
    TALLAHASSEE TITLE COMPANY, Appellant, v. Helen P. DEAN, Appellee.
    No. AC-223.
    District Court of Appeal of Florida, First District.
    Feb. 2, 1982.
    
      Joseph R. Boyd, W. Crit Smith, and Susan Smith of Boyd & Smith, P.A., Tallahassee, for appellant.
    Elwin R. Thrasher, Jr., Tallahassee, for appellee.
   DOWNEY, JAMES C., Associate Judge.

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

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

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

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

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

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

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

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

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

ROBERT P. SMITH, Jr., Chief Judge,

specially concurring.

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

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

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

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

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

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

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

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

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

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

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

LARRY G. SMITH, Judge,

concurring and dissenting, with opinion.

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

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

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

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

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

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

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

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

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

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

In my opinion the conduct complained of was sufficiently “gross and outrageous,” Steiner and Munach v. Williams, 334 So.2d 39, 42 (Fla. 3rd DCA 1976), to leave the matter of punitive damages to the sound discretion of the trial judge sitting as the trier of fact. The majority does not explicate sufficient reasons for overturning the punitive damage award, and the reversal violates the rule that if there is “any evidence tending to show that punitive damages could be properly inflicted,” the question should be left to the trier of fact. Jonat Properties, Inc. v. Gateman, 226 So.2d 703, 705 (Fla. 3rd DCA 1969). 
      
      . The testimony by the branch manager, on this point, is as follows:
      Q. Are you aware in your capacity as a closing agent of any statute or law that gives an insurance company or an insurance agent a lien on property for insurance premiums? A. I am not an attorney.
      Q. Did you attempt to ask anybody if that was, in fact, a law?
      A. I asked my supervisor whether we were to pay it or not to pay it. Our understanding was since it was homeowner’s insurance that it could become a lien on the property.
      Q. What was your understanding or your supervisor’s understanding?
      A. My supervisor’s directive was: “Pay it. It can become a lien on the property.”
     
      
      . The trial judge expressed his views on this point in summing up the evidence at the conclusion of the testimony:
      “I think that the corporation defendant had as much knowledge about a possible or probable setoff involving the bill as she had knowledge that the bill was legitimate. All she had was word of mouth on both sides. One man says he owes the money, one man says he owes me more. It’s the subject of a setoff.
      “I think that was harassment and bad then. And to compound it, I believe they acted in bad faith when they in 30 days summarily canceled the original check and reissued a draft directly to the creditor.”
     