Florida/Georgia Personal Injury & Workers Compensation

...eclose on Kail's residence. On July 18, 1984, Bank filed a verified amended complaint which, in addition to the above relief, requested the replevin of the household furnishings in which it claimed a security interest. Pursuant to Fla.Stat.Ann. Sec. 78.068 (West Supp.1986), 1 the court issued a prejudgment writ of replevin....

...tcy court. Id. at 690-91 . 16 The court also held that appellants were not entitled to declaratory relief. The court first noted that the Florida Supreme Court in Gazil, Inc. v. Super Food Services, Inc., 356 So.2d 312 (Fla.1978), had held that Sec. 78.068 satisfies the requirements of due process, and then indicated that it "believe[d]" that the Florida Supreme Court was "correct" and that appellants "have not alleged sufficient facts or made sufficient arguments to show that Section 78.068 provides less in the way of due process than is required in a replevin statute." Id....

...ppel, and (2) the Sec. 1983 suit is not duplicative of the state foreclosure action in the bankruptcy court. 7 They also assert that the district court erred in dismissing the declaratory relief claims since the court erroneously concluded that Sec. 78.068 satisfies the requirements of due process and since the court did have jurisdiction over these claims under 28 U.S.C.A....

...Since the good faith inquiry in a contempt proceeding is not the same as the qualified immunity defense in a Sec. 1983 action, we hold that collateral estoppel does not bar the instant case. 29 We also find no merit in appellees' contention that the bankruptcy court determined (1) that Sec. 78.068 satisfied the requirements of due process, and (2) that they had complied with the requirements of Sec....

...ind that the dismissal of the damage claims constituted an abuse of discretion. 13 36 C. Dismissal of the Declaratory Relief Claims 37 Finally, appellants contend that the district court erred in dismissing their declaratory relief claims since Sec. 78.068 does not meet the requirements of due process and since the district court had jurisdiction over these claims under 28 U.S.C.A....

...38 First, the opinion below does not clearly indicate whether the district court reached the merits of appellants' due process claim. The district court initially suggested that the decision of the Florida Supreme Court upholding the constitutionality of Sec. 78.068 was correct, but later dismissed both the Fourth Amendment and due process claims for lack of subject matter jurisdiction....

...CONCLUSION 41 For the foregoing reasons, the order of the district court dismissing this case is vacated, and the case is remanded to the district court for further proceedings consistent with this opinion. 42 VACATED and REMANDED. 1 Fla.Stat.Ann. Sec. 78.068 (West Supp.1986) provides: 78 068....

...[4] There is no indication in the opinion that a different configuration of procedures would provide insufficient due process protection. Instead, the Court focused on the procedures in sum. In Gazil, this Court applied the Mitchell "totality test" to its assessment of whether section 78.068, Florida Statutes (Supp....

...The Third District's opinion reflects the amount stated here. [3] Art. V, § 2(a), Fla. Const. [4] Tuttle argues that Mitchell and Gazil establish specific absolute requirements for protection of due process. However, we read neither case to implement such a rigid framework. [5] Section 78.068's protective requirements were as follows: (1) the law requires plaintiffs to show facts indicating a right to the property sought to be replevied, and the allegations must be verified; (2) an application for replevin without notice mu...

...of 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 or that the defendant has failed to make payment as agreed. Fla.Stat. ง 78.068....

...The trial court denied appellant's Motion to Dissolve Prejudgment Writ of Replevin. It is appellant's position on appeal that replevin does not lie in the absence of a security interest or other independent possessory interest in the goods sought to be replevied. This is clearly wrong. The applicable statute is section 78.068, Florida Statutes (1989), which authorizes the issuance of a pre-judgment writ of replevin where "the defendant has failed to make payment as agreed." We have previously applied this statute in accordance with the position taken by appellee in this case....

...es surrounding the transaction at issue. [5] Absent this information, it is difficult to read the opinion as anything more than a straightforward confirmation of the fact that a buyer's failure to pay for goods is one of the conditions identified in section 78.068(2) as a possible trigger for prejudgment replevin. The effect of reading the case otherwise would be curious indeed. Section 78.068(2) sets forth some of the conditions upon which a writ of replevin may be issued, including the removal of property from the jurisdiction, threatened transfer to innocent purchasers and failure to pay as agreed....

...hurch had no right to possess them, and adding that "the main issue [in a replevin action] is the right to immediate possession"). Put another way, a court need only reach the question of right to possession if one of the conditions in Fla.Stat. ง 78.068(2) is shown, but that is altogether different than saying that a right to possession need not even be shown, and that satisfaction of the conditions in Fla.Stat. ง 78.068(2) is in and of itself sufficient for the issuance of a writ of replevin....

...[5] Nor do the supplemental materials that the parties have submitted on this case. [6] We note further that Tae Il Media has not established its compliance or intent to comply with one of apparent statutory prerequisites to a prejudgment writ of replevin. Section 78.068(3) explains that, in order to obtain the writ, the petitioner "must post bond in twice the value of the goods subject to the writ ......

..." This requirement ensures that the drastic remedy of replevin will not be pursued lightly. Tae Il Media suggests that a bond need only be posted when the petitioner is proceeding ex parte. We cannot agree. Nothing in the otherwise plain language of section 78.068(3) supports this proposition, and Florida courts repeatedly and unequivocally have confirmed that the posting of a bond is a necessary condition of relief, regardless of the ex parte nature of the action....

...t a bond. A bond is only required when the defendant in the replevin action wants to stay the order to issue a writ or replevin pending final adjudication." Id. at 362. The requirement of bond is not created by section 78.065, however; it appears in section 78.068(3)....

...Prestige also challenges the application of the Florida replevin statute. The replevin chapter contains two separate and distinct procedures for obtaining a replevy writ. Under sections 78.065 and 78.067, a show cause hearing must occur before a replevin writ is issued. Under section 78.068, the replevin writ is issued without notice or a show cause hearing; the creditor, however, is required to post a bond....

...Here, a writ was issued conditioned on the posting of a bond. However, an order to show cause was also issued on the same day. Advantage concedes that it confused the two methods for obtaining a writ but argues that any error was harmless. We agree. Since a bond was posted and a writ properly issued under section 78.068, the fact that a show cause order was issued, although perhaps procedurally confusing, would not appear to have prejudiced Prestige in any fashion....

...reement. Prestige's recourse is for money damages, not retention of the vehicles. Prestige further argues that the affidavit in support of Advantage's request for prejudgment writ of replevin was insufficient to meet the verification requirements of section 78.068 and therefore its motion to dissolve the writ should have been granted. Under section 78.068, the allegations in support of the issuance of the prejudgment writ of replevin must be verified....

...At the time of the hearing on the motion to dissolve, Pieroni had testified under oath and this testimony was sufficient to support the issuance of the writ. Finally, Prestige contends that the amount of the bond should have been increased to $180,000. Section 78.068(3) requires the petitioner to post a bond in the amount of "twice the value of the goods subject to the writ or twice the balance remaining due and owing, whichever is lesser as determined by the court ..." (emphasis added) The trial j...

...brought actions to obtain pre-judgment writs of replevin against Gazil, Inc. and others in order to recover certain inventory which had been secured by Gazil's debt to Super Food. The writs were issued in accordance with the procedures set forth in Section 78.068, Florida Statutes (Supp....

...Each of these cases applied the guiding principles of federal due process which have been evolved in recent years by the United States Supreme Court, and which are set forth most explicitly in Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974). The statute at issue here, Section 78.068, Florida Statutes (Supp....

...OVERTON, C.J., and BOYD and SUNDBERG, JJ., concur. HATCHETT, J., dissents. NOTES [1] 346 So.2d 1029 (Fla. 1977). [2] 344 So.2d 568 (Fla. 1977). [3] 338 So.2d 1067 (Fla. 1976). [4] Gazil argues that the legislation impermissibly allows a mere default in payments as a ground for replevin. See § 78.068(2), Fla....

...78-777) law suit involving a Lincoln automobile, was a conclusive determination that Weigh Less had no ownership rights in the automobile. Appellants assert on this appeal that an order granting a motion to dissolve a prejudgment writ of replevin under Section 78.068, Florida Statutes (1979) is not a final determination of ownership, but merely determines which party is entitled to possession of the disputed property pending final adjudication of the replevin action. We agree and reverse. Section 78.068 provides for issuance of a prejudgment writ of replevin "forthwith" upon certain conditions, spelled out in the statute, which must be met by the "petitioner" (plaintiff)....

...In the meantime, Weigh Less and appellee Thomas Owen filed the present action for trespass and other damages, and the replevin action was subsequently voluntarily dismissed by Weigh Less, without prejudice, pursuant to Rule 1.420(a), Florida Rules of Civil Procedure. The language of Section 78.068 was added in 1976 apparently to provide an additional creditor's remedy to the general revision of the law of replevin enacted in 1973 (Chapter 73-20, Laws of Florida, 1973)....

...In so doing we note the provisions of Sections 78.065 and 78.067 which clearly spell out provisions for determining which party is "entitled to the possession of the claimed property pending final adjudication of the claims of the parties." Section 78.065(2)(e), and 78.067(2). No similar language appears in Section 78.068....

...ng and detention, together with costs, in instances where the plaintiff has recovered the property under the writ. These statutory provisions, read in pari materia, persuade us that the dissolution of a prejudgment writ of replevin, on motion, under Section 78.068(6), has no effect other than to determine the right to possession of the property pending final adjudication of the claims of the parties. This is obvious from a reading of the statutory provisions referred to above, as well as from the fact that Section 78.068 does not set forth a remedy complete in and of itself, since other provisions must be referred to in order to discover essential procedural and substantive aspects of a replevin action....

...r before the *91 judge or a jury unless a jury trial is waived by the parties. [3] REVERSED AND REMANDED. ERVIN and SHIVERS, JJ., concur. NOTES [1] We note, however, that the defendant is not required to present any proof at the motion hearing under Section 78.068. This indicates that the ruling at the motion hearing adjudicates the right to possession, rather than title or ownership. [2] This language was added in the same enactment in which Section 78.068 was passed, Chapter 76-19, Laws of Florida, 1976....

...and Roy Wood, Asst. County Atty., for appellee. Before SCHWARTZ, C.J., and BARKDULL and GERSTEN, JJ. SCHWARTZ, Chief Judge. We hold in this case that upon the satisfaction of the statutory prerequisites for a writ of replevin without notice pursuant to section 78.068, Florida Statutes (1989), the trial court is mandatorily required to issue the writ in accordance with that provision. The case began in the Dade County Court when the appellant, Comcoa, sought to replevin furniture it had leased because the required rental payments had not been made. Although Comcoa's papers fully complied with the requirements of section 78.068, [1] including a verified allegation "that the defendant has failed to make payment as agreed" under 78.068(2) and the bond required by 78.068(3), the county court judge declined, for no stated reason, to issue the writ....

...s prescribed under 78.065 [2] and *476 78.067, [3] Florida Statutes (1989). At that point, Comcoa filed a petition for writ of mandamus in the circuit court to require the county court judge to perform the duty to issue the writ without notice under 78.068....

...1981) (mandamus lies to compel performance of clear legal duty) with Moneyhun v. Purdy, 258 So.2d 505 (Fla. 3d DCA 1972) (mandamus not available to compel discretionary act). See generally 35 Fla.Jur.2d Mandamus and Prohibition §§ 30-34 (1982). We find to the contrary that the issuance of the writ by the trial court under 78.068 is mandatory or ministerial in nature and that mandamus not only lies but must in this case be issued in order to require the performance of that duty....

...upon nonpayment: The replevin statute enables the attorney to choose between two separate and distinct procedures. Under F.S. 78.055 and *477 78.075, a mini-trial known as a "show cause hearing" must occur before a replevin writ will issue. Under F.S. 78.068 the replevin writ is issued without notice or a "show cause hearing." The creditor, however, is required to post a bond. Basic Creditors' and Debtors' Rights in Florida, The Florida Bar, CLE § 3.95 (1988). There is no doubt either of (a) the desirability under some circumstances of proceeding without notice under 78.068 so as to avoid the very real chance that the personalty in question will disappear before the matter may be heard or (b) in view of the bond requirement and the remedies provided by sections 78.068(4), 78.068(6) and 78.20, for the recovery of improperly replevined property, that 78.068 is constitutionally valid, Gazil, Inc....

...Beach Bait and Tackle Shop, Inc., 449 So.2d 1287 (Fla. 4th DCA 1983), pet. for review denied, 459 So.2d 1039 (Fla. 1984); Waite Aircraft Corp. v. Ford Motor Credit Co., 430 So.2d 1003 (Fla. 4th DCA 1983). The appellee claims, however, that, notwithstanding compliance with 78.068, the trial court retains discretion as to whether or not to issue the prejudgment writ without notice so that mandamus may not be employed to require the lower court to do so. See, e.g., Green v. Walter, 161 So.2d 830 (Fla. 1964). This argument is in turn based entirely on the fact that 78.068(2) provides not that the writ of replevin shall be issued, but rather that it " may issue if the court finds [that the statutory requirements have been fulfilled]." This contention is wrong....

...Permissive words in a statute respecting courts or officers are said to be imperative in those cases where the individuals affected have a right that the power conferred be exercised. 49 Fla.Jur.2d Statutes § 18 (1984) (emphasis supplied) (footnotes omitted). The provisions of section 78.068(2) clearly fall within the latter category....

...(b) Our position that the word "may" is properly given a mandatory meaning as a matter of an appropriate interpretation of the will of the legislature, the object of every process of statutory construction, State ex rel. Bie v. Swope, 159 Fla. 18, 30 So.2d 748 (1947), is strengthened by the title of 78.068 in its original form....

...See State v. Webb, 398 So.2d 820 (Fla. 1981) ("title ... is direct statement by legislature of its intent"); Berger v. Jackson, 156 Fla. 251, 23 So.2d 265 (1945) (same). Chapter 76-19, Laws of Florida, was titled: AN ACT relating to replevin; creating s. 78.068, Florida Statutes, providing for the issuance of a prejudgment writ of replevin upon a certain showing by the petitioner and the posting of a bond; providing that the defendant or petitioner may obtain release of property subject to such wr...

...solution of such writ upon a failure of the petitioner to make a certain showing; amending s. 78.20, Florida Statutes, providing for damages and attorney's fees... . Ch. 76-19, Laws of Fla. This language establishes that the use of the word "may" in 78.068 was, as Weston v....

...e law. (footnotes omitted) Accordingly, the judgment below is reversed and the cause remanded to the circuit court for the issuance of a writ of mandamus commanding the county court *480 to issue the prejudgment writ of replevin without notice under section 78.068, Florida Statutes (1989). Reversed and remanded. NOTES [1] 78.068 Prejudgment writ of replevin....

...not reside, to try any such motion to dissolve. [7] We disagree with any implication by analogy with Brasseria La Capannina, Inc. v. Goodman, 579 So.2d 193 (Fla. 4th DCA 1991) that the mandatory nature of the duty to issue the writ thus provided by § 78.068 may render it unconstitutional....

...ect identified in Phillips v. Guin & Hunt, Inc., 344 So.2d 568 (Fla. 1977) was, in our view, wrongly decided. Among other things, it overlooks that Ch. 80-282, Laws of Fla. added the requirement that a complaint for distress for rent (like one under § 78.068), be "verified." See supra note 5....

...irements of the statute have been complied with. Only then can the individual have his use and enjoyment of the property protected from arbitrary encroachment. [e.s.] Brasseria, 579 So.2d at 193. It goes without saying that under both §§ 83.12 and 78.068, the court may not issue the writ without first making the "independent factual determination that the requirements of the statute have been complied with." 579 So.2d at 193....

...Since that is true, the verification provision constitutionalizes both statutes. See Gazil, 356 So.2d at 312. Moreover, Phillips specifically permits a clerk to make the necessary determination of the sufficiency of the complaint. Phillips, 344 So.2d at 574. Since, under 83.12 and 78.068, that finding must be made by the court, there is even less objection to their validity.

...In March 1981, Hooks purchased the automobile from Var Heyl, receiving title and possession. Later, on July 7, 1981, Auto-Owners filed a complaint for replevin of the automobile against Hooks. [2] On July 9, 1981, Auto-Owners applied for and received from the circuit court an ex parte prejudgment writ of replevin under Section 78.068, Florida Statutes (1981), after posting a bond for $26,000 as security for any damages sustained by Hooks by reason of the writ being wrongfully obtained....

...her reasonable interpretation. The complaint contains no factual misstatements or misrepresentations, nor does it allege or insinuate any improper conduct on the part of Hooks, nor of Var Heyl, for that matter. Upon close examination of the statute, Section 78.068(1), we note that it authorizes the issuance of a prejudgment writ "when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts shown by the verified petition......

...struction, 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 or that the defendant has failed to make payment as agreed. (emphasis supplied) Section 78.068(2), Florida Statutes....

...ppellees. We hold that they would not. The actions of Auto-Owners were directed exclusively to its attempt to avail itself of a statutory remedy. Any mistake or misapprehension of the law involved, according to the specific directive of the statute (Section 78.068(2)), was a matter for consideration by the trial judge before issuance of the prejudgment writ....

...The drastic sanction of punitive damages is particularly inappropriate here since appellees, pursuant to the terms of the very statute under which they construct their legal theory, could have avoided the consequences they complain of by the simple act of posting a bond and securing the release of the replevied automobile. Section 78.068(4), Florida Statutes....

...1st DCA 1981), quashed on other grounds, 421 So.2d 505 (Fla. 1982). Var Heyl clearly would not have been involved in litigation with Hooks except for Auto-Owners' action in securing a prejudgment writ of replevin, which was "obtained wrongfully" under the replevin statute, Section 78.068(1)-(3), Florida Statutes (1981)....

...79). The trial court is therefore instructed to require a bond pursuant to Rule 1.610. See McGovern v. Amira, 328 So.2d 862 (Fla. 4th DCA 1976). Appellants next contend that the trial court erred in issuing the original prejudgment writ of replevin. Section 78.068(1), Florida Statutes (1979) provides that a prejudgment writ of replevin may be issued when the nature of the claim and the grounds relied upon for issuance of the writ clearly appear from specific facts shown by verified petition or separate affidavit of petitioner....

...complaint. Section 26.012, Florida Statutes (1979); see Milhet Caterers, Inc. v. North Western Meat, Inc., 185 So.2d 196 (Fla.3d DCA 1966). It is further contended by appellants that the trial court erred in denying the motion to dissolve the writ. Section 78.068(6), Florida Statutes (1979) provides that a defendant, by contradictory motion, may obtain the dissolution of a prejudgment writ of replevin unless the petitioner proves the grounds upon which the writ was issued....

...That determination in this case is supported by the evidence. Therefore, it will not be disturbed on appeal. *874 Appellants also claim that the additional prejudgment writs were issued by the clerk and not upon the signed order of a judge as required by Section 78.068(5), Florida Statutes (1979)....

...Contrary to appellants' contention, the complaint alleges wrongful detention of the property by appellants. It further alleges facts indicating the means by which appellants came into possession of the records. This is sufficient to withstand a motion to dissolve. As to bond, Section 78.068(3), Florida Statutes (1979) requires a bond be posted by the petitioner in an amount equal to twice the value of the goods subject to the writ....

...quired in an amount determined by the trial court to represent twice the value of the property in question. If, as the record appears to indicate, appellants retain possession of the property, then bond shall be required of appellants as provided by Section 78.068(4), Florida Statutes (1979) unless the parties subsequently stipulate that neither party shall be required to post bond in connection with the replevin aspect of this litigation....

...which it averred that appellee failed to make payment as agreed. Thereafter, at the defendant/appellee's request, the trial court conducted an evidentiary hearing and dissolved the writ even though the bank substantiated its allegation. We reverse. Section 78.068, Florida Statutes (1981), was crafted by the Florida Legislature to conform with the principles enunciated in Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974). The statute withstood a due process challenge in Gazil v. Super Food Services, Inc., 356 So.2d 312 (Fla. 1978). Section 78.068(2) indicates that a "prejudgment writ of replevin may issue if the court finds ......

...eme Court observed that "[w]e do not see in Mitchell or any subsequent Supreme Court decision a limitation on the state's right to identify the circumstances which are appropriate for replevin." Gazil v. Super Food Services, Inc., supra at 313 n. 4. Section 78.068(6), Florida Statutes (1981), states that a defendant "may obtain the dissolution of a prejudgment writ of replevin unless the petition proves the grounds upon which the writ was issued." In the case at bar, the ground of nonpayment was alleged and proved....

...HERSEY and HURLEY, JJ., concur. ANSTEAD, C.J., dissents with opinion. ANSTEAD, Chief Judge, dissenting: I would grant the petition for rehearing, vacate our prior opinion and affirm the trial court's order granting the motion to dissolve the prejudgment writ of replevin. Section 78.068 provides: *1288 78.068 Prejudgment writ of replevin....

...the petitioner proves the grounds upon which the writ was issued. The court shall set down such motion for an immediate hearing. This motion shall be in lieu of the provisions of subsection (4). This section uses both "may" and "shall." See, e.g., §§ 78.068(1) and 78.068(5)....

...isputed goods or from using the goods and fostering the goods' depreciation. The Florida statute provides that a writ of replevin may issue if the creditor shows that the debtor will destroy the goods or that the debtor has not made timely payments. § 78.068(2)....

...e seized property to McMurrain. Fason filed a motion requesting that the trial court vacate or modify the order dissolving the writ, asserting that he could not return the seized property because it had been sold. Fason had posted a bond pursuant to section 78.068(3), Florida Statutes (1989), [3] when the order granting the prejudgment writ of replevin was entered....

...avoid liability for its return simply by selling the property as soon as possible after seizure. He asserts that such procedure would utterly destroy those property rights that are constitutionally protected in respect to prejudgment replevin under section 78.068, Florida Statutes (1989)....

...rty on an ex parte application to the court to secure it against "danger of 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." § 78.068(2), Fla....

...The defendant's right to an immediate hearing given by the statute is essential to satisfy the constitutional due process requirements that a person cannot be deprived of his property without reasonable notice and opportunity to put the plaintiff to proof of his claim of right to immediate possession. § 78.068(6), Fla....

...at 1905. To ensure the validity of the Florida prejudgment replevin statute, we believe it must be construed to provide, as a minimum, the essential characteristics discussed in Mitchell. The Florida statutory procedure applied in this case, sections 78.068-78.21, Florida Statutes (1989), has been said to have been fashioned after the Louisiana law found constitutional in Mitchell....

...try of final judgment. Although this chapter does not expressly forbid the plaintiff from selling or disposing of the seized property before entry of a final judgment at his discretion, such a proscription is inherent in its provisions. For example, section 78.068(2), provides that a prejudgment writ may issue if the court finds that the defendant is engaging in, or is about to engage in, conduct that may place the claimed property in danger of destruction, concealment, waste, removal from the s...

...in was wrongfully issued constituted a breach of the conditions of the bond giving rise to immediate liability thereunder by both the principal and surety for the value of the property and any consequential damages caused by the unlawful taking. See § 78.068(3), Fla....

...Fason, 573 So.2d 915 (Fla. 1st DCA 1990). [2] The prejudgment writ authorized Fason to take possession of the inventory of a retail computer store being operated by McMurrain. McMurrain contends that the entire inventory of the store was seized under the writ. [3] Section 78.068(3) provides: The petitioner must post bond in the amount of twice the value of the goods subject to the writ or twice the balance remaining 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....

...LFC, therefore, filed a verified complaint for replevin pursuant to section 78.055, Florida Statutes (1983), seeking possession of the 274 aircraft and all the records and parts of the 274 aircraft and the 486 aircraft. Based upon the verified complaint, a prejudgment writ of replevin was issued pursuant to section 78.068, Florida Statutes (1983). Within ten days of the service of the writ, NCA filed a contradictory motion with the court seeking dissolution of the writ. See § 78.068(6), Fla....

...efendant has failed to make payments as agreed. Landmark First National Bank of Fort Lauderdale v. Beach Bait & Tackle Shop, Inc., 449 So.2d 1287 (Fla. 4th DCA 1983); Waite Aircraft Corp. v. Ford Motor Credit Co., 430 So.2d 1003 (Fla. 4th DCA 1983); § 78.068(2), Fla....

...In addition, LFC had the right to possession of all records and papers relating to the aircraft upon default under paragraphs 7A and 13A(v) of the contract. The amount of the debt owed under the contract was alleged to be $280,000 and LFC posted an appropriate bond of $560,000. § 78.068(3), Fla....

...Super Food Services, Inc., 356 So.2d 312, 313 n. 4 (Fla. 1978), where, in holding the prejudgment replevin statute constitutional, the court noted: Gazil argues that the legislation impermissibly allows a mere default in payments as a ground for replevin. See § 78.068(2), Fla....

...denied, 303 So.2d 644 (Fla. 1974). See also Lazzari v. Gordon, 214 So.2d 102 (Fla. 3d DCA 1968). This case, however, is at the prejudgment stage. [3] An order upholding or dissolving a prejudgment writ of replevin following a hearing held pursuant to section 78.068(6), is not a final determination of ownership, but merely determines which party is entitled to possession of the disputed property pending final adjudication of the claims of the parties....

...Thus, NCA can also take advantage of any remedies available under chapter 679, Florida Statutes (1983) or under general tort law as it exists in this state. Accordingly, the order dissolving the prejudgment writ of replevin is reversed and the cause remanded for further proceedings. NOTES [1] Under section 78.068(3), LFC was required to post a bond "in the amount of twice the value of the goods subject to the writ or twice the balance remaining due and owing, whichever is lesser." LFC posted bond in twice the amount of the balance remaining due....

...Penrose of Bassett and Penrose, and J. David Lynch of Andrews & Lubbers, Fort Lauderdale, for appellees. GLICKSTEIN, Judge. This is a timely interlocutory appeal from a non-final order dissolving a pre-judgment writ of replevin which had been obtained pursuant to Section 78.068, Florida Statutes (1977)....

...argue the motion. Appellees concede that the only notice appellant was given of appellees' intention to argue their motion on May 14th was a telephone call. The record on appeal is devoid of any evidence that written notice of the hearing was given. Section 78.068(6), Florida Statutes (1977), provides: The defendant, by contradictory motion filed with the court within 10 days after service of the writ, may obtain the dissolution of a prejudgment writ of replevin unless the petitioner proves the grounds upon which the writ was issued....

...Accordingly, the subject order is reversed and the cause remanded for consideration of appellees' motion for dissolution of the pre-judgment writ of replevin upon the giving of proper notice to appellant. REVERSED and REMANDED. DOWNEY, C.J., and ANSTEAD, J., concur. NOTES [1] 78.068 Prejudgment writ of replevin (1) A prejudgment writ of replevin may be issued and the property seized delivered forthwith to the petitioners when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issua...

...oner proves the grounds upon which the writ was issued. The court shall set down such motion for an immediate hearing. This motion shall be in lieu of the provisions of subsection (4). [2] The constitutional sufficiency of the procedures required by Section 78.068, Fla....

...levin 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. Pursuant to section 78.068, the prejudgment writ may issue without notice and a hearing, but the plaintiff must post a bond....

...orida, §§ 3.28-.29 (Fla. Bar CLE 2003); Henry P. Trawick, Jr., Florida Practice and Procedure § 34-2 (2003 ed.). [3] A similar rule applies in the analogous situation where a prejudgment writ of replevin has been issued without notice pursuant to section 78.068....

...The trial court ruled that appellee did meet the statutory requirements for issuance of the writ and denied the motion to dissolve. The trial court properly issued the prejudgment writ of replevin. Appellee demonstrated its right to issuance of the writ based on appellant's failure to make payments as agreed under the lease. Section 78.068(2), Florida Statutes (1981). Appellants did not contradict the allegations of failure to pay and so were not entitled to dissolution of the writ. § 78.068(6), Fla....

...rty on an ex parte application to the court to secure it against "danger of 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." § 78.068(2), Fla....

...The defendant's right to an immediate hearing given by the statute is essential to satisfy the constitutional due process requirements that a person cannot be deprived of his property without reasonable notice and opportunity to put the plaintiff to proof of his claim of right to immediate possession. § 78.068(6), Fla....

...ch and every allegation made on the verified complaint and original affidavit. Here, however, DDD does not dispute that it failed to make payments as agreed. That alone is a valid statutory ground for issuance of a prejudgment writ of replevin under section 78.068(2), Florida Statutes (1985)....

...e posting of a proper bond, to replevy the subject vehicle. On August 12, 1994, Kalman filed a timely motion to dissolve the instant writ. After a hearing on September 2, 1994, the trial court denied the motion. Kalman filed this appeal. Pursuant to section 78.068(1), Florida Statutes (1993), a prejudgment writ of replevin "may be issued ......

...Even if those exhibits had been attached to the complaint, they would have shown that World Omni is not the real party in interest in this cause. Based on the foregoing, the record fails to show that World Omni properly established its entitlement to the issuance of a prejudgment writ of replevin pursuant to section 78.068(1). Ultimately, however, the dispositive question in this instance is whether Kalman's motion to dissolve the writ should have been granted. See § 78.068(6), Fla. Stat. (1993). See also McMurrain v. *1252 State, 573 So.2d 915, 919 (Fla. 1st DCA 1990), appeal after remand, 584 So.2d 1027 (Fla. 1st DCA), review denied, 592 So.2d 680 (Fla. 1991). Section 78.068(6) provides, The defendant, by contradictory motion filed with the court within 10 days after service of the writ, may obtain the dissolution of a prejudgment writ of replevin unless the petitioner proves the grounds upon which the writ was issued....

...Morse elected to proceed pursuant to sections 78.065 and 78.067. They require the holding of a hearing on a show cause order (under certain circumstances). The plaintiff need not file a bond, unlike the prejudgment replevin procedure provided for in section 78.068....

...ptember 4, 1980. It was chained down by the sheriff, upon direction by the court. Appellees did not post a replevin bond to obtain delivery of the plane to them pending a determination of their right of possession as they might have done pursuant to section 78.068(3), Florida Statutes (1983)....

...pter 78. Florida's replevin statute provides two distinct procedures under which replevin may be sought. JB Int'l Inc. v. Mega Flight, Inc., 840 So.2d 1147, 1148 (Fla. 5th DCA 2003). The pre-judgment writ of replevin, which is codified at Fla. Stat. § 78.068(2), is a summary procedure that allows the movant to obtain possession of property on an ex parte application to the court....

...The trial court denied appellant's Motion to Dissolve Prejudgment Writ of Replevin. It is appellant's position on appeal that replevin does not lie in the absence of a security interest or other independent possessory interest in the goods sought to be replevied. This is clearly wrong. The applicable statute is section 78.068, Florida Statutes (1989), which authorizes the issuance of a prejudgment writ of replevin where "the defendant has failed to make payment as agreed." We have previously applied this statute in accordance with the position taken by appellee in this case....

...mobiles were located in Florida. As a result, the court dismissed Advantage's replevin claim. While the New York lawsuit remained pending, Advantage filed a complaint in the circuit court in Orange County seeking replevin of the leased vehicles. See § 78.068, Fla....

...here can still be a subsequent finding that the replevin was wrongful. See New Holland, Inc. v. Trunk, 511 So.2d 746 (Fla. 5th DCA 1987); see also Auto-Owners Ins. Co. v. Hooks, 463 So.2d 468 (Fla. 1st DCA 1985). The very purpose of the provision in section 78.068 requiring that a plaintiff in a prejudgment writ of replevin action post a bond is to protect the defendant if a court later determines that the writ was "obtained wrongfully." § 78.068, Fla....

...not done. Perhaps if counsel had followed the judge's instructions, the court would not have ignored our decision. The majority opinion herein permits a New York trial court to reverse a decision of this court. That is not good precedent. NOTES [1] 78.068....

...oreclose on Kail’s residence. On July 18, 1984, Bank filed a verified amended complaint which, in addition to the above relief, requested the re-plevin of the household furnishings in which it claimed a security interest. Pursuant to Fla.Stat.Ann. § 78.068 (West Supp.1986), 1 the court issued a prejudg *1545 ment writ of replevin....

...e bankruptcy court. Id. at 690-91. The court also held that appellants were not entitled to declaratory relief. The court first noted that the Florida Supreme Court in Gazil, Inc. v. Super Food Services, Inc., 356 So.2d 312 (Fla.1978), had held that § 78.068 satisfies the requirements of due process, and then indicated that it “believe[d]” that the Florida Supreme Court was “correct” and that appellants “have not alleged sufficient facts or made sufficient arguments to show that Secti...

...al estoppel, and (2) the § 1983 suit is not duplicative of the state foreclosure action in the bankruptcy court. 7 They also assert that the district court erred in dismissing the declaratory relief claims since the court erroneously concluded that'§ 78.068 satisfies the requirements of due process and since the court did have jurisdiction over these claims under 28 U.S.C.A....

...Since the good faith inquiry in a contempt proceeding is not the same as the qualified immunity defense in a § 1983 action, we hold that collateral estoppel does not bar the instant case. *1551 We also find no merit in appellees’ contention that the bankruptcy court determined (1) that § 78.068 satisfied the requirements of due process, and (2) that they had complied with the requirements of § 78.10....

...Since the parties and issues in the two actions are significantly different, we find that the dismissal of the damage claims constituted an abuse of discretion. 13 C. Dismissal of the Declaratory Relief Claims Finally, appellants contend that the district court erred in dismissing their declaratory relief claims since § 78.068 does not meet the requirements of due process and since the district court had jurisdiction over these claims under 28 U.S....

...*1553 First, the opinion below does not clearly indicate whether the district court reached the merits of appellants’ due process claim. The district court initially suggested that the decision of the Florida Supreme Court upholding the constitutionality of § 78.068 was correct, but later dismissed both the Fourth Amendment and due process claims for lack of subject matter jurisdiction....

...d. III. CONCLUSION For the foregoing reasons, the order of the district court dismissing this case is vacated, and the case is remanded to the district court for further proceedings consistent with this opinion. VACATED and REMANDED. . Fla.Stat.Ann. § 78.068 (West Supp.1986) provides: 78.068....

...After unsuccessfully moving to dissolve the writ, defendants filed an answer, affirmative defenses and counterclaim, including a demand for jury trial. The procedure utilized for issuance of the prejudgment writ of replevin properly followed the provisions of Section 78.068, Florida Statutes (1997) and served to determine plaintiff's right to possession of the subject property pending trial....

...Presumably, it was because of the mandate of Section 78.065(2)(e) that the provisions authorizing testimony were included in the show cause order. In any case, it was error for the trial court to thereafter deny the appellant the right to present testimony. We also agree with appellant that Section 78.068(3) is applicable and requires that the bond be set in the amount of twice the value of the goods replevied or twice the balance due on the debt, whichever is lesser....

...rder for relief concerning the debtor; (B) entity that has a claim against the estate of a kind specified in section 348(d), 502(f), 502(g), 502(h) or 502(i) of this title; or (C) entity that has a community claim." 11 U.S.C. § 101 (10) (2018). See § 78.068, Fla....

...13 Fla. Jur 2d Creditors' Rights § 58 ("[Attachment] authorizes a seizure of the defendant's property at the commencement of suit before there has been a judicial determination as to the liability."). § 76.12, Fla. Stat. (2018) (attachment bond); § 78.068(3), Fla....

...upon the dissolution of a prejudgment writ of replevin. Since the Ficketts did not post a forthcoming bond in this action, that provision of section 78.20 obviously has no application. The issuance of the prejudgment writ of replevin is governed by section 78.068, Florida Statutes (1981)....

...affidavit filed with the complaint [presumably the Puffenbarger affidavit] established that McMurrain breached the agreement by making unauthorized deductions from the business bank account and concealed sales or profits, and, Therefore, pursuant to Section 78.068(2) "the Defendant is engaging in, or is about to engage in, conduct that may place the claimed property in danger of distruction [sic], concealment, waste, removal from the State, removal from the jurisdiction of the Court, or transfer...

...Upon reviewing the court file, which was unchanged from the initial hearing, the court denied McMurrain's motion to dissolve the prejudgment writ of replevin. As a preliminary issue, McMurrain argues that the trial court erred in issuing the writ because Fason did not comply with section 78.068(1), Florida Statutes (1987), by filing a verified petition or separate affidavit that demonstrated the nature of the claim and the grounds relied on for issuance of the writ. Section 78.068(2) provides that a prejudgment writ of replevin may issue only if the court finds, pursuant to subsection (1): that the defendant is engaging in, or is about to engage in, conduct that may place the claimed property in danger of destru...

...iled to make payment as agreed. We agree with McMurrain that the record before the trial court was insufficient to support issuance of the prejudgment writ at the time that the court issued such writ. The complaint itself was not verified, and under section 78.068(1) the allegations contained therein could not serve as a basis for issuance of the writ....

...Hartford Life and Accident Insurance Co., 381 So.2d 294 (Fla. 1st DCA 1980); H. Trawick, Trawick's Florida Practice and Procedure § 6-15 (1985), it cannot be said that grounds for issuance of the writ clearly appeared from specific facts alleged in the complaint as required by section 78.068(1). As an alternative to filing a verified petition meeting the requirements of section 78.068, Fason could support the complaint for the prejudgment writ by filing separate affidavits meeting such requirements....

...company funds to make a down payment on a personal vehicle, and that the store's financial records showed an approximate $10,000 discrepancy between inventory sold and inventory on hand, are not legally sufficient to support the finding required by section 78.068(2); it does not clearly appear from those facts that the inventory was in immediate danger of destruction, concealment, waste, removal from the state or the jurisdiction of the court, or transfer to an innocent purchaser....

...cide whether the trial court erred in its initial issuance of the writ. [3] We limit our review to determining whether the record before the court at the time *919 that the motion to dissolve came on for hearing required the trial court to grant it. Section 78.068(6) provides, in pertinent part: The defendant, by contradictory motion filed with the court within 10 days after service of the writ, may obtain the dissolution of a prejudgment writ of replevin unless the petitioner proves the grounds upon which the writ was issued....

...Fason failed to sustain his burden of proof at such hearing. This deficiency required the trial court to dissolve the prejudgment writ of replevin. It is important to understand that even if Fason had filed a verified complaint or separate affidavit meeting the requirements of section 78.068(1) and (2), he nevertheless would have been required by subsection (6) to prove the grounds upon which the writ was issued at the hearing on the motion to dissolve. While we have not *920 been referred to a case specifically holding that the defendant is entitled to an immediate evidentiary hearing on his motion to dissolve, we construe section 78.068(6) to require such a hearing....

...tion of the hearsay rule; an affidavit is not admissible as prima facie evidence of the facts it contains because admission for such a purpose would improperly cast upon the adverse party the burden of going forward with the proof). Having construed section 78.068(6) as requiring a full evidentiary hearing on McMurrain's motion to dissolve, we reject Fason's argument that "[w]hen the Florida Legislature enacted the replevin statute, the predecessor Louisiana [sequestration] statute had already b...

...We also accept the parties' agreed statements that Fason received at the most one hour and fifteen minutes' notice of the hearing and was represented by counsel at that hearing. These corrected facts do not affect our decision and the basic rationale of our original opinion, however. Section 78.068(6) expressly provides that a defendant may obtain dissolution of the prejudgment writ of replevin within 10 days after service of the writ and requires the court to set such a motion for immediate hearing....

...affidavit, which states that McMurrain did not have authorization to hire an attorney to create a corporation called "PC Systems, Inc. of Tallahassee," are totally irrelevant to any lawful grounds for issuance of a prejudgment writ of replevin. See § 78.068(2), Fla....

...At the time of the release, the aircraft was in the *729 physical possession of appellant, Creston Aviation, Inc., which claimed a lien on the aircraft for services under Florida Statutes sections 329.01 and 329.51. Textron then filed a petition for writ of replevin pursuant to Florida Statutes section 78.068 and sought attorney's fees against Creston under section 713.76(2), maintaining that Creston's lien had been wrongfully filed. [1] Creston released the aircraft to Textron after Textron posted a pre-judgment replevin bond in accordance with section 78.068(3)....

...(TAD) filed an action against Whiland Co., S.A. and *884 others seeking, inter alia, a prejudgment writ of replevin and a final judgment of replevin regarding master tapes of motion pictures. The trial court issued a prejudgment writ of replevin without notice pursuant to section 78.068(2), Florida Statutes (1993) and TAD posted a replevin bond....

...both Cohen and Broward Airport Taxi. Belvant then filed a four-count complaint against Cohen, Broward Airport Taxi and Broward Airport Taxi’s managing member wherein Belvant sought, among other relief, issuance of a writ of replevin. 2 On September 24, 2015, pursuant to section 78.068 of the Florida Statutes, 3 the trial court granted Belvant a prejudgment writ of replevin, requiring the defendants to relinquish the Permit to Belvant upon Belvant posting a nominal bond of forty dollars....

...verified petition or affidavit; provided, however, that the plaintiff “must post a bond in the amount of twice the value of the goods subject to the writ . . . as security for the payment of damages the defendant may sustain when the writ is obtained wrongfully.” § 78.068(1),(3), Fla....

...mes the amount owed to Siemens. As there was no transcript of the hearing 1 and the parties could not agree as to the trial court’s basis for ordering Weinberg to post a bond, two proposed orders were submitted to the trial court — one citing to section 78.068(4) and the other not citing to any statute....

...and owing on the agreements through March 10, 2011, exclusive of attorneys’ fees and costs, for the satisfaction of any judgment that may be rendered against [Weinberg].” Weinberg’s non-final appeal follows. Weinberg contends that, pursuant to section 78.068(4), Florida Statutes (2011), the trial court erred by requiring it to post a bond where the trial court denied Siemens’ Replevin Motion. In response, Siemens argues that (1) the trial court’s order does not reference section 78.068, and therefore, the statute is inapplicable, and (2) the portion of trial court’s order requiring Weinberg to post a bond was entered pursuant to the trial court’s “inherent authority” 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....

...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. Second, “[pjursuant to section 78.068, the prejudgment writ may issue without notice and a hearing, but the plaintiff must post a bond.” Id. In the instant case, the record before this Court reflects that Siemens did not file its Replevin Motion pursuant to section 78.068 because Siemens neither sought an ex parte writ of replevin nor posted the required bond. See § 78.068(3), Fla....

LETTS, Judge. The sale of a restaurant operation 1 allegedly fell through because the purchaser defaulted. The trial court granted a prejudgment writ of replevin under section 78.068, Florida Statutes (1989), but waived the requirement of a bond....

...REVERSED AND REMANDED. STONE and WARNER, JJ., concur. . The sale did not involve a transfer of title to real estate, but merely the assignment of a lease under which the seller was the lessee. . It is noted that the writ of replevin was only applied for under section 78.068.

...78.-055(2), Fla.Stat. (1989), and (b) the defendant was in the process of dissipating the economic value of the stock certificate by stripping the assets of the company for which the stock was issued, thus wasting the value of the stock certificate. Section 78.068(2), Fla.Stat....

...ing that its quiet enjoyment of the aircraft is subordinate to the lender’s rights in the aircraft. In section 16.4 of the lease, the lessee agreed not to create any liens on the aircraft. Third, the lender satisfied the additional requirements of section 78.068, Florida Statutes (2010), which provides, in pertinent part: (1) A prejudgment writ of replevin may be issued and the property seized delivered forthwith to the petitioners when the nature of the claim and the amount thereof, if any, a...

...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....

...of replevin previously ordered by the trial court pending this appeal shall remain in effect until the disposition of any timely filed motion for dissolution. Should the court decline to dissolve the writ, it should make the findings contemplated by section 78.068(3) for purposes of setting the proper amount of the bond....

...give the furniture taken pursuant to the search warrant to Pollack. He argues that, through the use of this process, Pollack has been able to do an end run around the requirement that one who obtains a prejudgement writ of replevin must post a bond. § 78.068(3), Fla....

...tion to dissolve. See Allstar Builders Corp., Inc. v. Zimmerman, 699 So.2d 257 (Fla. 3d DCA 1997) (“The trial court did not abuse its discretion in dissolving the writ.”). We, therefore, affirm the order under review. The provisions contained in section 78.068, Florida Statutes (1999) were enacted “in 1976 apparently to provide an additional creditor’s remedy to the general revision of the law of replevin enacted in 1973 (Chapter 73-20, Laws of Florida, 1973).” Weigh Less for Life, Inc. v. Barnett Bank of Orange Park, 399 So.2d 88, 89 (Fla. 1st DCA 1981). Subsequent to the enactment of section 78.068, the courts became concerned with whether this statute violated the due process rights of those who suffered imposition of the writ by an adverse party who took possession of the *1255 property subject to the writ....

...This issue was addressed by the court in Gazil, Inc. v. Super Food Services, Inc., 356 So.2d 312 (Fla.1978), which applied the “totality test” enunciated in Mitchell v. W.T. Grant Co., 416 U.S. 600 , 94 S.Ct. 1895 , 40 L.Ed.2d 406 (1974) 1 to its assessment of whether section 78.068 adequately protected due process....

...ienation of encumbered property on an ex parte application. The Court held that the statute comported with due process because, as a whole, the statute adequately protected the parties’ interests. Id. In Gazil, the Florida Supreme Court found that section 78.068 contains adequate due process protection because: (1) the law requires plaintiffs to show facts indicating a right to the property sought to be replevied, and the allegations must be verified; (2) an application for replevin without no...

...Thus compliance with all of the requirements is necessary to ensure due process to the party adversely affected by issuance of the writ. Appellees argue that the trial court erred in initially issuing the writ because the Corporations did not comply with section 78.068 by filing a verified petition or separate affidavit that demonstrated the nature of the claim and the grounds relied on for issuance of the writ. Sections 78.068(1) and (2) specifically provide: (1) A prejudgment writ of replevin may be issued and the property seized delivered forthwith to the petitioners when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the i...

...to engage in, conduct that will place the property in danger of destruction, removal from the state, or transfer to an innocent purchaser during the pendency of the action. If the trial court cannot make these findings pursuant to the provisions of section 78.068, the writ should not be issued....

...Wp agree with Appellees that the record before the trial court was insufficient to support issuance of the prejudgment writ at the time that the trial court issued it. The counterclaim was neither properly filed nor was it properly verified; moreover, pursuant to section 78.068(1), the allegations contained therein could not serve as a basis for issuance of the writ. As an alternative to filing a verified petition meeting the requirements of section 78.068, the Corporations could support the request for the prejudgment writ by filing a sepurate affidavit complying with the statutory requirements. The record shows, that the Corporations did not file such an affidavit. Based on the foregoing, the record fails to show that the Corporations established their entitlement to the issuance of a prejudgment writ of replevin pursuant to section 78.068(1). Furthermore, even if the counterclaim was properly verified, the allegations contained therein, as well as the allegations contained in the motion for issuance of the writ, fail to rise to the level required by section 78.068(2)....

...The order states in pertinent part: The Court entered the Order For Writ Of Replevin on Friday, July 28, 2000, as a result of the attorney for the Defendants electing to sit in the lobby to obtain the writ. Among the paperwork provided was a counterclaim which was purported to be a “verified” pleading as required by Section 78.068(1), Florida Statutes....

...e the orders reviewed by the courts in those cases were orders denying a motion to dissolve a prejudgment writ. We find this distinction important because these decisions essentially hold that despite technical noncompliance with the requirements of section 78.068(1), the trial court has discretion to excuse them if, at the emergency hearing on the motion to dissolve the writ, the party that obtained the writ is successful in meeting its burden under section 78.068(6) of proving the grounds upon which the writ was initially issued. 2 We simply conclude that just as the trial court has discretion to deny a motion to dissolve a prejudgment writ based on compliance with the requirements of section 78.068(6), it also has discretion to grant the motion based on noncompliance with the provisions of section 78.068(1). See Zuckerman, 398 So.2d at 872 (“Just as the granting of a temporary injunction is a matter within the discretion of the trial court, so is the dissolution of such an injunction.”). To hold otherwise would render the provisions of sections 78.068(1) and (2) virtually meaningless and would resurrect the due process concerns laid to rest by the court in Gazil....

...Kronen alleged that he had purchased the trailer in 1996 for $60,000 and that its current fair market value was *1271 $25,000. After posting a surety bond in the amount of $50,000, Dr. Kronen obtained a prejudgment writ of replevin for the recovery of the trailer without notice to Tokay. See § 78.068(3), Fla. Stat. (2000). Tokay did not attempt to obtain the release of the property by posting a bond of its own, nor did it attempt to dissolve the writ. See § 78.068(4), (6)....

five-day window period for posting a bond under section 78.068(4), Florida Statutes (1993), or the ten-day

the requisite replevin bond as required by section 78.-068(3), Florida Statutes (1985). The record supports

Associates pursuant to Florida’s replevin statutes. See § 78.068, Fla.Stat. (1987). The initial complaint was subsequently

...Specifically, the plaintiff established that it had not received payment from the defendant as required by the lease agreement and that the property in question, due to its movable and transitory nature, was in danger of removal from the jurisdiction. § 78.068, Fla.Stat....

PER CURIAM. Section 78.068(6), Florida Statutes (1987), provides: [t]he defendant, by contradictory motion filed with the court within 10 days after service of the [prejudgment] writ [of re-plevin], may obtain the dissolution of a prejudgment writ of replevin unless the petitioner proves the grounds upon which the writ was issued....

...Here, although the trial court set a hearing on defendant’s motion to dissolve the prejudgment writ of replevin, it failed to permit defendant to present any testimony, stating that it would not entertain the merits of the case and that defendant’s only option was to post a bond as required by section 78.068(4), Florida Statutes (1987). This ruling was in error; section 78.068(6) states specifically that its provisions are in lieu of those set forth in section 78.068(4). Additionally, we note that the purpose of the hearing under section 78.068(6) is to permit the trial court to adjudge which party is entitled to possession during the pendency of the action, not to determine the ultimate disposition....

...Count III is a claim against his sister, Kelly Kehoe, for intentional infliction of emotional distress. Ryan also moved (1) for an order to show cause and a hearing, (2) for an order to compel discovery, (3) for a prejudgment writ of replevin under section 78.068(2), (4) for entry to inspect his property at his parents' house, and (5) for an emergency injunction for a prejudgment writ of replevin. 3 In the Order on Replevin the trial court mistakenly referred to the mother as Kelly and th...

...obtaining possession of the personal property after a trial on the merits and the entry of final judgment." McMurrain v. Fason, 584 So. 2d 1027, 1030 (Fla. 1st DCA 1991). 3  Ryan also filed a motion for a prejudgment writ of replevin under section 78.068(2)....

...before trial to secure it against the "danger of 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))....

PER CURIAM. This is an appeal of an order dissolving a prejudgment writ of replevin. We reverse. Appellant KDC Financial Corporation (KDC) obtained a prejudgment writ of re-plevin pursuant to section 78.068(2), Florida Statutes (1989), alleging that American Rock, Inc. (American) failed to make pay *758 ment as agreed on earth moving equipment for which KDC held a secured installment sales contract. American moved to dissolve the writ pursuant to section 78.068(6), Florida Statutes (1989), and asked the trial judge to prohibit KDC from selling the property which KDC had already repossessed pending resolution of the replevin action....

...The trial judge dissolved the writ and ordered the equipment returned to American pending final judgment. This was clearly error since the prejudgment writ was properly issued based on the evidence of American's failure to make timely payments as agreed. § 78.068(2)....

...mely-payment. Lease Financing Corp. v. National Commuter Airlines, Inc., 462 So.2d 564 (Fla. 3d DCA 1985); Landmark First Nat’l Bank v. Beach Bait and Tackle Shop, Inc., 449 So.2d 1287 (Fla. 4th DCA 1983), review denied, 459 So.2d 1039 (Fla.1984); § 78.068(6)....

...se remanded for further proceedings. MOTION FOR CLARIFICATION GRANTED This is an appeal of an order dissolving a prejudgment writ of replevin. We reverse. Appellant KDC Financial Corporation (KDC) obtained a prejudgment writ of re-plevin pursuant to section 78.068(2), Florida Statutes (1989), alleging that American Rock, Inc. (American) failed to make payment as agreed on earth moving equipment for which KDC held a secured installment sales contract. American moved to dissolve the writ pursuant to section 78.068(6), Florida Statutes (1989), and asked the trial judge to prohibit KDC from selling the property which KDC had already repossessed pending resolution of the replevin action....

...The trial judge dissolved the writ and ordered the equipment returned to American pending final judgment. This was clearly error since the prejudgment writ was properly issued based on the evidence of American’s failure to make timely payments as agreed. § 78.068(2)....

...ale contract. Lease Financing Corp. v. National Commuter Airlines, Inc., 462 So.2d 564 (Fla. 3d DCA 1985); Landmark First Nat’l Bank v. Beach Bait and Tackle Shop, Inc., 449 So.2d 1287 (Fla. 4th DCA 1983), review denied, 459 So.2d 1039 (Fla.1984); § 78.068(6)....