CopyPublished | District Court of Appeal of Florida | 1995 Fla. App. LEXIS 4648, 1995 WL 253940
...s 78 and 538, Florida Statutes (1991). The City of Miami was sued pursuant to Chapter 78, the general replevin statute, and Miami Money Store was sued pursuant to Chapter 538, the secondhand dealer statute, which provides for an action for replevin. § 538.08, Fla.Stat....
...was Ms. Main’s diamond. The trial court entered a directed verdict granting Ms. Main a writ of replevin against the City of Miami. Ms. Main moved for an award of attorney’s fees as the prevailing party only against Miami Money Store pursuant to Section 538.08, Florida Statutes (1991)....
...rectly denied the motion for attorney’s fees. Even though the order was entered against only the City of Miami pursuant to Chapter 78, Ms. Main also argues that she is entitled to an award of attorney’s fees against Miami Money Store pursuant to Section 538.08, Florida Statutes (1991). We disagree. Section 538.08(1), Florida Statutes (1991), provides, in part, as follows: If the secondhand dealer contests the identification or ownership of the property, the lawful owner of any stolen goods in the possession of a secondhand dealer may, provided that a timely report of the theft of the goods was made to the proper authorities, bring an action for replevin.... § 538.08(1), Fla.Stat. (1991) (emphasis added). The trial court correctly found that Section 538.08(1), Florida Statutes (1991), was not applicable in the instant case since Miami Money Store, the secondhand dealer, was not in possession of the diamond....
...Black’s Law Dictionary 285 (5th ed. 1979) defines the term as follows: “A person has constructive possession of property if he has the power to control and intent to control such item.” Ms. Main also argues that pursuant to the 1993 amendment to Section 538.08(1), she is entitled to an award of attorney’s fees against Miami Money Store. We disagree. Section 538.08(1), Florida Statutes (1993), provides, in part, as follows: (1) If the secondhand dealer contests the identification or ownership of the property, the person alleging ownership of the property may, provided that a timely report of the...
...Main argues that because the 1993 amendment to Section 538.01(1) eliminated the words “in the possession of a secondhand dealer,” a replevin action may now be brought against a secondhand dealer even if the dealer is not in possession of the property. We disagree with Ms. Main’s interpretation. In section 538.08(1), the form complaint provides, in part, that “[t]he property is wrongfully detained by defendant. Defendant came into possession of the property by (describe method of possession). To plaintiffs best knowledge, information, and belief, defendant detains the property because (give reasons).” Further, Section 538.08(3) provides, in part, that “[u]pon the receipt of a petition for a writ by a secondhand dealer, the dealer shall hold the property at issue until the court determines the respective interests of the parties.” Based on these portions of Section 538.08, we find that as in the 1991 version, the 1993 version also requires that the secondhand dealer must be in possession of the goods....
...2 In conclusion, we affirm the denial of attorney’s fees against Miami Money Store. . We do not need to decide whether the term "possession" also includes "constructive possession” since we find that Miami Money Store was not in constructive possession of the diamond. . By our discussion of the 1993 amendment to Section 538.08(1), we are not deciding that it has a retroactive application....
