Opinion
No. 73-279.
February 13, 1974.
Appeal from the Circuit Court for Hillsborough County, James S. Moody, J.
Dennis J. Hightower, of Whitaker Koepke Assocs., Orlando, for appellants.
Douglas J. Loeffler, of Fox, Burton, George Loeffler, Clearwater, for appellee.
On the now dim and dark and distant day of April 8, 1968, a University of South Florida student named Jeanne K. Sachse was playing an electric piano sold to her school by the Tampa Music Co. Miss Sachse contends that her ear drums were injured on that day when a shrill and cacophonous sound was transmitted from the piano through the earphones she was wearing; that the sound was caused by a defect or defects in the piano; and that the defect was negligently caused to exist or was negligently not discovered by the Tampa Music Co.
In Sachse v. Tampa Music Co., Fla.App. 1972, 262 So.2d 17, we reversed a final judgment which dismissed the Sixth (!) Amended Complaint in its entirety as against Tampa Music Co., holding that Count VI of that Complaint properly stated a cause of action on the stated theory that Tampa Music had, subsequent to the sale of the instrument, and pursuant to an agreement to do so, undertaken to inspect, maintain, and service the piano and had negligently failed properly to perform those duties. Eight months after remand — a period in which no one did much of anything in the lower court — Tampa Music finally filed an answer denying the existence of any such "service contract" as alleged. It then successfully moved for summary judgment in its favor, supported solely by an affidavit which demonstrated only that there had been no written service contract between Tampa Music and the University.
Since the defendant-movant did not affirmatively demonstrate at all — much less "conclusively," as the law of Florida requires — the non-existence of any genuine issue as to the facts, found to be material in our prior opinion, of (a) an oral agreement between the defendant and the school and (b) the asserted negligence of Tampa Music in the repair and inspection of the piano, we reverse the summary judgment for Tampa Music upon the familiar authority of Holl v. Talcott, Fla. 1966, 191 So.2d 40. Despite the overlong, even tortuous history of this case, were are compelled to say, as Count Basie was importuned so often, "One More Time." May we express the hope, however, that this next time will be the last.
The writer confesses to a momentary but suppressed urge to employ another musically-related cliche in the preparation of this opinion. The trouble is that, Woody Allen and the belief of countless thousands to the contrary notwithstanding, nobody in "Casablanca" ever actually said "Play it again, Sam."
Reversed and remanded.
MANN, C.J., concurs with SCHWARTZ, ALAN R., Associate Judge, and files opinion.
BOARDMAN, J., dissents with opinion.
This case has been very desultorily pleaded, and we must admit that it has been difficult to ferret out the true ground of the plaintiff's claim. It is nevertheless apparent to me that it is not in fact founded upon a written contract, although there is some implication of that possibility in Count 6. That implication, however, is refuted by Paragraph 27 which states:
"That during the year of 1967, the Defendant serviced said piano on January 19, April 25, July 26, and November 6; and during 1968, the Defendant serviced said piano on January 25, 1968, as per the above alleged service contract and thereby had a duty to the Plaintiff to reasonably inspect and test said piano. That the defect above-mentioned existed on the date of service and had the Defendant properly inspected and tested said piano, the defect would have been discovered; that the Defendant had a duty to warn the minor Plaintiff and other potential users of the said electric piano that a defective condition existed."
In addition, an affidavit filed by the plaintiff, Paragraph 4, states:
"That I was advised by the University of South Florida that pursuant to an agreement or understanding, TAMPA MUSIC COMPANY was responsible for repairing and servicing the Wurlitzer Electric Pianos at the University of South Florida; and, in particular, made repairs and service on January 19, April 25, July 26, and November 6, 1967, and on January 25, and October 2, 1968."
Thus it is obvious to me that the affidavit filed by the defendant does not do anything more than deny the existence of a written contract. If the defendant intended to deny any contractual obligation whatsoever it is a simple matter to prepare an affidavit which would do so. The finding that a written agreement did not exist simply does not refute the plaintiff's claim.
SCHWARTZ, ALAN R., Associate Judge, concurs.
I respectfully dissent.
The plaintiffs' complaint states that the piano was "under a service contract which made the Plaintiff a Third-Party beneficiary, a copy of which is not attached hereto. . . ." Implicit in this statement is the fact that a written contract was being referred to. The trial judge found that a written contract did not exist and, therefore, I find the granting of summary judgment on this surviving issue was proper.