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.

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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 
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(“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.