Florida/Georgia Personal Injury & Workers Compensation

...ies." Section 78.065(2)(e), and 78.067(2). No similar language appears in Section 78.068. [1] On the other hand, the sections of the statute which follow make it clear that further proceedings are contemplated. This is evident from the provisions of Section 78.20, which provides that when property has been redelivered to the defendant "upon the dissolution of a prejudgment *90 writ" [2] (or upon his forthcoming bond) and "defendant prevails," the defendant is entitled to judgment against the plaintiff for damages for the taking, attorney's fees, and costs....

...Our decision and mandate determined that the prejudgment writ had been wrongfully issued and directed that it be dissolved. The mandate carried with it, by implication, a direction to accord McMurrain appropriate remedies under the statute and bond. Section 78.20 provides that upon the dissolution of a prejudgment writ, the defendant is to have judgment against plaintiff for his damages for the taking, if any, of the property, attorney fees, and costs....

...ent shall be entered against [the] plaintiff for possession of the property and costs and against him for the value of the property and costs in the same manner as provided in s. 78.19 for judgment in favor of plaintiff... . The remedies provided in s. 78.20 and this section shall not preclude any other remedies available under the laws of this state....

...rate of .....% per year, for which let execution issue. ORDERED at ...................., Florida, on .....(date)...... ______ Judge NOTE: This form applies when the defendant prevails and the property was retained by or redelivered to the defendant. Section 78.20, Florida Statutes (1995), provides for an award of attorneys' fees....

...n the defendant. 14. At a subsequent hearing, the plaintiff presented testimony of an attorney as to a reasonable attorney's fee, and the Court found that the defendant was entitled to recover attorney's fees from the plaintiff under Florida Statute 78.20....

...after the rendition of the judgment, the plaintiff may, at his option, sue out a writ of possession for the property, and execution for his costs, or sue out execution against the defendant and his sureties for the amount recovered as aforesaid and costs.” Section 78.20, F.S....

...nson’s complaint. The trial court granted the motion, dismissed the complaint, ordered the return of the tractor and implements to Wilkerson, and reserved jurisdiction to determine Wilkerson’s damages as well as attorney’s fees and costs under section 78.20, Florida Statutes (2011)....

...ave judgment against plaintiff for his or her damages for the taking, if any, of the property, attorney fees, and costs. The remedies provided in this section and s. 78.21 shall not preclude any other remedies available under the laws of this state. § 78.20, Fla....

...After a trial without a jury, the court awarded International Mailing $120,000 on its counterclaim for damages to the aircraft. The court also ruled that International would be entitled to a reasonable attorneys fee on the replevin count pursuant to section 78.20, Florida Statutes (1985). A hearing was held on June 11, 1986, resulting in an award of attorneys fees in the amount of $50,000. The first point raised by Gimbel relates to International Mailing's entitlement to an attorneys fee under section 78.20....

...ion of the debt from the guarantors. As a general rule attorneys fee statutes are in derogation of the common law and are to be strictly construed. Michigan National Bank of Detroit v. Maierhoffer, 382 So.2d 318, 322 (Fla. 3d DCA 1979) (interpreting § 78.20)....

...Appellees contested the action, but did not post a bond or apply for dissolution of the writ. The action proceeded to judgment in favor of the appellees on the issue of possession of the yacht, and the lower court awarded attorneys fees to appellees on the basis of section 78.20....

...In the present case, International Mailing clearly did establish an affirmative claim for relief. However, in our view, this fact alone does not render International Mailing the prevailing party on the replevin claim, because the counterclaim and the replevin claim were distinct. Section 78.20 does not create an independent cause of action for damages to a replevied chattel, and defendants' counterclaim was not grounded in that section....

...her any waste has been demonstrated. A defendant could prevail in the replevin action without showing waste; similarly, a plaintiff can make out a valid claim for replevin even though waste may also have been committed during the prejudgment period. Section 78.20 is merely a "make whole" provision for defendants who prevail in replevin actions and meet certain other criteria of entitlement....

...n its favor on the action for replevin. Pursuant to Maierhoffer and Sag Harbour, and consistent with our obligation to strictly construe the statutory provisions for attorneys fees, we conclude that the trial court erred in awarding fees pursuant to section 78.20, since the appellee did not prevail in the replevin action....

...We have examined the record concerning the propriety of the damages awarded and find no error. Accordingly, the judgment is affirmed upon the appeal of the Michigan National Bank of Detroit. Maierhoffer, on his cross-appeal, urges that the trial court erred in denying him an attorneys fee based upon Section 78.20, Florida Statutes (1977). The trial judge denied an attorneys fee to the successful defendant without setting forth any reason for the denial. The statute provides: “78.20 Judgment for defendant when goods retained by, or redelivered to, him....

...The court further ordered that the Ficketts had abandoned any claim to the forms, molds, and cruising design (also covered by the order of prejudgment replevin), and therefore Sag Harbour was entitled to retain possession of those items. The trial court, citing sections 78.20 and 78.21, Florida Statutes (1981), ordered Sag Harbour to pay attorney's fees and costs to the Ficketts as the prevailing party....

...ld be entitled to judgment in that amount against the replevin bond posted by Sag Harbour. We hold that the trial court erred in awarding attorney's fees to appellees. The court's opinion and judgment predicated the award upon a citation to sections 78.20 and 78.21, Florida Statutes (1981). Section 78.20 provides: When property has been retained by, or redelivered to, defendant on his forthcoming bond or upon the dissolution of a prejudgment writ and defendant prevails, he shall have judgment against plaintiff for his damages for the taking, if any, of the property, attorney's fees and costs....

...for the value of the property and costs in the same manner as provided in section 78.19 for judgment in favor of plaintiff. Section 78.19 contains no reference to attorney's fees. The only statutory authority for awarding attorney's fees is found in section 78.20, which applies when the defendant ultimately prevails and the goods have been retained by or redelivered to the defendant upon his posting of a forthcoming bond or 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....

...red Sag Harbour to redeliver the boat to the Ficketts, the award of attorney's fees was entirely proper. We do not agree. It is undisputed that the property was neither retained by nor redelivered to appellees within the meaning of the provisions of section 78.20, and that an award of attorney's fees is authorized only by that section....

...Rather, the final judgment ordering Sag Harbour to redeliver the property to the Ficketts was entered pursuant to section 78.21, and that section contains no authority for awarding attorney's fees. Because the circuit court erred as a matter of law in relying on both section 78.20 and 78.21 as authority for awarding attorney's fees to appellees, that provision of the judgment is reversed....

...now made, we decline to permit a total reargument of the case based on facts and law not originally argued in the briefs. Appellees also contend that we have erred in considering the trial court's ruling on their entitlement to attorney's fees under section 78.20, Florida Statutes, because appellant failed to properly preserve such issue for appellate review....

COBB, Judge. The issue is whether the trial court erred in finding that attorney’s fees and costs are immediately awardable under section 78.20, Florida Statutes (1993), solely upon the dissolution of a prejudgment writ of replevin....

...and TAD posted a replevin bond. Pursuant to subsection (6) of the statute, Whiland successfully moved to dissolve the prejudgment writ. After entry of the order dissolving the writ, Whiland filed a motion for costs and attorney’s fees pursuant to section 78.20. The trial court ultimately issued a “partial final judgment” awarding fees and costs, giving rise to the instant appeal. Based upon the plain language of section 78.20, we reverse....

...That interpretation renders those three words redundant and superfluous. We believe the reference contemplates that the defendant ultimately prevails in the replevin action. See Gimbel v. International Mailing and Printing Co., Inc., 506 So.2d 1081, 1084 (Fla. 4th DCA 1987) (section 78.20 is merely a make-whole provision for defendants who prevail in re-plevin actions and meet other criteria of entitlement) (emphasis supplied). In agreeing with the Fourth District’s interpretation of section 78.20, we acknowledge conflict with McMurrain v....

...In McMurrain v. Fason, 584 So.2d 1027 (Fla. 1st DCA 1991), the first district granted a petition for certiorari under similar circumstances, holding that damages were due immediately upon the dissolving of the writ. Prior to McMurrain, this court had construed section 78.20, Florida Statutes (2007), upon which this issue turns, in a manner contrary to McMurrain....

...The Fee Judgment awards $24,695.00 in fees to appellee, one of three defendants below, Abraham Cohen (“Cohen”), after Cohen succeeded in vacating a prejudgment writ of replevin obtained by Belvant. We reverse the Fee Judgment because we conclude that, to be entitled to a fee award under section 78.20 of the Florida Statutes (2014), a defendant must prevail not only in having the prejudgment replevin writ dissolved, but also in the underlying action for replevin, which in this case remains pending....

...On November 21, 2016, during the pendency of this appeal, the trial court entered an order placing the Permit with a receiver. 4 In April 2017, we affirmed the vacatur order, issuing an unelaborated per curiam opinion. See Belvant v. Saint Vil, 225 So. 3d 819 (Fla. 3d DCA 2017). 5 Relying upon section 78.20, Cohen then filed a motion in the trial court asserting his entitlement to damages, attorney’s fees and costs based on his having the prejudgment writ of replevin vacated....

...four counts – including the replevin count – alleged in Belvant’s complaint have been adjudicated to conclusion. II. Analysis The issue before this Court is whether the Fee Judgment was prematurely entered. Specifically, we must decide whether section 78.20 of the Florida Statutes (2014) allows a defendant, who has succeeded in having a prejudgment writ of replevin vacated, to recover damages, attorney’s fees and costs immediately, or whether, as a precondition to an award under section 78.20, a defendant must also prevail in the underlying replevin action....

...e relief 5 without regard to the pending cause of action [for replevin].” McMurrain v. Fason, 584 So. 2d 1027, 1032-33 (Fla. 1st DCA 1991).6 Endorsing an approach that focuses upon the text of section 78.20, the Fourth District 7 and the Fifth District, 8 certifying and acknowledging conflict, respectively, with McMurrain, reached a contrary conclusion: Based upon the plain language of section 78.20, we reverse....

...That interpretation renders those three words redundant and superfluous. We believe the reference contemplates that the defendant ultimately prevails in the replevin action. See Gimbel v. International Mailing and Printing Co., Inc., 506 So. 2d 1081, 1084 (Fla. 4th DCA 1987) (section 78.20 is merely a make-whole provision for defendants who prevail in replevin actions and meet other criteria of entitlement) (emphasis supplied). 6 In McMurrain, the First District notes that the purpose of a pr...

...Whiland Co., S.A., 671 So.2d 883, 884 (Fla. 5th DCA 1996). While we view both approaches as meritorious, we adopt the approach taken by the Fourth and Fifth Districts and certify conflict with McMurrain. The substantive basis for a successful defendant’s entitlement to damages, attorney’s fees and costs is section 78.20, and we view section 78.20 as a fee statute. See Mich. Nat’l Bank of Detroit v. Maierhoffer, 382 So. 2d 318, 322 (Fla. 3d DCA 1979). As attorney’s fee statutes are in derogation of common law, we are required to strictly construe them. Id. Section 78.20, the statute providing for damages, attorney’s fees and costs to a defendant who has prevailed in having a prejudgment replevin writ extinguished, reads, in relevant part, as follows: When property has been ....

...ntiff for his or her damages for the taking, if any, of the property, attorney fees, and costs. The remedies provided in this section and s. 78.21 shall not preclude any other remedies available under the laws of this state. § 78.20, Fla....

...7 and effect must be given to every word, phrase, sentence, and part of the statute, if possible, and words in a statute should not be construed as mere surplusage.”). To avoid rendering the words “and defendant prevails” in section 78.20 as mere surplusage, we agree with the Fourth and Fifth Districts that, to obtain an award under the statute, a defendant must not only succeed in having the prejudgment replevin writ dissolved, but also the defendant must ultimately...

...writ of replevin vacated, we are compelled to reverse the prematurely entered Fee Judgment because the record does not reflect that Cohen has prevailed in the underlying replevin action, a prerequisite to the award of damages, attorney’s fees and costs under section 78.20. 9 Reversed and remanded; conflict certified. 9 As an alternate argument for reversal Belvant asserts that, because the Permit was returned to a court-appointed receiver rather than directly to defendant Cohen, another condition of section 78.20 was not met....

...shall bear interest at the rate of .... % per year, for which let execution issue. ORDERED at ., Florida, on .... (date).... Judge NOTE: This form applies when the defendant prevails and the property was retained by or redelivered to the defendant. Section 78.20, Florida Statutes (1995), provides for an award of attorneys^ fees....

retained by or redelivered to the defendant. Section 78.20, Florida Statutes (1995), provides for an award

...trial court culminating in the order dated January 25, 2002, granting Appel-lees’ motion for summary judgment, partial summary judgment and/or judgment on the pleadings; and an order granting Appellee Ms. Burrows’ motion for judgment pursuant to section 78.20 & -.21, Florida Statutes (1999)....

...Accordingly, we reverse the summary final judgment and the order awarding attorney’s fees and costs, and remand for further proceedings. *128 Appellants argue that the trial court erred in awarding attorney’s fees to Ms. Burrows, notwithstanding her failure to plead entitlement to fees pursuant to section 78.20, Florida Statutes....

...Burrows should be awarded a reasonable attorney’s fee and court costs. No specific statutory basis for fees and costs was cited. The motion for summary judgment claimed entitlement to attorney’s fees under section 57.105, Florida Statutes. The amended motion for judgment and for attorney’s fees expressly cited section 78.20 and -.21, and the trial court’s order stated that the fees award was based on section 78.20. Given this record, Appellants received sufficient notice of Ms. Burrows’ request and basis for attorney’s fees. Section 78.21 does not cover the instant facts and is not a basis for relief. Section 78.20 states: 78.20 Judgment for defendant when goods retained by, or redelivered to, defendant_When property has been retained by, or redelivered to, defendant on his or her forthcoming bond or upon the dissolution of a prejudgment writ and defendant prevails, he...

...hether Ms. Burrows “prevailed” premature. Thus, no current basis for attorney’s fees and costs exists. We REVERSE the order granting Ap-pellees’ motion for summary final judgment and the order granting attorney’s fees and costs pursuant to section 78.20, and REMAND for further proceedings....

...final judgment in favor of General Motors Acceptance Corporation (GMAC). The trial court ruled that GMAC was the owner of a 2003 Hummer H2, a motor vehicle to which both parties claimed superior title. The trial court also awarded GMAC damages under section 78.20, Florida Statutes (2003), for the depreciation in the Hummer’s value while the litigation was pending....

...The Proceedings in the Trial Court Southern Auto asserted multiple claims against GMAC in the trial court, including a claim for the replevin of the Hummer. At trial, GMAC claimed that it was obligated to hold the vehicle “at the Florida Auto Auction ... since GMAC was sued [by Southern Auto] in 2004.” Relying on section 78.20, GMAC argued that it was entitled to damages for the depreciation of the Hummer measured by the decrease in *445 the National Automobile Dealers Association (NADA) wholesale value from the day that GMAC took possession of the vehicle from Southern Auto through the date of the trial. 1 The trial court agreed and awarded GMAC $13,275 in depreciation damages. The trial court also ruled that GMAC was entitled to recover its attorney’s fees and costs under section 78.20. The final judgment included a reservation of jurisdiction to determine those amounts. 2 Section 78.20 The trial court relied exclusively on section 78.20 as the basis for the damages award....

...forthcoming bond or upon the dissolution of a prejudgment writ and defendant prevails, he or she shall have judgment against plaintiff for his or her damages for the taking, if any, of the property, attorney fees, and costs. (Emphasis added.) Under section 78.20, when property has been redelivered to the defendant “upon the dissolution of a prejudgment writ” or upon the defendant’s forthcoming bond and the defendant prevails in the replevin action, the defendant is entitled to judgment ag...

...he initial taking of the property, attorney’s fees, and costs. See Weigh Less for Life, Inc. v. Barnett Bank of Orange Park, 399 So.2d 88, 89-90 (Fla. 1st DCA 1981); see also Butler v. Mirabelli, 179 So.2d 868, 871 (Fla. 2d DCA 1965) (stating that section 78.20 sets out what the judgment is to cover in a case when the defendant who prevails in a replevin action is in possession of the property by virtue of his forthcoming bond). Analysis After a thorough review of the record, we conclude that section 78.20 is inapplicable under the facts of this case....

...on of the litigation to final judgment.”). If GMAC kept the vehicle at the auction site until the litigation was concluded, that was its choice. In short, there was no “taking” of the Hummer by Southern Auto within the meaning of sec *446 tion 78.20....

...We have found, however, that the trial court, notwithstanding its consideration of the criteria announced in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985), failed to embody specific findings in the final judgment in support of granting the appellee an attorney’s fee contemplated in section 78.20, Florida Statutes (1989)....

under the rubric of “costs.” This was error. Section 78.20, Florida Statutes (1987), which authorizes the