The 2022 Florida Statutes (including 2022 Special Session A and 2023 Special Session B)
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On September 24, 2015, pursuant to section 78.068 of the Florida Statutes, 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. Subsequently, however, on August 16, 2016, the trial court vacated its earlier prejudgment replevin order, entering a vacatur order that stated, in relevant part: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.Replevin is a statutory remedy under Florida law that permits "[a]ny person whose personal property is wrongfully detained by any other person [to] recover said personal property and any damages sustained by reason of the wrongful taking or detention . . . . Fla. Stat. § 78.01. "Section 78.01 provides two alternative procedures for obtaining a writ of replevin under Florida law prior to entry of a final judgment awarding possession." California First Leasing Corp. v. Orlando Sun Resort & Spa, LLC, 2009 WL 2423108, at *1 (M.D. Fla. July 15, 2009). "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." Brown v. Reynolds, 872 So. 2d 290, 294 (Fla. 2d DCA 2004). See also Gazil, Inc. v. Super Food Servs., Inc., 356 So. 2d 312, 313 (Fla. 1978) (Fla. Stat. § 78.068 "meets the five part test for minimum due process requirements").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. Rather, we conclude that section 78.067, Florida Statutes (2011), is applicable.Third, the lender satisfied the additional requirements of section 78.068, Florida Statutes (2010), which provides, in pertinent part:This matter is before the Court on Doc. 1, the Complaint, which contains a motion for a prejudgment writ of replevin against an airplane that secures the debt that is the subject of this lawsuit. Under Fla. Stat. § 78.068, "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 issuance of the writ clearly appear from specific facts shown by the verified petition or by separate affidavit of the petitioner." Id. 78.068(1).In the alternative to his motion for temporary restraining order, Zokaites seeks a writ of replevin to seize the assets that collateralized his loan to Land-Cellular, pursuant to Florida Statutes, Chapter 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. Id. at 1149. Under this statutory provision, the movant must show that the claimed property is "in 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." This provision has not been invoked by Zokaites in his pending motion. 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.Dr. Kronen filed a verified complaint for replevin on November 28, 2000. In his complaint, Dr. Kronen alleged that he had purchased the trailer in 1996 for $60,000 and that its current fair market value was $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). On December 8, 2000, Tokay delivered the trailer to Dr. Kronen in accordance with the writ. Tokay also answered the complaint and filed a counterclaim against Dr. Kronen for the return of the trailer and damages.In the instant case, the aircraft in question was owned by Tack I, Inc., with appellee Textron Financial Corporation holding a security interest. After Tack I defaulted under the security agreement, it released the aircraft back to Textron. At the time of the release, the aircraft was in the 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. Creston released the aircraft to Textron after Textron posted a pre-judgment replevin bond in accordance with section 78.068( 3). Creston then responded with a counterclaim and third party complaint in which it sued Tack I for the unpaid balance for fuel and maintenance services provided to the aircraft and sought to foreclose against Tack I and Textron a claim of lien, which it filed with the Federal Aviation Administration pursuant to Florida Statutes sections 329.01 and 329.51. Along with the… A similar rule applies in the analogous situation where a prejudgment writ of replevin has been issued without notice pursuant to section 78.068. If the writ is dissolved following the failure of the plaintiff to prove by competent and substantial evidence at a hearing on a motion to dissolve the writ the grounds upon which the writ was issued, dissolution of the writ on motion "has no effect other than to determine the right to possession of the property pending final adjudication of the claims of the parties." Weigh Less for Life, 399 So.2d at 90; see also Kalman v. World Omni Fin. Corp., 651 So.2d 1249, 1252 (Fla. 2d DCA 1995). The entry of an order dissolving the prejudgment writ of replevin on the defendant's motion "cannot be considered as depriving the plaintiff of the right to a trial under the rules of procedure applicable to other law actions generally, which includes the right to a jury trial." Weigh Less for Life, 399 So.2d at 90.. . . See § 78.068, Fla. Stat. (2018) (prejudgment replevin); §§ 76.04, 76.05 Fla. . . . Stat. (2018) (attachment bond); § 78.068(3), Fla. Stat. (2018) (replevin bond); § 77.031(3), Fla. . . .
. . . Weinberg to post a bond, two proposed orders were submitted to the trial court — one citing to section 78.068 . . . Weinberg contends that, pursuant to section 78.068(4), Florida Statutes (2011), the trial court erred . . . Contrary to the parties’ contentions, we conclude that neither section 78.068 nor the trial court’s “ . . . Second, “[pjursuant to section 78.068, the prejudgment writ may issue without notice and a hearing, but . . . See § 78.068(3), Fla. . . .
. . . Third, the lender satisfied the additional requirements of section 78.068, Florida Statutes (2010), which . . .
. . . . § 78.068(2), is a summary procedure that allows the movant to obtain possession of property on an ex . . .
. . . See § 78.068(3), Fla. Stat. (2000). . . . See § 78.068(4), (6). On December 8, 2000, Tokay delivered the trailer to Dr. . . .
. . . Textron then filed a petition for writ of replevin pursuant to Florida Statutes section 78.068 and sought . . . the aircraft to Textron after Textron posted a pre-judgment re-plevin bond in accordance with section 78.068 . . .
. . . Pursuant to section 78.068, the prejudgment writ may issue without notice and a hearing, but the plaintiff . . . analogous situation where a prejudgment writ of replevin has been issued without notice pursuant to section 78.068 . . .
. . . .” § 78.068(2), Fla. Stat. (1989). . . . . § 78.068(6), Fla. Stat. (1989). . . .
. . . . § 78.068(3), Fla. Stat. (2001). . . .
. . . contradictory motion, his damages are limited to the five-day window period for posting a bond under section 78.068 . . . (4), Florida Statutes (1993), or the ten-day period for filing a contradictory motion under section 78.068 . . .
. . . The provisions contained in section 78.068, Florida Statutes (1999) were enacted “in 1976 apparently . . . Subsequent to the enactment of section 78.068, the courts became concerned with whether this statute . . . In Gazil, the Florida Supreme Court found that section 78.068 contains adequate due process protection . . . Sections 78.068(1) and (2) specifically provide: (1) A prejudgment writ of replevin may be issued and . . . If the trial court cannot make these findings pursuant to the provisions of section 78.068, the writ . . .
. . . See § 78.068, Fla.Stat. (1987). . . . See § 78.068(4), Fla. . . . See § 78.068(6), Fla.Stat. (1987). . . . See § 78.068(l)-(3). . . . See § 78.068(5), Florida Statutes (1987). . . .
. . . sheriff is commanded to dispose of the property according to law because of the conflict between sections 78.068 . . .
. . . utilized for issuance of the prejudgment writ of replevin properly followed the provisions of Section 78.068 . . .
. . . In Gazil, this Court applied the Mitchell “totality test” to its assessment of whether section 78.068 . . . Section 78.068’s protective requirements were as follows: (1) the law requires plaintiffs to show facts . . .
. . . See § 78.068, Fla. Stat. (1993). . . . The very purpose of the provision in section 78.068 requiring that a plaintiff in a prejudgment writ . . . is to protect the' defendant if a court later determines that the writ was “obtained wrongfully.” § 78.068 . . . HARRIS, J., dissents with opinion. . 78.068. . . .
. . . Fason, 584 So.2d 1027, 1030 (Fla. 1st DCA 1991); §§ 78.068(2), 83.12, Fla. . . . See §§ 78.068(3), (4), 83.12, 83.14, Fla. Stat. (1995). . . .
. . . sheriff is commanded to dispose of the property according to law because of the conflict between sections 78.068 . . .
. . . . § 78.068. . . . The applicable statute is section 78.068, Florida Statutes (1989), which authorizes the issuance of a . . . of the fact that a buyer’s failure to pay for goods is one of the conditions identified in section 78.068 . . . Section 78.068(3) explains that, in order to obtain the writ, the petitioner “must post bond in twice . . . The requirement of bond is not created by section 78.065, however; it appears in section 78.068(3). . . .
. . . The trial court issued a prejudgment writ of replevin without notice pursuant to section 78.068(2), Florida . . .
. . . . § 78.068, Fla.Stat. (1993). . . .
. . . Under section 78.068, the replevin writ is issued without notice or a show cause hearing; the creditor . . . Since a bond was posted and a writ properly issued under section 78.068, the fact that a show cause order . . . for prejudgment writ of replevin was insufficient to meet the verification requirements of section 78.068 . . . Under section 78.068, the allegations in support of the issuance of the prejudgment writ of replevin . . . Section 78.068(3) requires the petitioner to post a bond in the amount of “twice the value of the goods . . .
. . . Pursuant to section 78.068(1), Florida Statutes (1993), a prejudgment writ of re-plevin “may be issued . . . properly established its entitlement to the issuance of a prejudgment writ of replevin pursuant to section 78.068 . . . See § 78.068(6), Fla.Stat. (1993). See also McMurrain v. . . . Section 78.068(6) provides, The defendant, by contradictory motion filed with the court within 10 days . . .
. . . sheriff is commanded to dispose of the property according to law because of the conflict between sections 78.068 . . .
. . . erroneous because neither of the statutory bases for the issuance of such a writ, see §§ 78.055, 78.075, 78.068 . . .
. . . Appellees concede that they erroneously relied on subsection 78.068(4), Florida Statutes (1991). . . .
. . . The plaintiff need not file a bond, unlike the prejudgment replevin procedure provided for in section 78.068 . . .
. . . Section 78.068(2), Fla.Stat. (1989). . . .
. . . The trial court granted a prejudgment writ of replevin under section 78.068, Florida Statutes (1989), . . . It is noted that the writ of replevin was only applied for under section 78.068. . . .
. . . by 78.068(3), the county court judge declined, for no stated reason, to issue the writ. . . . Under F.S. 78.068 the replevin writ is issued without notice or a “show cause hearing.” . . . (4), 78.068(6) and 78.20, for the recovery of improperly replevined property, that 78.068 is constitutionally . . . The provisions of section 78.068(2) clearly fall within the latter category. . . . This language establishes that the use of the word “may” in 78.068 was, as Weston v. . . .
. . . Fason had posted a bond pursuant to section 78.068(3), Florida Statutes (1989), when the order granting . . . property rights that are constitutionally protected in respect to prejudgment replevin under section 78.068 . . . The Florida statutory procedure applied in this case, sections 78.068-78.21, Florida Statutes (1989), . . . For example, section 78.068(2), provides that a prejudgment writ may issue if the court finds that the . . . Section 78.068(3) provides: The petitioner must post bond in the amount of twice the value of the goods . . .
. . . Appellant KDC Financial Corporation (KDC) obtained a prejudgment writ of re-plevin pursuant to section 78.068 . . . American moved to dissolve the writ pursuant to section 78.068(6), Florida Statutes (1989), and asked . . . was properly issued based on the evidence of American's failure to make timely payments as agreed. § 78.068 . . . Tackle Shop, Inc., 449 So.2d 1287 (Fla. 4th DCA 1983), review denied, 459 So.2d 1039 (Fla.1984); § 78.068 . . . American moved to dissolve the writ pursuant to section 78.068(6), Florida Statutes (1989), and asked . . .
. . . from the business bank account and concealed sales or profits, and, Therefore, pursuant to Section 78.068 . . . The complaint itself was not verified, and under section 78.068(1) the allegations contained therein . . . As an alternative to filing a verified petition meeting the requirements of section 78.068, Fason could . . . Section 78.068(6) provides, in pertinent part: The defendant, by contradictory motion filed with the . . . See § 78.068(2), Fla.Stat. (1987). . See note 1. . See Zuckerman v. . . . Section 78.068(6) expressly provides that a defendant may obtain dissolution of the prejudgment writ . . .
. . . The applicable statute is section 78.068, Florida Statutes (1989), which authorizes the issuance of a . . .
. . . Section 78.068(6), Florida Statutes (1987), provides: [t]he defendant, by contradictory motion filed . . . entertain the merits of the case and that defendant’s only option was to post a bond as required by section 78.068 . . . 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 . . .
. . . Section 78.068, Florida Statutes (1985) provides for a prejudgment writ of replevin upon the posting . . .
. . . That alone is a valid statutory ground for issuance of a prejudgment writ of replevin under section 78.068 . . .
. . . . § 78.068 (West Supp.1986), the court issued a prejudg ment writ of replevin. . . . Super Food Services, Inc., 356 So.2d 312 (Fla.1978), had held that § 78.068 satisfies the requirements . . . court erred in dismissing the declaratory relief claims since the court erroneously concluded that'§ 78.068 . . . We also find no merit in appellees’ contention that the bankruptcy court determined (1) that § 78.068 . . . Fla.Stat.Ann. § 78.068 (West Supp.1986) provides: 78.068. . . .
. . . Should the court decline to dissolve the writ, it should make the findings contemplated by section 78.068 . . .
. . . them pending a determination of their right of possession as they might have done pursuant to section 78.068 . . .
. . . applied for and received from the circuit court an ex parte prejudgment writ of replevin under Section 78.068 . . . Upon close examination of the statute, Section 78.068(1), we note that it authorizes the issuance of . . . the action or that the defendant has failed to make payment as agreed, (emphasis supplied) Section 78.068 . . . Section 78.068(4), Florida Statutes. . . . a prejudgment writ of replevin, which was “obtained wrongfully” under the replevin statute, Section 78.068 . . .
. . . Based upon the verified complaint, a prejudgment writ of replevin was issued pursuant to section 78.068 . . . See § 78.068(6), Fla.Stat. (1983). . . . Ford Motor Credit Co., 430 So.2d 1003 (Fla. 4th DCA 1983); § 78.068(2), Fla.Stat. (1983). . . . See § 78.068(2), Fla.Stat. (Supp.1976). We do not see in Mitchell [v. W.T. . . . Under section 78.068(3), LFC was required to post a bond "in the amount of twice the value of the goods . . .
. . . Section 78.068, Florida Statutes (1981), was crafted by the Florida Legislature to conform with the principles . . . Section 78.068(2) indicates that a “prejudgment writ of replevin may issue if the court finds ... that . . . Section 78.068(6), Florida Statutes (1981), states that a defendant “may obtain the dissolution of a . . . Section 78.068 provides: 78.068 Prejudgment writ of replev-in.— (1) A prejudgment writ of replevin may . . . See, e.g., §§ 78.068(1) and 78.-068(5). . . . creditor shows that the debtor will destroy the goods or that the debtor has not made timely payments. § 78.068 . . .
. . . Section 78.068(2), Florida Statutes (1981). . . . . § 78.068(6), Fla. Stat. (1981). We affirm the denial of appellant’s motion to dissolve. . . .
. . . this appeal that an order granting a motion to dissolve a prejudgment writ of replevin under Section 78.068 . . . Section 78.068 provides for issuance of a prejudgment writ of replevin “forthwith” upon certain conditions . . . The language of Section 78.068 was added in 1976 apparently to provide an additional creditor’s remedy . . . No similar language appears in Section 78.068. . . . This language was added in the same enactment in which Section 78.068 was passed, Chapter 76-19, Laws . . .
. . . Section 78.068(1), Florida Statutes (1979) provides that a prejudgment writ of replevin may be issued . . . Section 78.068(6), Florida Statutes (1979) provides that a defendant, by contradictory motion, may obtain . . . prejudgment writs were issued by the clerk and not upon the signed order of a judge as required by Section 78.068 . . . As to bond, Section 78.068(3), Florida Statutes (1979) requires a bond be posted by the petitioner in . . . retain possession of the property, then bond shall be required of appellants as provided by Section 78.068 . . .
. . . sheriff is commanded to dispose of the property according to law because of the conflict between sections 78.068 . . .
. . . non-final order dissolving a pre-judgment writ of replevin which had been obtained pursuant to Section 78.068 . . . Section 78.068(6), Florida Statutes (1977), provides: The defendant, by contradictory motion filed with . . . J., and ANSTEAD, J., concur. . 78.068 Prejudgment writ of replevin (1) A prejudgment writ of replevin . . . provisions of subsection (4). .The constitutional sufficiency of the procedures required by Section 78.068 . . .
. . . We also agree with appellant that Section 78.068(3) is applicable and requires that the bond be set in . . .
. . . The writs were issued in accordance with the procedures set forth in Section 78.068, Florida Statutes . . . The statute at issue here, Section 78.068, Florida Statutes (Supp.1976), meets the five part test for . . . See § 78.068(2), Fla.Stat. (Supp.1976). . . .