COME NOW Will B. Pigfarmer and Love A. Pigfarmer, by and through their undersigned attorney, and move this Honorable Court to enter an Order of Summary Judgment in their favor with regard to each count of plaintiff’s complaint and state:

GENERAL SUMMARY JUDGMENT ARGUMENT

1. There are no material issues of fact that need to be decided by the court in this cause.
2. The controlling case law and statutory authority cited herein is such that no fact issues remain that can affect the outcome as a matter of law.
3. Though there remain disputed issues of fact, none is a “genuine issue of material fact”, i.e., none of the remaining disputed issues of fact can affect the outcome of this cause.
4. Where there are no “genuine issues of material fact” for the court to decide, summary judgment is proper to conserve valuable judicial energies and spare litigants unnecessary costs and further delays.
5. Defendants have met their burden of demonstrating the nonexistence of any genuine issue of material fact by tendering competent evidence and providing controlling case law and statutory authority to demonstrate that no facts remaining in dispute are material. Landers v. Milton, 370 So.2d 368 (Fla. 1979).
6. Arguments over non-material facts or facts outside the four corners of the complaint cannot alter an outcome regulated by controlling law.
7. Courts ruling on summary judgment motions are not to weigh evidence but rather to conclude only if there remain genuine issues of material fact. State of Florida Department of Highway Safety and Motor Vehicles v. Fraser, 673 So.2d 570 (Fla. 4th DCA, 1996).
8. Where the law of a case, as here, is so compellingly controlling that the material facts already established dictate a result that cannot be altered by the jury’s making any finding of immaterial fact (however fascinating for the media the interesting process of trying this controversial case might become) the trial court should grant summary judgment as a just and economical use of its limited judicial resources.
9. Neither politics nor popular opinion should be permitted to influence the outcome of a case dictated by statutory authority and controlling case law.
10. The material facts in this case have been sufficiently developed to enable the court to determine as a matter of law that based on statutory authority and controlling case law no genuine issue of material fact remains to preclude entry of summary judgment. Epstein v. Guidance Corporation, Inc., 736 So.2d 137 (Fla. 4th DCA 1999) citing Singer v. Star, 510 So.2d 637,639 (Fla. 4th DCA 1987).
11. There are no justiciable issues of material fact or law to preclude entry of summary judgment on any of the plaintiff’s multiple counts.

GENERAL FACTUAL ALLEGATIONS

1. For more than 15 years prior to plaintiff’s election to build a golf course community on adjacent property, Pigfarmer continuously resided on his 2½ acre farm raising pigs, geese, an occasional goat, and chickens.
2. As early as 1993 he began playing radio music to his pigs at substantially the same times of day and same sound level as at all times material to this action. There is no competent evidence on the record to controvert this fact.
3. Pigfarmer has kept pigs on the premises since 1979, when he started the farm with three pigs and now has approximately 15 pigs on the premises.
4. There is no competent evidence on the record to controvert this fact..

ARGUMENT COMMON TO “NUISANCE” COUNTS
STATUTORY AUTHORITY

1. It cannot be reasonably argued (nor could a reasonable jury otherwise conclude) that the Pigfarmer’s 2½ acre homestead property is anything but pig farm..
2. One of the rights Florida farm owners enjoy is the right to construct nonresidential farm buildings on their property without regard to Florida Building Code or any county or municipal building code. §604.50 Florida Statutes.
3. Moreover, Florida recognizes that agricultural activities such as the Pigfarmers’ raising of pigs, geese, and chickens on their property, are threatened by urbanization and its foreseeable nuisance litigation that encourages premature removal of farm land from agricultural use. §823.14(2).
4. The Legislature enacted the Florida Right to Farm Act specifically for the purpose of protecting agricultural activities conducted on farm land from just such nuisance suits as this frivolous action brought by plaintiff golf course development company.
5. The Act is a specific exception to Florida’s nuisance law contained in Chapter 823.
6. The Act specifically exempts from nuisance suits the generation of “noise and odors”, among other things predictably objectionable to urban-dwelling golfers unacquainted with the vicissitudes of raising livestock.
7. The gist of the Act is found in §823.14(4) providing that no farm operation in Florida, such as that of the Pigfarmers, shall be deemed either a public or private nuisance (i.e., no action for private nuisance such as that brought by the golf course development in this lawsuit shall be justiciable in the courts of this State) if the operation has been conducted for one (1) year or more since it was established and was not a nuisance at the time it was established.
8. Plaintiff golf course development company brought this action specifically because the character of the farm does not comply in the aesthetic sensibilities of some golfers with the “change of conditions in or around the locality of the farm”, i.e., this case is precisely the kind of case the Act was created to defuse.
9. The “change of conditions in or around the locality of the farm” resulted solely from the golf course development company’s election to build its course and suburban community across the road from two pig farms that had been in continuous operation for considerably longer than the one (1) year that triggers the statute’s protections.
10. The two counts sounding in nuisance must fail, therefore.
11. Defendants have already proffered evidence that the value of playing radio music for livestock, including pigs, is recognized by such esteemed agricultural authorities as the Livestock Conservation Institute and Colorado State University (among other authorities defendants proffered), resulting in better meat quality.
12. The Court may take judicial notice pursuant to Rule 90.202(11&12) Florida Evidence Code that pig manure stinks and that generally accepted agricultural practices at this time do not provide any reasonable means to attenuate the characteristic odor of pig manure nor prevent its ubiquitous production by healthy feeding pigs.
13. Both counts one and two must fail by operation of the Florida Right to Farm Act.
14. Additional legal arguments further support summary judgment for the defendants on these first two counts as well.
15. The odor of pig manure and sound of music its owner plays for the pigs are the only aspects of the farm plaintiffs complain about, and neither is a nuisance per se.
16. The Florida Supreme Court said, “One who uses his property in a lawful manner is not guilty of a nuisance, merely because the particular use which he chooses to make of it may cause inconvenience or annoyance to a neighbor, and nothing which is legal in its erection can be a nuisance per se.” City of Lakeland v. State, 143 Fla. 761, 764 (Fla. 1940), adding, “In order to obtain an injunction against or the abatement of an alleged nuisance, the complaining party must show a clear and strong case supporting his right to relief.” City of Lakeland at 765. [emphasis added]
17. Coupled with the issue of whether a defendant’s use of his property is reasonable lies the equally important issue of whether the plaintiff has a legal right to be free from the alleged injury. A&P Food Stores v. Kornstein, 121 So.2d 701 (Fla. 3rd DCA 1960)
18. Where the music is not sufficiently loud enough to violate Happiness County’s newly enacted sound ordinance, plaintiff golf course has no “legal right” to be protected by this Court as a matter of law.
19. The A&P court ruled, “Mere disturbance and annoyance as such do not in themselves give rise to an invasion of a legal right.” A&P at 703.
20. In Davis v. Levin, 138 So.2d 351 (Fla. 3rd DCA 1962), the court restated the A&P doctrine, saying, “Mere disturbance and annoyance as such do not in themselves necessarily give rise to an invasion of a legal right.” [emphasis added]
21. Plaintiff golf course does not have a “legal right” to be free from the nuisance of pig odor or music that falls within the range that is per se acceptable pursuant to county ordinance, and without invasion of a legal right its counts for nuisance must fail, no matter how much the golfers’ aesthetic sensibilities may be offended by pig farming.
22. The pig odors and music (both lawful per se) are noxious to plaintiff merely because they tend to disturb the “personal satisfaction or aesthetic enjoyment” of persons who voluntarily elected to locate their golf community in a rural farming district and now demand to be granted a benefit from this Court denied to other residents of Happiness County: the special privilege of being permitted to “use their land for purposes which require exceptional freedom from deleterious influences” so golfers can concentrate on their swing.
23. No part of plaintiff’s complaint alleges a “clear and strong case” of  “actual, material, and physical” invasion of any of plaintiff’s “legal rights”.
24. The Court should enter summary judgment for defendants on both nuisance counts.
25. Surely “rules of the game” do not require our courts to favor the private interests of persons of “delicate or dainty habits of living” or those “peculiarly sensitive to annoyance or disturbance” or those whose land use requires “exceptional freedom from deleterious influences” over the needs of hard-working parents who struggle with full-time jobs to feed large families and have insufficient financial resources to effectively fight for their common law, Constitutional, and statutory rights in court.
26. There are no genuine issues of material fact with regard to whether the pig smell or playing of music are justified, since controlling case law and statutory authority (together with incontrovertible evidence that playing music to livestock is a generally accepted farming practice) compel a decision as a matter of law that they are justified.
27. Plaintiff cannot prevail without being able to establish as an essential element of the cause of action that the smell and music were “unjustified”.
28. There being no genuine issue of any material fact (i.e., a fact that could overcome the controlling case law and statutory authority that dictates an outcome favorable to defendants based on uncontroverted facts already before the Court) to be presented to the jury, entry of summary judgment is proper on all counts.
29. Because each count complains of an intentional tort (does not allege negligence) plaintiff bears the impossible burden of proving by a preponderance of admissible evidence that defendants’ raising pigs and playing music is without any lawful justification but was intended to cause plaintiff the alleged harm complained of.
30. Since the record reflects no evidence whatever that any of the alleged intentional torts was initiated after the arrival of plaintiff on the scene, there are no justiciable issues of material fact as to intent for a jury to decide.
31. Proof of intent to bring about a result which would invade interests of another in a way the law forbids is not only required by the Florida Supreme Court’s ruling in Otis and other controlling cases but requisite proof of intent is altogether impossible in this case where the activity complained of preexisted plaintiff’s arrival on the scene.
32. Since proof of intentional tort requires establishing motive and state of mind of defendants (i.e., that the activity complained of was either initiated to injure plaintiff or purposely continued by defendants after it would otherwise have been curtailed but for defendants’ intent to injure plaintiff and that such initiation by defendants or their purposeful continuation of the alleged intentionally tortious activity had no other legitimate purpose) it is not possible to find for plaintiff where it cannot be reasonably disputed that defendants continuously engaged in raising pigs and playing music to their pigs for many years prior to plaintiff’s arriving on the scene.
33. Since the defendants engaged in all the activities complained of prior to plaintiff’s arriving on the scene, there are no genuine issues of material fact to present to the jury on intent, no reasonable probability of plaintiff’s success on the merits, and summary judgment should be granted forthwith.

WHEREFORE the defendants move this Honorable Court to enter an Order granting Final Summary Judgment in their favor and granting such other and further relief as this Honorable Court may deem reasonable and just under the circumstances.

I CERTIFY that a copy of the foregoing and the attached affidavits were provided by regular U.S. Mail to Gourmet Golf Club’s lawyers Dick and Bob, addressed to them at Dewey, Fleesum, & Howe; 123 Bigshot Avenue; Smalltown; Florida this 31st day of February 2002.