (2007), with licensing and regulating Florida viatical settlement providers. Before the 2007 amendment, work papers were deemed “confidential” and “exempt from the provisions of [section] 119.07(1) and [section] 24(a), [Article] I of the State Constitution.” See § 624.319(3)(b), Fla. Stat. (2006). Beginning in October 2007, however, an amendment to section 624.319 effectively placed a time limitation upon the confidential and exempt status of work papers, extending such status only “until the examination report is filed, or until the investigation is complete or ceases to be active.” See Ch. 2007-249, section 1, at 2503, Laws of Fla. The amended statute further provides that it “applies to work papers and such information held by the department or office before, on, or after the effective date of this exemption.”

This appeal concerns work papers in the possession of the OIR before the October 1, 2007, effective date of the amendment, and frames the question whether certain rights in the confidentiality of work papers that arose before the 2007 amendment may constitutionally be nullified by that amendment. As noted above, the appeal also questions whether work papers, in this case designated as Bates Stamped Pages 503-516 by the OIR, also are trade secrets that must be protected from disclosure.

Coventry, a viatical settlement provider licensed under section 626.9912, Florida Statutes (2007), has provided thousands of pages of documents as the result of the OIR’s regulatory inspection demands. Typically, the OIR demanded that docu-raents requested by on-site examiners be delivered virtually immediately to the OIR, without a meaningful opportunity for Coventry to cull through the documents in advance. Accordingly, Coventry did not generally review these documents for trade secret information or designate certain documents as trade secret documents, nor did it have a meaningful opportunity to review documents for confidential personal information concerning its clients and its business practices.

According to an affidavit provided by Coventry’s CEO, these documents contained trade secrets and confidential personal information. Such information included identification of brokers, names and addresses of viators, medical and personal financial information about insureds and potential viators, insurance policy numbers, negotiated contract prices, and identities of underwriting vendors.

The OIR received public records requests seeking information the agency had demanded from Coventry, including documents containing the information set forth in the previous paragraph. Upon learning of this request, Coventry brought a lawsuit seeking declaratory and injunctive relief to protect confidential information. Before issuance of the final order here under review, Coventry obtained four separate temporary injunctions, providing protection to Coventry against the release of confidential information. In the order granting the fourth temporary injunction, the trial court made detailed findings of fact, including:

Coventry has obtained the services of individuals and organizations with skills and expertise essential to Coventry’s successful operations: senior executives, persons and organizations skilled in medical review and underwriting, financial underwriting, actuarial science, marketing, and systems design, escrow agents, and banking facilities. Coventry has developed means, processes, and procedures to efficiently organize, process, evaluate, and price potential viatical settlement contracts. Coventry has compiled considerable information useful and used in its business, and has developed means, processes and procedures to efficiently organize and evaluate the compiled data.

The trial court further determined that “Coventry regards and treats the information ... as Coventry’s trade secrets,” and further detailed an extensive list of those items constituting trade secrets.

In reaching the findings and conclusions for the fourth injunction, the trial court did not view Coventry’s standing as an obstacle to relief. Instead, the court found Coventry has standing to protect its trade secrets and confidential personal information concerning its customers. Recognizing that Coventry was an “affected noncus-todian of a public record,” the trial court upheld Coventry’s right to seek adjudication of the confidential status of documents no longer in its possession.

The case proceeded to an October 2008 final hearing. At that time, the court and the parties focused upon work papers designated as Bates Stamped Pages 503-516. Although these are not the only work papers in the OIR’s possession, they are the papers that were implicated as being responsive to the pending public records requests at issue in the case below. Coventry asserted that these documents are confidential and protected from disclosure on two grounds, as statutorily exempt work papers and as trade secrets. The Bates Stamped documents included the type of information detailed in the CEO’s affidavit (reiterated in live testimony at the final hearing), including information about insureds, brokers, purchase prices, payment amounts, funding sources, and the like.

Before the final hearing, the OIR issued a show-cause order that actually set out the contents of the Bates Stamped documents. At the final hearing, Coventry’s CEO testified the company never had a meaningful opportunity to review or object to the show-cause order before its release.

The parties stipulated that section 624.319, Florida Statutes, had been amended by chapter 2007-249, Laws of Florida, effective October 1, 2007. The parties further stipulated that the relevant investigation by the OIR had been completed on or before September 28, 2007. No factual dispute existed that Coventry had created the work papers at issue before the effective date of the 2007 amendment.

Sometime after the hearing, the trial court entered an order denying Coventry’s complaint for injunctive relief. The order contains several rulings relevant to this appeal. First, the trial court looked to the wording of the 2007 amendment to section 624.319, noting: “from the plain language from the statute ... the legislature intended the documents received prior to October 1, 2007, be dealt with under the new statute.” The trial court did not, however, address the constitutional argument raised by Coventry concerning its vested property rights in the documents produced and turned over to the OIR under the old statute. Next, the trial court ruled that Coventry lacked standing to raise the exemptions set out by the 2007 amendment. Specifically, according to the trial court, only the OIR has standing to raise these exemptions under the new statute.

The trial court determined the “trade secrets” issue was moot, observing that the same information had been essentially revealed in the OIR’s show-cause order, by that time posted on the OIR’s public internet site. The court did not consider the propriety of the OIR’s actions in issuing the show-cause order, nor did it consider certain exceptions to the “mootness” doctrine, including the likelihood that the issue would recur in the future and escape review and the principle that a party cannot render a disclosure issue moot based on the party’s own unsanctioned disclosure of the data in question. Relying upon mootness, the trial court neither reached the merits of the trade secret objections nor made findings of fact concerning Coventry’s challenges. The court did state in a general manner that the documents in question “are not subject to any existing exemption to chapter 119, Florida Statutes.”

Coventry seeks review of the order denying an injunction and determining that the work papers at issue are subject to public release. The trial court has issued a partial stay of the order pending appeal.

II. ANALYSIS

The agency contends that an order imposing injunctive relief is reviewed for an abuse of discretion, to the extent the ruling rests on “live testimony or other evidence that the trial court is singularly well-suited to evaluate.” See Smith v. Coalition to Reduce Class Size, 827 So.2d 959, 961 (Fla.2002). This case does not present such a scenario. Coventry correctly characterizes its appeal as raising a challenge to the trial court’s interpretation and application of the 2007 amendment, which is a question of law we review de novo. See Zingale v. Powell, 885 So.2d 277, 280 (Fla.2004); Lukács v. Luton, 982 So.2d 1217,1218 (Fla. 1st DCA2008).

A. Test for Retroactive Application of Statute

“A retroactive statute is one which gives to preenactment conduct a different legal effect from that which it would have had without the passage of the statute.” Charles B. Hochman, “The Supreme Court and the Constitutionality of Retroactive Legislation,” 73 Harv. L. Rev. 692, 692 (1960). “The general rule is that a substantive statute will not operate retrospectively absent clear legislative intent to the contrary, but that a procedural or remedial statute is to operate retrospectively.” State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 61 (Fla.1995).

Tracking the constitutional reasoning used by the United States Supreme Court in Ruckelshaus v. Monsanto Company, 467 U.S. 986, 1001-14, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984), and Landgraf v. USI Film Products, 511 U.S. 244, 280-86, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the Florida Supreme Court has described the proper two-pronged analysis for determining whether an enactment such as the 2007 amendment should have retroactive application. “The first inquiry is one of statutory construction: whether there is clear evidence of legislative intent to apply the statute retrospectively.” Metro. Dade County v. Chase Fed. Hous. Corp., 737 So.2d 494, 499 (Fla.1999); see Landgraf, 511 U.S. at 280, 114 S.Ct. 1483; Lakeland Reg’l Med. Ctr., Inc. v. Agency for Health Care Admin., 917 So.2d 1024, 1030 (Fla. 1st DCA 2006). “[T]o determine legislative intent as to retroactivity, both the terms of the statute and the purpose of the enactment must be considered.” Chase Fed. Hous., 737 So.2d at 500; see State ex rel. Hill v. Cone, 140 Fla. 1, 191 So. 50, 57 (1939). “A statute does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating the statute’s enactment.” Landgraf, 511 U.S. at 269, 114 S.Ct. 1483. “Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment.” Id. at 269-70, 114 S.Ct. 1483. “The general rule is that in the absence of clear legislative intent to the contrary, a law affecting substantive rights, liabilities and duties is presumed to apply prospectively.” Chase Fed. Hous., 737 So.2d at 499; see Arrow Air, Inc. v. Walsh, 645 So.2d 422, 424 (Fla.1994). However, “the presumption against retroactivity is only a default rule of statutory construction.... Thus, the presumption is rebutted by clear evidence of legislative intent.” Chase Fed,. Hous., 737 So.2d at 500; Arrow Air, Inc., 645 So.2d at 425. Generally, “a procedural or remedial statute is to operate retrospectively.” Laforet, 658 So.2d at 61.

For purposes of the present analysis, the Legislature enacted two significant changes in the amendment: 1) the previously unlimited confidential and exempt status of work papers would last only “until the examination report is filed or until the investigation is completed or ceases to be active”; and 2) this abbreviated exemption from disclosure applied to “work papers and such information” held by the OIR “before, on, or after the effective date of this exemption.” The legislative inclusion of new time limitations upon the confidential and exempt status of “work papers” attached significant “new legal consequences to events completed before its enactment.” Landgraf, 511 U.S. at 270, 114 S.Ct. 1483; see Arrow Air, Inc., 645 So.2d at 425. The trial court therefore correctly decided the Legislature intended the new provisions to operate retroactively. The trial court should not have ended its inquiry there.

“If the legislation clearly expresses an intent that [an act] apply retroactively, then the second inquiry is whether retroactive application is constitutionally permissible.” Chase Fed. Hous., 737 So.2d at 499; Fla. Hosp. Waterman, Inc. v. Buster, 984 So.2d 478, 487 (Fla.2008). The nature of the inquiry in the second prong is well-established:

A retrospective provision of a legislative act is not necessarily invalid. It is so only in those cases wherein vested rights are adversely affected or destroyed or when a new obligation or duty is created or imposed, or an additional disability is established, on connection with transactions or considerations previously had or expiated.

McCord v. Smith, 48 So.2d 704, 708-09 (Fla.1949); Chase Fed. Hous., 737 So.2d at 503. Thus, even where the Legislature clearly evinces an intent that a statute have retroactive effect, a court will refuse “to apply a statute retroactively if the statute impairs vested rights, creates new obligations, or imposes new penalties.” Lafor-et, 658 So.2d at 61. This rule recognizes “retroactive application of statutes can be harsh and implicate due process concerns.” Chase Fed. Hous., 737 So.2d at 499. Coventry correctly notes the trial court erred in failing to address and adjudicate this required second prong of the legal analysis. Because this analysis involves a pure issue of law, and judicial economy would be poorly served by a remand, we address the question based on the record before us. See Hoelzle v. Shapiro, 736 So.2d 1207, 1208 (Fla. 1st DCA 1999) (stating that even in the absence of a trial transcript, the appellate court could resolve a pure question of law).

The classification of trade secrets and other work papers as potentially implicating a protected interest conforms with the proposition that “property” includes “the products of an individual’s ‘labour and invention.’ ” Ruckelshaus, 467 U.S. at 1002-03, 104 S.Ct. 2862 (1984) (quoting 2 W. Blackstone, Commentaries *405). In determining whether governmental action is more than mere “regulation” and rises to the level of a “taking,” courts must consider several factors, including “the character of the governmental action, its economic impact, and its interference with reasonable investment-backed expectations.” PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 83, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980).

Coventry asserts the retroactive application of the 2007 amendment would impair its substantive vested rights, violate due process, and constitute a taking without just compensation. The confidential, exempt status of work papers in the OIR’s custody found express assurance by statute through September 30, 2007. Those same documents, however, under the terms of the amendment, immediately lost protection from public disclosure once the amendment became effective. Coventry showed that its work papers contain sensitive personal and financial information about its clients and employees — data compiled by the company based on a reasonable belief the same would remain confidential and exempt from public disclosure without time limitations. The work papers also include Coventry’s proprietary marketing and pricing data which, if disclosed to the company’s competitors and potential clients, could very well undermine Coventry’s competitive position in the viatical agreement market and render Coventry liable to privacy lawsuits. The pre-amend-ed version of section 624.319, Florida Statutes, reasonably seems to have been enacted to protect entities like Coventry that compile, process, and retain very personal, sensitive information about their clients’ health and financial circumstances, as well as develop proprietary operating and sales procedures designed to allow the company to compete successfully in the viatical settlement market.

A vested right must be “more than a mere expectation based on an anticipation of the continuance of an existing law; it must have become a title, legal or equitable, to the present or future enforcement of a demand.” Div. of Workers’ Comp. v. Brevda, 420 So.2d 887, 891 (Fla. 1st DCA 1982) (quoting Aetna Ins. Co. v. Richar-delle, 528 S.W.2d 280, 284 (Tex.Civ.App. 1975)). By way of analogy, our public records law recognizes the potential for harm where previously protected records become available to the public upon the repeal of statutory protections:

Records made before the date of a repeal of an exemption under this section may not be made public unless otherwise provided by law. In deciding whether the records shall be made public, the Legislature shall consider whether the damage or loss to persons or entities uniquely affected by the exemption of the type specified in subpara-graph (6)(b)2. or subparagraph (6)(b)3. would occur if the records were made public.

§ 119.15(7), Fla. Stat. (2007). Subpara-graph (6)(b)2. allows the creation, revision, or maintenance of an exemption if it serves a compelling public purpose such as protecting sensitive personal information about identified individuals, “the release of which information would be defamatory to such individuals or cause unwarranted damage to the good name or reputation of such individuals or would jeopardize the safety of such individuals.” Subparagraph (6)(b)3. refers to exemptions that protect “information of a confidential nature concerning entities, including, but not limited to, a formula, pattern, device, combination of devices, or compilation of information which is used to protect or further a business advantage over those who do not know or use it, the disclosure of which information would injure the affected entity in the marketplace.”

We do not find the legislative consideration, mandated by law, anywhere in the 2007 amendment. Instead, we conclude that retroactive application of the 2007 amendment improperly deprived Coventry of vested property lights in the continuing confidentiality and exemption of its trade secrets and other work papers already submitted to the OIR pursuant to the agency’s regulatory duties. In a different context, our supreme court in La-foret, 658 So.2d at 55, determined that a statute altering damages recoverable in a statutory first-party bad-faith action was a new penalty, not merely an increased sanction. The amendment in Laforet could not be applied retroactively, notwithstanding an express legislative statement that the statute was remedial and was intended to have retroactive application. See id. at 61-62.

Our understanding of Florida Hospital Waterman v. Buster, supra, comports with our conclusion here. In that case, the supreme court examined whether newly enacted article X, section 25 of the Florida Constitution would apply retroactively. The amendment facilitated patient access to adverse medical incident records of medical providers. See 984 So.2d at 482. Florida law had previously restricted access to such records. The court found providers had no vested right in the earlier regime of restricted access. The providers’ claims did not exceed a mere expectation the legislative policy limiting access to the peer review committees’ proceedings would continue. Significantly, the statutes in Buster neither created a privilege nor deemed relevant materials to be confidential or privileged. See id. at 490. Instead, the statutes abrogated by the new amendment simply provided a shield from “discovery or introduction into evidence in any action against a health care provider arising out of the matters which are the subject ... of the inquiry.” Id. By contrast, the amendment we consider here reversed the earlier version of section 624.319, which had made work papers “confidential” and “exempt from the provisions of [section] 119.17(1) and [section] 24(a), [article] I of the State Constitution” with no time limitation on that confidentiality or exemption. See § 624.319(3)(b), Fla. Stat. (2006). The Buster court applied the amendment retroactively because the providers could not show an implication of their due process rights. See 984 So.2d at 494; see also Lakeland Reg. Med. Ctr., 917 So.2d at 1033 (affirming a ruling that statutory changes did not violate the appellant/medical center’s due-process rights because its interest in reducing its own exposure to competition was not a constitutionally protected property right); Brev-da, 420 So.2d at 891 (holding that the repeal of a statute authorizing an award of attorney’s fees against appellant precluded awarding fees to a crime victim who was injured before the repeal of the statute but contracted with his attorney after the repeal, where the victim’s right to fees under the statute was merely remedial or procedural and could not be deemed to vest without a legally proper award pursuant to judgment).

The OIR asserts that the language in the pre-amended statute indicating the confidentiality and exemption protection could sunset unless re-enacted placed Coventry on notice of the impermanent prospects for the confidential, exempt status of the work papers. Responding that the 2007 amendment affected more than a mere expectation of continuing protection, Coventry relies on Mayo Clinic Jacksonville v. Department of Professional Regulation, 625 So.2d 918 (Fla.'1st DCA 1993). In Mayo Clinic Jacksonville, a special licensing statute allowing physicians to become “licensed by endorsement” was repealed by sunset. Although appellants did not petition the Board of Medicine for a declaratory statement until the statute was repealed, the claim was not moot, for the repeal did not affect those doctors already licensed before the sunset date. See id. at 918-19 & n. 2. Coventry properly applies the reasoning in Mayo Clinic Jacksonville to the sunsetting of pre-amended section 624.319, Florida Statutes. That is, the repeal of guaranteed, continuing confidentiality and exemption provisions by sunset would not affect substantive rights to such protection that already had vested, i.e., work papers demanded by the OIR under its regulatory authority and submitted to it by Coventry before the 2007 amendment provided actual notice of the time limits on confidentiality and exemption.

B. Trade Secrets Claim

We also find error in the trial court’s application of mootness to the “trade secrets” claim. We examine the mootness determination de novo. See Carlin v. State, 939 So.2d 245, 247 (Fla. 1st DCA 2006). Although the OIR published the information in its show-cause order, the contents of the order included the proprietary information taken from Coventry’s records — the very subject of this litigation.

Mootness will not foreclose an opportunity for review in circumstances where the issue is likely to recur but would evade review. See Enter. Leasing Co. v. Jones, 789 So.2d 964, 965-66 (Fla.2001). Moreover, Coventry notes the show-cause order that purportedly moots this claim was issued while the OIR remained subject to a temporary injunction, dated April 20, 2007, which expressly prohibited the public release of such information. Such assertion has not been seriously contested. Courts have held that a party can be es-topped from asserting a defense after the party has agreed to terms that would preclude raising the defense. See, e.g., Jasz-ay v. H.B. Coi~p., 598 So.2d 112 (Fla. 4th DCA 1992) (stating that a nursing home that stipulated to a 60-day extension of the pre-suit screening period was estopped from later asserting a limitations defense in a malpractice action). Similarly, a party should not be allowed to violate a rule and then use its own violation to the disadvantage of the opposing party. See, e.g., Scipio v. State, 928 So.2d 1138, 1150 (Fla. 2006) (finding harmful error where the State violated discovery by purposefully failing to inform the defense that the medical examiner’s investigator had recanted a material prior statement, and in closing argument the prosecutor ridiculed defense counsel’s attempt to present a defense based on the now-changed testimony). By analogy, the OIR’s public release of Coventry’s protected documents, contrary to the injunction, without affording the company a reasonable advance opportunity to review was improper and will not be available to bootstrap up a later claim of mootness. Also, this issue may well recur when more public records requests are made. The show-cause order, relied upon by the trial court for its mootness conclusion, implicated only a fraction of the thousands of pages of Coventry’s documents the OIR demanded and received in its regulatory capacity.

Coventry’s trade secrets are one component of the proprietary records that the company sought to protect from the retroactive application of the 2007 amendment. See § 812.081(l)(c), Fla. Stat. (2007) (defining “trade secret”). Under Florida law, trade secret information is “expressly made confidential and exempt from the public records law because it is a felony to disclose such records.” § 815.045, Fla. Stat. (2007). In this same provision, the Legislature recognized that the public disclosure of trade secrets in the custody of a state agency would financially harm the business interests of the individuals or entities seeking to protect their own trade secrets and would discourage cooperation and disclosure by the individuals and entities dealing with the agency. “Because of the intangible nature of a trade secret, the extent of the property right therein is defined by the extent to which the owner of the secret protects his interest from disclosure to others.” Ruckelshaus, 467 U.S. at 1002, 104 S.Ct. 2862. The trial court found Coventry had taken reasonable steps to ensure that its commercially sensitive work papers and other information were not disseminated to its competitors. Disclosure of the company’s commercially valuable work papers to its competitors or to the general public could harm Coventry and provide an unfair advantage to the competition in what Coventry’s CEO described as “a new and emerging industry.” The trial judge acknowledged at the final hearing that competing companies are very likely to be interested in Coventry’s trade secrets, and that litigation is not a proper means of disclosing proprietary information to the benefit of competitors. Nevertheless, the effect of the court’s ultimate rulings would allow public disclosure of trade secrets and other protected work papers, to Coventry’s legal and financial detriment.

We hold that the amendments here at issue are not retroactive as to Coventry’s work papers. We also hold that the trade secrets claim was not barred by mootness.

REVERSED.

LEWIS and WETHERELL, JJ., concur.