author: DOWNEY, JAMES C., Associate Judge. ROBERT P. SMITH, Jr., Chief Judge, LARRY G. SMITH, Judge,

text:
    TALLAHASSEE TITLE COMPANY, Appellant, v. Helen P. DEAN, Appellee.
    No. AC-223.
    District Court of Appeal of Florida, First District.
    Feb. 2, 1982.

      Joseph R. Boyd, W. Crit Smith, and Susan Smith of Boyd & Smith, P.A., Tallahassee, for appellant.
    Elwin R. Thrasher, Jr., Tallahassee, for appellee.
   DOWNEY, JAMES C., Associate Judge.

Appellant Tallahassee Title Company seeks reversal of a final judgment entered against it in a suit by appellee Helen P. Dean brought pursuant to Chapter 559, Florida Statutes (1979). The trial judge entered a judgment awarding Dean actual and punitive damages, together with costs and attorney’s fees.

Briefly, the facts are that Tallahassee Title handled the closing of the sale of a home owned by Dean and another. Tallahassee Title had been advised by a third party insurance agency that it was owed approximately $1300 for insurance premiums on a policy it had written on the Dean property. Accordingly, in preparing the closing statement for the sale the title company showed the delinquent insurance premiums as a deduction from the sales proceeds to Dean. Dean, through her husband, indicated that she did not owe the premiums because there was a controversy between Dean and the insurance agency over who owed whom what. Nevertheless, the title company advised Dean the allegedly delinquent premiums would be deducted or there would be no closing. Under these circumstances Dean signed the closing statement and the sale was closed. Since Dean protested the deduction of the alleged debt for the insurance premiums, Tallahassee Title gave the check payable to the insurance agency to Dean. After approximately a month, when notified by the insurance agency that the premiums had not been paid, Tallahassee Title stopped payment on the check given Dean and issued a new one to the insurance agency. Dean then instituted this suit, pursuant to Section 559.77, Florida Statutes (1979), for violation of Section 559.72.

The trial judge found that Tallahassee Title’s conduct in refusing to close the sale unless Dean agreed to the withholding of the alleged debt to the third party insurance agency constituted a violation of the prohibitions set forth in Sections 559.72(7) and (9) and awarded actual damages of $1361.47 (the amount of the withheld insurance claim) and twice that amount as punitive damages, plus costs and an attorney’s fee of $1000.00.

Considering the spirit and purpose of Part Y of Chapter 559, “The Consumer Collection Practices Act,” we see no error demonstrated in the trial court’s finding that appellant violated Section 559.72, thus entitling appellee to actual damages, costs, and attorney’s fees. The award of punitive damages, however, is a different matter. The function of the different awards of actual damages and punitive damages under the chapter was recognized in Harris v. Beneficial Finance Co. of Jacksonville, 338 So.2d 196 (Fla.1976). The different con- ’ duct, which is the basis for an allowance of those damages, was commented upon in this court’s decision in Story v. J. M. Fields, Inc., 343 So.2d 675, 677 (Fla. 1st DCA 1977):

Our Supreme Court had differentiated between conduct which subjects a creditor to liability for actual or statutory damages and conduct which subjects him additionally to conventional punitive damages: the former remedy is appropriate when willfulness is shown but “the legal standard of malice is not met” and the latter sanction is applied when “malicious intent” is proved. Harris v. Beneficial Finance Co. of Jacksonville, 338 So.2d 196, 200 (Fla.1976). Thus willfulness is as defined by the Court in Chandler v. Kendrick, 108 Fla. 450, 452, 146 So. 551, 552 (1933), characterizing language in the usury statute:
“A thing is willfully done when it proceeds from a conscious motion of the will, intending the result which actually comes to pass. It must be designed or intentional, and may be malicious, though not necessarily so.”
See also Dezell v. King, 91 So.2d 624, 626 (Fla.1956). Malice, on the other hand, imports a wrongful act done to inflict injury or without a reasonable cause or excuse. Wilson v. O’Neal, 118 So.2d 101 (Fla. 1st DCA 1960).

In our judgment the conduct complained of here does not indicate a malicious intent to injure Dean. Nor can the conduct be characterized as “wanton, malicious or gross and outrageous” as described in Steiner and Munach v. Williams, 334 So.2d 39 (Fla. 3rd DCA 1976).

Accordingly, the award of punitive damages is reversed and the remainder of the judgment is affirmed.

ROBERT P. SMITH, Jr., C. J., specially concurs, with written opinion.

LARRY G. SMITH, concurs and dissents, with written opinion.

ROBERT P. SMITH, Jr., Chief Judge,

specially concurring.

I agree with Judge Downey’s opinion reversing the punitive damage award and write only to elaborate a bit further my reasons for concluding that no permissible view of the record permits the conclusion that the appellant title company acted maliciously, deserving of punitive measures.

Though we sustain the trial judge as trier of the facts in his view that the title company’s actions amounted to willful “harassment” in a legal sense, justifying compensatory damages including attorney’s fees and costs, Section 559.72(7), Florida Statutes (1979), I think even that case against the title company is a bit thin. Therefore I readily join Judge Downey in finding no record basis for suggesting that the title company’s motive in wanting the Thomas insurance bill paid or otherwise satisfied was to “inflict injury” on the Deans, or was “without a reasonable cause or excuse.” Wilson v. O’Neal, 118 So.2d 101 (Fla. 1st DCA 1960), dism., 123 So.2d 677 (Fla.1960), cert. den., 365 U.S. 850, 81 S.Ct. 813, 5 L.Ed.2d 814 (1961); Story v. J. M. Fields, Inc., 343 So.2d 675 (Fla. 1st DCA 1977), cert. den., 348 So.2d 954 (Fla.1977).

As settlement agent in charge of closing the sale between appellee Ms. Dean, joined by Mr. Dean her husband, as sellers, and Dr. and Ms. Britt, as buyers, the title company had a cause or excuse that was reasonable, whether or not legally sound, for wanting no potential claim outstanding against the sale proceeds for which it, the title company, considered itself responsible. The title company’s manager thought, erroneously but in good faith — no basis for doubting her good faith is suggested — that the insurance bill might be a lien against the property and the sale proceeds. The title company’s normal practice was to pay from the sale proceeds any outstanding bills associated with the property. That practice may not have been justified in terms of the title company’s responsibilities as settlement agent, but without dispute it was the company’s practice, not a device concocted to oppress these particular sellers, and not a practice that one would condemn as patently oppressive on its face, unrelated to the sale of property.

The title company had a “reasonable cause or excuse” for wishing to protect itself either against a possible lien or against its own continuing involvement in a money dispute in which it had no interest, nor any hope of profit. It would seem to follow that the company had at least a cause or excuse that was reasonable, legally sound or not, to insist that the contested debt be settled by the time of closing if it, the title company, was to be responsible as settlement agent and if the closing was to take place without delay, as Mr. Dean insisted, on May 16, 1979.

Mr. Dean, an insurance agent himself, admitted owing the Thomas Insurance Agency more than $1,300 for premiums, several years unpaid, for insurance on the property to be sold by Ms. Dean and her husband to the Britts. Mr. Dean testified that this debt “was owed by me on a quasi business relationship with Pat Thomas,” but that Thomas owed him more money, “decidedly so,” than he owed Thomas.

Thus Thomas claimed the Dean debt should be paid from the sale proceeds, and Dean denied both the debt and that it should be so paid. In these circumstances the title company was hardly bound to resolve the question of the Dean-Thomas debt at its peril. What Mr. Dean argued to the title company at and before the closing— notably, it was Mr. Dean, the debtor, not Ms. Dean, the nominal seller, who did the arguing — was that “I had no incidents of ownership in the property” and “that property has never been in my name.” Thus the predicate for Ms. Dean’s punitive damage claim, so recognized by the allegations of her complaint in this action, was that Mr. Dean had no interest in the property which conceivably could have been subject to a claim of lien for insurance ordered for the property by Mr. Dean.

I think Mr. Dean’s assertion — which for present purposes we find was correct— might reasonably have been regarded with some doubt by a cautious settlement agent, wary of making erroneous disbursements after notice from Mr. Dean’s creditor. The title company’s doubts concerning Mr. Dean’s disinterestedness in the sale — it was he, after all, who made that the point in issue — could not have been assuaged by Mr. Dean’s aversion to postponing the closing until Mr. Dean and Mr. Thomas settled their affairs. In Mr. Dean’s words at trial, the title company representative said at the closing “that if there were to be a closing, today, that day, that that account would have to be paid, otherwise there could be no closing.” Mr. Dean declared:

[M]y wife and I had entered into a contract to sell with ... Dr. Britt.... And in there it called for us to close the loan on or before, or close the sale on or before the 16th day of May, the day of closing, or otherwise the deal was off, the offer was rescinded, and we were just at ground zero.

Lamentations of this sort were hardly calculated to assure the title company, which least of all parties present was responsible for setting the closing date, that the husband-protestant, whose signature on the deed was required, had no interest in the property that would justify his creditor’s claim for payment from the sale proceeds for insurance on the very property sold.

Once Mr. and Ms. Dean signed a closing statement requiring the title company to disburse to Thomas Insurance Agency the amount of the disputed debt, the title company could only have worsened its vulnerability by failing to disburse as the statement required. Nevertheless, the title company did not disburse directly to Thomas, but gave the check to Mr. Dean (he of no interest in the sale proceeds), and for 30 days allowed Mr. Dean the opportunity of resolving his dispute with Thomas. When after 30 days Mr. Dean neither delivered the check nor reported his negotiations (if any) to the title company, the company stopped payment on its check and issued another to Thomas. In this I think the title company cannot be regarded as willfully injurious to Mr. Dean, nor as acting without reasonable cause or excuse.

Therefore I join in finding no basis for the punitive damage award.

LARRY G. SMITH, Judge,

concurring and dissenting, with opinion.

I concur in the affirmance of the judgment for compensatory damages, costs and attorney’s fees. However, I respectfully dissent as to the reversal of the punitive damage award.

The sale of a residence represents, for perhaps the vast majority of citizens, the largest single financial transaction (here, $86,200.00) undertaken during an entire lifetime. Negotiations between buyer and seller leading up to a final agreement often entail a considerable amount of “give and take,” and very often both parties have another transaction hinging upon the closing, such as the purchase of or payment on another residence (in the case of the seller), or the sale of another home (in the case of a buyer). There is a certain amount of stress and strain naturally induced by the circumstances, and at the final stage, the closing, the ordinary seller and purchaser are likely to find themselves wholly dependent upon the good offices and generally unquestioned reliability of financial institutions and title companies, such as appellant.

Here, the seller had no notice of appellant’s inclusion of the extraneous insurance agency claim until the day prior to closing, or at best, only a few days before. Furthermore, on the same date the closing itself was scheduled, the purchase agreement itself expired by its own terms. The trial judge correctly rejected appellant’s contention that appellee’s signing of the closing statement validated any improper items included by appellant, since it is obvious from the facts that appellee’s assent was obtained through duress and coercion after protest by both appellant and her husband.

There was ample evidence from which the trial judge could have concluded that the actions of the title company were not, as the specially concurring opinion suggests, simply those of the ordinary settlement agent carrying out its responsibilities, albeit erroneously, in good faith and with “reasonable cause or excuse.”

The branch manager who closed the loan testified that her only information concerning the Thomas Insurance Agency bill came via a telephone call from Mr. Thomas. No bill was ever sent. No verification was ever sought nor received. No effort was made, so far as the record discloses, to determine the authority of the title company to divert part of the proceeds of sale to a third party creditor, nor to determine whether any legal basis existed for treating the insurance premium charge as a potential lien against the property. Although the branch manager testified as to “our understanding” that the claim could become a lien on the property, it is reasonably in-ferrable from the evidence that the source of this understanding came from her supervisor, whom she had contacted immediately upon receiving the telephone request for collection from the Thomas Agency.

There was no showing of any custom or practice by the title company of collecting unpaid homeowner’s insurance premiums. There was testimony of a general practice of insisting on payment of “something that can be a pending lien,” but the specific examples given by the title company’s only witness were bills for repairs or improvements to the property, and dues owed to homeowner’s associations.

The branch manager further testified that certain other items were commonly included in closing statements, although not designated as claims or liens. She gave as examples abstract and survey costs, and pest inspection fees. These items we know from experience, and we presume the trial judge also knows, are commonly provided for in sales contracts, and can thus fall within the responsibilities of the closing agent. There was a conspicuous absence of any evidence of a custom or practice of collecting homeowner’s insurance premiums where the parties have not mentioned such premiums in their contract as an item to be prorated or assumed by the buyer.

As for the assumption that the title company’s “take it or leave it” approach at the closing can be justified on the basis of a good faith though erroneous belief that the insurance premiums “could become a lien,” the evidence, taken in the light most favorable to Mrs. Dean, paints a somewhat different picture. The branch manager offered no basis for her belief that a possible lien was involved other than the directive from her supervisor: “Pay it. It can become a lien on the property.” It is a matter of no small significance that the supervisor did not testify in this case, and that his failure to testify is not explained. Thus, his self-serving statement, produced by way of hearsay, was not subject to cross-examination as to the basis, if in fact any basis existed, for the belief that homeowner’s insurance premiums “can become a lien on the property.” The branch manager knew that the title report contained no mention of a lien or possible lien concerning this item. No effort was made at the trial to substantiate the “possible lien” theory, and counsel for appellant on this appeal have cited no authority and made no argument to support the premise that the title company reasonably believed its duties as closing agent required or permitted it to collect a disputed debt due for homeowner’s insurance premiums. Even though it became apparent early on that this claim was vigorously controverted, even to the point of a threatened lawsuit, so far as the record shows no effort was made by the title company to confirm its authority to act as collection agent for the insurance agency.

The conclusion that the title company simply made a good faith error in judgment, based upon a reasoned consideration of its duties and responsibilities, is one that can be reached only by adding a degree of color and amplification to the facts that the record before the trial judge does not, in my opinion, justify, let alone require. On the other hand, it was well within the province of the trial judge, in my opinion, to conclude that the title company took advantage of the exigencies of the closing and its dominant position as escrow agent as leverage for the purpose of favoring a third party, a stranger to the transaction, in total disregard of the rights and interests of Mrs. Dean. That the latter conclusion is consistent with the evidence, whereas the former is not, is well illustrated by the actions of the title company during the thirty-day period following the closing. As indicated by the majority, the title company’s check payable to the insurance agency was given to Mr. Dean at the closing. However, one month later, without any advance notice to Mr. Dean, payment on that check was stopped and a new check was issued and sent directly to the insurance agency. Was this action by the title company prompted by any further investigation of the disputed claim, or did the title company stop payment and reissue its check diverting a portion of the sales proceeds based upon any investigation of its legal rights concerning its duties as escrow agent? The answer to both questions is in the negative. In fact, as the title company’s letter of June 14, 1979 to Mr. Dean unmistakably discloses, payment on the check being held by Mr. Dean was stopped, and a new check was forwarded to the insurance agency, simply because the title company was requested to do so by Mr. Thomas.

It seems to me that any analysis relying on “good faith,” or “reasonable cause or excuse,” on the part of the title company would have to reckon with the thirty-day period following the closing during which time the title company retained control of the funds and could easily have determined the propriety or impropriety of its actions. It seems clear to me that the title company could and should have avoided the “now you have it — now you don’t” charade that occurred after the closing.

In my opinion the conduct complained of was sufficiently “gross and outrageous,” Steiner and Munach v. Williams, 334 So.2d 39, 42 (Fla. 3rd DCA 1976), to leave the matter of punitive damages to the sound discretion of the trial judge sitting as the trier of fact. The majority does not explicate sufficient reasons for overturning the punitive damage award, and the reversal violates the rule that if there is “any evidence tending to show that punitive damages could be properly inflicted,” the question should be left to the trier of fact. Jonat Properties, Inc. v. Gateman, 226 So.2d 703, 705 (Fla. 3rd DCA 1969).

      . The testimony by the branch manager, on this point, is as follows:
      Q. Are you aware in your capacity as a closing agent of any statute or law that gives an insurance company or an insurance agent a lien on property for insurance premiums? A. I am not an attorney.
      Q. Did you attempt to ask anybody if that was, in fact, a law?
      A. I asked my supervisor whether we were to pay it or not to pay it. Our understanding was since it was homeowner’s insurance that it could become a lien on the property.
      Q. What was your understanding or your supervisor’s understanding?
      A. My supervisor’s directive was: “Pay it. It can become a lien on the property.”

      . The trial judge expressed his views on this point in summing up the evidence at the conclusion of the testimony:
      “I think that the corporation defendant had as much knowledge about a possible or probable setoff involving the bill as she had knowledge that the bill was legitimate. All she had was word of mouth on both sides. One man says he owes the money, one man says he owes me more. It’s the subject of a setoff.
      “I think that was harassment and bad then. And to compound it, I believe they acted in bad faith when they in 30 days summarily canceled the original check and reissued a draft directly to the creditor.”


source: Caselaw Access Project

author: NESBITT, Judge.

license: Public Domain

text:
    STANLEY FINE FURNITURE, INC., d/b/a Fine Decorators, Appellant, v. NORTH RIVER INSURANCE COMPANY, a New Jersey corporation, Appellee.
    Nos. 80-2442, 80-2445.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 1982.
    Rehearing Denied April 7, 1982.
    Goodhart & Rosner; Jeanne Heyward, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, Tu-tan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellee.
    Before NESBITT and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   NESBITT, Judge.

The appellant, Stanley Fine Furniture, Inc. (Fine), is an interior decorating company. In the performance of its services, an artist employed under its direction prepares a rendering. A rendering is an isometric drawing of a room drawn to scale, which illustrates the proposed decor. Renderings enable Fine’s clients to determine whether they like the position of the furniture and design of the room. In the event it is acceptable, it becomes a pattern for the decorators to utilize. The renderings are also used by a contractor as a basis for the proposed modification or alteration. When one of Fine’s clients would pay the initial deposit, the rendering would become the individual property of the client, although Fine would retain custodial use.

Fine obtained a multi-peril casualty policy from the defendant-appellee, North River Insurance Company (North River). In July, 1979, 115 renderings in Fine’s custody were destroyed by a leaky air conditioning vent. Fine then instituted this action to obtain coverage benefits pursuant to the policy.

In lieu of testimony or evidence, the parties agreed that the matter would be determined from a stipulation of facts agreed to by counsel.

Fine appeals from a final judgment dismissing the action because it was not the real party in interest. North River appeals because that judgment nonetheless determined that its multi-peril policy afforded coverage.

The Main Appeal

The trial court dismissed the action because it determined that Fine was not the real party in interest. The action was dismissed without prejudice to the individual owners of the renderings to bring suit. See Rubenstein v. Burleigh House, Inc., 305 So.2d 311 (Fla.3d DCA 1975).

Florida Rule of Civil Procedure 1.210(a) in part provides:

Every action may be prosecuted in the name of the real party in interest, but ... a party with whom or in whose name a contract has been made for the benefit of another . .. may sue in his own name without joining with him the party for whose benefit the action is brought, [emphasis supplied]

In the present case, the insurance contract provided that “[L]oss shall be adjusted with the named insured for the account of the owners of the property ... . ” Clearly then, this contract between Fine and North River was for the benefit of the individual owners of the renderings. As such, Florida Rule of Civil Procedure 1.210(a) expressly authorized Fine to bring the action as the real party in interest.

The Cross-Appeal

Although the complaint was dismissed without prejudice, the trial court nonetheless construed the policy and found that it afforded coverage. Consequently, we must consider North River’s cross-appeal.

The policy issued to Fine covered its personal property as well as that of others, but it provided that specified property was covered only for specified perils. Since it is conceded that the damage caused by an air conditioner leak was not a specified peril, the only issue is whether the renderings were embraced within the definition of property subject to the specified perils limitation. Section III 2 provided:

Valuable papers and records meaning books of account, manuscripts, abstracts, drawings, card index systems and other records including film, tape, disc, drum, cell and other magnetic recording or storage media for electronic data processing, are covered only against loss caused by the “specified perils”.

The parties agreed in paragraph 10 of the stipulation of facts as follows: “that these renderings or drawings are valuable papers.”

The trial court, despite the stipulation, found coverage because it determined that Section III 2 of the policy applied to valuable papers that were used in or about the management and control of the internal affairs of the company rather than valuable papers which constituted the stock in trade of the company.

We do not address this finding by the trial court because we find that the stipulation is determinative of this issue. The parties stipulated that renderings or “drawings” constituted “valuable papers.” Thus, the destroyed property fits precisely within the category of items subject to the specified perils limitation. The parties are bound by unambiguous exclusions or limitations. Rakoff v. World Insurance Company, 191 So.2d 476 (Fla.3d DCA 1966), cert. denied, 201 So.2d 232 (Fla.1967). Consequently, we find that North River’s cross-appeal is meritorious.

The judgment appealed from is reversed. The effect of our determination that Fine is the real party in interest will be to reinstate Fine’s complaint with respect to its claimed loss of other property. As to the renderings, we direct that a final judgment be entered determining that the multi-peril policy in question did not afford coverage.

Reversed and remanded with directions.

      . 3A Moore’s Federal Practice, ¶ 17.13[1] (2d ed. 1979), in discussing Federal Rule of Civil Procedure 17(a), which is the federal counterpart to Florida Rule of Civil Procedure 1.210(a), states:
      The inclusion [of this provision] was to make it clear that a party with whom or in whose name a contract has been made for the benefit of another was not to be deprived of his common law right because another was the beneficial owner, and also to make certain that he need not join the beneficial owner.


author: DANIEL S. PEARSON, Judge.

text:
    The STATE of Florida, Appellant, v. Jimmy COBBS, Appellee.
    No. 81-218.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 1982.
    Rehearing Denied April 5, 1982.

      Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellant.
    Weiner, Robbins, Tunkey & Ross and Geoffrey C. Fleck, Miami, for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and OWEN, WILLIAM C., Jr. (Ret.), Associate Judge.
   DANIEL S. PEARSON, Judge.

The trial court suppressed evidence seized from the defendant incidental to an arrest following a stop found to be unlawful. The determination that the stop was unlawful was based on two conclusions, both of which are, in our view, erroneous. The first was that the provisions of Section 316.215, Florida Statutes (1979), which, inter alia, make it a violation of the State Uniform Traffic Control Law to operate ill-equipped vehicles are inapplicable to motorcycles. But as Section 316.215(4) so plainly states:

“The provisions of this chapter with respect to equipment required on vehicles shall not apply to motorcycles or motor-driven cycles, except as herein made applicable.” (emphasis supplied).

The chapter thereafter specifically makes applicable to motorcycles the prohibition against their operation so as to generate certain excessive sound levels. § 316.-293(2)(a), Fla.Stat. (1979). That prohibition, read in conjunction with the counterpart requirement that “every motor vehicle ... be equipped with an exhaust system in good working order and in constant operation, including muffler, manifold pipe, and tailpiping to prevent excessive or unusual noise,” Section 316.272(1), Florida Statutes (1979), compels the conclusion that this equipment requirement applies to motorcycles. Thus, the defendant could, by operating a motorcycle which generated excessive sound levels and which may have been ill-equipped to prevent this noise, violate Section 316.215. Therefore, contrary to the trial court’s opinion, it was not “impossible” for an officer to entertain a reasonable suspicion that a violation of this statute was being committed in his presence.

The second conclusion of the trial court was that even if, arguendo, Section 316.-272(1) were applicable to motorcycles, the officer, admittedly not equipped with any sound level measuring equipment, could not by his own sense of hearing determine whether the noise of the defendant’s motorcycle was in excess of the statutorily defined sound level limits, and therefore, as a matter of law, could not entertain a founded or articulable suspicion that the defendant was violating the law.

It is apodictic that the founded or articulable suspicion which justifies a stop is not the same as proof beyond a reasonable doubt which justifies a conviction. A police officer’s hearing may deceive him, but so may his sense of sight, smell, taste and touch. We do not require that an officer’s suspicion prove to be right; we require only that the suspicion be founded and articulable. Moreover, the law does not require that every police officer have with him a narcotics sniffing dog, a panoramic breathylizer, a radar gun, or a decibel counter to verify what he smells or sees or hears. And, of course, neither we nor any other court will invalidate a lawful stop simply because it turns out that the senses deceive, any more than we will validate an unlawful search by what is found.

We see no reason why the rule should be any different merely because an offense is capable of precise measurement with an instrument. In People v. Johanson, 28 Ill.App.3d 82, 328 N.E.2d 331 (1975), a police officer observed a tractor trailer, the rear tandem axle tires of which appeared deflated and the springs of which appeared heavily bowed. The officer stopped the truck and checked tire inflation and the cargo. He then ordered the truck to follow him to the nearest weigh station.. The court held the stop valid since the officer had articulated a reasonable suspicion for believing the truck was overweight in violation of state law. In Mercer v. State, 6 Md.App. 370, 251 A.2d 387 (1969), a police officer saw copper pipes extending approximately four feet beyond the end of a pickup truck. That extension was more than the legal limit and necessitated a red flag. The court held that the officer’s stop of the vehicle to verify the possible violation was valid.

In the present case, the police officer testified:

“Q What was the actual reason for the initial stop of the defendant?
“A As I said, his motorcycle seemed to be running without any muffler or baffle at all in the exhaust system on that motorcycle. The sound was very loud. One might describe it as window rattling loud. As this motorcycle approached us at a reasonably high rate of speed and with this roaring sound I elected to stop the motorist and apprise him of the like, you know, our observations and of the infraction of riding a motorcycle with straight pipes.
“Q The stop is definitely based upon the noise that you heard as opposed to anything else?
“A Yes.
“Q When you initially stopped the motorcycle what did you do? After you flagged him down with the flashlight did he immediately stop?
“A He pulled over by us and he stopped. I told him that his motorcycle had exceptional loud pipes. I also apprised him of the fact that he was getting on it and was probably exceeding the speed limit but, again, I didn’t expound on that because there is no way we could have clocked him and I requested to see his driver’s license.”

Thus, having heard what he believed to be excessive noise, the officer had a founded and articulable suspicion that a violation of Section 316.272(1) was occurring, justifying a stop to examine the exhaust system of the motorcycle.

The defendant argues that to sanction a stop without absolute certainty that the statutory noise limit was exceeded is fraught with potential for abuse. We see no greater potential for abuse in this case than in any case where an officer’s visual observations of a vehicle’s progress lead him to the founded suspicion that the driver of a vehicle is committing a traffic offense. See Bailey v. State, 319 So.2d 22 (Fla.1975); Ulesky v. State, 379 So.2d 121 (Fla. 5th DCA 1979); Gustafson v. State, 243 So.2d 615 (Fla. 4th DCA 1971). So long as there exists a basis from which courts can determine that the stop was not arbitrary, see Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966), the fact that that basis comes from an officer’s testimony about what his senses revealed does not make the stop any less justified. See United States v. Thompson, 409 F.2d 113 (6th Cir. 1969) (while the defendant disputed the officer’s testimony that the inspection sticker on the defendant’s slow-moving vehicle appeared to be extremely faded and covered with glue, that dispute is a credibility issue to be resolved by the trial court).

Lastly, the trial court’s finding that because the defendant was not ultimately arrested or prosecuted for a violation of Section 316.272(1), the stop for an investigation of that offense was, ipso facto, pretex-tual, is without basis in the law. United States v. Maslanka, 501 F.2d 208 (5th Cir. 1974). In the present case, upon the immediate discovery that Cobbs had no driver’s license, he was arrested. A search incident to that arrest, not separately challenged, revealed a concealed firearm and narcotics, and it was for these offenses that Cobbs was informed against. We have quite clearly held that the validity of a stop is unaffected by the fact that the ultimate arrest and prosecution are for a different crime thereafter discovered, A. L. B. v. State, 399 So.2d 483 (Fla. 3d DCA 1981), and it follows that a stop for a minor offense hardly becomes pretextual because an arrest or prosecution for that minor offense is aborted upon the discovery of a more serious violation of the law.

Reversed and remanded.

      . Since, as will be seen infra, after the stop in the present case, the police officer became occupied with more serious transgressions than inadequate equipment, there is no indication that the noise level of the motorcycle was ever tested or the equipment inspected. We do not know, therefore, whether the officer’s senses did deceive.

      . Stops for defective or loud mufflers or loud “pipes” have occurred in a number of cases in which the validity of the stop was either not made an issue, see, e.g., United States v. Marshall, 499 F.2d 76 (5th Cir. 1974); People v. Muniz, 4 Cal.App.3d 562, 84 Cal.Rptr. 501 (1970); Wimberly v. State, 434 S.W.2d 857 (Tex.Cr.App.1968), or, if an issue, the validity determined with no recitation of the facts, see, e.g., People v. Daw, 267 Cal.App.2d 560, 73 Cal.Rptr. 89 (1968). See also Taylor v. McDonald, 346 F.Supp. 390 (N.D.Tex.1972) (probable cause to arrest for disturbing the peace where car noise could be heard a block and a half away).

      . Guarding against pretextual stops or arrests, or ferreting out false testimony about, e.g., founded suspicion, probable cause, the giving of Miranda warnings, the obtaining of consent, is a function of the fact-finder. It is, however, noteworthy that despite the defendant’s fears, law enforcement officers do not automatically conform their testimony to meet the law’s requirements concerning founded suspicion. See, e.g., Coladonato v. State, 348 So.2d 326 (Fla.1977); Thomas v. State, 297 So.2d 850 (Fla. 4th DCA 1974); State v. Rheiner, 297 So.2d 130 (Fla. 3d DCA 1974); Richardson v. State, 291 So.2d 253 (Fla. 1st DCA 1974).

      . There is no other basis in the record upon which the trial court could find that the stop was pretextual. Indeed, the trial court stated that it was “sure the officer acted in good faith,” but because of the statute had no right to stop the motorcycle.


author: JOANOS, Judge.

text:
    INTERNATIONAL TRAVEL CARD, INC., a Florida corporation, Appellant, v. R. C. HASLER, INC., a Georgia corporation, Appellee.
    No. ZZ-434.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1982.
    Rehearing Denied April 5, 1982.

      Douglas D. Chunn of Commander, Legler, Werber & Dawes, Jacksonville, for appellant.
    James A. Bledsoe, Jr., Jacksonville, for appellee.
   JOANOS, Judge.

This appeal involves the procedural aspects of post-judgment writs of garnishment. International Travel Card [“ITC”], the appellant/judgment debtor, challenges the trial judge’s failure to hear its motion to dissolve a writ of garnishment. The trial judge had concluded that ITC’s motion to dissolve should be denied because it was not served within the time required by § 77.-07(2), Florida Statutes (1979). Having summarily disposed of ITC’s motion to dissolve, the court then granted the motion of R. C. Hasler, Inc. [“Hasler”], the appellee/judgment creditor, for final judgment of garnishment. Based upon our interpretation of § 77.07(1) and (2), we reverse and remand for reconsideration of the motion to dissolve the writ of garnishment.

On July 16, 1980, after entry of a final judgment in favor of Hasler and against ITC in the amount of $17,291, Hasler filed a motion for garnishment after judgment. Hasler alleged that (1) the final judgment had not been satisfied; (2) ITC did not have in its possession visible property on which a levy could be made; (3) Hasler had reason to believe that the South East Bank of Jacksonville [“Bank” or “garnishee”] had in its control or possession goods, monies, or chattels belonging to ITC; (4) the property sought to be garnished was not of a type which would be subject to exemption and (5) the Bank was indebted to ITC. The garnishee Bank answered on July 22, 1980 admitting that it was indebted to ITC in the amount of $21,968.78. The next day, July 23rd, Notice of Writ and Garnishee’s Answer was served on ITC by Hasler. On July 24th, Hasler moved for final judgment against the garnishee Bank.

ITC filed a motion to dissolve the writ of garnishment on August 11, 1980 — 19 days after it received notice of the writ but 26 days after the writ was served on the garnishee. In the motion, ITC denied the allegations in paragraphs (2), (3) and (5) of Hasler’s motion for garnishment. (See the summary of Hasler’s motion in the previous paragraph.) In addition, ITC alleged that the sum of $21,968.78 referred to in the Answer of Garnishee was not owned by ITC nor owed to ITC by the Bank.

The trial judge did not reach the merits of ITC’s motion. Instead, the Court found that the motion was untimely under § 77.07(2). Despite the facial applicability of subsection (2), the trial judge’s summary dismissal of ITC’s motion with no provision for a hearing on the merits conflicts with subsection (1) of § 77.07. These two subsections provide:

(1) The court to which a garnishment is returnable shall always be open for hearing motions to dissolve the garnishment.
(2) On motion by defendant served within 20 days after service of the writ stating that any allegation in plaintiff’s motion for the writ is untrue, this issue shall be tried, and if the allegation in plaintiff’s motion which is denied is not proved to be true, the garnishment shall be dissolved.

Since garnishment is a remedy which has been legislatively created the statute (Chapter 77) must serve as primary guidance for any decision on the appropriate procedure for obtaining or challenging a writ of garnishment. Unfortunately, Chapter 77 does not lend itself to ease of interpretation and we are forced to deal with sections which, at first glance, seem to be inconsistent or, redundant.

The statutory procedure for post-judgment garnishment involves primarily the judgment creditor (described in the statute as the “plaintiff”) and the garnishee. The judgment debtor (or “defendant”) plays a very limited role in the proceedings. Under ordinary circumstances, the writ is served on the garnishee, the garnishee answers, and the plaintiff replies. §§ 77.04; 77.061. If no reply is filed, judgment of garnishment may be entered on the garnishee’s answer. § 77.083. A default judgment may be awarded if the garnishee fails to answer. § 77.081. Nowhere is any provision made for service of the writ on the judgment debtor. The only notice requirement is set forth in § 77.06(2), which provides that where the garnishee is a bank, as in this case, notice of the writ and the garnishee’s answer must be served on the judgment debtor. There is no similar provision when a non-bank garnishee is involved under the apparent assumption that the debtor will learn of the garnishment when he or she does not receive the property held or money owed by the garnishee. See Brown v. Liberty Loan Corp., 539 F.2d 1355 (5th Cir. 1976).

Despite the limited participation of the judgment debtor in the procedure for procurement of the writ, the debtor is given the right to challenge the writ under § 77.07. As set forth earlier, subsection (1) gives the debtor an unqualified right to be heard at any time on a motion to dissolve the garnishment. Subsection (2), on the other hand, places a 20 day time limit after “service of the writ” on a challenge to the judgment creditor’s motion for a writ. If such a challenge is made, subsection (2) requires the disputed allegation to be tried.

Hasler argues, in essence, that if a challenge under § 77.07(2) is “untimely,” then a judgment debtor forfeits the right to make a later challenge on the same grounds in a motion to dissolve under § 77.07(1). In addition, Hasler contends, and the trial judge agreed, that the 20 day time period of § 77.07(2) begins to run when the writ is served on the garnishee, not when the defendant receives notice of the writ. ITC contends that § 77.07(2) should not be interpreted to place restrictions on a debtor’s rights under subsection (1), particularly if the 20 day time period is not construed to run from the debtor’s notice of a writ of garnishment. To require a debtor to file an objection within 20 days of service of the writ on the garnishee would mean that, in most circumstances, the time would run out before the debtor is aware that a garnishment proceeding has been instituted. Even where the statute requires that some notice be given to the debtor, the stated time for service of notice is not linked to service of the writ on the garnishee; the 20 day time period could end before any notice is given under § 77.06(2).

We do not believe that § 77.07(2) was intended to place a time limit on a debtor’s ability to challenge a garnishment proceeding, particularly when the debtor may not have notice of the garnishment. One interpretation of § 77.07(2) argued by ITC is that the 20 day time period runs from service of notice of the writ on the judgment debtor. There are two difficulties with this interpretation. First, the statute only requires that a debtor receive notice in limited circumstances, while the language of § 77.07(2) does not suggest such limited applicability. Second, § 77.07(2) states that the debtor’s motion must be filed within 20 days of “service of the writ.” Under the scheme of Chapter 77 there is no provision for service of the writ upon the judgment debtor; even § 77.06(2) only requires service of notice of the writ. Both of these inconsistencies can be regarded as confusion created by unclear draftsmanship. A different interpretation, however, presents a more serious problem. To construe § 77.-07(2) to require a debtor to file his motion within 20 days of service of the writ on the garnishee would mean that the statute would have no practical application. Any debtor could be foreclosed from using the statute if the judgment creditor never gives notice of the writ or delays giving notice. Therefore, in any case where notice is required (as in this case), the 20 day time period of § 77.07(2) begins to run when the debtor is served with notice of the writ. In all other cases, the statute has no application and the debtor is free to challenge the writ under the provisions of § 77.07(1).

Because ITC’s motion under § 77.07(2) was timely, this cause is REVERSED and REMANDED for further proceedings consistent with this opinion.

SHAW, J., and MASON, ERNEST E. (Retired) Associate Judge, concur.

      . Chapter 77 provides for notice of the writ of garnishment and the garnishee’s answer to be served upon the post-judgment debtor in only one circumstance: when a “bank or other financial institution authorized to accept deposits” is the garnishee. § 77.06(2), Fla.Stat. With any other type of garnishee, notice to the judgment debtor is not statutorily required.

      . Since the debtor in this case received notice under the provisions of § 77.06(2) we do not need to resolve the question of whether notice to a post-judgment debtor should be required under standards of due process.


author: PER CURIAM.

text:
    Martha C. CRISPIN, Appellant, v. Samuel B. CRISPIN, Appellee.
    Nos. 81-755, 81-1573.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 1982.
    Rehearing Denied April 7, 1982.
    Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik and Paul A. Louis, Miami, for appellant.
    Gaston, Snow, Ely, Bartlett, Hall & Swann and Richard H. M. Swann, Coral Gables, for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

From the record presented for review, we conclude that reasonable persons could differ as to the propriety of the action taken by the trial court and, therefore, cannot find that the trial court abused its discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Additionally, contrary to appellant’s contention, the trial court did not, ipso facto, abuse its discretion by awarding attorneys’ fees in an amount less than the expert testimony offered by the appellant, notwithstanding that appellee offered no opposing expert testimony on that issue. Fatoiitis v. Fatolitis, 271 So.2d 227 (Fla. 2d DCA 1973).

Affirmed.


author: COWART, Judge. SHARP, Judge,

text:
    SEA FRESH FROZEN PRODUCTS, INC., Appellant, v. Sam ABDIN and Lou Fischer, Appellees.
    No. 80-1000.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 1982.
    Rehearing Denied March 9, 1982.

      Russell W. Layton of Driscoll, Langston, Layton & Kane, P. A., Cocoa Beach, for appellant.
    Richard E. Mandell of Wotitsky, Wotit-sky, Mandell, Batsel & Wilkins, Punta Gor-da, and Michael Sigman, Orlando, for appel-lee Sam Abdin.
    No appearance for appellee Lou Fischer.
   COWART, Judge.

The appellee, Sam Abdin, sued for injuries he received when he slipped on a boat ramp owned by appellant, Sea Fresh Frozen Products, Inc. Use of the boat ramp was provided to the public free of charge by the appellant. From a judgment in favor of appellee, entered pursuant to a jury verdict, Sea Fresh Frozen Products appeals.

Appellant contends the trial court erred in allowing plaintiff’s expert witness to testify. Before an expert can testify, the subject matter must be beyond the common understanding of the average layman. Buchman v. Seaboard Coast Line Railroad Co., 381 So.2d 229 (Fla.1980); Mills v. Redwing Carriers, Inc., 127 So.2d 453 (Fla. 2d DCA 1961). Here, the subject matter the plaintiff’s expert testified about was the slipperiness of algae on a boat ramp, a subject easily comprehendible by an average juror. Even if the subject matter could have been considered outside the realm of a layman’s experience, a person offered as an expert must be demonstrated to have some expertise in that particular field. Buch-man; Mills. Plaintiff’s witness was offered as an expert in marine chemistry, with a doctorate and a research background in that field. However, he admitted he had never done any studies whatsoever concerning marine algae growth or its control, the very subject about which he was being offered to testify. For both these reasons, the trial court erred in allowing the witness to testify as an expert.

While normally this error would require reversal for a new trial, we hold the trial court additionally erred in not granting the appellant’s motion for a directed verdict. We realize this case was appealed to the supreme court in Abdin v. Fischer, 374 So.2d 1379 (Fla.1979), wherein that court overturned a summary judgment. However, after a review of the record, we hold the evidence at trial was legally insufficient to prove the appellant liable for plaintiff’s injury. The appellant was legally entitled to the benefits under section 375.251, Florida Statutes (1975), and the court should have enforced its right. Accordingly, the judgment is reversed and the cause remanded for entry of a judgment for the defendant.

REVERSED AND REMANDED.

DAUKSCH, C. J., concurs.

SHARP, J., concurs in part, dissents in part with opinion.

SHARP, Judge,

concurring in part, dissenting in part.

I agree with the majority opinion that the trial court erred in allowing expert testimony about the slippery algae. However, the balance of the opinion cannot be reconciled with Abdin v. Fischer, 374 So.2d 1379 (Fla.1979).

The Supreme Court ruled in that case that the trial court erred in granting a summary judgment in favor of appellant Sea Fresh Frozen Products, Inc. The key issue was whether or not Sea Fresh was conducting “commercial activity” on the ramp property to such an extent as to deprive it of the protection of section 375.251,. Florida Statutes (1975). The Supreme Court ruled there were questions of fact regarding this issue which should be tried by a jury. On remand this issue was sent to the jury who found against Sea Fresh and this appeal ensued. The record before the Supreme Court and at trial, on this issue, was substantially identical.

Because the trial record before us on appeal concerning “commercial activity” on the ramp vel non, is substantially the same as went to the Supreme Court on this issue, I think that decision is binding and conclusive as to whether or not the case should have gone to the jury. Whether a summary judgment should be granted or a verdict directed are indistinguishable in this context. Both require a determination that there is no conflict of fact or inference therefrom to be determined by the jury. The Supreme Court has spoken on this very issue in this case. I feel we are bound by their decision. I would remand this case for a new trial only.

      .Section 375.251, Florida Statutes (1975) states in part:
      (1) The purpose of this act is to encourage persons to make available to the public land, water areas and park areas for outdoor recreational purposes by limiting their liability to persons going thereon and to third persons who may be damaged by the acts or omissions of persons going thereon.
      (2)(a) An owner or lessee who provides the public with a park area for outdoor recreational purposes owes no duty of care to keep that park area safe for entry or use by others, or to give warning to persons entering or going on that park area of any hazardous conditions, structures, or activities thereon. An owner or lessee who provides the public with a park area for outdoor recreational purposes shall not by providing that park area:
      1. Be presumed to extend any assurance that such park area is safe for any purpose,
      2. Incur any duty of care toward a person who goes on that park area, or
      3.Become liable or responsible for any injury to persons or property caused by the act or omission of a person who goes on that park area.
      (b) This section shall not apply if there is any charge made or usually made for entering or using such park area, or any part thereof, or if any commercial or other activity for profit is conducted on such park area, or any part thereof.

      . Because of the many similar considerations involved in ruling on a motion for summary judgment or a motion for directed verdict, the Supreme Court’s decision in Abdin v. Fischer, 374 So.2d 1379 (Fla.1979) is virtually the “Law of the Case.”

      . Cf., Harvey Building, Inc. v. Haley, 175 So.2d 780 (Fla.1965) (the attributes of summary judgment and directed verdict motions are very similar); Lauck v. Pubiix Market, Inc., 335 So.2d 589 (Fla. 3d DCA 1976) (A summary judgment is in essence a directed verdict).


author: SCHWARTZ, Judge. HENDRY, Judge,

text:
    LEVITZ FURNITURE COMPANY OF the EASTERN REGION, INC., a Florida corporation, and Levitz Furniture Corporation, a Pennsylvania corporation authorized to transact business in Florida, Appellants, v. CONTINENTAL EQUITIES, INC., and American Casualty Company of Reading, Pennsylvania, Appellees.
    Nos. 79-1067, 79-2013 and 80-504.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 1982.
    Rehearing Denied April 5, 1982.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble and James C. Blecke, Miami, for appellants.
    Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel D. Eaton, Greene & Cooper and Robyn Greene, Miami, for appellees.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

In 1971, Continental Equities, Inc., the owner of vacant land in Dade County, agreed to construct a furniture warehouse and showroom and to rent the thus-improved premises to the Levitz Furniture Company on a “net lease” basis. On May 9, 1973, about one year after the building was completed and Levitz had taken possession, a substantial portion of the roof and supporting walls collapsed. About two weeks after that, the county building department required the evacuation of the entire building because of its discovery of dangerous construction defects which extended well beyond the immediate area of the collapse. The order was complied with at once. Under an arrangement with Continental reserving their respective rights, Levitz repaired the building, at a cost of over $1,000,000, and reoccupied the premises in December, 1973.

Levitz then instituted this litigation against Continental, among others, to recover the damages sustained, inter alia, by way of lost profits, stock, and the expenses required to repair the building. Continental counterclaimed for the full amount of the rent required by the lease for the entire period in question. There was extensive, though disputed, evidence developed in discovery that the collapse and the ensuing orders of the county to evacuate and repair were the result of latent construction defects in the building which existed, but were neither discovered nor discoverable, when Levitz took possession. Nonetheless, the trial court entered summary judgment for the landlord both on its counterclaim for the full rentals under the terms of the lease — over $1,200,000 — and dismissing Lev-itz’ complaint for damages. These rulings were based on the theory that, under the lease agreement and as a matter of law, Continental was not liable in any way for any latent defects in the building it agreed to construct and was therefore entitled to the rental agreed upon without regard or deduction for the facts that the defects resulted in great expense to the tenant and even its inability to use the demised premises. We disagree with this conclusion and reverse for trial.

The landlord’s potential responsibility for latent defects is based upon two legal principles, which coalesce in their clear application to this case.

First, it is a well-settled and well-founded rule of law that when, as here, the parties enter into a lease agreement with respect to a building which is to be constructed or is as yet uncompleted, an implied warranty or covenant arises that the completed structure will be suitable for the lessee’s intended use. Woolford v. Electric Appliances, Inc., 24 Cal.App.2d 385, 75 P.2d 112 (1938); Swift v. The East Waterloo Hotel Co., 40 Iowa 322 (1875); Panagos v. Fox, 310 Mich. 157, 16 N.W.2d 700 (1944); J.D. Young Corp. v. McClintic, 26 S.W.2d 460 (Tex.Civ.App.1930), rev’d on other grounds, 66 S.W.2d 676 (Tex.Comm.App. 1933) (landlord liable to tenant for damage to furniture store caused by leaky roof in building under construction at time of lease); American Law of Property § 3.45 (A.J. Cas-ner ed. 1952) (“[W]here the lessee is restricted to a particular use and accepts the lease before the premises are completely constructed or altered, the courts have held that there is an implied covenant that the property will be suitable for the purpose for which leased.”); 2 R. Powell, The Law of Real Property § 225[2] (rev. ed. P. Rohan 1981); Restatement (Second) of Property § 5.2, Comment e (1977). The landlord’s claim that this rule is not in accordance with the Florida law is incorrect. The authorities relied upon, primarily Butler v. Maney, 146 Fla. 33, 200 So. 226 (1941) and Brooks v. Peters, 157 Fla. 141, 25 So.2d 205 (1946), hold only that there is no warranty of prior inspection or against latent defects in the entirely different case of an already completed structure and therefore have “no application to the question here presented.” Woolford v. Electric Appliances, Inc., supra, at 75 P.2d 113.

Moreover, the landlord’s contractual undertaking to erect the building, see note 1, supra, itself gave rise to an obligation, enforceable by Levitz as the contracting party, that it perform that agreement with reasonable care. Holbrook v. City of Sarasota, 58 So.2d 862 (Fla.1952); Banfield v. Addington, 104 Fla. 661, 140 So. 893 (1932). It is also the case that, since such a contractually-assumed duty is a nondelega-ble one, it does not matter, despite the appellee’s contrary argument, whether the defective work was actually done by the general contractor hired by Continental to discharge its obligation or by a subcontractor engaged by the general. Mills v. Krauss, 114 So.2d 817 (Fla.2d DCA 1959), cert. denied, 119 So.2d 293 (Fla.1960).

Of course, the parties were free to have contracted for a negation or modification of the effects of these rules of law. Our review of their extensive and elaborate agreement reveals, however, that they did not. To the direct contrary, the lease contains an affirmative recognition of the existence of Continental’s continuing obligation for the proper construction of the building. Paragraph 22 states

POSSESSION AND MAINTENANCE
22. Tenant, by taking possession thereof, will be deemed to have acknowledged that the demised premises, with all appurtenances, were in good order and condition when received by Tenant, la tent defects excepted, [emphasis supplied]

The “latent defects” exception would be meaningless if, as the landlord contends, there is no pre-existing responsibility for such defects. Thus, the very presence of this provision demonstrates the unsoundness of its basic position. Furthermore, by its very terms, it disposes of Continental’s argument that Levitz waived any claim with respect to defective construction by taking possession of the building. In this regard, paragraph 22 merely tracks and expresses the law, as established by Slavin v. Kay, 108 So.2d 462 (Fla.1959) and its numerous progeny, that acceptance does not terminate responsibility for a latent defect which, by definition, could not have been discovered by a reasonably careful inspection. That this principle is also controlling in this situation, even were there no paragraph 22, is shown by Restatement (Second) of Property, supra, see § 5.3, Comment e:

If the tenant at the time of entry neither knows nor should have known of the condition of the leased property that creates the unsuitable condition, his entry does not constitute a waiver of any remedies. In that case, he will have a reasonable time after learning of the unsuitable condition to notify the landlord to cure the unsuitable condition.

Continental’s ultimate argument is that, because it entered into a “net lease,” an arrangement supposedly designed to secure the landlord a guaranteed return on its investment, the rentals should not be reduced in any way or for any reason from those provided in the agreement. This argument is basically a fallacious one, since it attempts to deduce the legal effect of an instrument from what it is called, rather than from what it says and does. Walls v. Endel, 20 Fla. 86 (1883). As the court pointed out with respect to this very question in Chicago City Bank & Trust Co. v. Ceres Terminals, Inc., 93 Ill.App.3d 623, 630, 49 Ill.Dec. 108, 115, 417 N.E.2d 798, 805 (1981):

We need not pronounce an all-encompassing definition of the terms “net” and “gross” as they are applied to leases. The better approach, we believe, is to examine the lease as a whole to determine which rights and obligations are specifically indicated, and resort to general usage or constructive principles only where the lease is silent.

See also Howard, The Essential Elements of a Net Lease, 8 The Practical Lawyer 15, 16 (1967) (“. . . there is no such thing as a standard or typical form of Net Lease. Each lease, whether it be gross or net, must be ‘tailor-made’ to fit the requirements of the particular business transaction.”) As has already been demonstrated, this particular contract certainly does not preclude and, in a significant aspect, paragraph 22, actually reinforces the determination that general principles of landlord responsibility are applicable to this transaction.

Even on its own terms, however, the landlord’s contention does not bear analysis. A “net lease” is essentially one

which shifts the burdens of ownership, for a stated period, from the landowner to the occupant, and reserves to the owner during that period a net return on his investment, [emphasis supplied]

Van Doren, Some Suggestions for the Drafting of Long Term Net and Percentage Leases, 52 Colum.L.R. 186 (1951). The fact that the net tenant, as under this lease, must pay all taxes, insurance and other expenses required during the term of the leasehold does not affect the landlord’s obligation with respect to its essentially separate and preterm undertaking to build its potential tenant a building that may be used for the purposes specified. See Railway Express Agency, Inc. v. Commissioner of Taxation, 307 Minn. 245, 239 N.W.2d 245 (1976). The appellee’s position is that it was entitled to the full prescribed rental for a building it agreed to and did construct, even though it was so defective that it fell down and the tenant, for a long period, could not use it. There is nothing in the law, in the agreement, nor in net lease theory which requires the acceptance of what is, on its face, such an astonishing contention.

For the reasons stated, the orders under review are reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

HENDRY, Judge,

dissenting.

I respectfully dissent. I believe the loss should properly fall on Levitz for three reasons: (1) the lease demonstrates that the parties intended to place the risk of loss on the tenant; (2) the facts and circumstances surrounding the transaction require the loss to be borne by the tenant; (3) Florida law does not support the majority’s finding of an implied warranty of fitness for commercial losses of this nature.

An absolutely net lease of this type is essentially a sophisticated financing tech-

ñique intended to make the tenant the owner of the property. The tenant’s “rent” is akin to traditional mortgage payments. This financing technique provides an alternative to the outright purchase by the tenant of the property. In fact, the tenant assumes and discharges substantially all the risks and obligations normally attributed to the outright ownership of the property. Al-benda & Lief, Net Lease Financing Transactions Under The Proposed Bankruptcy Act of 1978, 30 The Business Lawyer 713, 714 (1975). See also Howard, The Essential Elements of a Net Lease, 8 The Practical Lawyer, Issue No. 2, 15, 16 (1962). Thus, the tenant agrees to pay all taxes, water rates, sewer charges, assessments, charges of any other kind, whether ordinary or extraordinary, carry insurance, fire and extended coverage, liability insurance and perhaps earthquake insurance . .. make all repairs, rebuild the building if it is destroyed in whole or in part, regardless of whether there was any insurance coverage .. . [e.s.]

Williams, The Role of the Commercial Lease in Corporate Finance, 22 The Business Lawyer 751, 752 (1967). In other words, the tenant will do everything so that the fixed cash rental payable by the tenant will be, as the phrase is sometimes put, “absolutely net.”

This concept and phrasing is more than coincidental to the present case, for paragraph eight of the Levitz lease states:

[I]t is the purpose and intent of Landlord and Tenant that the rent hereinabove to be paid to Landlord by Tenant be absolutely net to Landlord, so that this Lease shall, except as herein provided to the contrary, yield net to Landlord the rent as herein provided, to be paid in each year during the term of this Lease, and that all costs, expenses and obligations of every kind or nature whatsoever, relating to the demised premises, or any improvements thereon, which may arise during the term of this lease, shall be paid by Tenant.

In contrast to the majority decision, I do not believe the lease provided “to the contrary” that Continental assumed responsibility for the loss which occurred. It is true that paragraph 22 stated that Levitz acknowledged the building was in good order “latent defects excepted,” but that proviso was plainly not a warranty by Continental. Indeed, paragraph 22 was clearly superced-ed by paragraph 3 of the supplemental agreement executed by Levitz after the building was complete and Levitz had taken possession. For in paragraph 3 of the subsequent agreement, Levitz specifically “accepted” the building subject to the absolutely net lease under which it assumed responsibility, inter alia, for:

1. “All costs, expenses and obligations of every kind or nature whatsoever...” [paragraph 8].
2. All unanticipated construction costs [paragraph 4].
3. All other costs and expenses of the building [paragraph 7].
4. All costs generated by laws or governmental orders [paragraph 7].
5. All utilities and taxes [paragraph 15].
6. All insurance [paragraphs 19 and 21].
7. All “costs of restoration” in the event of casualty [paragraph 19],
8. All costs of repairs in the event of damage to the building [paragraph 22],
9. All costs of “alterations, major repairs or improvements” [paragraph 24],

The agreement thus plainly intended to place all the responsibilities of ownership on Levitz, clearly stating that “all costs, expenses and obligations of every kind or nature whatsoever ... shall be paid by Tenant.”

For these reasons, the “latent defects” proviso in paragraph 22 cannot be construed as a warranty. In view of the supplemental agreement, paragraph 22 can only be interpreted as placing the risk of latent defects on Continental during the construction period, until the building was completed, inspected and “accepted” by Levitz. At that time the risk of latent defects shifted to Levitz.

The omission of a reservation for latent defects from the supplemental agreement after Levitz has previously reserved such rights in paragraph 22 of the lease (where possession alone is acknowledged) should lead to the conclusion that even if an implied warranty of fitness existed initially, it terminated upon acceptance of the premises. Any other construction renders paragraph 3 of the supplement meaningless and ignores the parties’ obvious intent to enter into an absolutely net lease.

The majority has also completely avoided any mention of the fact that Levitz has already obtained recovery from its insurer in the approximate amount of $1,750,000 for the loss. Such conduct corresponds with the parties’ intent, as indicated by the above-cited provision, to create a net leasing arrangement. As unmistakably required by the lease agreement, Levitz purchased a policy of “all risks insurance” to cover precisely the loss which occurred in this case. In other words, despite Levitz’ attempt to shift the loss which it agreed to bear (and thus insured against) onto Continental, Levitz has already been made whole exactly as the parties contemplated. Although Levitz insists its reimbursement is irrelevant, I believe the recovery confirms the parties’ intent that Levitz bear the risk of loss. Under the absolutely net lease terms of the agreement, the loss has thus fallen exactly where both parties assumed it would. In this posture, should Levitz win on remand, it (or in the alternative, its insurance company) will receive an unjustified windfall, a fact which the majority fails to note.

Aside from the terms of the agreement, the parties’ intent and the fact that Levitz has already recovered on its loss, Florida law simply does not recognize an implied warranty of fitness with respect to commercial buildings. The majority fails to cite even one Florida case in support of its theory that an implied warranty of fitness arises in a net leasing arrangement between sophisticated businessmen. Nor should Florida law shift the risk of loss to the lessor, when the very purpose of such commercial leases is to place the risk on the tenant:

Under a Net Lease, if the improvements on the property are damaged or destroyed by fire or other casualty, the tenant should not have the right (and should waive any rights that it may have under the law) to cancel its lease except, possibly, where the damage or destruction is extensive, and the event occurs during the last few years of the lease term.... In the event of such cancellation, the tenant should assign all of the insurance proceeds to the landlord. If the lease continues, it is the obligation of the tenant to restore the premises to their former or other agreed-upon condition. This is so regardless of whether the loss is or is not covered by insurance, whether the insurance proceeds are or are not adequate, and whether or not the particular hazard was even insurable. In short, the tenant under a Net Lease is itself an insurer of the improvements on the leased premises, under every conceivable contingency. To the extent that the tenant can shift all or any part of the risk to an insurance company, it may do so, but the primary responsibility always rests upon the tenant, [emphasis supplied]

Howard, The Essential Elements of a Net Lease, 8 The Practical Lawyer, Issue No. 2, 15, 19-20 (1962). Note that the loss here did not occur during the last years of the lease, but rather at the very beginning.

Finally, I believe the majority has overlooked certain facts and thus relied on inapplicable legal precedent. The majority states that it is “well-settled” that an implied covenant arises with respect to a lease for a building yet to be constructed, but ignores the fact that this tenant was actually in control of the construction of its own building: the construction was supervised by Levitz’ own architects and engineers and was built according to plans and specifications supplied by Levitz. This plus the fact that Levitz moved into the building prior to completion placed it in at least an equal position to know of any latent defects. For this reason the majority’s reliance upon Restatement (Second) of Property, § 5.3, Comment 3 (1977) is misplaced.

Because I find that no genuine issue of material fact exists, I would affirm the summary judgment entered below for Continental.

      . The paragraph states:
      IMPROVEMENT OF DEMISED PREMISES
      3. Landlord shall, at its own cost and expense, forthwith improve the demised premises by constructing thereon a warehouse, showroom, and office building according to plans and specifications to be prepared for Tenant at Tenant’s cost and expense, by William C. Webb and Associates, Inc., from preliminary plans and specifications supplied by Tenant. . . .

      . Subsequent to that time, the agreement also provided for Levitz to make, without prejudice, monthly rental payments less than those required by the lease. It made no payments at all during the several-month period in which it was unable to occupy the building.

      . A later order, also on review, granted attorneys’ fees to Continental under a contract provision which permitted such an award whenever it successfully maintained an action under the lease. Our reversal of the underlying judgments to that effect requires, of course, a reversal of this order as well.

      . We emphasize that we do not pass upon the factual questions of whether such defects existed; the extent to which, if they did, Levitz was or should have been on notice of them; or the effect of any such actual or imputed knowledge. While Continental did not establish its right to a summary judgment based on any of these issues, Holl v. Talcott, 191 So.2d 40 (Fla. 1966), they remain open for resolution at trial.

      . We note also that, with respect at least to housing, Brooks v. Peters has been overruled by Mansur v. Eubanks, 401 So.2d 1328 (Fla.1981).

      . To the extent that, on these facts, the implied warranty of fitness of the completed building and the duty imposed by the construction contract may be differentiated, it is clear that the nondelegability rule applies to the former as well. See Ferguson v. Westinghouse Electric Corp., 408 So.2d 659 (Fla.3d DCA 1981); Easton v. Weir, 125 So.2d 115 (Fla.2d DCA 1960), cert. denied, 129 So.2d 141 (Fla.1961).

      .The lease contains a requirement that the tenant carry $10,000 in property damage liability insurance. It is clear, and not even the appellee really asserts otherwise, that this provision — which probably refers only to protection against claims, say, for damages to customers’ automobiles — does not conclusively establish the intention of the parties to shift the risk of losses of the nature in question here from the landlord to Levitz or its carrier. See Fairchild v. W. O. Taylor Commercial Refrigeration and Electric Co., 403 So.2d 1119 (Fla. 5th DCA 1981).

      . A supplement, executed well after completion, stated in part:
      3. LANDLORD has completed the improvements to the demised premises contemplated by said Lease Agreement, as well as said additional improvements; and TENANT has accepted and taken possession of the demised premises, as modified, together with said improvements.
      Continental strenuously argues that this statement abrogates the effect of paragraph 22. This contention is wholly without merit. The statement did no more than acknowledge that the building had in fact been completed and accepted. It had nothing to do with the legal consequences of that acceptance, including the lack of effect upon any liability for “latent defects,” as set forth in the primary agreement.

      .This view is entirely consistent with the clause upon which Continental most heavily relies.
      8. Subject to the provisions of paragraph 16 hereof, it is the purpose and intent of Landlord and Tenant that the rent herein-above provided to be paid to Landlord by Tenant be absolutely net to Landlord, so that this Lease shall, except as herein provided to the contrary, yield net to Landlord the rent as herein provided, to be paid in each year during the term of this Lease, and that all costs, expenses and obligations of every kind or nature whatsoever, relating to the demised premises, or any improvements thereon, which may arise during the term of this lease, shall be paid by Tenant, [emphasis supplied]
      The defects involved here did not “arise during the term of this lease,” but rather before the term ever commenced. And, in any case, this provision is ineffective to shift the burden of the landlord’s own fault in the building’s construction to the tenant. Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equipment Co., 374 So.2d 487 (Fla.1979).

      . We regard this claim, with respect to the structure, as equivalent to, and equally unacceptable as one that Continental would be entitled to the rent in full even if it did not have title to the underlying realty and the tenant was therefore evicted from the property.

      . If there is such a thing.

      . We need not discuss and express no opinion upon any of Levitz’ other contentions and arguments.

      . The lease is for a term of thirty years and contains a provision granting options to renew the lease for four successive five-year periods. Levitz’ parent corporation also has an option to purchase the property and building at any time after the expiration of five years for an amount equal to approximately the value of the land in 1971 plus the money invested in the building by Continental. The practical effect of this is that all additional capital improvements made to the property by Levitz during the term of the lease will inure to the benefit of Levitz if it exercises its option to purchase. And, it will most likely exercise this option since the value of the land and building now exceeds the option price due to tremendous appreciation of property values in this area since 1971.

      . Slavin v. Kay, 108 So.2d 462 (Fla.1958) cited by the majority is entirely consistent with the conclusion I would reach. Slavin considered the respective liability of a motel owner and plumbing contractor for injuries to a guest resulting from latent defects in installation of a wash basin. There, the owner was held not liable on a directed verdict because of a lack of evidence of negligence in failing to discover the defect, the rationale being that the contractor’s negligence is the proximate cause of the injury. Here too, the roof collapse is the result of negligence on the part of the contractor or architect — not Continental, and as will be pointed out, Levitz was in at least an equal (if not actually superior) position to discover the condition of the building.

      . As the majority recognizes, Mansur v. Eu-banks, 401 So.2d 1328 (Fla.1981) is limited in application to residential housing, and even that limited application may be modified by agreement of the parties. The distinction drawn between complete and incomplete buildings for the majority’s conclusion that Butler v. Maney, 146 Fla. 33, 200 So. 226 (1941) has no application to this case is simply not supported by the facts. The reason for the absence of such warranty where the building is already completed is because of the ability of the tenant to find the defect. So too, here, where the tenant was intimately involved with the building’s construction (for reasons to be discussed infra) and moved in prior to completion, there is no rationale for finding a warranty. Rather, the tenant here was far more likely to find any defects than Continental itself.


text:
    Tina PACHIVAS, Raymond Arnold Melton and Marie Melton, his wife, Appellants, v. GENERAL INSURANCE COMPANY, Appellee.
    No. 81-369.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 1982.
    Rehearing Denied April 7, 1982.
    Ann Mason Parker, Aronson, Ansel & Cohn, Miami, for appellants.
    Joe N. Unger, Ronald C. Kopplow, Miami, for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

We affirm the final judgment entered after a trial on the merits in favor of General Insurance Company. §§ 627.409 and 627.732(4), Fla.Stat. (1979); Life Insurance Company of Virginia v. Shifflet, 201 So.2d 715 (Fla.1967); Empire Fire and Marine Insurance Company v. Koven, 402 So.2d 1352 (Fla. 4th DCA 1981); New York Life Insurance Company v. Nespereira, 366 So.2d 859 (Fla. 3d DCA 1979). See Travelers Insurance Company v. Zimmerman, 309 So.2d 569 (Fla. 3d DCA 1975). Compare Gaskins v. General Insurance Company of Florida, 397 So.2d 729 (Fla. 1st DCA 1981) (insured’s contentions, inter alia, that she told agent that son, a licensed driver, was living at home, but had his own automobile which was insured, and that agent advised son’s name did not have to be. listed on application, presented material issues of fact precluding entry of summary judgment for insurer).

Affirmed.


author: PER CURIAM. SHARP, Judge,

text:
    Pat M. ROSS and Theresa Ross, his wife, Appellants, v. SAM’S WOOD SHED PUB, INC., and Thomas P. Murphy, individually; Kent Insurance Company, a Florida corporation, and Charles H. Horne, Appellees.
    No. 81-144.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 1982.
    Rehearing Denied March 24, 1982.
    Elizabeth J. Gulden, Orlando, and Marcia K. Lippincott, Sanford, for appellants.
    H. A. Rigdon, Jr., Orlando, for appellees.
   PER CURIAM.

AFFIRMED.

COBB and COWART, JJ., concur.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I dissent in this case because I think there were material conflicting factual issues in the record which made the entry of a summary judgment improper. Gordon v. Hotel Seville, 105 So.2d 175 (Fla. 3d DCA 1958). It is well established that a court, faced with a motion for summary judgment, should accept the facts in a light most favorable to the party against whom the motion is made, resolve all conflicts in that party’s favor and derive all reasonable inferences therefrom. Doll v. Robbins, 303 So.2d 338 (Fla.3d DCA 1974); Wills v. Sears Roebuck & Co., 351 So.2d 29 (Fla.1977); Brigbtwell v. Beem, 90 So.2d 320 (Fla.1956).

To do otherwise, as I think occurred in this case, deprives a plaintiff of his right to jury trial. It is understandable that a trial judge, convinced that a plaintiff has a weak case, would try to speed up the judicial process by granting summary judgment. But as long as the people of this State have a constitutional right to trial by jury, it is reversible error for a judge to resolve factual disputes on the basis of sworn affidavits and depositions. Hernandez v. Motrico, Inc., 370 So.2d 836 (Fla.3d DCA 1979); Schmidt v. Bowl America Florida, Inc., 358 So.2d 1385 (Fla. 4th DCA 1978); Ham v. Heintzelman’s Ford, Inc., 256 So.2d 264 (Fla. 4th DCA 1971).

The issue in this case was whether or not the owners of Sam’s Wood Shed Pub and its manager, Murphy, breached their duty to Ross, a customer, in their handling of a dispute which occurred in the Pub concerning payment of a bill. While the manager and the most vocal member of Ross’ party, Horne, were engaged in a physical struggle at the bar, the plaintiff began to rise out of his chair to go to Horne’s aid. He was struck from behind on the head by an unidentified customer with a glass beer mug or pitcher, and he suffered severe injuries.

The case law of Florida imposes on an innkeeper or owner of any public facility the duty of safeguarding, by reasonable means, the physical safety of its customers or patrons. Brightwell v. Beem. It does not matter whether the mechanism causing the injury was an “intervening criminal act” perpetrated by a third person if that act or kind of danger was reasonably foreseeable under the circumstances. In this case, taking the view of the record most favorable to the plaintiff, I think that foreseeability was a jury question.

The plaintiff established, for summary judgment purposes, that three co-workers, Horne, Cappellen, and Ross stopped by Sam’s Wood Shed Pub after work late one afternoon. The plaintiff’s proofs (admittedly contradicted by the defendants’) showed they were not noisy or obnoxious. They had consumed two pitchers of beer during the course of about one hour and had started on a third when the trouble occurred, and they were not intoxicated. The three co-workers paid for their first two pitchers when served, but because they had no more cash with them, they asked the bartender to run a “tab” for the third pitcher. He walked away. A few minutes later Murphy appeared, demanded payment, and ordered them out. They were surprised and did not understand why Murphy asked them to leave. Horne jokingly suggested Murphy arm wrestle Cappellen for the bill. Murphy got angry and refused. Horne went out to his truck and got cash to pay for the beer. Returning, he again tried to get Murphy to arm wrestle for the bill. He tore a twenty dollar ($20.00) bill in half, and said the winner would get both halves. The plaintiff’s depositions showed that Horne was joking and teasing and that they did not ever refuse or intend not to pay for the beer.

How the manager handled this brouhaha with these three customers is the key issue. Who instigated the physical conflict that followed? Did Murphy in effect incite and encourage the other patrons to beat up Ross and his party? The facts and inferences concerning these matters were in conflict at the posture of the summary judgment motion. The plaintiff’s proofs showed that while the joking about arm wrestling was going on, the manager was addressing the other patrons in the Pub, saying there was going to be trouble, and asking if he had any friends among them. The response from the crowd was loud and eager. Patrons nearby were yelling and milling around the plaintiff’s table, and the atmosphere was tense. The three co-workers were afraid.' The plaintiff testified he wanted to pay up and get out of there. The plaintiff’s proofs showed that at that tense moment Murphy initiated a physical attack on Horne with sufficient force to knock him over the bar and through two to three tables. Murphy was a sizeable, heavy man and Horne was much smaller. Horne was unclear as to how many times Murphy struck him in the face with his fists, but when he left the Pub, he had a broken nose, and extensive bruises and cuts on his face requiring stitches. He and Ross both had to be taken to the emergency room at a local hospital. At about the same time Murphy attacked Horne, the unidentified patron struck the plaintiff over the head. Then the crowd in the bar surged forward and shoved the three from the Pub. Horne testified he was also struck by the other patrons in the crowd.

Under these circumstances, I cannot say the over-reaction of the patron in hitting the plaintiff was unforeseeable by the owner and manager. Reading the record in the light most favorable to Ross, Murphy created the tense situation by calling out for help when it was not needed, and he encouraged the participation of other patrons in the altercation, also unnecessarily. Murphy was never in any danger or threatened by the three co-workers, and there was no good reason for him to launch an attack on Horne at the bar. In view of his prior statements, and the reaction of the patrons in the Pub, his attack could well have been taken as an open invitation to the other patrons to enter the fray.

The foreseeability that a customer would be injured in the ensuing brawl, at least partially incited and begun by Murphy (according to the plaintiff’s proofs), was a jury question at least. These facts are distinguishable from Babrab, Inc. d/b/a The Gemini Club, et al. v. Allen, 408 So. 2d 610 (Fla. 4th DCA 1981) and Gottschalk v. Smith, 334 So.2d 102 (Fla.3d DCA 1976), where the management was not involved in the altercation between customers and had no idea one would injure the other. Rather, these facts are closer to Central Theatres, Inc. v. Wilkinson, 18 So.2d 765 (Fla.1944), Sparks v. Ober, 192 So.2d 81 (Fla.3d DCA 1966), Nance v. Ball, 134 So.2d 35 (Fla.2d DCA 1961), and Gordon v. Hotel Seville, 105 So.2d 175 (Fla.3d DCA 1958), where the management, although not involved in the boisterous or dangerous conduct of persons on the premises, did nothing to stop it, and knew or should have known such conduct might harm vthe plaintiff. Those courts held summary judgment or directed verdict for the defendant owner was improper. But even closer to the facts in this case is Walker v. Feltman, 111 So.2d 76 (Fla.Bd DCA 1959). The court in Walker reversed the trial court’s order dismissing the complaint where the actions of the owners or employees contributed to or caused the reaction of the crowd of customers who injured the plaintiff. I would reverse the summary judgment.

      . Art. I, § 22, Fla.Const.

      . Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54 (Fla.1977); Nicholas v. Miami Burglar Alarm Co., Inc., 339 So.2d 175 (Fla.1976); Orlando Executive Park, Inc. v. P.D.R., 402 So.2d 442 (Fla. 5th DCA 1981); Doll v. Robbins, 303 So.2d 338 (Fla.3d DCA 1974); Cooper v. IBI Security Services of Fla., Inc., 281 So.2d 524 (Fla.3d DCA 1973); Sparks v. Ober, 192 So.2d 81 (Fla.3d DCA 1966).

      . Vining v. Avis Rent-A-Car Systems, Inc.; Nicholas v. Miami Burglar Alarm Co.; Doll v. Robbins; Homan v. Dade, 248 So.2d 235 (Fla.3d DCA 1971).

      . The summary judgment “found” they were noisy, obnoxious, and intoxicated. It also “found”;
      3. An altercation developed between the manager, THOMAS MURPHY, and HORNE, when the latter refused to let go of the money he finally tendered. When the tavern manager, THOMAS MURPHY, had subdued HORNE after a brief scuffle, the plaintiff PAT ROSS got up from his chair and according to his testimony ‘probably’ started going to aid Horne [sic],
      4. At that point, an unknown patron of the tavern struck the plaintiff, PAT ROSS, in the head with a beer mug, which resulted in his serious injury.
      5. The testimony of witnesses showed that as the altercation started to develop, the manager, THOMAS MURPHY, stated that he wanted no trouble, that trouble was about to develop, and wanted to know if he had any friends among the patrons who would be willing to help him if trouble occurred.

        If those were the undisputed facts, I would probably agree with the summary judgment. However, the plaintiffs proofs contradict almost every “finding.”

      . See also A Trysting Place, Inc. v. Kelly, 245 So.2d 875 (Fla. 3d DCA 1971).