         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                              NOT FINAL UNTIL TIME EXPIRES TO
                                              FILE MOTION FOR REHEARING AND
                                              DISPOSITION THEREOF IF FILED

PENTON BUSINESS MEDIA HOLDINGS, LLC
F/K/A PRISM BUSINESS MEDIA, INC.,

             Appellant,

 v.                                                Case No. 5D16-3935

ORANGE COUNTY, FLORIDA, AFX SPECIAL
EFFECTS, INC. D/B/A ART F/X AND ULTRATEC
SPECIAL EFFECTS, INC.,

             Appellees.

________________________________/

Opinion filed January 26, 2018

Appeal from the Circuit Court
for Orange County,
Lisa T. Munyon, Judge.

G. William Bissett, Jr, of Kubicki Draper,
PA, Miami, for Appellant.

Jeffrey J. Newton, County Attorney and
William C. Turner, Jr. Assistant County
Attorney, of Orange County Attorney's
Office, Orlando, for Appellee Orange
County Florida.

No appearance for Appellees AFX Special
Effects, Inc. and Ultratec Special Effects,
Inc.

LAMBERT, J.

      Appellant, Penton Business Media Holdings, LLC (“Penton”), appeals the final

summary judgment awarding damages in favor of appellee, Orange County, Florida
(“County”), on the sole count of breach of the lease agreement entered into between the

parties. Although we do not necessarily agree with the one aspect of the trial court's

analysis finding that Penton is liable to County based upon the breach of an allegedly

implied covenant that the court concluded was running with the land, we otherwise affirm

the final judgment determining liability in favor of County without further discussion.

However, we reverse the judgment on the issue of damages because genuine issues of

material fact remain.

       Penton entered into a lease agreement with County to lease certain premises

located at the Orange County Convention Center for the purpose of hosting a trade show.

Penton agreed to be responsible for damage to the premises caused by Penton or its

“employees, agents or guests” during the term of the lease. Penton invited and secured

sponsors and exhibitors to appear at its trade show. One of its exhibitors advised Penton

that it desired to perform a flame effect demonstration at the trade show. This exhibitor

was required to perform a pre-trade-show test of its flame effect devices before being

allowed to display the flame effect demonstration in front of the general public. During

this pre-show demonstration, County's fire safety sprinklers activated, causing extensive

water damage to that portion of the leased premises.

       In one of its affirmative defenses, Penton alleged that County's damages to its

property were either “created or enhanced” by its failing to shut down or disengage the

sprinkler system as soon as reasonably possible. Although this defense is sometimes

mistakenly identified as invoking a “duty to mitigate,” the defense is actually based on the

doctrine of avoidable consequences, which simply “prevents a party from recovering

those damages inflicted by a wrongdoer that the injured party could have reasonably




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avoided.” Sys. Components Corp. v. Fla. Dep’t of Transp., 14 So. 3d 967, 982 (Fla. 2009)

(quoting The Florida Bar, Florida Civil Practice Damages § 2.43, at 2-30 (6th ed. 2005)).

This doctrine does not reduce damages “based on what ‘could have been avoided’

through Herculean efforts.” Id. (citing Thompson v. Fla. Drum Co., 651 So. 2d 180, 182

(Fla. 1st DCA 1995)). Instead, a plaintiff is responsible only for those damages that it

could have avoided had it exercised “ordinary and reasonable care.” Id.

       As the party moving for summary judgment, County bears the burden of

establishing that, based on the “pleadings, depositions, answers to interrogatories,

admissions, affidavits, and other material as would be admissible in evidence on file,”

there is no genuine issue of material fact and that it is entitled to a judgment as a matter

of law. Genuinely Loving Childcare, LLC v. Bre Mariner Conway Crossings, LLC, 209

So. 3d 622, 624 (Fla. 5th DCA 2017) (quoting Taylor v. Bayview Loan Servicing, LLC, 74

So. 3d 1115, 1116-17 (Fla. 2d DCA 2011)). Summary judgment evidence must be

considered in the light most favorable to the non-moving party, id. at 625 (citing Sierra v.

Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000)), and if the record raises the possibility

of any genuine issue of material fact or “even the slightest doubt that an issue might exist,”

summary judgment is improper. Lin v. Demings, 219 So. 3d 124, 125 (Fla. 5th DCA

2017); accord Snyder v. Cheezem Dev. Corp., 373 So. 2d 719, 720 (Fla. 2d DCA 1979).

In ruling on a summary judgment motion, the trial court may not weigh the evidence or

determine the credibility of witnesses.       Lin, 219 So. 3d at 125 (citing Jones v.

Stoutenburgh, 91 So. 2d 299, 302 (Fla. 1956)). Finally, “[t]he moving party must also

disprove the affirmative defenses or establish that they are insufficient as a matter of law.”




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T-Quip of Fla., Inc. v. Tietig, 207 So. 3d 958, 960 (Fla. 5th DCA 2016) (citing Stop &

Shoppe Mart, Inc. v. Mehdi, 854 So. 2d 784, 786 (Fla. 5th DCA 2003)).

       We apply a de novo standard of review to the final summary judgment. Volusia

Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). Having

reviewed the record, including the transcript of the summary judgment hearing, and

applying the aforementioned familiar standards, we conclude that County has not

conclusively refuted Penton's affirmative defense that County failed to exercise ordinary

and reasonable care in disconnecting the sprinkler system and that if it had done so, the

water damage incurred by County could have been avoided. Accordingly, we reverse

that part of the final summary judgment awarding damages and remand to the trial court

for further proceedings consistent with this opinion.

       AFFIRMED in part, REVERSED in part, and REMANDED.



SAWAYA and EVANDER, JJ., concur.




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