Obtaining a replevin writ prior to final judgment: with or without notice.

AuthorBarthet, Patrick C.

Nothing is more frustrating to a creditor than being told that despite holding all the right documents on a defaulted obligation, it can't immediately take back the personal property which collateralizes or otherwise forms the basis of a prior transaction. (1) While more often than not a remedy cannot be effected until there has been a final adjudication of the parties' dispute, there are exceptions. A writ of replevin is one such vehicle to obtain possession on an expedited basis. (2) This article will examine the nuances of obtaining a writ of replevin prior to entry of a final judgment, (3) as well as an overview of relevant provisions of F.S. Ch. 78 and applicable case law. Particular emphasis will be placed upon [section] 78.055 regarding the complaint, [section] 78.068 regarding prejudgment writ of replevin, and [subsection] 78.065, 78.067, and 78.075 regarding orders to show cause.

F.S. Ch. 78--Preliminary Considerations

Under the provisions of F.S. [section] 78.01: "Any person whose personal property is wrongfully detained by any other person or officer may have a writ of replevin to recover said personal property ..." (4) As to who is entitled to possession of property, and thus entitled to obtain a writ of replevin, the cases address diverse situations. The court in Keefe v. City of Hollywood, 487 So. 2d 311 (Fla. 4th DCA 1986), held that a party holding a power of attorney for a principal is entitled to possession and thus qualified to bring a replevin action. However, in Ethiopian Zion Coptic Church v. City of Miami Beach, 376 So. 2d 925 (Fla. 3d DCA 1979), the court dismissed a replevin action which sought return of marijuana plants that were legally seized from the church's premises. The dismissal was premised upon the fact that the party seeking replevin failed to demonstrate a possessory right or wrongful detention. In Kalman v. World Omni Financial Corporation, 651 So. 2d 1249, 1251 (Fla. 2d DCA 1995), the assignee of an automobile dealer who leased a vehicle was not the party whose name appeared on the title and was thus held not to be the real party in interest in the action.

Under [section] 78.02, no replevin shall lie: 1) for any property taken by virtue of any warrant for the collection of any tax, assessment, or fine pursuant to any statute; 2) for a defendant in any execution or attachment to recover goods and chattels seized by virtue thereof unless such goods and chattels are exempt from the execution or attachment; 3) by the original defendant in replevin for property taken in replevin and delivered to plaintiff while it remains in the possession of the original plaintiff or his or her agents; and 4) for any person unless that person has a right to reduce the goods taken into his or her possession. Another requirement which is absent from the statute, but set forth in case law is that of demand. Indeed, it has been held that a plaintiff must make proper demand upon a defendant before bringing a replevin suit. See Security Underwriting Consultants, Inc. v. Collins, Tuttle Investment Corp., 173 So. 2d 752 (Fla. 3d DCA 1965). Subsection (3) has been interpreted to mean that a defendant is forbidden from re-replevin of property which has already been replevined in the same cause by an opposing party. Robinson v. Cinema International, Ltd., 356 So. 2d 843 (Fla. 4th DCA 1978). As to the right of possession under subsection (4) of the statute, the court in Wisniewski v. Historical Association of Southern Florida, Inc., 408 So. 2d 746 (Fla. 3d DCA 1982), held that the proper inquiry before the court is whether the party instituting a replevin action has a right to immediate possession. Under certain circumstances, the right to immediate possession will trump a holder of absolute legal title. Id.

Section 78.03 addresses jurisdiction and provides that a replevin action must be brought in a court of competent jurisdiction based upon the value of the property sought to be replevined. Section 78.032 addresses venue and provides that venue for a replevin action properly lies in the county where the property is located, where the contract was signed, where the defendant resides, or where the cause of action accrued, or, if joined with other causes of action, in any county where venue is proper under Ch. 47.

If a creditor meets the proper qualifications for initiating a replevin action, and brings the action in a court of competent jurisdiction and in the correct location, he initiates his replevin action by filing a complaint. (5) F.S. [section] 78.055 sets forth the allegations which must be contained in a complaint if a party seeks a writ of replevin prior to a final judgment. (6) To obtain an order authorizing the issuance of a writ of replevin prior to final judgment, the plaintiff shall first file with the clerk of the court a complaint reciting and showing the following information: 1) a description of the claimed property; 2) a statement that the plaintiff is the owner of the claimed property or is entitled to possession of it; 3) a statement that the property is wrongfully detained by the defendant; 4) a statement that the claimed property has not been taken for a tax, assessment, or fine pursuant to law; and 5) a statement that the property has not been taken under an execution or attachment against the property of the plaintiff or, if taken, that it is exempt. (7) Noteworthy is the language contained in the preamble to the cited statute which sets forth the information required to be shown by a party seeking replevin "prior to final judgment."

The wording of the replevin statutes can be confusing in at least two respects. First, they are somewhat inconsistent in their terminology. Section 78.055 clearly sets forth the requirement that a replevin action is, in the first instance, initiated by the filing of a complaint. However, [section] 78.068, relating to pre-judgment writs of replevin, makes reference to a verified "petition" and a "petitioner." Nowhere in Ch. 78, however, do the statutes set forth the requirements of a petition. (8) Most likely, the legislature intended to refer to a complaint or motion when [section] 78.068 was drafted. However, this is not entirely clear from a plain reading of the statute.

Second, [section] 78.068 is entitled "Prejudgment Writ of Replevin." This can leave the impression that the sole procedure for obtaining a writ of replevin prior to entry of a final judgment is set forth in [section] 78.068. This is not the case, however. As discussed at some length by the court in Prestige Rent-A-Car, Inc. v. Advantage Car Rental and Sales, Inc., 656 So. 2d 541 (Fla. 5th DCA 1995), there are two separate and distinct procedures for obtaining a replevy writ in Florida prior to entry of a final judgment. (9) There is the procedure set forth in [section] 78.068 where the replevin writ is issued without notice, and there is the procedure of obtaining a replevin writ through a show cause hearing. The tradeoff for obtaining the writ on an ex parte basis is that the applicant must post a bond. See Comcoa, Inc. v. Coe, 587 So. 2d 474 (Fla. 3d DCA 1991). However, a party seeking a writ of replevin can forego posting a bond by utilizing the notice procedures under [section]78.065 which allow for an order to show cause, and a hearing in accordance with the provisions of [section] 78.067.

Clearly the procedures set forth in [subsection] 78.065 and 78.067 address prejudgment writs of replevin as well. Perhaps [section] 78.068 should more properly have been given a title reflecting that it sets forth a procedure to obtain a writ of replevin before entry of a final judgment by utilizing an ex parte procedure.

Due Process Considerations

The U.S. Supreme Court, in Fuentes v. Shevin, 407 U.S. 67 (1972), considered, inter alia, F.S. [subsection] 78.01 and 78.07, predecessors to Florida's current statutes governing prejudgment writs of replevin. Under the old law, a party seeking to replevy personal property was not required to show prior to seizure that goods were being wrongfully detained. Rather, all that was needed was a bare, unverified assertion by the applicant that he was entitled to a writ of replevin. This statement alone authorized the clerk to issue a writ of replevin summarily as long as the applicant filed a bond. (10) There was no provision for the matter to be heard by a judge prior to the seizure. The Supreme Court struck down the statutes because they violated the due...

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