author: GRIMES, Acting Chief Judge.

text:
    The CITY OF ST. PETERSBURG, Florida, Appellant, v. COMPETITION SAILS, INC., Appellee.
    No. 83-1313.
    District Court of Appeal of Florida, Second District.
    March 21, 1984.
    Rehearing and Clarification Denied May 9, 1984.

      Michael S. Davis, City Atty., and Kim Streeter, Asst. City Atty., St. Petersburg, for appellant.
    Steven T. Northcutt of Levine, Freedman, Hirsch & Levinson, P.A., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

The City of St. Petersburg as appellant-lessor seeks review of a judgment requiring that it immediately commence repair work on the roof of certain leased premises and that it provide appropriate dock space for Competition Sails, Inc., the appellee-les-see. Since the trial court has retained jurisdiction over several unresolved issues, we have chosen to treat this case as an interlocutory appeal from a mandatory injunction under Florida Rule of Appellate Procedure 9.130(a)(3)(B). See Allstate Insurance Co. v. Arvida Corp., 421 So.2d 741 (Fla. 4th DCA 1982).

Competition Sails entered into a lease with the former owner, Allen Marine Repair and Services, Inc., for the rental of a building in downtown St. Petersburg. Under its terms, Competition Sails was to lease the premises for a period of fifteen years with the option to renew the lease for two additional five-year terms. At the time Allen Marine also owned a second piece of property across the street from the leased premises which had adjacent docking facilities. Pursuant to the lease, Competition Sails was permitted to utilize the dock on a nonexclusive basis in the operation of its business. Allen Marine later sold the rental property to the city, subject to the lease with Competition Sails.

When Competition Sails first moved into the building in 1974, it experienced minor water leaks from the roof. Allen Marine responded by making repairs on several occasions. The city also made roof repairs on two or three occasions after it purchased the building in 1976. Notwithstanding, the leaking became worse as the building continued to deteriorate. In addition, the city also acquired Allen Marine’s property across the street and demolished the docking facilities in order to construct a waterfront museum.

Thereafter, Competition Sails filed suit against the city for specific performance of the terms of the lease. Following a nonju-ry trial, the court ruled that the city was obligated to repair the roof and to provide the promised dock space or comparable docking facilities at another convenient location.

At the outset, it is important to note that this case involves a commercial lease. Therefore, the statutory obligations placed upon Florida landlords who lease residential premises are inapplicable. See § 83.51, Fla.Stat. (1981). The portions of the lease pertinent to roof repairs are as follows:

TWENTY-FOURTH: The Lessee covenants and agrees that it will maintain the leased premises, plumbing, wiring, heating and air-handling units, hot-water tanks and all other appurtenances in connection with the leased, hired and rented premises during the pertinency of this lease, or renewals thereof, except for the exterior of the leased premises and the roof. All glass shall expressly be maintained by the Lessee.
THIRTIETH: The Lessee covenants and agrees that the Lessor shall not be liable for any damage occasioned by failure to keep said premises in repair, except from damages caused by the failure to keep said premises in repair where required to do so under the terms of this lease, and shall not be liable for any damage done or occasioned by or from plumbing, gas, water, steam, or other pipes or sewage, or the bursting, leaking or running of any cistern, tank, washstand, water closet or waste pipe in, above, upon or about said building or premises, nor for damage occasioned by water being upon or coming through the roof, skylight, trap-door, or otherwise, not due to structural defects, nor for any damage arising from acts or negligence of co-tenants or other occupants of the same building or owners or occupants of adjoining or contiguous property.

Our analysis of these provisions leads us to believe that the court erred in ordering the city to repair the roof.

There is no doubt that if the lease required Allen Marine to repair the roof, the city also became obligated to do so upon acquiring a reversionary interest through the purchase of the land subject to the lease. General Cigar Co. v. Davis, 204 So.2d 227 (Fla. 3d DCA 1967). However, it is well settled that absent a special agreement to repair demised premises, a landlord is not under a duty to make repairs. McKenzie v. Atlantic Manor, Inc., 181 So.2d 554 (Fla. 3d DCA 1965), cert. denied, 192 So.2d 495 (Fla.1966); Easton v. Weir, 125 So.2d 115 (Fla. 2d DCA 1960), cert. denied, 129 So.2d 141 (Fla.1961); 49 Am. Jur.2d Landlord and Tenant § 774 (1970).

The elimination of the lessee’s obligation to repair the roof in paragraph twenty-fourth did not place this requirement upon the lessor. This provision simply served to exonerate the lessee from any common law obligation it might have had to repair the roof in the absence of an agreement. See 51C C.J.S. Landlord and Tenant § 366(l)b (1968).

The case of Fischer v. Collier, 143 So.2d 710 (Fla. 2d DCA 1962), is nearly on point. In 1953 the parties had entered into a lease of a dock over an inlet on which buildings were constructed together with a parking lot. The lease contained the following provision:

“Lessee shall be responsible for maintenance of docks, buildings piers, and for the neat appearnce [sic] of the land adjacent to said docks which is used for automobile parking. Maintenance is herein defined to include all basic maintenance and repairs except replacement of dock piling and main dock stringers. Lessee shall replace dock planking and repair dock building roofs, but shall not be responsible for complete roof or complete dock planking replacement. Lessee will further be responsible for maintenance and filling of the land immediately adjoining the dock and along and behind the seawall. * *

143 So.2d at 711. The lessee later brought suit against the lessor for failure to make repairs, alleging that prior to September of 1960 the pilings and stringers under the dock were in such bad condition that they needed replacing, and that as a result of hurricane Donna which occurred on September 10, 1960, the stringers and planking were completely blown away. Among the reasons given for affirming the dismissal of the complaint, this court relied upon the principle that in the absence of a special agreement to repair, a landlord is not under such a duty. Significantly, the opinion included the following quotation from the case of Plate Glass Underwriters’ Mutual Insurance Co. v. Ridgewood Realty Co., 219 Mo.App. 186, 269 S.W. 659 (1925):

“Now, no matter if the above language may seem to imply that since lessee is not obligated to repair damage by windstorm the landlord is so obligated, yet, under the law of landlord and tenant, this, of itself, is not sufficient to bind the landlord to do so. For, under that law, a landlord is not obligated or bound to repair unless he has expressly agreed to do so, and the only express agreement on the landlord’s part, in the above clause, is to repair the roof and keep the outside painted. * * *”

143 So.2d at 713. Thus, Fischer stands for the proposition that a lessor’s duty to repair cannot be raised by implication from a provision which exonerates the lessee from making the same repair. Accord Refrigeration for Science, Inc. v. Deacon Realty Corp., 70 Misc.2d 500, 334 N.Y.S.2d 418 (Sup.Ct.1972), aff'd, 42 A.D.2d 597, 344 N.Y.S.2d 1018 (1973); Friedman-White Realty Co. v. Garage Development Corp., 130 Misc. 266, 223 N.Y.S. 839 (N.Y.Mun.Ct. 1927). The contrary view represented by Jersey Silk & Lace Stores v. Best Silk Shops, 134 Misc. 315, 235 N.Y.S. 277 (N.Y. City Ct.1929), was rejected in the Fischer case.

The thirtieth paragraph only addresses damages occasioned by the failure to repair. This appeal does not involve a contention that any of Competition Sails’ property was damaged because of leaks in the roof. In any event, despite the trial court’s conclusion to the contrary, there was no evidence that the leaks in the roof were the result of structural defects. Both experts admitted that the leaking roof was caused by lack of maintenance.

The fact that the city repaired the roof on a few occasions did not constitute an assumption of the obligation to repair. 3A G. Thompson, Thompson on Real Property § 1230 (1981). In Fischer v. Collier we rejected the contention that by virtue of having previously made repairs to the dock, the lessor voluntarily assumed the duty to repair. The principle that the parties’ own construction of a contract should be followed is only applicable when the contract is susceptible to such a construction. See Natural Kitchen, Inc. v. American Transworld Corp., 449 So.2d 855 (Fla. 2d DCA 1984). Here, the lease placed no obligation upon the lessor to repair the roof.

The trial court’s ruling on the matter of docking space stands on a different footing. On this subject, the lease provided:

FORTY-THIRD: The terms of this lease specifically provide for the Lessee being given the right to use the existing dock space owned by the Lessor for itself and its customers in the operation of its business. Such right shall not be exclusive with the Lessee, and the parties agree to cooperate in all reasonable use of such docking facilities.

The lease clearly obligated the lessor to make its nearby docking facilities available to the lessee. The promise to provide dock space was not so personal as to apply only to the original lessor. The forty-third clause reflects an intent that Competition Sails could use the docking facilities in connection with the operation of its business on the leased premises. The burden of this covenant sufficiently “ran with the land” so as to devolve upon the city when it acquired its reversionary interest. 2 R. Powell, Powell on Real Property § 246[2] (1983). The contention that the city was obligated only to provide dock space so long as the docks were in existence falls in the face of the city’s own action of removing the dock. See Metropolitan Dade County v. Babcock Co., 287 So.2d 139 (Fla. 3d DCA 1973), which notes that a contracting party cannot take advantage of an obstacle to its performance which it has created or lay within its power to remove or avoid.

We reverse the judgment with respect to the requirement that the city repair the roof. We affirm the judgment insofar as it provides that the city must provide dock space for Competition Sails.

SCHEB and SCHOONOVER, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    The NATURAL KITCHEN, INC., Appellant/Cross-Appellee, v. AMERICAN TRANSWORLD CORPORATION, Appellee/Cross-Appellant.
    No. 83-1146.
    District Court of Appeal of Florida, Second District.
    April 13, 1984.
    Rehearings Denied May 16, 1984.

      Jack M. Larkin of Spicola & Larkin, P.A., Tampa, for appellant/cross-appellee.
    John R. Lawson, Jr., of Lawson, McWhirter, Grandoff & Reeves, Tampa, and Jerry Sarbo of Jerry Sarbo, P.A., Tampa, for appellee/cross-appellant.
   GRIMES, Acting Chief Judge.

This appeal involves a dispute concerning the refusal of a lessor to consent to a lessee’s assignment of a lease.

Commencing in 1976, The Natural Kitchen, Inc. (Natural Kitchen) leased space located on the ground floor of a Tampa office building from Regents Park, a joint venture, for a term of five years. The lease contained a provision that the lessee could not assign the lease without the prior written consent of the lessor. Michael Her-stone and Robert Rutenberg, the two stockholders of Natural Kitchen, operated a natural foods restaurant on the leased premises. In 1979, Regents Park sold the building to American Transworld Corporation (Transworld). Thereafter, Natural Kitchen renewed its lease for an additional five years.

In January of 1981, Herstone and Ruten-berg contracted to sell Natural Kitchen to certain buyers for $76,000. The sales contract provided that the buyers approve the lease. Natural Kitchen requested Trans-world to approve the assignment of its lease to the buyers, advising that “we’d be willing to stay on as co-signers and make sure the rent got paid if anything happened.” The prospective buyers had prior business experience and were well financed. They intended to change the name of the restaurant to The Slim Gourmet and to expand the menu so as to make it appealing to a broader range of customers.

After several meetings and an exchange of correspondence, Transworld advised Natural Kitchen in May of 1981 that it refused to consent to the assignment of the lease to The Slim Gourmet. The stated reason for the refusal was the concern that the new restaurant might not succeed or have a favorable impact on the building as a whole. Transworld noted, however, that it would enter into a lease with any prospective restaurant operator for a three year term at current market rates and payment by the lessee of “additional electrical usage.” The current market rate was approximately $4.50 per' square foot above the rate then being paid by Natural Kitchen under its existing lease. When the buyers balked at these terms, Natural Kitchen offered to lower its selling price to $65,000. Notwithstanding, the buyers felt that they could not economically operate under the proposed new lease and broke off negotiations for the purchase. They ultimately acquired another site for their new restaurant.

Natural Kitchen sued Transworld for damages resulting from its unreasonable refusal to approve the assignment of the lease to The Slim Gourmet. Natural Kitchen also sought a declaratory judgment concerning Transworld’s insistence that the lease obligated Natural Kitchen to pay for additional electrical usage and for sales taxes on its payment of ad valorem taxes to Transworld. Before the case went to trial, Natural Kitchen entered into a contract to sell its assets to Ron Pruett for $36,000, but this transaction also fell through because Transworld refused to consent to the assignment of the lease. At the trial, the jury returned a verdict in favor of Natural Kitchen for $37,200. The court entered judgment in this amount, reserving jurisdiction to enter its declaratory judgment relative to the legal disputes over the interpretation of the lease. Thereafter, the court entered an order granting a new trial upon the following grounds:

1. Certain equitable issues requiring a declaratory judgment should have been, but were not, decided by the Court prior to submitting factual issues to the jury. This resulted in prejudicial error to the defendant on the issue of liability.

2. The plaintiff should have pled special damages with particularity. It failed to do so.

3. The plaintiff’s claim for damages necessitated proving each and every element of special damages by a preponderance of the evidence. At trial, the plaintiff presented little or no credible evidence to meet this burden of proof. As such, the jury’s verdict was contrary to the manifest weight of the evidence.

4. The plaintiff was required to prove its damages with “reasonable certainty.” To fulfill this requirement, the jury should have been given a legally supportable “measure of damages” or “yardstick” to guide them in assessing the plaintiff’s alleged damages. This was not done. Instead, the jury’s verdict was based upon speculation, and a legally inadequate response was given to one of the questions asked by the jury on this subject.

5. The plaintiff was required to prove that its alleged damages were proximately caused by the defendant’s refusal to assign, and not from some unrelated cause. At trial, the plaintiff presented no credible evidence to establish this required element of damages.

6. The plaintiff was required to prove that its alleged damages were reasonably foreseeable by the defendant on the date that the 1976 lease was executed. In order to establish this required element of damages, the plaintiff would have had to prove that the defendant knew, or should have known, that the plaintiff would suffer the kind of lost profits claimed if the landlord did not consent to assignment. At trial, the plaintiff presented no credible evidence to establish this required element of damages.

7. The plaintiff, The Natural Kitchen, Inc., did not prove any damages against the defendant arising out of the subject matter of its complaint because it was not a party to the January 28, 1981 Purchase Agreement between Messrs. Herstone and Rutenberg and the principals of The Slim Gourmet, Inc.

The court later entered declaratory judgment in favor of Transworld on the two disputed legal issues. Natural Kitchen appealed the order granting new trial and the final declaratory judgment. Transworld has cross-appealed, asserting that the court erred in failing to grant its motion for directed verdict.

At the outset it should be noted that the unreasonableness of Transworld in refusing to consent to the assignment of the lease is not an issue on this appeal. Pursuant to the rationale of Fernandez v. Vazquez, 397 So.2d 1171 (Fla. 3d DCA 1981), the trial court instructed the jury that a lessor may not arbitrarily refuse to consent to an assignment of a commercial lease which provides, even without limiting language, that a lessee shall not assign or sublease the premises without the written consent of the lessor. The jury resolved this issue favorably to Natural Kitchen, and Transworld has not asserted error on this point.

Appellate review of an order granting a new trial must be directed to the reasons set forth in the trial judge’s order. Ortega v. Perrini & Sons, Inc., 371 So.2d 203 (Fla. 2d DCA 1979). Since ground one refers to the two issues encompassed by the declaratory judgment, it is appropriate to address these matters first. The dispute over the payment of additional electrical usage came about as a result of certain provisions in the lease. Paragraph 10A(4) of the printed form of lease provided:

10. Utilities and Services. A. Lessor agrees to furnish or cause to be furnished to the Demised Premises, in common with other lessees where appropriate, the following services,
(4) Electricity for normal office usage, it being agreed that all' additional electricity costs stemming from such causes as, but not limited to Lessee’s operation of special equipment and from Lessee’s extraordinary usage of heating and air conditioning shall be paid by Lessee; ...

Two typewritten paragraphs appear at the end of the lease which read as follows:

37. Lessor agrees rent shall be inclusive of hot water, electricity, and air conditioning charges.
38. In the event electrical charges are determined to be less than Lessor has projected, an appropriate credit will be applied to the Lease.

James Freedman, the building architect and original principal of Regents Park, testified that the printed portion of its lease applied to all tenants but that paragraph 37 was separately negotiated between Regents Park and Natural Kitchen. He stated that in setting the rent to be charged, he took into consideration the amount of electricity he thought that Natural Kitchen would use. When asked on cross-examination why no portion of paragraph 10A(4) had been deleted, he responded that this provision had been modified “in the back.” We believe the court erred in concluding that Natural Kitchen was obligated to pay for the additional electrical usage.

Mr. Freedman explained how paragraphs 37 and 38 were added to the contract. These paragraphs reflected a clear intent that the stated rental should include all electricity and air conditioning charges. The typewritten provisions of a contract ordinarily prevail over printed portions which are inconsistent. McDonald v. Connell, 158 So.2d 780 (Fla. 2d DCA 1963). Of further significance is the fact that neither Regents Park nor Transworld ever sought to collect for the additional electrical usage until Transworld first asserted its position in 1981. Where a contract is unclear but the parties have placed a reasonable construction upon it, the court should adopt that construction. Welsh v. Carroll, 378 So.2d 1255 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 643 (Fla.1980); Bay Management, Inc. v. Beau Monde, Inc., 366 So.2d 788 (Fla. 2d DCA 1978).

The argument over sales taxes arose because of the lease provision which required the lessee to pay to the lessor its pro rata share of any increase in ad valo-rem taxes. When an increase occurred, Trans world contended that Natural Kitchen was obligated to pay sales taxes of $45.53 on Natural Kitchen’s pro rata share of the increase. The lease provided for the lessee to pay sales taxes on the base rent as annually adjusted by reference to the consumer price index but did not address the question of sales taxes on the payment of pro rata increases in ad valorem taxation.

Section 212.031(2)(a), Florida Statutes (1981), provides that a tenant occupying real property shall pay sales taxes on rentals to his landlord. Florida Administrative Code Annotated Rule 12A-1.70(3) (Supp. 1983) states in pertinent part that:

The [sales] tax shall be paid ... by the tenant or lessee on all considerations due and payable for the privilege of occupancy .... Ad valorem taxes paid by the tenant or lessee to the landlord or lessor or to anyone else on behalf of the landlord are taxable as rent ....

Natural Kitchen relies on Oven v. Dawirs, 419 So.2d 1186 (Fla. 1st DCA 1982), construing section 212.031(3), Florida Statutes (1981), to mean that the landlord in a commercial lease is responsible for the payment of sales taxes where the parties have failed to make provision for this in the rental agreement. We do not find this case controlling because the instant lease did call for the tenant to pay sales tax on the rentals. The only basis for imposing sales taxes upon the payment for the pro rata increase in ad valorem taxes is to view such payment as the equivalent of rent. Thus, the court properly held that Natural Kitchen was obligated to pay sales taxes to Transworld.

We cannot see how the failure to make rulings on the declaratory judgment items prior to submitting the case to the jury could have affected the outcome of the jury’s deliberations. Significantly, it was not until the jury returned a verdict in favor of Natural Kitchen that Trans world suggested that the court should have decided these issues before the jury began its deliberations. Moreover, the fact that the parties were disputing these issues appears irrelevant to whether Transworld was unreasonably withholding permission to assign the lease. If Transworld was correct in its interpretations, an assignee of the lease would be bound to make the required payments. If Trans world was wrong, the assignee would not have to pay. Therefore, Transworld could not reasonably require as a condition of its consent to the assignment that the new lessee agree to make the contested payments. In any event, in view of our ruling on the additional electricity usage, any error in not advising the jury concerning Natural Kitchen's obligation to pay the $45.53 was clearly harmless. Since only ground one related to liability, the court erred in granting a new trial on liability.

Grounds two through seven discuss various aspects of damages. With respect to ground two, Transworld never complained in the court below of the failure to plead special damages. Moreover, when Natural Kitchen pled that Transworld’s breach caused it to lose the $76,000 sale, it fulfilled any obligation it may have had to allege special damages. See Hazen v. Cobb, 96 Fla. 151, 117 So. 853 (1928). In ground three the court stated that the verdict as related to damages was against the manifest weight of the evidence. By itself this would be an insufficient basis to sustain an order granting a new trial. Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla. 1978). However, the court employed the remaining grounds to explain its perception of the shortcomings in proof.

Grounds four through six were generally directed toward the failure to adequately prove foreseeable damages resulting proximately from Transworld’s unreasonable refusal to consent to the assignment of the lease. Natural Kitchen’s theory of recovery was that except for Transworld’s breach, it could have sold its restaurant for $76,000, but that the best price it could obtain only eighteen months later was $36,-000. Admittedly, the bona fides of the Pruett contract were subject to attack, and the loss in value of the restaurant may have been due to management inefficiencies, but these were defensive matters. Uncertainty over the amount of damages for breach of a contract or difficulty in proving the exact amount will not prevent recovery where there is a reasonable basis in the evidence for the amount claimed. Linton v. Pension Services Corp., 389 So.2d 247 (Fla. 2d DCA 1980). As for foreseeability, the parties need not have contemplated the precise injuries which occurred so long as the actual consequences could have reasonably been expected to flow from the breach. See Western Union Telegraph Co. v. Redding, 100 Fla. 495, 129 So. 743 (1930); F & B Ceco, Inc. v. Galaxy Studios, Inc., 216 So.2d 75 (Fla. 3d DCA 1968), cert. denied, 225 So.2d 523 (Fla.1969). As stated in 5 A. Corbin, Corbin on Contracts § 1010, at 79 (1964):

All that is necessary, in order to charge the defendant with a particular loss, is that it is one that ordinarily follows the breach of such a contract in the usual course of events, or that reasonable men in the position of the parties would have foreseen as a probable result of breach. It is not necessary that the parties should have given the matter a moment’s thought or should have expressed themselves on the subject.

The thrust of ground seven is that Her-stone and Rutenberg, rather than the corporation, were signatories on the broker’s printed form of contract to sell “Natural Kitchen, Inc.” While not made an issue by their pleadings, Transworld argued in its motion for directed verdict that Natural Kitchen had no standing to recover damages because the stockholders, by virtue of the contract, were actually selling the corporate stock. If Herstone and Rutenberg really were selling the stock, we cannot see how the dispute over the refusal to consent to the assignment of the lease ever arose in the first place. Presumably, if the corporate stock were sold, the new owners would simply continue to operate the restaurant as “The Natural Kitchen, Inc.,” the lessee under the lease. Herstone and Ru-tenberg took the position that as the sole stockholders, they were acting as agents of the corporation to sell the restaurant. A study of the record indicates that all parties proceeded on the premise that the restaurant was being sold. While there was frequent reference to the sale of Natural Kitchen, no one ever suggested that the corporate stock was being sold. In fact, Transworld referred in correspondence to Natural Kitchen’s proposed sale of assets to The Slim Gourmet, though Transworld contends that it had not seen the sales contract when this letter was written. At the least, there was a jury question over whether the corporate stock or the assets were being sold, and the matter was extensively covered in closing argument.

Thus, if Transworld were asserting these grounds as the basis for an appeal from a judgment entered against it, we would affirm the judgment because there was competent substantial evidence in this record to support Natural Kitchen’s verdict. For this reason, we reject the cross-appeal since all of Transworld’s points are predicated upon the subject matter of the grounds contained in the new trial order. However, our standard for reviewing the order granting a new trial is different. In granting a new trial, the trial judge is entitled to consider the quality of the proof, and such an order should not be disturbed in the absence of an abuse of discretion. Cloud v. Fallís, 110 So.2d 669 (Fla.1959). Viewing this record as a whole, we cannot say that the court abused its discretion in granting a new trial on damages.

We hereby reverse the order granting a new trial as it relates to liability but affirm the order granting a new trial on damages. We reverse the declaratory judgment on the question of additional electrical charges but affirm the judgment as it relates to the collection of sales taxes. We affirm the issues raised by the cross-appeal.

CAMPBELL and LEHAN, JJ., concur.


author: ZEHMER, Judge. ZEHMER, Judge.

text:
    The FLORIDA FIRST NATIONAL BANK AT PENSACOLA, Appellant, v. Phillip MARTIN and Janet K. Martin, husband and wife, et al., Appellees.
    No. AO-55.
    District Court of Appeal of Florida, First District.
    March 27, 1984.
    On Rehearing May 10, 1984.

      Paul Shimek, Jr., of Shimek & Souther-land, Pensacola, for appellant.

      H. Edward Moore, Jr., of Sherrill, Moore & Hill, Pensacola, for appellee Pinney.
    Kenneth R. Ridlehoover, Pensacola, for appellee Martin.
   ZEHMER, Judge.

Appellant, Florida First National Bank at Pensacola, appeals a final summary judgment in favor of appellees on the bank’s complaint for “a judgment of deficiency after sale of a security and for foreclosure of additonal security for failure to pay said deficiency.” The trial court ruled that the bank is not entitled to a deficiency judgment because the undisputed facts establish that the repossessed property was not disposed of by the bank in a commercially reasonable manner, as required by section 679.504(3), Florida Statutes (1981). We affirm.

The following facts appear to be undisputed in the record. On March 28, 1977, the bank extended a loan to appellee Martin and others pursuant to a security agreement and promissory note executed by Martin and secured by a thirty-one foot boat named “Mariposa.” Appellee Pinney endorsed the note and security agreement. Martin made payments to the bank until late 1978, when he defaulted. On January 15, 1979, a representative of the bank, assisted by Pinney, took physical custody of the Mariposa and moved it to another dock specified by the bank. The balance due on the security agreement and note as of January 22, 1979, was $29,143. The bank ordered and paid for a survey of the boat in February 1979 which recommended that the Mariposa be advertised for $28,500 in its then-present condition or, if certain described repair work should be accomplished at minimal cost, for $35,000.

At the time the bank took custody of the boat, Pinney agreed to show it to prospective customers when requested to do so by the bank. Appellant bank ordered and paid for certain repairs. Appellee Pinney assisted in making some of them and, as agreed, showed the boat to a few prospective buyers for the bank until late May , or June 1979, at which time the boat was removed, at the Bank’s direction, to a new location. The bank continued to maintain custody and control of the Mariposa for the next eighteen months while the boat’s physical condition depreciated substantially. Ultimately, in December 1980, the bank sold the Mariposa for $12,300.

The bank’s officials testified that this transaction was not handled in accordance with the requirements of the Uniform Commercial Code or the bank’s own policies and procedures applicable to repossession of secured property after default. The bank, having taken physical custody of the boat, obtained a survey and appraisal, and ordered and paid for repairs during the period January through May 1979, neglected to send the' usual notice of repossession to appellees, as debtors, and neglected to otherwise follow normal procedures for the sale and disposition of the boat. Its entire efforts during the two-year period consisted of running a few advertisements in the Pensacola newspaper and showing the boat on a couple of occasions to potential customers, with no success.

Sometime in October 1979, the bank’s senior officials learned of the situation and made inquiry of their loan officer in charge, Mr. Golson. Failing to receive an adequate explanation, the bank discharged Mr. Golson. Mr. Franklin was then put in charge of the loan. His investigation of the bank’s records as of November 1979 indicated that “this was a repossession; that nothing had been done to comply with the Uniform Commercial Code” and “that nothing ... had been done to serve notice on any of the parties involved that it was a repossession.” Mr. Franklin testified at deposition that his predecessor, Golson, had not managed this account properly and had not followed the bank’s guidelines. Those guidelines permitted the bank to take custody of secured property and attempt to sell it with the debtor’s assistance for thirty days without declaring it a repossession. Failing such sale, under the guidelines the bank was supposed to declare the property repossessed within 120 days, charge the loan to the profit and loss account, and process the repossession in accordance with applicable laws and banking regulations.

In this instance, the bank’s officials, after receiving Franklin’s report, deliberately elected not to treat its custody of the Mari-posa as a repossession but, instead, to file suit against appellees to collect on the note and to foreclose the boat. Suit was filed in December 1979. Once this decision to sue was made, the bank did nothing of substance to sell the Mariposa during the ensuing months because, they explain, of the pendency of the litigation. Finally, notwithstanding the pending litigation, the bank formally notified the appellees by letter dated October 30, 1980, that it was declaring a repossession of the boat and would proceed to sell it at private sale. On December 3, 1980, the Mariposa was sold “as is” at private sale for $12,300, notwithstanding a second survey made in October 1980 which indicated that if $3,000 were spent on repairs, the sale price would exceed $20,000. That survey appraised the boat “as is” at approximately $12,500.

The following January, the bank supplemented its complaint in the pending litigation, acknowledged the sale and sought a deficiency judgment. All appellees defended on the ground that the bank had not disposed of the boat in a commercially reasonable manner and was not entitled to a deficiency judgment. Appellee Pinney also contended that the bank had released him from liability on his endorsement while Gol-son was in charge of the loan. Both the bank and appellees, conceiving there were no material facts in dispute, moved for summary judgment on their respective claims and defenses. The trial court denied the bank’s motion and entered summary judgment for appellees on both grounds of their defenses. This appeal followed.

The bank contends that the granting of summary judgment on the ground that the security was not sold in a commercially reasonable manner was erroneous for several reasons.

The bank contends that it did not repossess the Mariposa until October 1980, when it sent its formal letter to that effect to appellees. Thus, the bank argues, the sales price less than two months later was well within the “as is” appraised value on that date. The bank reasons that in January 1979 it took joint possession with Pin-ney for the purpose of selling the boat for as much as possible and did not formalize “repossession” of the boat until it sent the appropriate notice to appellees in October 1980.

We find the bank’s contention a distinction without substance that is contrary to the undisputed facts. The bank’s own records, entitled “Record of Repossession,” are dated May 16, 1979, and unambiguously state that the date of repossession of the boat is January 15, 1979. The bank took physical custody and stored the boat at a dock of its own choosing. The bank had the boat surveyed and ordered and paid for certain recommended repairs. The bank retained custody and control of the boat continuously until December 1980. And the bank alleged in its complaint, filed in December 1979, that it had possession of the boat. The fact that Pinney assisted the bank in picking up the boat, repairing it, and showing it to prospective buyers is not inconsistent with the bank’s having repossessed the boat, especially since it is undisputed that Pinney had nothing more to do with the boat after May or early June 1979. We hold on the undisputed evidence that, upon taking custody of the boat on January 15,1979, the bank repossessed the property within the meaning of section 679.503, Florida Statutes (1981), and at that time became obligated by section 679.504(3) to “sell, lease or otherwise dispose of” the collateral “in its then condition or following any commercially reasonable preparation or processing,” provided that “disposition including the method, manner, time, place, and terms must be commercially reasonable.” Although the bank could have retained the collateral in full satisfaction of the obligation by giving notice of such intention pursuant to section 679.505, it did not give such notice.

Even so, the bank contends that the evidence fails to show it acted unreasonably in this case because the mere passage of time before sale, or the fact that the bank could have received a better price by obtaining a sale at a different time or with a different method, is “not sufficient to establish that the sale was not made in a commercially reasonable manner,” citing section 679.507(2). We agree that if the bank’s conduct had otherwise been commercially reasonable, then the mere passage of time or failure to obtain a better price would not, standing alone, have meant that the sale violated section 679.-504(3). But, as the undisputed facts described above show, the bank’s conduct in handling and disposing of this collateral after repossession was not otherwise commercially reasonable. The bank’s officials admit to not processing this repossession in accordance with the Uniform Commercial Code or the bank’s own guidelines and procedures because the boat, valued at $28,500 or more when repossessed, was sold for $12,300. The bank permitted the physical condition and value of the boat to decline drastically while maintaining sole custody and control of it. The bank retained the property for many months after repossession without initiating its normal repossession procedures, and then consciously and deliberately elected to file litigation to foreclose on property already in its possession. After filing suit, the bank continued to hold the property without taking any further steps to make it saleable at a price approximating its value when seized.

Finally, the bank contends that ap-pellees have either waived or are estopped to claim that the collateral was not disposed of in a commercially reasonable manner. In support of this contention, the bank argues that appellees had the right under section 679.507, Florida Statutes (1981), to protect themselves from the bank’s unreasonable disposition of the collateral by obtaining a court order requiring disposition on appropriate terms and conditions and, because appellees had knowledge of the bank’s handling of the collateral after repossession and nonetheless did nothing, they became estopped or waived any right to raise the lack of a commercially reasonable sale as a defense. This contention lacks merit for at least three reasons.

First, as appellees correctly point out, the right to commercially reasonable disposition of repossessed property cannot be waived. § 679.501(3), Fla.Stat. (1981). Barnett Bank of Tallahassee v. Campbell, 402 So.2d 12 (Fla. 1st DCA 1981); Barnett v. Barnett Bank of Jacksonville, 345 So.2d 804 (Fla. 1st DCA 1977). This case does not involve a “compulsory disposition” qualifying as an exception to the nonwaiver rule provided in that section. § 679.505, Fla.Stat. (1981).

Second, the bank did not plead either waiver or estoppel by way of avoidance of the affirmative defenses raised by appel-lees. Florida Rule of Civil Procedure 1.100(a) provides that if an answer “contains an affirmative defense and the opposing party seeks to avoid it, he shall file a reply containing the avoidance.” Rule 1.110(d) includes waiver and estoppel as matters in avoidance. The record contains no motion to amend or other attempt to properly plead this issue in the trial court prior to the hearing on summary judgment. Accordingly, there is no basis for granting relief to appellant bank on these .grounds on this appeal. Dober v. Worrell, 401 So.2d 1322 (Fla.1981).

Third, a debtor need not first seek affirmative relief under section 679.507 as a prerequisite to asserting lack of commercially reasonable disposition of collateral. Once the secured party repossesses collateral to secure payment of the debt after default, that party is under a duty of care to protect and preserve the collateral and dispose of it in a manner likely to bring the full fair value. §§ 679.501(2) and 679.-207(1), Fla.Stat. (1981). See generally, 29 Fla.Jur., Secured Transactions, §§ 124-126.

The trial court ruled that, as a result of the bank’s failure to dispose of the boat in a commercially reasonable manner, the bank was not entitled to any deficiency judgment against appellees, citing Barnett Bank of Tallahassee v. Campbell, supra, and Turk v. St. Petersburg Bank & Trust Co., 281 So.2d 534 (Fla. 2d DCA 1973). We find no reason to disturb this ruling. Deficiency judgments after repossession of collateral are in derogation of the common law, and any right to a deficiency accrues only after strict compliance with the relevant statutes. Turk v. St. Petersburg Bank & Trust Co., supra, at 536. When seeking a deficiency judgment, the secured party (here, the bank) has the burden of proving that the sale was conducted in a commercially reasonable manner or in accord with reasonable commercial practices, as required by statute, once the debtor has raised this issue. Bank of Oklahoma v. Little Judy Industries, 387 So.2d 1002, 1004-1005 (Fla. 3d DCA 1980). Since the undisputed evidence established that the bank had not and could not carry that burden, there was no error in denying the deficiency judgment as a matter of law on the ground that the sale was not commercially reasonable. Cf., Schatten v. C.I.T. Corp., 335 So.2d 572 (Fla. 3d DCA 1976).

Appellant contends that Barnett Bank of Tallahassee v. Campbell, supra, and Turk v. St. Petersburg Bank & Trust Co., supra, cited in the trial court’s order, are inapplicable because those decisions involved the failure to give notice as required by section 679.504(3) rather than the failure to conduct a commercially reasonable sale. In both cases, as well as in Barnett v. Barnett Bank of Jacksonville, supra; Hepworth v. Orlando Bank & Trust Co., 323 So.2d 41 (Fla. 4th DCA 1975), and Washington v. First National Bank of Miami, 332 So.2d 644 (Fla. 3d DCA 1976), the Florida courts aligned themselves with the rule that failure to comply with the statutory notice requirements precludes any action for deficiency against the debtors. These decisions support the trial court’s ruling unless there is some rational basis to differentiate in this case between failing to comply with the statutory notice requirements and failing to comply with the statutory requirements for commercially reasonable disposition of the repossessed property. We see no reason to make such a distinction under the facts of this case. See, generally, Motorola Communications & Electronics v. National Patient Aids, 427 So.2d 1042 (Fla. 4th DCA 1983).

We note that in Bank of Oklahoma v. Little Judy Industries, supra, the Third District Court adopted the rule that, notwithstanding the lack of a commercially reasonable sale, a secured creditor may still be entitled to a deficiency judgment if the secured creditor shows that the fair value of the collateral at the time of seizure is less than the amount of the outstanding indebtedness. Apparently the value of the repossessed aircraft in that case was less than the indebtedness at the time of repossession.

Even though the rule approved in Bank of Oklahoma may appear to be in conflict with the rule followed in our decision in this case and in Barnett Bank of Tallahassee v. Campbell, supra, and Barnett v. Barnett Bank of Jacksonville, supra (both denying the right to any deficiency judgment after failure to comply with the requirements of section 679.504(3)), we need not now address such apparent conflict because of factual distinctions between this case and Bank of Oklahoma and the bank’s failure to argue the applicability of that rule.

Here, the evidence shows that the amount of indebtedness in January 1979, when the boat was repossessed, was $29,-143; and the bank’s survey, made that same month, recommended an “as is” value of $28,500 or, if some repair work were done, a value of $35,000. Some repair work was done by Pinney. The bank has not asked for remand and determination of deficiency in accordance with the rule approved in the Bank of Oklahoma decision, apparently because the value of the boat when seized in January 1979 was approximately equal to or greater than the then-outstanding indebtedness and, at best, little, if any, recovery would accrue to the bank on that theory. Having failed to cite Bank of Oklahoma, the bank has waived this argument and is not now entitled to reversal on that theory.

Having concluded that as a matter of law the bank was not entitled to a deficiency judgment against any of the appellees, we find it unnecessary to consider appellant’s points relating to the release of appellee Pinney.

AFFIRMED.

BOOTH and SMITH, JJ., concur.

ON MOTION FOR REHEARING

ZEHMER, Judge.

The Florida First National Bank at Pensacola moves for rehearing on the ground that our not reviewing the appealed issue concerning the bank’s release of Pinney “has resulted in confusion and possible prejudice to the bank because there is still a pending counterclaim in existence for abuse of process, which rests to a large extent upon the question of whether Pin-ney was released by the bank,” and that leaving this issue unresolved may “result in the trial court’s previous finding (that the release was valid) becoming the law of the case, thus preventing appellant the right of an appeal as to that crucial issue.” Since this issue is ripe for determination on this appeal and will substantially affect further proceedings between these parties, we grant rehearing to address the questions raised.

We hold that the trial court erred in ruling as a matter of law that Pinney had been released by the bank because Pinney has failed to conclusively demonstrate the absence of any material issues of fact concerning the validity of the release. It is well recognized that genuine issues of fact may arise even on undisputed facts where different inferences may reasonably be drawn by the trier of fact. Aldridge v. Yellow Cab of Gainesville, Inc., 448 So.2d 1129 (Fla. 1st DCA 1984); Gra-vas v. The Mackle Company, 444 So.2d 1159 (Fla. 3d DCA 1984). The record shows that material facts are in dispute concerning the authority of the bank’s officer to release Pinney and the sufficiency of the document relied upon to constitute a valid release, and these issues cannot be resolved on summary judgment but must be submitted to the trier of fact. Benson v. Atwood, 177 So.2d 380, 382 (Fla. 1st DCA 1965); Taco Bell of California v. Zappone, 324 So.2d 121, 123 (Fla. 2d DCA 1976).

With this additional clarification, we adhere to our original opinion affirming the final summary judgment.

BOOTH and SMITH, JJ., concur.

      . See, Mack Financial Corp. v. Scott, 100 Idaho 889, 606 P.2d 993 (1980).


author: COWART, Judge.

text:
    Clarence Duane CONE, Appellant, v. Helen Phillips CONE, Appellee.
    No. 83-555.
    District Court of Appeal of Florida, Fifth District.
    March 29, 1984.
    Rehearing Denied May 7, 1984.

      Thomas L. West, Daytona Beach, for appellant.
    Garrett L. Briggs of Adams & Briggs, Daytona Beach, for appellee.
   COWART, Judge.

This case involves exclusive possession of jointly owned property upon dissolution of marriage.

Dissolving a childless marriage of less than three years duration the trial court found the wife had a $14,000 special equity and the husband had a $25,000 special equity in the marital home. The trial court expressly found that the wife was not entitled to either permanent or rehabilitative alimony but awarded the wife the exclusive possession of the home for an unspecified period of time. The judgment provided the wife would be solely liable for mortgage payments, taxes, insurance and other ownership expenses relating to the house and also provided that on its sale she would be entitled to credit for a pro rata share of such expense in proportion to the parties’ interest.

We affirm the trial court’s findings of fact as to the wife’s special equity in the home and as to her ownership of certain personal property in the home but we reverse the provision for exclusive possession.

The two theoretical bases for spousal support upon dissolution of marriage are those supporting rehabilitative and permanent alimony. See Campbell v. Campbell, 432 So.2d 666 (Fla. 5th DCA 1983). Either of these two species of alimony may be effectuated by one or more of three types or methods of providing such support, viz: periodic. payments, a lump sum payment or the providing of support in kind, such as by awarding exclusive possession of property suitable for shelter. However, if upon dissolution of marriage a former spouse is entitled to neither permanent nor rehabilitative alimony such person is not entitled to spousal support in any form.

An award of “exclusive possession” of property upon dissolution of the marriage relationship between joint owners, must either be directly connected with a support obligation or a temporary necessity to protect the value of the property for the benefit of the joint owners. Otherwise, the exclusive possession award unlawfully deprives a joint owner of his right to possess his interest in the property and of his right to partition. The exclusive possession should be for a specified period of time required for the purpose stated. Duncan v. Duncan, 379 So.2d 949 (Fla.1980); Ambrose v. Rayne, 412 So.2d 971 (Fla. 3d DCA 1982). See also Delehant v. Delehant, 442 So.2d 1009 (Fla. 4th DCA 1983). A joint owner of property paying expenses necessarily attendant to the ownership of property is ordinarily entitled to reimbursement from- other joint owners for a proportionate share of such expenses. However, a joint owner is likewise entitled to reimbursement for the use value of his interest when excluded and deprived of the joint use and enjoyment of the property by a joint owner under circumstances where such use value is not provided as “payment in kind” to meet some definite legal duty to support an occupant of the property.

AFFIRMED in part; REVERSED in part.

DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . See Coalla v. Coalla, 330 So.2d 802 (Fla. 2d DCA 1976). See also Baldi v. Baldi, 323 So.2d 592 (Fla. 3d DCA 1975).

      . See Salyers v. Good, 443 So.2d 152 (Fla. 2d DCA 1983).


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    DONMOOR, INC., Petitioner, v. William B. STURTEVANT, Respondent.
    No. 83-1579.
    District Court of Appeal of Florida, Fifth District.
    March 29, 1984.
    Rehearing Denied May 7, 1984.
    Charles J. Cacciabeve of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Orlando, for petitioner.

      Harlan Tuck of Giles, Hedrick & Robinson, P.A., Orlando, .for respondent.
   FRANK D. UPCHURCH, Jr., Judge.

Donmoor, Inc., by petition for writ of certiorari, seeks review of an order denying its motion to compel arbitration and to stay the proceedings below. This court has previously held that a petition for writ of certiorari is an appropriate method to review an order denying a motion to compel arbitration. R.W. Roberts Const. Co., Inc. v. St. Johns River, 423 So.2d 630 (Fla. 5th DCA 1982); Paine, Webber, Jackson & Curtis, Inc. v. Lucas, 411 So.2d 1369 (Fla. 5th DCA 1982).

Respondent William Sturtevant, employed by Donmoor, sued to recover unpaid sales commissions. Donmoor moved to compel arbitration under both the Florida Arbitration Code and the Federal Arbitration Act. The motion was based on an arbitration provision in the employment contract between the parties which provides as follows:

Any claim or controversy arising out of or with respect to this agreement or the performance thereof or breach shall be settled by arbitration in New York City, New York pursuant to the rules of The American Arbitration Association then obtaining and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.

Since the contract provided for arbitration in another state, the provision is not enforceable under the Florida Arbitration Code, chapter 682, Florida Statutes. Damora v. Stresscon International, Inc., 324 So.2d 80 (Fla.1975). Donmoor has recognized this and bases its argument solely on the Federal Arbitration Act. Sturtevant argues, in the alternative, that the federal act does not apply because 1) the action is not based on the contract; 2) the federal act is not enforceable in state courts; and 3) the contract is excepted from operation of the federal act.

We reject Sturtevant’s first argument. His action for unpaid sales commissions is clearly dependent upon his employment contract with Donmoor.

Regarding Sturtevant’s second argument, the United States Supreme Court has recently reaffirmed its view that the substantive law created by the act is applicable in state as well as federal courts. Southland Corp. v. Keating, — U.S.-, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984). Our sister courts had previously reached this conclusion. See, e.g., Butcher & Singer, Inc. v. Frisch, 433 So.2d 1360 (Fla. 4th DCA 1983); Lipton Professional Soccer, Inc. v. Mijatovic, 416 So.2d 1236 (Fla. 1st DCA 1982); Merrill Lynch Pierce, etc. v. Melamed, 405 So.2d 790 (Fla. 4th DCA 1981).

Thus, the remaining question is whether this particular employment agreement is excluded from the Federal Arbitration Act. The Act applies to:

A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, ...

9 U.S.C. § 2 (1947).

“Commerce” is defined in the Act as: [Cjommerce among the several States or with foreign nations, or in any Territory of the United States or in the District of Columbia, or between any such Territory and another, or between any such Territory and any state or foreign nation, or between the District of Columbia and any State or Territory or foreign nation, but nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce, (emphasis added)

9 U.S.C. § 1.

Donmoor contends that the contract in question does not fall within the exclusion set out above citing Dickstein v. Dupont, 443 F.2d 783 (1st Cir.1971). In that case, Dickstein, a registered representative for Dupont, a member of the New York Stock Exchange, filed suit for a reasonable fee for finding a client for Dupont. Dupont moved to stay the proceedings pending arbitration as provided in Dickstein’s employment application. In response, Dickstein argued that the arbitration act did not apply because he fell within the exception in section 1. The court rejected this argument, stating:

Equally unavailing is appellant’s argument that he was a worker ‘engaged in foreign or interstate commerce’ within the exceptions to the Arbitration Act set out in section 1. 9 U.S.C. § 1. Courts have generally limited this exception to employees, unlike appellant, involved in, or closely related to, the actual movement of goods in interstate commerce. Tenney Engineering, Inc. v. United Electrical Radio & Machine Workers, 207 F.2d 450, 452-453 (3d Cir. 1953); Signal-Stat Corp. v. Local 475, etc., 235 F.2d 298 (2d Cir.1956), cert. denied, 354 U.S. 911, 77 S.Ct. 1293, 1 L.Ed.2d 1428 (1957), reh’g denied, 355 U.S. 852, 78 S.Ct. 7, 2 L.Ed.2d 61 (1957). (emphasis added)

443 F.2d at 785.

Donmoor also cites Tenney Engineering, Inc. v. United Electrical Radio & Mach. Workers, 207 F.2d 450 (3d Cir.1953). There, the court construed the exclusionary language in section 1, stating as follows:

We think that the intent of the latter language [‘or any other class of workers engaged in foreign or interstate commerce’] was, under the rule of ejusdem generis, to include only those other classes of workers who are likewise engaged directly in commerce, that is, only those other classes of workers who are actually engaged in the movement of interstate or foreign commerce or in work so closely related thereto as to be in practical effect part of it. The draftsmen had in mind the two groups of transportation workers as to which special arbitration legislation already existed and they rounded out the exclusionary clause by excluding all other similar classes of workers.

207 F.2d at 452-453. Accord, Erving v. Virginia Squires Basketball Club, 468 F.2d 1064 (2d Cir.1972); Horne v. New England Patriots Football Club, 489 F.Supp. 465 (D.Mass.1980); Allendale Nursing Home v. Local 1115 Joint Board, 377 F.Supp. 1208 (S.D.N.Y.1974). Contra, United Electrical Radio & Machine Workers of America v. Miller Metal Products, 215 F.2d 221 (4th Cir.1954).

Sturtevant argues that the cases are in hopeless conflict citing Signal-Stat Corp. v. Local 475, etc. 235 F.2d 298 (2d Cir. 1956), cert. denied, 354 U.S. 911, 77 S.Ct. 1293, 1 L.Ed.2d 1428 (1957). The question in Signal-Stat was whether a collective bargaining agreement was a “contract of employment” within the meaning of section I. The court in Signal-Stat held that a collective bargaining agreement was a contract of employment. More importantly, however, the court held that the labor union, whose workers were engaged in the manufacture of automotive electrical equipment, was not actually engaged in interstate or foreign commerce but was merely engaged in the manufacture of goods for interstate commerce and thus the exclusion in section 1 did not apply. Id. at 303. Thus, Signal-Stat actually supports the position of Donmoor rather than Sturtevant.

Here, Sturtevant was not involved in, or closely related to, the actual movement of goods in interstate commerce. In accordance with the cases cited above, we conclude that this action is not excluded under the terms of the Federal Arbitration Act. Federal policy favors arbitration, Signal-Stat; J.S. & H. Construction Co. v. Richmond County Hosp. Auth., 473 F.2d 212 (5th Cir.1973), and therefore the exclusionary language of section 1 must be construed narrowly so as to effectuate arbitration. Since the contract was one “evidencing a transaction involving commerce”, contained a written provision to settle by arbitration a controversy arising out of the contract, and does not fall within the exclusionary language, the Federal Arbitration Act does apply. Accordingly, Donmoor’s motion to compel arbitration and to stay the proceedings below should have been granted.

The petition for writ of certiorari is GRANTED, the order denying arbitration and stay is QUASHED.

COBB and COWART, JJ., concur.

      . Sturtevant was Donmoor’s exclusive sales representative for portions of Florida, Georgia and Alabama.


author: SCHEB, Judge.

text:
    The SCHOOL BOARD OF PINELLAS COUNTY, Florida, Appellant, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY; Biltmore Construction Company, Inc., Appellees.
    No. 83-573.
    District Court of Appeal of Florida, Second District.
    March 30, 1984.
    Rehearing and Clarification Denied May 16, 1984.
    B. Edwin Johnson, Clearwater, for appellant.
    Charles W. Pittman of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appel-lees.
   SCHEB, Judge.

The School Board of Pinellas County contends that the trial court erred in entering summary final judgment in favor of St. Paul Fire & Marine Insurance Company, as surety on a contractor’s performance bond. We agree and reverse.

On May 14, 1975, the School Board entered into a contract with Biltmore Construction Company, Inc., for construction of Pinellas Park Senior High School. On that same date Biltmore, as required by the contract as well as by section 235.32, Florida Statutes (1975), furnished the School Board a performance bond with St. Paul, as surety. The bond, issued on a standard printed form furnished by St. Paul, incorporated by reference the provisions of the construction contract which included the plans and specifications for the high school project. The bond was conditioned on Bilt-more’s faithful performance of the construction contract. Construction proceeded and in December 1977 the School Board accepted the building as completed and, upon certification by its architect, ,made final payment to the contractor.

In December 1979 the School Board brought action against Biltmore, St. Paul, and others seeking recovery for damages it sustained from alleged latent defects, which it claimed to have discovered after its acceptance of the building. The School Board alleged that Biltmore had breached its contract by using improper materials in construction of the roof and installing defective glass panels. Biltmore answered the complaint; however, St. Paul filed a motion for summary judgment contending that its performance bond did not provide coverage for the Board’s claim, and further, that the statute of limitations for asserting a claim against it had expired. At the hearing St. Paul elected not to rely upon the statute of limitations, but reserved its right to do so at a future date. The trial court, relying on Florida Board of Regents v. Fidelity & Deposit Co., 416 So.2d 30 (Fla. 5th DCA 1982), concluded that the performance bond did not cover the type of claims made by the School Board once the Board had accepted the completed building and entered summary final judgment in favor of St. Paul. This appeal by the School Board ensued.

Since the trial court’s summary final judgment held St. Paul was not liable to the School Board as a matter of law, we address only one narrow issue. May a surety under a performance bond guaranteeing faithful performance of a construction contract be held liable for latent defects discovered in the project after the completion of the building, and acceptance thereof by the owner?

At the outset, we point out that St. Paul’s performance bond must be interpreted in conjunction with the contract between Biltmore and the School Board. This is so because the contract between the parties is, by reference, made a part of the bond. Thus, since the bond requires the contractor to “promptly and faithfully perform said contract,” St. Paul, as surety, may be liable for the contractor’s breach of a contractual provision. City of Orlando v. H.L. Coble Co., 282 So.2d 25, 27 (Fla. 4th DCA 1973).

The principle was also illustrated by the supreme court’s decision in Tapping v. McIntosh, 104 Fla. 715, 718, 140 So. 773 (1932), where an owner sued a contractor and his surety. As here, the surety in Tapping issued a bond to protect the owner if the contractor failed to construct the building under the plans and specifications incorporated into the construction contract. Upon completion of the dwelling, the owner made final payment to the contractor. The owner alleged that he did so believing the work was performed according to the contract. Afterwards, the owner allegedly discovered several defects in the structure including cracked stucco which resulted in a leaky roof. The supreme court held that the owner’s declaration was sufficient to withstand a demurrer by the surety. Id. at 716, 719, 140 So. 773. Here, likewise, we think the School Board stated a cause of action against the surety as well as the contractor, and it was error for the trial court to determine as a matter of law that the surety could not be held liable under its performance bond.

Our research has not disclosed any other Florida cases on performance bond coverage of latent defects. Other state courts, however, have held that where an owner accepted work with knowledge that it had not been done according to the contract or where the defects were discoverable by reasonable inspection, the owner’s acceptance was a waiver of defective performance. See Salem Realty Co. v. Batson, 256 N.C. 298, 123 S.E.3d 744 (1962); City of Osceola v. Gjellefald Construction Co., 225 Iowa 215, 279 N.W. 590 (1938); Town of Tonawanda v. Stappell, Mumm & Beals Corp., 240 A.D. 472, 270 N.Y.S. 377 (1934); City Of Seaside v. Randles, 92 Or. 650, 180 P. 319 (1919); and Mayor of Newark v. New Jersey Asphalt Co., 68 N.J.L. 458, 53 A. 294 (1902). On the other hand, if the work was not performed according to the contract and acceptance of the work and payment of the contract price by the Board was without knowledge of latent defects, the acceptance and payment would not necessarily constitute a waiver or an estoppel to claim damages for such latent defects. Salem Realty Co., 123 S.E.2d at 751; City of Osceola, 279 N.W. at 594; Town of Tonawanda, 270 N.Y.S. at 379; American Employers’ Insurance Co. v. Huddleston, 123 Tex. 285, 70 S.W.2d 696 (1934); City of Seaside, 180 P. at 325-326; and Mayor of Newark, 53 A. at 296. See also Milana, The Performance Bond and the Underlying Contract, 12 Forum 187, 190 (1976).

We feel the trial court’s reliance on Florida Board of Regents v. Fidelity & Deposit Co. as the sole basis for its decision is misplaced. In that case, the fifth district, in an alternate ground for its decision, said: “Once the building is completed, or as we have said using the words of art in the construction industry 'substantially completed,’ then the surety under the performance bond is relieved of any further responsibility.” Id. 416 So.2d at 32. We disagree with this statement as it relates to this case.

St. Paul’s performance bond incorporated by reference the contract between the School Board and Biltmore and its bond was given to ensure the School Board that Biltmore’s contract would be completed in accordance with the plans and specifications. If the School Board can establish that Biltmore breached its contract by failing to construct the building in accordance with the plans and specifications, that it was unaware of those defects at the time of its acceptance, and, that such defects were not apparent under reasonable inspection, then St. Paul may be held liable for such latent defects to the same extent that Biltmore is liable therefor. Of course, St. Paul’s liability, if any, would be no greater than Biltmore’s.

As noted, St. Paul also contended in its motion for summary judgment that the School Board’s action was barred by lapse of time. That question was not determined by the trial court; therefore, we do not decide that issue. Of course, the issue of the applicability of the statute of limitations remains viable.

Accordingly, we vacate the summary final judgment and remand for further proceedings consistent with this opinion.

OTT, C.J., and SCHOONOVER, J., concur.


author: THOMPSON, Judge.

text:
    RONALD ALLEN TRUCKING COMPANY and Utica Mutual Insurance Company, Appellants, v. James E. HELTON, Appellee.
    No. AS-65.
    District Court of Appeal of Florida, First District.
    March 30, 1984.
    Rehearing Denied May 23, 1984.

      Margaret E. Sojourner of Haas, Boehm, Brown, Ridgon & Seacrest, Orlando, for appellants.
    Jesse F. Sparks, Orlando, for appellee.
   THOMPSON, Judge.

The employer/carrier (E/C) appeal from a workers’ compensation order awarding permanent total disability (PTD) benefits. We agree with the E/C’s contention that claimant should not have been awarded PTD benefits, and reverse.

Claimant is a 43-year-old man with a sixth grade education whose work experience has been limited to truck driving and other types of fairly strenuous physical labor. Shortly after claimant’s October 27, 1980 compensable cervical spine injury, he came under the care of Dr. Gilmer, an orthopedic surgeon. Although Dr. Gilmer initially felt that the claimant had an insignificant shoulder injury, he soon suspected cervical radiculopathy and recommended that claimant undergo EMG and myelo-graphic studies. Claimant, citing a fear of needles and a prior bad experience with a myelogram, refused the recommended tests. Dr. Gilmer thereafter treated the claimant conservatively and prescribed an extensive program of physical therapy. On two occasions while under the care of Dr. Gilmer, claimant attempted to return to work for the employer, but was unable to handle his usual duties.

In May of 1981 the E/C engaged a rehabilitation firm to assist claimant in finding less strenuous work. Both Dr. Gilmer and the rehabilitation counselors repeatedly urged claimant to undergo myelographic testing, but he remained adamant in his refusal. Because of the claimant’s continuing refusal to undergo testing, Dr. Gilmer reported in August 1981 that claimant had reached maximum medical improvement (MMI) and had a permanent impairment of the body as a whole of 20 percent. Dr. Gilmer attributed 5 percent of claimant’s impairment to the industrial accident, and 15 percent of his impairment to claimant’s preexisting degenerative arthritis. He recommended that claimant not engage in heavy labor and not return to his job as a truck driver.

In March 1982, the claimant came under the care of Dr. Zilioli, another orthopedic surgeon. Dr. Zilioli also recommended EMG and myelographic studies, but claimant continued to refuse such testing. Dr. Zilioli, like Dr. Gilmer, felt that unless claimant was willing to undergo testing and subsequent surgery should the tests indicate a need for surgery, claimant had reached MMI. In June 1982, he reported that claimant had reached MMI with an overall permanent impairment of 12 percent, 7 percent of which he attributed to the industrial accident. Dr. Zilioli felt that claimant could do “light work ... within the limits of his own tolerance,” but advised claimant not to attempt to lift objects weighing in excess of 50 pounds and not to attempt to return to work as a truck driver. He further advised that claimant should not seek employment requiring overhead work or the climbing of ladders or scaffolds.

In the meantime, in May 1982, claimant obtained work as a security guard at a citrus processing plant. The job required that claimant make a walking tour of the plant every other hour. The tour involved a walk of about one mile, and the climbing of two short flights of stairs. The alternate hours were to be spent in the guard’s booth at the plant entrance. Claimant quit this job after working only two days. After being apprised of the duties involved in the security guard position, both Dr. Gil-mer and Dr. Zilioli testified that these duties were well within claimant’s capacity to perform. In June 1982, the rehabilitation firm discontinued efforts to assist claimant in finding employment, and claimant made no further effort to seek work until October 1982. His work search after that time consisted only of two visits to the Florida State Employment Service.

In the order awarding PTD benefits, the deputy commissioner found that claimant was in severe pain, was not malingering, was justified in refusing myelogra-phy, and was justified in not attempting to seek work during the summer of 1982. These findings were based on claimant’s testimony as to his pain and limitations, and on the deputy’s personal observation of the claimant. However, claimant’s testimony was not corroborated by the medical evidence, all of which showed that claimant was physically capable of performing at least light work and could perform the security guard job he quit after only two days. Claimant’s accident occurred after August 1, 1979, and neither the claimant’s testimony concerning his pain and limitations, which was not supported by the medical evidence, nor the deputy’s observations, constituted competent substantial evidence to support the finding that claimant is PTD. Frank’s Fine Meats v. Sherman, 443 So.2d 1055 (Fla. 1st DCA 1984) [9 FLW 148].

As this court pointed out in Regency Inn v. Johnson, 422 So.2d 870, 873 (Fla. 1st DCA 1982), pet. for rev. den. 431 So.2d 989 (Fla.1983), in order to establish PTD as a result of injuries occurring August 1, 1979 or thereafter:

“the burden shall be upon the employee to establish that he is not able uninterruptedly to ... work due to physical limitations,” and no compensation of that character shall be payable “if the employee ... is physically capable of ... gainful employment.” (emphasis in original)

This reflects the very substantial changes in the criteria for a finding of-permanent total disability which were brought about by the 1979 amendments to § 440.15(1), Fla.Stat. The award of PTD benefits is reversed.

In view of the reversal of the award of PTD benefits, the award of attorney’s fees to claimant’s attorney for services rendered in prosecuting the PTD claim is also reversed.

SHIVERS and JOANOS, JJ., concur.


author: BASKIN, Judge.

text:
    HONEYWELL, INC., and Aetna Casualty & Surety Company, Appellants, v. TREND COIN COMPANY, d/b/a the Trendline and Precious Metal Brokers, Inc., Appellees.
    No. 83-1869.
    District Court of Appeal of Florida, Third District.
    April 3, 1984.
    Rehearing Denied May 30, 1984.

      Blackwell, Walker, Gray, Powers, Flick & Hoehi and James E. Tribble and James C. Blecke, Miami, for appellants.
    Floyd, Pearson, Stewart, Richman, Greer, Weil & Zack and James B. Tilgh-man, Jr., Miami, Fuller & Feingold, Miami Beach, for appellees.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

After a burglary on Trend’s premises resulted in a loss of part of Trend’s stock of jewelry, gold and silver, Trend Coin Company sued Honeywell for damages. Trend alleged intentional misrepresentation by Honeywell as to the capabilities of the alarm system, negligent design, negligent installation and service, and breach of contract. Honeywell disclaimed liability on the ground that it had not undertaken to insure Trend. The jury returned a verdict in favor of Trend, awarding compensatory damages of more than $8 million, punitive damages of $1 million and prejudgment interest exceeding. $3 million. The jury found that Honeywell had misrepresented the system and that the misrepresentation was a legal cause of damage to Trend. Honeywell appeals, seeking reversal and a new trial as to liability and damages and reversal of the award of prejudgment interest. We agree that the trial court erred in excluding expert testimony, and in awarding prejudgment interest. We therefore reverse for a new trial on the issues of compensatory and punitive damages. Du-Puis v. 79th Street Hotel, Inc., 231 So.2d 532 (Fla. 3d DCA), cert. denied, 238 So.2d 105 (Fla.1970).

Honeywell’s primary argument questions the trial court’s exclusion of expert testimony as to the value of the merchandise stolen from Trend. The trial court excluded Honeywell’s expert witnesses, apparently because their accounting methods did not include “constant dollar” calculations. Honeywell’s accountants claimed that Trend’s inadequate records forced them to base their estimates of value on dollar amounts of purchases and sales rather than upon the weight and quality of the precious metals bought and sold.

Although the admission of expert testimony lies within the trial court’s discretion, Buchman v. Seaboard Coast Line R. Co., 381 So.2d 229 (Fla.1980), that discretion is not without limits: Rochelle v. State Road Department, 196 So.2d 477, 479 (Fla. 2d DCA 1967). Taking into consideration the rapid turnover of Trend’s inventory, and the fluctuations of the precious metals market during the period in question, we cannot say that the method , used by Honeywell’s experts was totally inadequate or departed from all common sense and reason. Accordingly, we find that the trial court erred in excluding Honeywell’s expert witnesses. See Gifford v. Galaxie Homes of Tampa, Inc., 223 So.2d 108 (Fla. 2d DCA), cert. denied, 229 So.2d 869 (Fla.1969) (sole province of jury to accept or reject the testimony of expert witness); State Road Department v. Falcon, Inc., 157 So.2d 563 (Fla. 2d DCA 1963) (failure of expert witness to consider one factor in assessing compensation goes to the weight of expert’s testimony not his competency or the competency of his testimony); Worcester Mutual Fire Ins. Co. v. Eisenberg, 147 So.2d 575 (Fla. 3d DCA 1962) (any evidence logically tending to establish a correct estimate of the value of property may be considered). We therefore reverse and remand for a new trial on damages.

[t]he method of evaluation used by an appraiser-expert witness is not a matter relating to the competency of his testimony to be ruled upon by the trial Judge unless the method used by the witness is so totally inadequate or improper that adoption of the method would require departing from all common sense and reason or would require adoption of an entirely new and totally unauthenticated formula in the field of appraising.

Because our reversal will require a new trial, we address two other issues in order to offer guidance to the trial court. On retrial, excluded evidence that Trend valued its inventory at $1.6 million in an application for insurance is admissible to impeach subsequent statements pertaining to the value of the loss. Whether Trend’s president signed a blank contract which was completed by an insurance agent or whether he himself filled in the amounts presents a question of fact for jury determination.

We also find error in the trial court’s award of prejudgment interest on an unliquidated claim. Trend argues that interest is proper where the exact pecuniary loss can be ascertained by reference to market price or market value, citing Sullivan v. McMillan, 37 Fla. 134, 19 So. 340 (1896). Here, however, the exact loss cannot be ascertained because the quantity of precious metal lost is in dispute. See Alarm Systems of Florida, Inc. v. Singer, 380 So.2d 1162 (Fla. 3d DCA 1980). Honeywell’s other arguments are without merit. See Fitzgerald v. Young, 105 Idaho 539, 670 P.2d 1324 (Ct.App.1983) (comparative negligence not a defense to intentional tort); Melendres v. Soales, 105 Mich.App. 73, 306 N.W.2d 399 (1981) (same); cf. Deane v. Johnston, 104 So.2d 3 (Fla.1958) (contributory negligence not a bar to intentional tort). See also Mankap Enterprises v. Wells Fargo Alarm Services, 427 So.2d 332 (Fla. 3d DCA 1983) (exculpatory clause not a defense to intentional misrepresentation).

Affirmed in part; reversed and remanded for new trial on damages.


author: DOWNEY, Judge.

text:
    Judith Ann HAZELWOOD, Appellant, v. Maxwell G. HAZELWOOD, Appellee.
    No. 83-1711.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1984.
    Rehearing Denied May 25, 1984.
    Allen Bosworth of Tatum & Tatum, P.A., Fort Lauderdale, for appellant.
    H.H. Baskin, Jr., of Law Offices of Bas-kin & Bennison, Clearwater, and Quentin V. Long of Long, Finkel & Cave, Hallan-dale, for appellee.
   DOWNEY, Judge.

The parties to this appeal were divorced in 1976 by a final judgment that awarded the wife permanent periodic alimony in the amount of $1,000 per month. Following an appeal which resulted in a modification of that judgment, the parties entered into a stipulation further modifying the judgment, wherein they agreed the husband was to pay as permanent periodic alimony the lesser of $1,000 per month or fifty percent of the husband’s net income as defined therein. The husband paid thereunder approximately $3,300 in 1977, $2,200 in 1978, $800 in 1979, and virtually nothing since. In 1983 the wife filed a motion to hold the husband in contempt for failure to pay any significant sum of alimony and charged that he was over $52,000 in arrears.

The matter was referred to a Master who heard the testimony of the parties and found that the wife had failed to prove the husband had net income he had not shared with her. The court overruled the wife’s exceptions to the Master’s report and confirmed the report; this appeal ensued.

The evidence adduced before the Master shows that the appellee/husband has remarried and lives on the west coast of Florida. His lifelong work has been in the marine industry, specifically in the area of sales, construction, and outfitting of boats. Since 1979 the husband has ceased income-producing employment. Instead, he spends most of his time advising his current wife, who is the sole stockholder in D.C. Welborn & Associates, Inc., which is engaged in providing management and advertising services to the marine industry. One of Wel-born’s largest accounts is Ron-Stan Marine, Inc., a subsidiary of an Australian enterprise controlled by two of the husband’s childhood friends. Welborn receives a management fee of $4,000 per month for managing Ron-Stan.

The wife contends that the whole thing is a charade and a sham engaged in by the husband and his new wife to enable the husband to technically fulfill the terms of the amended judgment (since it provides for no minimum alimony payment) by simply receiving no net income. We are impressed with that contention. The problem is that the thrust of the wife’s motion below was to have the husband held in contempt and require payment of the alleged arrearages in order to purge himself. Thus, on this record, suspect as the husband’s income arrangement may be, we cannot say the trial court erred in not holding the husband in contempt. However, we feel compelled to remand the cause for further proceedings so that the court can consider the evidence to determine whether the husband should be allowed to become impecunious with impunity while his erstwhile wife remains in need. As the court stated in Smithwick v. Smithwick, 343 So.2d 945, 947 (Fla. 3d DCA 1977):

The right of a wife to payment of alimony and child support in arrears is vested and while it is within the discretion of the court to refrain from holding the husband in contempt for non-payment, the wife is entitled to enforcement of the payment by legal process and by such equitable remedies as the trial court may determine to be appropriate or necessary. Feder v. Feder, 291 So.2d 641 (Fla. 3d DCA 1974); Hynes v. Hynes, 277 So.2d 557 (Fla. 3d DCA 1973); Petrucci v. Petrucci, 252 So.2d 867 (Fla. 3d DCA 1971).

Furthermore, the stipulation in question agreed to the present manner of paying alimony “until further order of the court.” The court may find on further consideration that the time has come to reconsider the matter and enter a new order. We are committed to the proposition that an ex-spouse with an earning ability is not at liberty to elect to cease producing funds with which to meet his financial obligations. See e.g., Faircloth v. Faircloth, 339 So.2d 650 (Fla. 1976) (an affirmative finding that a husband “previously had the ability to comply, but divested himself of that ability through his fault or neglect designed to frustrate the intent or purpose of order” supports contempt sanction).

Accordingly, we affirm the order of the trial court refusing to adjudicate the husband in contempt, but remand the cause for further consideration by the court of any equitable remedies, including modification of the judgment to meet present conditions, which comport with the wife’s needs and the husband’s ability to pay. The court may allow the filing of additional pleadings and consider additional evidence to facilitate its determination.

AFFIRMED AND REMANDED FOR FURTHER CONSIDERATION consistent with the opinion herein.

ANSTEAD, C.J., and GLICKSTEIN, J., concur.


text:
    William WILSON and Barbara Wilson, husband and wife, Appellants, v. FLORIDA AIRLINES, INC., a corporation, Appellee.
    No. 83-1384.
    District Court of Appeal of Florida, Second District.
    April 4, 1984.
    Rehearing Denied April 26, 1984.
    John B. Cechman of Goldberg, Rubinstein & Buckley, P.A., Fort Myers, for appellants.
    Claire L. Hamner and Lewis F. Collins, Jr., of Dickinson, O’Riorden, Gibbons, Qua-le, Shields & Carlton, P.A., Sarasota, for appellee.
   SCHEB, Judge.

The Wilsons challenge a final judgment in favor of Florida Airlines, Inc., in their negligence action for injuries to Mr. Wilson.

The sole issue before us is whether the trial court erred in refusing to give a standard jury instruction charging that a violation of a county ordinance was negligence per se. We hold such refusal was error.

While working in the Gate 3 ramp area of the Fort Myers Airport on July 25, 1979, William Wilson, a National Airlines (National) employee, slipped and fell in what appeared to be a puddle of hydraulic fluid. Wilson was helping to unload a recently landed National flight when the accident occurred. National and Florida Airlines were the only airlines that used Gate 3 on the day of the accident. Wilson and his wife subsequently sued Florida Airlines, alleging that one of its flights had negligently left the fluid on the ramp. They claimed that Florida Airlines negligently failed to inspect and maintain the ramp before departing and failed to warn others of the hazardous condition it had created.

Prior to trial, the court took judicial notice of a county ordinance requiring that all persons using the airport “exercise the utmost care to guard against fire and injury to persons or property.” Lee County, Florida, Ordinance 76-4 (March 31, 1976). The ordinance further stated that “[a]ll persons occupying space at the airport shall keep the space allotted to them policed and free from rubbish and accumulation of any material ... and all floors shall be kept clean and free from fuel or oil.” Id. While the parties presented conflicting testimony concerning the origin of the puddle of fluid, the evidence at trial did show that Florida Airlines regularly used Gate 3 and had landed a flight there just before Mr. Wilson’s accident occurred.

During the jury instruction conference at trial, the Wilsons submitted a written instruction, pursuant to Florida Standard Jury Instruction (Civil) 4.9, charging that violation of the above ordinance was negligence per se. The trial court refused to give this instruction, and the Wilsons objected. As noted, the jury returned a verdict in favor of Florida Airlines.

The Wilsons correctly point out that they were entitled to a jury instruction on their theory of the case even though Florida Airlines offered evidence controverting that theory. Luster v. Moore, 78 So.2d 87, 88 (Fla.1955); White v. Burger King Corp., 433 So.2d 540, 541 (Fla. 4th DCA 1983); City of Tamarac v. Garchar, 398 So.2d 889, 895 (Fla. 3d DCA 1981). A crucial element of their theory was that a violation of a county fire and safety ordinance, which protects a particular class of persons, is negligence per se. Concord Florida, Inc. v. Lewin, 341 So.2d 242, 246 (Fla. 3d DCA 1976), cert. denied, 348 So.2d 946 (Fla.1977). See also de Jesus v. Seaboard Coastline Railroad, 281 So.2d 198 (Fla.1973).

We hold that Wilson is a member of the class of persons which this ordinance is designed to protect, and his injury is of the type the ordinance is designed to prevent. Thus, we reject Florida Airlines’ argument that the court was precluded from instructing on a negligence per se theory, because the ordinance was designed to protect the general public. Concord Florida, Inc., 341 So.2d at 246. Therefore, the trial court should have instructed the jury that a violation of this county fire and safety ordinance was negligence per se. Id.

Finally, we note that such a violation itself does not mean that actionable negligence exists. Mr. Wilson must also establish that the violation of the ordinance was the proximate cause of his injury. See de Jesus, 281 So.2d at 201.

Accordingly, we reverse and remand for a new trial consistent with this opinion.

HOBSON, A.C.J., and CAMPBELL, J., concur.