Lemen v. Thunderbay Management, Inc.

761 So. 2d 1220, 2000 Fla. App. LEXIS 8138, 2000 WL 868273

Opinion

SALCINES, Judge.

Jeffrey N. Lemen appeals a partial final summary judgment which entirely disposed of his claim against one party, Thomas E. Skornschek. Because' there were disputed issues of material facts precluding summary judgment, we reverse.

Mr. Lemen sued Mr. Skornschek, the owner of certain real property, to recover for injuries Lemen sustained when he was attacked by third parties while on Skorn-schek’s property. Mr. Skornschek filed a motion for summary judgment asserting, in part, that the attack occurred on a leased portion of his property over which he had no control. The trial court granted the summary judgment finding that there was no record evidence that anyone other than the tenants had exclusive possession, custody and control of the area where the. alleged attack occurred. This finding was incorrect as applied to the facts of this case and was a misstatement of the law. In order to grant a summary judgment, the trial court was required to determine that the owner had conclusively proven that the tenants had exclusive possession, custody and control of the area. See Valk v. J.E.M. Distribs. of Tampa Bay, Inc., 700 So.2d 416, 419 (Fla. 2d DCA 1997); Wal-Mart Stores, Inc. v. McDonald, 676 So.2d 12, 15 (Fla. 1st DCA 1996).

Reversed and remanded for further proceedings.

FULMER, A.C.J., and NORTHCUTT, J., Concur.