Levine v. A. Madley Corp.

• Decision Date: 17 December 1987
• Docket Number: No. BS-10,BS-10
• Citation: 12 Fla. L. Weekly 2881,516 So.2d 1101
• Parties: 12 Fla. L. Weekly 2881 Jacquelynne Dale Fountain LEVINE, Appellant, v. A. MADLEY CORPORATION and Carlyle & Company Jewelers, Appellees.
• Court: Florida District Court of Appeals

Page 1101

516 So.2d 1101

12 Fla. L. Weekly 2881

Jacquelynne Dale Fountain LEVINE, Appellant, v. A. MADLEY CORPORATION and Carlyle & Company Jewelers, Appellees.

No. BS-10.

District Court of Appeal of Florida First District.

Dec. 17, 1987.

James J. Richardson, of Richardson Law Offices, P.A., Tallahassee, for appellant.

Bruce W. Robinson, of Brannon, Brown, Haley, Robinson & Cole, P.A., Lake City, for appellee A. Madley Corp.

Leslie A. Dent, L. Traywick Duffie, and John P. Campbell, of Hansell & Post, Atlanta, Ga., for appellee Carlyle & Co. Jewelers.

WIGGINTON, Judge.

Before us is an appeal from a final summary judgment entered on the affirmative defense of release. We reverse.

Appellant filed her complaint below alleging negligence in the administration of a polygraph examination conducted by appellee A. Madley Corporation, an agent of appellant's employers, appellee Carlyle & Company Jewelers. In their answers and motions for summary judgment, appellees advanced an affirmative defense of release based upon a general release executed by appellant prior to her taking the polygraph examination. Appellant filed an affidavit in opposition to the motions for summary judgment claiming that it was at all times understood between the parties that the polygraph would be administered in a professional, non-negligent manner. To the contrary, appellant claimed in the affidavit that the examination was given in a threatening, intimidating, and abusive manner, and was further negligently performed and not done in accordance with accepted polygraph techniques. Appellee A. Madley Corporation had earlier filed a request for admissions requesting appellant to admit that the "Consent And Release" attached to its answer was a true and correct copy of the consent and release signed by appellant. Appellant did not respond to this request thereby admitting that to be true. See Fla.R.Civ.P. 1.370(a). Summary judgment was thereafter entered on the basis that there was no genuine material issue of fact on the issues framed by the pleadings.

On appeal, appellant argues that her affidavit raised at least two issues of material fact: (1) whether there existed conditions precedent to her consent and release; and (2) whether the conditions precedent were intentionally and negligently breached by the appellees. She maintains that appellees did not satisfy their burden of proof as to the nonexistence of any material question of fact and that in granting summary judgment, the trial court improperly determined the issues.

In response, appellees maintain that releases or exculpatory contracts are valid and enforceable where the party's intention is made clear and unequivocal in the release contract. Middleton v. Lomaskin, 266 So.2d 678 (Fla. 3d DCA 1972). Asserting that the language of the instant release was clear and unambiguous, appellees argue that the courts cannot indulge in construction or interpretation of its plain meaning. Hurt v. Leatherby Insurance Company, 380 So.2d 432 (Fla.1980). Thus appellant's allegations in her affidavit regarding the parties' intent may not be considered in interpreting the plain and unambiguous meaning of the release.

The "Consent And Release" in the instant case indicates that appellant voluntarily agreed to be examined by the polygraph technique for the mutual benefit of herself and Carlyle & Company, and that the information related to the examination be made known to Carlyle & Company. The release went on to state:

In consideration of the foregoing, I hold free...