Florida/Georgia Personal Injury & Workers Compensation

...action should not be taken from the possession of defendant and delivered to plaintiff. Defendant may file affidavits, appear personally or with an attorney and present testimony at the time of the hearing, or, on a finding by the court pursuant to section 78.067(2), Florida Statutes (1979), that plaintiff is entitled to possession of the property described in the complaint pending final adjudication of the claims of the parties, file with the court a written undertaking executed by a surety ap...

...r marriage. In addition appellee without appellant's consent, removed from appellant's home a painting and a man's three-speed bicycle with a carry rack. After an order to show cause was issued and served upon appellee a hearing was held pursuant to § 78.067, F.S. 1973, which resulted in the judgment appealed from. If the complaint stated a good cause of action it would appear that dismissal of the complaint after the hearing held pursuant to § 78.067, F.S....

...The statute provides that at such hearing (if the defendant has not waived his right to be heard on the order to show cause in accordance with § 78.075) the court shall determine which of the parties "is entitled to the possession of the claimed property pending final adjudication of the claims of the parties." § 78.067(2), F.S....

...n should not be taken from the possession of defendant and delivered to plaintiff. *1190 Defendant may file affidavits, appear personally or with an attorney and present testimony at the time of the hearing, or, on a finding by the court pursuant to section 78.067(2), Florida Statutes (1979), that plaintiff is entitled to possession of the property described in the complaint pending final adjudication of the claims of the parties, may file with the court a written undertaking executed by a suret...

...orney for the benefit of the state. § 932.704(1), Fla. Stat. (1983). On appeal, the sheriff contended that (1) an action in replevin is prohibited by section 932.703(1) and (2) the trial court's failure to comply with the procedural requirements of section 78.067, Florida Statutes (1983), which directs issuance of a writ of replevin by the clerk of the court to the sheriff, rendered the writ void....

...courts provision, article I, section 21, Florida Constitution, is without merit. Having found that Universal was improvidently granted a writ of replevin, we are not required to address the procedural validity of that writ. We do note, however, that section 78.067 prescribes a mandatory procedure for issuance of a writ of replevin, regardless of whether the sheriff is a party defendant....

...eynolds (Frank) seeking to recover the possession of personal property located in Pinellas County, Florida. After a hearing on Brown's motion for the issuance of a writ of replevin prior to the entry of final judgment pursuant to sections 78.065 and 78.067, Florida Statutes (1997), the circuit court found that Brown had abandoned the property that was the subject of the replevin action and dismissed the case....

...otherwise plaintiff's property as listed in the motion for writ of replevin [sic]." In his proposed amended complaint, Brown sought damages of $60,000 against Raymond and Frank. On March 11, 2002, Brown filed a motion pursuant to sections 78.065 and 78.067 requesting the entry of a writ of replevin prior to the entry of final judgment....

...On July 11, 2002, the circuit court sent Brown, Raymond, and Frank a notice of hearing scheduling a thirty-minute hearing for August 21, 2002, on "Plaintiff's Motion for Hearing and/or Show Cause Order." By a separate order, the circuit court made arrangements for Brown to appear at the hearing by telephone. As authorized by section 78.067(2), both Brown and Frank filed affidavits and "other showings" for the consideration of the court at the hearing....

...l the parties' claims are finally adjudicated. Chapter 78 of the Florida Statutes provides two separate and distinct methods of obtaining a writ of replevin prior to the entry of final judgment in the replevin action. Pursuant to sections 78.065 and 78.067, and in the absence of an effective waiver, the defendant must be given notice and a show cause hearing held before the writ of replevin may issue prior to the entry of final judgment....

...§ 78.18; see Fla. R. Civ. P. Form 1.995(a); HEG, Inc. v. Bay Bank & Trust Co., 591 So.2d 1011 (Fla. 1st DCA 1991). [2] *295 The Hearing in this Case In this case, Brown filed a "Motion for Hearing and/or Show Cause Order" and invoked sections 78.065 and 78.067, which provided for issuance of a writ of replevin prior to the entry of final judgment but after notice and a hearing. Brown asserted in his motion that Frank had procedurally defaulted and that an order to show cause should issue. Brown's motion reflects confusion about the operation of sections 78.065 and 78.067....

...o show cause. On the other hand, Brown requested "a hearing on the order to show cause" as if such an order had already been entered. Nevertheless, because Brown specifically referenced an "order to show cause" as provided for in sections 78.065 and 78.067, Brown's motion cannot be construed as a request by him for a final adjudication on the merits of his claim....

...It simply said that the court "will call up for hearing the Plaintiff's Motion for Hearing and/or Show Cause Order." That both parties understood the limited purpose of the hearing is suggested by their filing of affidavits and "other showings" for the consideration of the court as specifically authorized by section 78.067(2)....

...However, the circuit court's dismissal of the action on the merits stands on a different footing. We now turn our attention to this aspect of the case. The Prematurity of Dismissal on the Merits At a hearing on an order to show cause, the court is directed by section 78.067(2) to "make a determination of which party, with reasonable probability, is entitled to the possession of the claimed property pending final adjudication of the claims of the parties." This determination is to be based on the "probable...

...n of the claims of the parties. JB Int'l, Inc. v. Mega Flight, Inc., 840 So.2d 1147, 1149 (Fla. 5th DCA 2003). If the plaintiff fails to establish the probable validity of the replevin claim at the hearing on the order to show cause held pursuant to section 78.067, dismissal of the complaint after the hearing is premature because the purpose of the hearing is only to determine who should have possession of the claimed property pending the final hearing....

...When the buyers refused to return the vehicle, Dodge City repossessed it. Byrne and Doyle then instituted this replevin action. At the hearing, the trial court allowed the buyers to testify but would not allow Dodge City to present affidavits and witnesses concerning the transaction. Section 78.067(2), Florida Statutes (1995), requires the trial court to consider "the affidavits and other showings made by the parties appearing" in a replevin action....

...the appeal of non-final orders which determine the right to immediate possession of property. As one point on appeal, the sheriff argues that the August 29 order is a nullity because the trial court did not comply with the procedural requirement of section 78.067, Florida Statutes (1983), [1] in regard to issuing an order directing the clerk of the court to issue a writ of replevin....

...smiss. Under these factual circumstances, we find that the trial judge was correct in denying the motion to dismiss. As we interpret this record, the show cause hearing of August 26 resulted in a factual determination by the trial judge, pursuant to section 78.067, Florida Statutes (1983), that the plaintiff, with reasonable probability, was entitled to the possession of the vehicle pending final adjudication — but, in effect, was willing to reconsider his denial of the motion to dismiss if the state filed its forfeiture action within a week....

...The issue at trial of the replevin action will be whether or not the sheriff is entitled to forfeiture pursuant to Chapter 932, provided that issue is raised as an affirmative defense and counterclaim [4] by the sheriff. AFFIRMED. DAUKSCH and SHARP, JJ., concur. NOTES [1] Section 78.067(2) states in part: If the court determines that the plaintiff is entitled to take possession of the claimed property, it shall issue an order directing the clerk of the court to issue a writ of replevin....

...This is made abundantly clear by a quick review of the United States Supreme Court's decisions in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), and Mitchell v. W.T. Grant, 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974). Here, JBI sought an ordinary writ of replevin pursuant to section 78.067(2), Florida Statutes (1998), which provides: If the court finds that the defendant has not waived the right to be heard on the order to show cause in accordance with s....

...be greater than that suffered by Plaintiff's, and that the relief sought would serve the public interest. ( Id. at 5-6.) On Defendant's alternative Motion for Writ of Replevin, the Magistrate Judge analyzed Defendant's request pursuant to Fla. Stat. § 78.067(2), which allows a petitioner to obtain possession of property during the pendency of litigation upon a showing that petitioner's claim is likely to succeed on the merits....

...He has not attempted to show that the property is in immediate danger of destruction or waste, nor did he ever file the ex parte application the statute contemplates. Zokaites rather pursues replevin under the second procedure provided in the statute, via section 78.067(2), which allows a petitioner to obtain possession of property during the pendency of litigation upon a showing that petitioner's underlying claim is likely to succeed. Under this provision, the respondent is entitled to a hearing during which the court must consider the affidavits and other showings made by the parties. Fla. Stat. § 78.067(2)....

...nd-Cellular and Zokaites. As stated earlier, the Court must "make a determination of which party, with reasonable probability, is entitled to the possession of the claimed property pending final adjudication of the claims of the parties." Fla. Stat. § 78.067(2)....

...physically repossessed by the Marshal). Alternatively, *1363 pursuant to the replevin statute, Land-Cellular may post a bond equaling the total value of the property that may be seized under the writ for a minimum amount of $250,000. [2] Fla. Stat. § 78.067(2) ("the order shall be stayed pending final adjudication of the claims of the parties E the defendant files with the court a written undertaking executed by a surety approved by the court in an amount equal to the value of the property")....

...e case. IV. CONCLUSION For the foregoing reasons, it is hereby RECOMMENDED that Defendant's Motion [D.E.26] be denied in part and granted in part as stated above. [3] The Court further recommends that the Court enter an Order, pursuant to Fla. Stat. § 78.067(2), finding that: 1....

...Section 78.065, Florida Statutes (1989), did not require appellee as the party seeking replevin to post a bond. A bond is only required when the defendant in the replevin action wants to stay the order to issue a writ of replevin pending final adjudication. § 78.067(2), Fla....

...by the 10th of the following month.... [[Image here]] Should KELLY TRACTOR CO. ever, because of default, be obligated to institute any proceeding in replevin against us, we hereby waive the notice requirement pertaining thereto in accordance with F.S. 78.067....

...2d DCA 2004) (quoting Senfeld v. Bank of Nova Scotia Trust Co. (Cayman), 450 So.2d 1157 , 1161 n. 5 (Fla. 3d DCA 1984)). In this case, the final judgment resulted from a hearing triggered by the trial court’s order to show cause. The “show cause” hearing was authorized by section 78.067(2), Florida Statutes (2011)....

...action should not be taken from the possession of defendant and delivered to plaintiff. Defendant may file affidavits, appear personally or with an attorney and present testimony at the time of the hearing, or, on a finding by the court pursuant to section 78.067(2), Florida Statutes (1979), that plaintiff is entitled to possession of the property described in the complaint pending final adjudication of the claims of the parties, file with the court a written undertaking executed by a surety ap...

...s follows: The Defendants have the right to file affidavits on their behalf with the Court and may appear personally or by way of an attorney and present testimony on their behalf at the time of the hearing; or, on a finding by the Court pursuant to section 78.067(2), Florida Statutes, that Plaintiff is entitled to the possession of the claimed property described in the motion for prejudgment writ of replevin pending final adjudication of the claims of the parties, the Defendants may file with t...

...to protect a litigant’s property. Contrary to the parties’ contentions, we conclude that neither section 78.068 nor the trial court’s “inherent power” constituted a legal basis for ordering Weinberg to post a bond. Rather, we conclude that section 78.067, Florida Statutes (2011), is applicable....

...In arguing that the trial court ordered Weinberg to post the bond pursuant to the trial court’s “inherent power,” Siemens ignores that its Replevin Motion was filed “pursuant to Florida Statutes § 78.01 et seq.”; the trial court ordered Weinberg to show cause pursuant to section 78.067(2); and the order under review does not refer to the trial court’s “inherent power.” Further, a court’s inherent power does not permit a court to ignore existing law, such as writ of replevin statutes....

...Reynolds, 872 So.2d 290, 294 (Fla. 2d DCA 2004). “Chapter 78 of the Florida Statutes provides two separate and distinct methods of obtaining a writ of replevin prior to the entry of final judgment in the replevin action.” Id. First, “[pjursuant to sections 78.065 and 78.067, and in the absence of an effective waiver, the defendant must be given notice and a show cause hearing held before the writ of replevin may issue prior to the entry of final judgment.” Id....

...ng due and owing, whichever is lesser as determined by the court, as security for the payment of damages the defendant may sustain when the writ is obtained wrongfully.”). Rather, the record reflects that Siemens’ Replevin Motion proceeded under section 78.067 as the trial court, pursuant to section 78.067(2), directed Weinberg to show cause why the claimed property should not be taken. Therefore, we review the merits of the trial court’s order pursuant to section 78.067, which provides, in part, as follows: (2) If the court finds that the defendant has not waived the right to be heard on the order to show cause in accordance with s....

...tay a non-existing writ of replevin. Second, even if the trial court had granted Siemens’ Re-plevin Motion, the trial court lacked authority to require Weinberg to post a bond, as the decision to post a bond would have rested solely with Weinberg. Section 78.067(2) merely provides a defendant with a mechanism for obtaining a stay of a prejudgment writ of replevin by posting the requisite bond pending final adjudication of the parties’ claim. If a replevin order was issued pursuant to section 78.067(2), and Weinberg elected to post a bond to stay the seizure of the property, the bond should have been “in an amount equal to the value of the property,” not 1.25 times the amount owed by Weinberg as ordered by the trial court....

...at Weinberg owed Siemens $1,544,246.25, the trial court implicitly determined that, “with reasonable probability,” Siemens “is entitled to the possession of the claimed property pending final adjudication of the claims of the parties.” Under section 78.067(2), “[i]f the court determines that the plaintiff is entitled to take possession of the claimed property, it shall issue an order directing the clerk of the court to issue a writ of replevin.” (emphasis added). Accordingly, we reverse the order under review without prejudice to allow the trial court to reconsider Siemens’ motion under section 78.067(2), and in conformity with the trial court’s previous findings, as expressed in this opinion....

PER CURIAM. After review of the record on appeal we conclude that the trial court did not err in finding, pursuant to section 78.067(2), Florida Statutes (1987), that it is reasonably probable that appellee is entitled to possession of the disputed IBM equipment....

...ied upon. Here, the lender’s verified complaint, which we outlined earlier in this opinion, recited and showed the required information to support all five of these statements. Second, at the show cause hearing, the lender met its burden of proof. Section 78.067(2), Florida Statutes (2010), provides, in pertinent part: [T]he court shall at the hearing on the order to show cause consider the affidavits and other showings made by the parties appearing and make a determination of which party, wit...

...See Prestige Rent-A-Car, Inc. v. Advantage Car Rental & Sales, Inc. (ACRS), 656 So. 2d 541, 545 (Fla. 5th DCA 1995). Finally, Appellants argue that the trial court analyzed its motion under the incorrect statute. FAHI sought relief pursuant to sections 78.065 and 78.067, Florida Statutes. The trial court order denying FAHI’s motion relies upon section 78.068, which imposes a higher standard for obtaining a writ of replevin without notice and hearing. Compare § 78.067(2), Fla....

...Stat. (2019) with § 78.068, Fla. Stat. (2019). Section 78.068 is inapplicable to this case because there was notice and hearing. See Brown v. Reynolds, 872 So. 2d 290, 294 (Fla. 2d DCA 2004). The trial court should have analyzed FAHI’s motion under section 78.067, not section 78.068. Conclusion The trial court erred in entering the temporary injunction and denying Appellants’ prejudgment writ of replevin....

...On April 7, 2010, and May 17, 2010, in reliance on the representations that the loan modification was pending, Farah Real Estate made payments of $51,000.00 to the Bank of Miami.” . See, e.g., Brown v. Reynolds, 872 So.2d 290, 296 (Fla. 2d DCA 2004) (interpreting Florida’s replevin statute, § 78.067(2), Fla....

...CHANGE OF POSSESSION Our reversal of the partial summary judgment on Lundin's replevin claim will result in Krystal's return to the Petersons on remand; however, we observe that the trial court also erred by ordering the change of possession of Krystal because the Petersons posted a $20,000 bond. Section 78.067(2), Florida Statutes (2013), provides that where a court has held a show cause hearing and determined that the plaintiff is entitled to possession of the property pending final adjudication, it shall direct that a writ of replevin be issued....

...The Petersons moved for a stay pending appeal, which the circuit court denied. The trial court should have stayed the order and allowed the Petersons to retain possession of Krystal pending final adjudication because they posted bond pursuant to section 78.067(2)....

...case. See Prestige Rent-A-Car, Inc. v. Advantage Car Rental & Sales, Inc., 656 So.2d 541, 545 (Fla. 5th DCA 1995); Morse Operations, Inc. v. Superior Rent-A-Car, Inc., 593 So.2d 1079, 1080-81 (Fla. 5th DCA 1992); § 78.065(2), Fla. Stat. (2001); § 78.067(2), Fla....

...Appellant, Keybank National Association, timely appeals a final judgment in a replevin action in favor of appellee, Arthur Grossman. Keybank had filed a complaint for replevin against Grossman, demanding possession of a boat. During the pen-dency of the case, Keybank moved for prejudgment possession of the boat. Section 78.067, Florida Statutes, provides the process for prejudgment possession of property....

...t. Entering a final judgment based upon the prejudgment hearing was error. See Brown v. Reynolds, 872 So.2d 290, 296 (Fla. 2d DCA 2004). Brown succinctly states the relevant procedure: At a hearing on an order to show cause, the court is directed by section 78.067(2) to “make a determination of which party, with reasonable probability, is entitled to the possession of the claimed property pending final adjudication of the claims of the parties.” This determination is to be based on the “pr...

...of the claims of the parties. JB Int’l, Inc. v. Mega Flight, Inc., 840 So.2d 1147, 1149 (Fla. 5th DCA 2008). If the plaintiff fails to establish the probable validity of the replevin claim at the hearing on the order to show cause held pursuant to section 78.067, dismissal of the complaint after the hearing is premature because the purpose of the hearing is only to determine who should have possession of the claimed property pending the final hearing....

...The trial court did not explain why it denied Midway’s right to possession of the property; however, the court did erroneously admit parole testimony by appellee’s president that he was told that he could fall a couple of payments behind without having a problem. At a show cause hearing under section 78.067(2), Florida Statutes (1995) the court must determine “which party, with reasonable probability, is entitled to the possession of the claimed property pending final adjudication of the claims of the parties.” The evidence presented...

PER CURIAM. David F. Brown appeals an order granting a writ of replevin pursuant to subsection 78.067(2), Florida Statutes (1991), and an order setting the amount of the bond to stay the writ....

..., is entitled to the possession of the claimed property pending final adjudication of the claims of the parties. This determination shall be based on a finding as to the probable validity of the underlying claim alleged against the defendant.” Id. § 78.067(2)....

...There was no abuse of discretion under the circumstances of this case in the trial court’s declining to stay the hearing. With regard to the bond, appellees Steven K. Steiner and Affordable Auto Leasing, Inc., concede that the amount of the bond must be reduced from $125,000 to $100,000. See id. § 78.067(2) (“However, the order shall be stayed pending final adjudication of the claims of the parties if the defendant files with the court a written undertaking executed by a surety approved by the court in an amount equal to the value of the property.”) See generally H....

...d shows that there was substantial, competent evidence that the plaintiff had met its burden of showing that, with reasonable probability, it was entitled to the possession of the claimed property pending final adjudication of the parties’ claims. § 78.067, Fla.Stat....

...ty pending final adjudication of the parties’ claims. *48 Lastly, as to the third order appealed, we find that the trial court properly denied the defendant’s motion to increase bond where the additional writs of replevin were issued pursuant to section 78.067, Florida Statutes (1993), and did not require the posting of a bond....

...He filed a motion for sanctions against his parents. The trial court did not rule on the motion. In this appeal, Ryan argues that once the trial court determined that he was entitled to the return of his personal property, he was entitled to a prejudgment writ of replevin, citing section 78.067(2), Florida Statutes (2021) ("If the court determines that the plaintiff is entitled to take possession of the claimed property, it shall issue an order directing the clerk of the court to issue a writ of replevin.")....

...f destruction, concealment, waste, removal from the state, removal from the jurisdiction of the court, or transfer to an innocent purchaser during the pendency of the action." McMurrain, 584 So. 2d at 1030 (quoting § 78.068(2)). Sections 78.065 and 78.067 describe the procedures to obtain a prejudgment writ of replevin. It appears from the record provided to this court that Ryan failed to meet the statutory requirements to obtain immediate relief under sections 78.065 or 78.067....

...dures and rules that Kenner wrote, developed and owned, and used in her job as manager of Hamilton’s Bar & Grill, Inc. (all of said work product collectively herein called ‘tools of trade’).” Following a hearing on the matter pursuant to Section 78.067, Florida Statutes (1987), the trial court issued an order directing Bay Bank to deliver the property to HEG and Kenner pending the final determination of the action....

...Appellant claimed it inadvertently wrote in a $36,000 trade allowance, when the agreed amount for appellees’ two trade-in vehicles was to be $26,000. Unable to resolve the dispute, appellant filed suit and sought replevin of the Porsche pursuant to section 78.067(2), Florida Statutes (1995)....

FARMER, Judge. The debtor/purchaser 1 of a forklift appeals a non-final order authorizing the issuance of a writ of replevin before final judgment under section 78.067....

...In petitioner’s action seeking replevin of property, the county court issued a Re-plevin Order to Show Cause, directing defendant to show cause why the property should not be delivered to petitioner “pending final adjudication of the claims of the parties” under section 78.067(2), Florida Statutes (1979)....