## Facts

- A Miami promotional parade required participants to sign a “Participation Agreement” containing an indemnification clause to defend and hold parade organizers harmless from claims “resulting from the parade.”
- A school district office purchased an advertising package that included a banner to be carried in the parade by a high school marching band; an employee signed the Participation Agreement naming the office as the band’s sponsor.
- During the parade, majorettes used flaming batons; students brought flammable liquid onto the route and reignited batons during the event.
- A fire occurred during refueling/reignition, allegedly causing serious burn injuries to spectators; the organizers later settled multiple injury claims.
- Injured spectators sued both the school board and the parade organizers; the organizers sought to shift liability to the school board through contractual and common-law indemnity.

## Issues

1. Whether an appellate court may affirm a judgment on a legal theory not pleaded, argued, or tried in the trial court.
2. Whether affirmance based on an equitable subrogation/equitable indemnity theory is improper when the case was litigated as contractual indemnity and common-law indemnity.

## Decision

- The Florida Supreme Court quashed the district court’s decision and remanded for further proceedings.
- The Court held the district court improperly affirmed on an equitable theory that had not been pleaded or tried in the trial court.
- The Court applied preservation principles requiring parties to raise and litigate their theories in the trial court before relying on them on appeal.
- The Court left further proceedings to address the case within properly preserved claims and defenses.

## Legal Principles

- Appellate courts may not affirm a judgment by supplying a new cause of action or distinct remedial theory not raised and preserved in the trial court.
- A judgment may be affirmed on an alternative ground only if it is supported by the record and falls within the issues framed and litigated below; preservation and notice to the opposing party control.
- Florida common-law indemnity requires a “special relationship” establishing vicarious or purely passive liability for the indemnitee; absent such a relationship, common-law indemnity is unavailable.

## Conclusion

The court rejected an affirmance based on an unpleaded equitable subrogation theory, holding that appellate review is constrained by preservation and that parties must litigate their legal theories in the trial court before they can support a judgment on appeal.


Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999)