CopyCited 15 times | Published | Supreme Court of Florida | 1992 WL 163953
...The amount claimed in the complaint is the sum of $ _________ with interest and costs. DATED on _________________, 19__ ______________________________ Judge Committee Notes 1980 Amendment. This form is substantially revised to comply with the statutory changes in section 83.12, Florida Statutes, as amended in 1980 to overcome the unconstitutionality of distress proceedings....
CopyCited 12 times | Published | Florida 3rd District Court of Appeal | 1991 WL 139152
...lief requested, but none in fact exists. Compare Fla. R.App.P. 9.130 (providing for review of order determining plaintiff's right to relief). [5] Cf. Phillips v. Guin & Hunt, Inc.,
344 So.2d 568, 574 (Fla. 1977) (distinguished in Gazil; invalidating §
83.12, Fla....
...4th DCA 1991) that the mandatory nature of the duty to issue the writ thus provided by §
78.068 may render it unconstitutional. Such a conclusion would be directly contrary to Gazil,
356 So.2d at 312, which explicitly upheld the statute as written. In any event, Brasseria, which found §
83.12, Fla....
...that the requirements 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.
CopyCited 9 times | Published | Supreme Court of Florida | 1954 Fla. LEXIS 1462
...Indeed, according to Professor Larson, only four states, including Florida, approach the problem of attorney fees in workmen's compensation cases by making provision for such fees at the hearing or trial level by express statute. Larson on Workmen's Compensation (1952) Section 83.12....
CopyCited 6 times | Published | Supreme Court of Florida
...[1] *570 Appellants/landlords filed a distress for rent claim under Section
83.11, Florida Statutes (1975), along with an affidavit in support of the claim. They posted a distress bond for twice the value of the property sought to be levied upon. In accordance with Sections
83.12 and
83.13, Florida Statutes, a deputy clerk of Orange County, Florida, issued a distress writ without a judicial order....
...We are now asked to consider whether that court erred in declaring sections of Chapter 83 unconstitutional as violative of the due process clause in the United States Constitution. In light of recent judicial treatment regarding prejudgment procedures, we find that the circuit court was correct in ruling that Sections
83.11,
83.12, and
83.14-.19, Florida Statutes, failed to pass constitutional muster....
...Rudy's Farm Company, Fla.,
338 So.2d 1067, we held Chapter 76, Florida Statutes, unconstitutional as violative of due process to the extent it provides for attachment prior to judgment without procedural safeguards mentioned therein. [2] Today, we find that Sections
83.11,
83.12, and
83.14-.19, Florida Statutes, are unconstitutional because they fail to comport with contemporary concepts of due process....
...e under oath to a clerk who makes an independent factual determination that the requirements of the statute have been complied with. [7] Only then can the individual have his use and enjoyment of property protected from arbitrary encroachment. Under Section
83.12, Florida Statutes, [8] the distress writ is issued by the clerk based upon an unverified complaint without the necessity of a preliminary factual determination as to the validity of the claim. [9] For the reasons stated herein, the judgment of the circuit court declaring Sections
83.11,
83.12 and
83.14-.19, Florida Statutes, unconstitutional is affirmed....
...Joseph F. Sanson Investment Co.,
376 F. Supp. 61 (Nev. 1974), a landlord lien statute of Nevada was declared to be unconstitutional on due process grounds insofar as it fails to allow for a hearing prior to the seizure of one's personal property. [3] §
83.12, Fla....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 1992 WL 16662
...t to the remedy sought, and finally, 4) a substantial likelihood that the movant will prevail on the merits. Radice, of course, contends that the temporary injunction is proper in that it ordinarily could obtain the temporary relief it seeks through section 83.12, Florida Statutes (1989), were it not for the fact that this court held the statute unconstitutional in Brasseria La Capannina v....
...here. It claims a landlord's lien on the subject property pursuant to section
83.08. While the provisions of Chapter 83, Florida Statutes (1991), relating to enforcement of said law by a distress complaint and issuance of a distress writ pursuant to section
83.12 have been held unconstitutional, said lien is subject to a common law foreclosure....
CopyCited 3 times | Published | District Court, S.D. Florida | 1973 U.S. Dist. LEXIS 15163
...lerk to issue a distress writ. The Plaintiff's personal property was then seized pursuant to the Writ of Distress served by the Defendant, Sheriff of Dade County. The issue in this cause is whether the Florida Distress Statutes,
83.08,
83.09,
83.11,
83.12,
83.13,
83.14,
83.15,
83.18 and
83.19, are unconstitutional in that they permit and authorize the taking of property without due process of law....
...The Clerk is then required to issue a distress writ commanding the sheriff to levy on the property liable to be distrained and to summon the Defendant to answer the landlord's complaint. The landlord must file a bond with surety payable to the Defendant in at least double the sum of money demanded. (F.S.83.12)....
CopyPublished | Supreme Court of Florida | 1980 Fla. LEXIS 4428
...20 days from the time the complaint in this action is served. The amount claimed in the complaint is the sum of $.with interest and cost. DATED on_, 19- Judge Committee Note This form is substantially revised to comply with the statutory changes in section 83.12, Florida Statutes, as amended in 1980 to overcome the unconstitutionality of distress proceedings....
CopyPublished | Supreme Court of Florida | 2000 Fla. LEXIS 2312, 2000 WL 1472356
...time the complaint in this action is served. The amount claimed in the complaint is the sum of $.with interest and costs. DATED on.,19. Judge Committee Notes 1980 Amendment. This form is substantially revised to comply with the statutory changes in section 83.12, Florida Statutes, as amended in 1980 to overcome the *1131 unconstitutionality of distress proceedings....
CopyPublished | District Court of Appeal of Florida | 1966 Fla. App. LEXIS 5649
...On July 17, 1962 the plaintiff, Taft Street Chopping Center, Inc., instituted distress proceedings against Silver Drugs of Brow-ard County, Inc. to recover $1680 rent due for November and December of 1961 and January of 1962. A bond was filed as required by F.S.A. § 83.12 in the amount of $3720....
CopyPublished | Supreme Court of Florida | 17 Fla. L. Weekly Supp. 353, 1992 Fla. LEXIS 1028, 1992 WL 125114
McDonald, judge. We review Brasseria La Capannina, Inc. v. Goodman,
579 So.2d 193 (Fla. 4th DCA 1991), in which the district court held section
83.12, Florida Statutes (1989), unconstitutional on its face because it violates due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution....
...o in breach of a letter agreement dated October 24, 1989, under which it owed an additional $17,306 in accrued rent delinquency. After an ex parte hearing, also on May 16, 1990, the trial court issued the distress writ pursuant to sections
83.11 and
83.12, Florida Statutes (1989)....
...d denied the motion, rejecting arguments that the statute was unconstitutional. On July 10, 1990, in the related eviction action, the county court entered an order evicting Brasseria from the premises. On appeal, the district court reversed, holding section
83.12 facially unconstitutional because it provides no discretion to the presiding judge to deny a request for a distress writ and directs that the judge shall issue the writ upon the filing of a verified complaint alleging a prima facie case under the statute. The court went on to conclude that the statute fails to require that the judge make an impartial factual determination as mandated by Phillips v. Guin & Hunt, Inc.,
344 So.2d 568 (Fla.1977). In Phillips we held sections
83.11,
83.12 and
83.14-.19, Florida Statutes (1975), unconstitutional as violative of the Due Process Clause in the United States Constitution....
...mply with the due process requirements as set forth in Phillips, 2 Section
83.11 was amended to require that the complaint be verified and that it allege the name and relationship of the defendant to the plaintiff and how the obligation arose, 3 and section
83.12 was amended to require that the distress writ be issued by a judge as opposed to a clerk of court....
...Thus, we hold that the factual determination required by a judge before he or she may issue a distress writ consists of determining whether a verified complaint meets the requirements of the statute and whether it alleges a prima facie case. We further construe the phrase “[a] distress writ shall be issued by a judge” in section 83.12 as merely setting forth the individual with the authority to issue a distress writ and not as placing a restriction upon a judge’s discretion to make the required determination as set forth above....
...In light of the procedural safeguards placed into the statute by the 1980 amendments, we determine the statute provides an adequate compromise between the conflicting interests of the parties while preserving the tenant’s due process rights. 10 Accordingly, we reverse the district court’s decision and hold section 83.12 constitutional as construed by this opinion to comply with due process requirements....
...endant in at least double the sum demanded or, if property, in double the value of the property sought to be levied on, conditioned to pay all costs and damages which defendant sustains in consequence of plaintiffs improperly suing out the distress. § 83.12, Fla.Stat....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 3576, 1991 WL 55429
...Appellants/Defendants/Brasseria La Ca-pannina, Inc. and Vita Murphy (Tenants) appeal an interlocutory order denying Tenants’ Motion to Dissolve a Distress Writ. We reverse. We agree with the Tenants’ assertion that the distress for rent statute, section 83.12, Florida Statutes, is facially unconstitutional....
...e under oath to a clerk who makes an independent factual determination that the requirements of the statute have been complied with. Only then can the individual have his use and enjoyment of the property protected from arbitrary encroachment. Under Section
83.12, Florida Statutes, the distress writ is issued by the clerk based upon an unverified complaint without the necessity of a preliminary factual determination as to the validity of the claim (emphasis added). Phillips v. Guin & Hunt, Inc.,
344 So.2d 568, 574 (Fla.1977). The prior version of section
83.12 provided, in pertinent part: On filing the complaint, the clerk shall issue a distress writ commanding the sheriff to levy on property liable to be distrained for rent ... After Phillips section
83.12 was amended to read as follows: A distress writ shall be issued by a judge of the court which has jurisdiction of the amount claimed....
...The required protections of judicial determination of the validity of the complaint, which are present in Mississippi’s Claim and Delivery statutes, are absent (emphasis added). Id. at 182-183. Similarly, in the instant case, the distress statute directs that the judge “shall” issue the writ. Pursuant to section 83.12, as long as the complaint identifies the parties, the amount of rent due, and explains how the obligation for rent arose, the judge has no discretion to deny the writ. Furthermore, the distress statute does not require the judge to make an impartial factual determination, as required by Phillips , concerning the validity of the complaint. Thus, because section 83.12 provides no discretion to the judge to deny a request for a distress writ and directs that the judge shall issue the writ, we hold the statute violates due process and is, therefore, facially unconstitutional....
