Obtaining a replevin writ prior to final judgment: with or without notice.

Nothing is more frustrating to a creditor than being told that despite holding all the right documents on a defaulted obligation, it can't immediately take back the personal property which collateralizes or otherwise forms the basis of a prior transaction. (1) While more often than not a remedy cannot be effected until there has been a final adjudication of the parties' dispute, there are exceptions. A writ of replevin is one such vehicle to obtain possession on an expedited basis. (2) This article will examine the nuances of obtaining a writ of replevin prior to entry of a final judgment, (3) as well as an overview of relevant provisions of F.S. Ch. 78 and applicable case law. Particular emphasis will be placed upon [section] 78.055 regarding the complaint, [section] 78.068 regarding prejudgment writ of replevin, and [subsection] 78.065, 78.067, and 78.075 regarding orders to show cause.

F.S. Ch. 78--Preliminary Considerations

Under the provisions of F.S. [section] 78.01: "Any person whose personal property is wrongfully detained by any other person or officer may have a writ of replevin to recover said personal property ..." (4) As to who is entitled to possession of property, and thus entitled to obtain a writ of replevin, the cases address diverse situations. The court in Keefe v. City of Hollywood, 487 So. 2d 311 (Fla. 4th DCA 1986), held that a party holding a power of attorney for a principal is entitled to possession and thus qualified to bring a replevin action. However, in Ethiopian Zion Coptic Church v. City of Miami Beach, 376 So. 2d 925 (Fla. 3d DCA 1979), the court dismissed a replevin action which sought return of marijuana plants that were legally seized from the church's premises. The dismissal was premised upon the fact that the party seeking replevin failed to demonstrate a possessory right or wrongful detention. In Kalman v. World Omni Financial Corporation, 651 So. 2d 1249, 1251 (Fla. 2d DCA 1995), the assignee of an automobile dealer who leased a vehicle was not the party whose name appeared on the title and was thus held not to be the real party in interest in the action.

Under [section] 78.02, no replevin shall lie: 1) for any property taken by virtue of any warrant for the collection of any tax, assessment, or fine pursuant to any statute; 2) for a defendant in any execution or attachment to recover goods and chattels seized by virtue thereof unless such goods and chattels are exempt from the execution or attachment; 3) by the original defendant in replevin for property taken in replevin and delivered to plaintiff while it remains in the possession of the original plaintiff or his or her agents; and 4) for any person unless that person has a right to reduce the goods taken into his or her possession. Another requirement which is absent from the statute, but set forth in case law is that of demand. Indeed, it has been held that a plaintiff must make proper demand upon a defendant before bringing a replevin suit. See Security Underwriting Consultants, Inc. v. Collins, Tuttle Investment Corp., 173 So. 2d 752 (Fla. 3d DCA 1965). Subsection (3) has been interpreted to mean that a defendant is forbidden from re-replevin of property which has already been replevined in the same cause by an opposing party. Robinson v. Cinema International, Ltd., 356 So. 2d 843 (Fla. 4th DCA 1978). As to the right of possession under subsection (4) of the statute, the court in Wisniewski v. Historical Association of Southern Florida, Inc., 408 So. 2d 746 (Fla. 3d DCA 1982), held that the proper inquiry before the court is whether the party instituting a replevin action has a right to immediate possession. Under certain circumstances, the right to immediate possession will trump a holder of absolute legal title. Id.

Section 78.03 addresses jurisdiction and provides that a replevin action must be brought in a court of competent jurisdiction based upon the value of the property sought to be replevined. Section 78.032 addresses venue and provides that venue for a replevin action properly lies in the county where the property is located, where the contract was signed, where the defendant resides, or where the cause of action accrued, or, if joined with other causes of action, in any county where venue is proper under Ch. 47.

If a creditor meets the proper qualifications for initiating a replevin action, and brings the action in a court of competent jurisdiction and in the correct location, he initiates his replevin action by filing a complaint. (5) F.S. [section] 78.055 sets forth the allegations which must be contained in a complaint if a party seeks a writ of replevin prior to a final judgment. (6) To obtain an order authorizing the issuance of a writ of replevin prior to final judgment, the plaintiff shall first file with the clerk of the court a complaint reciting and showing the following information: 1) a description of the claimed property; 2) a statement that the plaintiff is the owner of the claimed property or is entitled to possession of it; 3) a statement that the property is wrongfully detained by the defendant; 4) a statement that the claimed property has not been taken for a tax, assessment, or fine pursuant to law; and 5) a statement that the property has not been taken under an execution or attachment against the property of the plaintiff or, if taken, that it is exempt. (7) Noteworthy is the language contained in the preamble to the cited statute which sets forth the information required to be shown by a party seeking replevin "prior to final judgment."

The wording of the replevin statutes can be confusing in at least two respects. First, they are somewhat inconsistent in their terminology. Section 78.055 clearly sets forth the requirement that a replevin action is, in the first instance, initiated by the filing of a complaint. However, [section] 78.068, relating to pre-judgment writs of replevin, makes reference to a verified "petition" and a "petitioner." Nowhere in Ch. 78, however, do the statutes set forth the requirements of a petition. (8) Most likely, the legislature intended to refer to a complaint or motion when [section] 78.068 was drafted. However, this is not entirely clear from a plain reading of the statute.

Second, [section] 78.068 is entitled "Prejudgment Writ of Replevin." This can leave the impression that the sole procedure for obtaining a writ of replevin prior to entry of a final judgment is set forth in [section] 78.068. This is not the case, however. As discussed at some length by the court in Prestige Rent-A-Car, Inc. v. Advantage Car Rental and Sales, Inc., 656 So. 2d 541 (Fla. 5th DCA 1995), there are two separate and distinct procedures for obtaining a replevy writ in Florida prior to entry of a final judgment. (9) There is the procedure set forth in [section] 78.068 where the replevin writ is issued without notice, and there is the procedure of obtaining a replevin writ through a show cause hearing. The tradeoff for obtaining the writ on an ex parte basis is that the applicant must post a bond. See Comcoa, Inc. v. Coe, 587 So. 2d 474 (Fla. 3d DCA 1991). However, a party seeking a writ of replevin can forego posting a bond by utilizing the notice procedures under [section]78.065 which allow for an order to show cause, and a hearing in accordance with the provisions of [section] 78.067.

Clearly the procedures set forth in [subsection] 78.065 and 78.067 address prejudgment writs of replevin as well. Perhaps [section] 78.068 should more properly have been given a title reflecting that it sets forth a procedure to obtain a writ of replevin before entry of a final judgment by utilizing an ex parte procedure.

Due Process Considerations

The U.S. Supreme Court, in Fuentes v. Shevin, 407 U.S. 67 (1972), considered, inter alia, F.S. [subsection] 78.01 and 78.07, predecessors to Florida's current statutes governing prejudgment writs of replevin. Under the old law, a party seeking to replevy personal property was not required to show prior to seizure that goods were being wrongfully detained. Rather, all that was needed was a bare, unverified assertion by the applicant that he was entitled to a writ of replevin. This statement alone authorized the clerk to issue a writ of replevin summarily as long as the applicant filed a bond. (10) There was no provision for the matter to be heard by a judge prior to the seizure. The Supreme Court struck down the statutes because they violated the due process requirements of the Fourteenth Amendment. 407 U.S. 67, 93.

In Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974), the Supreme Court considered the equivalent of Louisiana's replevin statute: a sequestration procedure. The Louisiana sequestration procedure was similar to that set forth in Florida's prior statutes discussed in Fuentes in that under certain circumstances, a writ could be issued ex parte. However, it differed from Florida's prior procedure in that the grounds relied upon by a creditor for a writ were required to be contained in a verified petition. Further, the verified petition was required to be evaluated by a judge prior to issuance of a writ. Also, the debtor was given an early opportunity to be heard after the seizure. This, held the Court, was sufficient to satisfy due process rights. 416 U.S. 618-620.

Following the Supreme Court's decisions in Fuentes and Mitchell, the Florida Legislature enacted F.S. [section] 78.068 entitled "Prejudgment Writ of Replevin. (11) Shortly after its enactment, [section] 78.068 faced challenges that it violated due process requirements under the United States and Florida constitutions. This argument was rejected by the Florida Supreme Court in Gazil, Inc. v. Super Food Services, Inc., 356 So. 2d 312 (Fla. 1978). The court held that [section] 78.068 met the five-part test for minimum due process as set forth in Mitchell: 1) the plaintiff must show facts indicating a right to the property sought to be replevined and the allegations must be verified; 2) an application for replevin without notice must be presented to a judge, as opposed to a clerk; 3) the facts must show the necessity for replevin, done if the debtor is in possession of the property and the applicant establishes that there is a possibility of waste, concealment, or transfer of the property, or that the debtor is in default on his payments; 4) plaintiff must post a bond; and 5) the debtor must be entitled to an immediate hearing on the issue of possession. This, held the Gazil court, satisfied the due process standards set forth in Mitchell. Therefore, [section] 78.068 was held to be constitutional.

Ex-Parte Applications and Other Considerations

Previously, it was noted that Florida's statutory procedure for obtaining a writ of replevin prior to entry of a final judgment on an ex-parte basis was amended to comply with the due process requirements set forth by the U.S. Supreme Court in Mitchell. The previous statute was struck down by the Supreme Court in Fuentes. Section 78.068 was drafted to take into account these due process considerations. The statute has withstood due process challenges and remains the letter of the law in the State of Florida. The first two subsections of [section] 78.068 address the requirements for obtaining a prejudgment writ of replevin. Subsection (1) requires a statement in a verified petition or separate affidavit of the nature and amount of claim along with the grounds relied upon for issuance of the writ. Subsection (2) provides that the writ will issue if the court finds that the property is in danger of destruction, concealment, waste, removal, or transfer, or if the defendant has failed to make payment as agreed. As can be noted from a reading of the statute, a "petitioner" must clearly set forth facts which warrant the issuance of a prejudgment writ of replevin in a verified petition or by affidavit. To a large extent, such allegations must include, at a bare minimum, the requirements set forth in [section] 78.055.

The motion or application for issuance of a prejudgment writ may be filed with the complaint and can be heard prior to service of the summons and complaint. The case of McMurrain v. Fason, 573 So. 2d 915 (Fla. 1st DCA 1991), illustrates this point. The plaintiff, who filed an unverified complaint with an attached affidavit, simultaneously filed a motion for issuance of a prejudgment writ of replevin with his complaint. (12) On the same day that the complaint and motion were filed, the court heard the plaintiff's motion on an ex parte basis and entered an order directing issuance of a prejudgment writ of replevin. The writ was executed the next day. (13)

Other cases have upheld orders directing the issuance of a prejudgment writ of replevin under [section] 78.068 without discussing the requirement of pleading exigent circumstances such as destruction, concealment, or waste. (14) This line of cases holds that a mere allegation of nonpayment is sufficient as so held by the Supreme Court in Mitchell. (15) In Landmark First National Bank of Fort Lauderdale v. Beach Bait and Tackle Shop, Inc., 449 So. 2d 1287 (Fla. 4th DCA 1984), the court held that upon plaintiff's proof of nonpayment as alleged, the issuance of a prejudgment writ of replevin should be upheld. Similarly, in Waite Aircraft Corp. v. Ford Motor Credit Company, 430 So. 2d 1003 (Fla. 4th DCA 1983), the court held that a prejudgment writ of replevin was properly issued since the plaintiff alleged nonpayment under a personal property lease, and the defendant failed to controvert the allegations. In Transtar Corporation v. Intex Recreation Corp., 570 So. 2d 366 (Fla. 4th DCA 1990), the court held that mere nonpayment is sufficient to justify issuance of a prejudgment writ of replevin even if the plaintiff does not hold a security interest or other independent possessory interest in the goods sought to be replevined.

If the plaintiff fails to properly allege facts in a verified complaint or in a supporting affidavit, a writ cannot be issued. Thus, in Kalman, the district court ruled that a prejudgment writ of replevin should not have issued when the only supporting affidavit to an unverified complaint merely attested to the fact that the affiant read the complaint and certified that the matters stated therein were true and correct. Kalman, 651 So. 2d at 1251. (16) The Kalman plaintiff should have either filed a verified complaint, or otherwise have specifically alleged facts based upon firsthand knowledge in an affidavit--facts such as the plaintiff's ownership or security interest in the collateral, default on payment obligations, or concealment, destruction, or waste.

If, however, the plaintiff properly sets forth allegations in an affidavit or verified complaint which establish the right to issuance of a prejudgment writ of replevin, the court does not have discretion; an order directing issuance of the writ must be entered. If the trial court fails to do so, mandamus can be employed by the plaintiff do direct the trial court to do so without notice to the party in possession. Comcoa, Inc., 587 So. 2d at 478-479.

Section 78.068(3) provides that "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." In Waite Aircraft Corp., it was held that plaintiff met its burden of proof for sustaining a prejudgment writ of replevin by alleging nonpayment--an allegation which was not contradicted during a hearing held on a subsequent motion to dissolve the writ. However, on appeal, the matter was remanded to the trial court with a directive to conduct an evidentiary hearing for the sole purpose of fixing the value of the property and thus determine the amount of the bond. Waite Aircraft Corp., 430 So. 2d at 1003.

The only factor for the court to consider in setting the amount of the bond to be posted is the value of the property to be replevined. Thus, matters such as the amount of a defendant's delinquency under an equipment lease of disputed property are outside the scope of the court's consideration in determining the amount of the bond. Hutchens v. Maxicenters, U.S.A., 541 So. 2d 618 (Fla. 5th DCA 1989). If the parties stipulate that neither party shall be required to post a bond, no bond is necessary. Zuckerman v. Professional Writers of Florida, Inc., 398 So. 2d 870,873 (Fla. 4th DCA 1981). Otherwise, the trial court has no discretion to waive the bond requirement. Unicorn Star, Inc. v. La Corrida Restaurante, Inc., 591 So. 2d 271 (Fla. 4th DCA 1991).

Section 78.068(4) provides that "[t]he defendant may obtain release of the property seized under a prejudgment writ of replevin by posting bond within five days after serving of the writ in the amount of 1-1/4 the amount due and owing on the agreement for the satisfaction of any judgment which may be rendered against the defendant." (17) Thus, in Auto-Owners Insurance Co. v. Hooks, 463 So. 2d 468, 474-475 (Fla. 1st DCA 1985), when an insurance company was erroneously granted a prejudgment writ of replevin due to technicalities regarding its affidavit, good faith purchasers of the replevined vehicle were not entitled to punitive damages against the insurance company. Rather, they could have avoided the consequences of which they complained by merely posting a bond to secure release of the replevined automobile. The option of posting a bond to obtain release of the replevined property is not mandatory. See Meireles Truck Sales, Inc. v. Industria Del Autobus, C.A., 555 So. 2d 1253 (Fla. 3d DCA 1989), holding that a defendant must be given the opportunity to present testimony at a hearing on a motion to dissolve the writ and is not compelled to file a bond under [section] 78.068(4).

Section 78.068(5) provides that "[al prejudgment writ of replevin shall issue only upon the signed order of a circuit court judge or a county court judge." This section was added in response to the Supreme Court's decisions in Fuentes and Mitchell which, inter alia, required judicial review of the decision whether or not to issue a writ of replevin. The section is essentially duplicative of F.S. [section] 78.045, which also provides that "no clerk of court shall issue a writ of replevin prior to final judgment unless there has been filed with the clerk of court an order authorizing the issuance of such writ of replevin."

Section 78.068(6) provides that The defendant, by contradictory motion filed with the court within 10 clays 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. The court shall set down such motion for an immediate hearing. This motion shall be in lieu of the provisions of subsection (4).

In McMurrain, the defendant moved to dissolve the prejudgment writ pursuant to subsection (6). On appeal, the district court noted the burden of proof placed upon the petitioner (i.e., party seeking the writ) at a hearing and ruled that he failed to come forward with such proof. Further, the court held that a mere 10 minutes notice of hearing on the motion to dissolve was sufficient notice since the motion to dissolve had been filed seven days prior to the hearing. The court further held that the statute required an evidentiary hearing to allow the defendant the opportunity for cross-examination. McMurrain, 573 So. 2d at 919-920. In Lennox Retail, Inc. v. McMillan, 786 So. 2d 1252 (Fla. 5th DCA 2001), the standard of plaintiff's burden of proof was held to be a showing by "substantial and competent evidence." The district court further held that a trial court has discretion to grant a motion to dissolve based upon noncompliance with statutory standards for issuing the writ. Id. at 1257. A contrary ruling was issued in KDC Financial Corporation v. American Rock, Inc., 578 So. 2d 757 (Fla. 3d DCA 1991), where the district court effectively placed the burden of disproving nonpayment upon the defendant, and reversed a lower court ruling dissolving the writ. An important factor in the court's decision was that the defendant agreed to surrender voluntarily the subject equipment which was ultimately obtained by the plaintiff under a writ of replevin. (18) Id. at 759. In any event, however, a hearing must be held if so requested by the defendant, who must be given the opportunity to present testimony. See Meireles Truck Sales, Inc., 555 So. 2d 1253.

Even if the writ should not have been issued in the first place, e.g., due to an insufficient affidavit, review of an order denying a motion to dissolve a writ of replevin is based not on the record before the judge at the time the writ was issued, but rather is based on the record at the time the motion to dissolve was heard. Prestige Rent-A-Car, Inc., 656 So. 2d at 545.

It should be noted that the issuance or dissolution of a prejudgment writ of replevin is not a final dispositive ruling as to ownership of the personal property in dispute. Kalman, 651 So. 2d at 1252. See also Zuckerman, 398 So. 2d at 873. Indeed, it has been held that dissolution of a prejudgment writ of replevin has no effect other than to determine right to possession of property pending final adjudication of the parties' claims. Weigh Less for Life, Inc. v. Barnett Bank of Orange Park, 399 So. 2d 88, 89 (Fla. 1st DCA 1981). A judgment following a trial on an ordinary replevin claim will provide the final dispositive ruling on the issue of replevin. Traces Fashion Group, Inc. v. C&C Management, Inc., 763 So. 2d 502 (Fla. 3d DCA 2000). A seemingly contrary ruling is set forth in KDC Financial Corporation, which held that replevined property could be disposed of at a private sale under F.S. [section] 679.504. However, the case is distinguishable because the replevined property was also made available to the plaintiff via a voluntary surrender. (19) 578 So. 2d at 579.

The court in Weigh Less for Life, Inc. expressed its disapproval with the inartful drafting of [section] 78.068. The discussion centered around the issue of whether or not issuance of a prejudgment writ of replevin under [section] 78.068 is a final determination of ownership. Noting that the language of [section] 78.068(6), read alone, leads to an inference that the plaintiff must prove his entire case during the hearing held on a motion to dissolve the writ, the court stated that "[w]e are required, however, to read almost two additional pages of the statutes in order to discover whether, or in what manner these provisions [in Chapter 78] mesh together." It then continues with a discussion of [subsection] 78.065 and 78.067, which set forth how to proceed under an order to show cause hearing, and cites language that proceeding under the order to show cause method results in a determination as to which party "is entitled to the possession of the claimed property pending final adjudication of the claims of the parties (emphasis added)." 399 So. 2d at 89-90. At this stage, a discussion of the second type of procedure for obtaining a writ of replevin prior to entry of final judgment--through an order to show cause and hearing thereon--is appropriate.

Proceeding with Notice Through Show Cause Hearing

The previous discussion relating to ex parte proceedings and related matters under [section] 78.068 is a topic which has been the subject of often hotly contested litigation. Less controversial procedures are set forth in F.S. [subsection] 78.065 and 78.067. The defendants are given notice and the opportunity to be heard prior to entry of an order directing issuance of a writ of replevin and prior to entry of a final judgment. While several reported cases have arisen which discuss these statutes, the number is substantially less than those which arise out of disputes relating to proceedings under [section] 78.068. A discussion of the statutory authority for proceeding under an order to show cause is necessary.

F.S. [section] 78.065 provides the statutory authority for proceeding under an order to show cause. Entitled "Order to Show Cause; Contents," the statute contains two subsections. Subsection (1) provides that the court shall issue a replevin writ if the defendant has waived his or her right to be heard in accordance with [section] 78.075. Subsection (2) sets forth the procedure for issuing an order to show if there has been no waiver. A date and time for the hearing no less than five days after service of the order is set. The plaintiff is directed to serve the order (and if not already served, the complaint) within a certain date. The manner of service is fixed: personal service upon the defendant being preferable, but absent personal service, by leaving a copy of the order and summons on the claimed property or on the main entrance to the defendant's residence. The order must state that nonpersonal service is only effective for the show cause order and nothing else. There also must be a statement that the defendant can file affidavits, appear personally or through an attorney, present testimony at a hearing, and if unsuccessful at the hearing, post a bond equal to the value of the property to stay the replevin writ. The order further states that a failure to appear at the hearing is deemed a waiver, and that the court may direct the clerk to issue a writ in such case. The official form of an order to show cause, Form 1.916, should be used when submitting for entry by the court. Form 1.916 contains the language which is required by [section] 78.065.

This procedure differs from that set forth in [section] 78.068 in two important ways. First, the defendant receives notice prior to issuance of the writ of replevin. The preferred method is to have the order to show cause served in a manner similar to that in which initial service of a summons and complaint are made. Therefore, in Williams Management Enterprises v. Buonauro, 489 So. 2d 160, 161 (Fla. 5th DCA 1986), the court, during the course of a lengthy discussion on the history of replevin and related proceedings of detinue, trover and conversion and debt, noted cryptically that process could be effectuated by publication. (20) Notwithstanding the theoretical possibility of obtaining service by publication, it should not be lost upon the party seeking to recover property that the odds of seizing property in the possession of a defendant are substantially decreased if personal service can not be made upon the defendant. In any event, the case law is not developed on the issue of alternative methods of service of an order to show cause. However Trawick's Florida Practice and Procedure (2001 ed.), [section] 34-2, p. 596 at footnote 8 states that if it is not possible to personally serve the order to show cause, it can be placed on or in the property sought to be replevined, or in the main entrance of the defending parties' residence.

The second way in which this procedure differs from the ex parte procedure set forth in [section] 78.068 is that the plaintiff is not required to post a bond. See Fort Lauderdale Collection, Inc. v. Rosamelia, 677 So. 2d 973 (Fla. 4th DCA 1996); T and T Air Charter, Inc. v. Duncan Aircraft Sales, Inc., 566 So. 2d 361 (Fla. 4th DCA 1990). Rather, the party in a show cause proceeding who would be required to post a bond would be the defendant--that party seeking to defeat the replevin action. For this reason, a value of the replevined property must be set forth in the complaint. See Williams v. Kloeppel, 537 So. 2d 1033,1037 (Fla. 1st DCA 1989). The court in Vega v. Hughes, 370 So. 2d 1187 (Fla. 4th DCA 1979), took a contrary position. The Vega court held that [section] 78.068(3) (which requires a party seeking to replevy property to post a bond in an amount equal to twice the value of the goods) applied in a show cause proceeding. It is the opinion of the authors that this ruling is in error.

As noted in [section] 78.065(2)(e), a debtor may file affidavits on his or her behalf with the court. Once an order to show cause has been entered and properly served, a hearing on the order to show cause will be held. Prior to the show cause hearing, the debtor is permitted to depose witnesses. At the hearing, the debtor is permitted to testify and is entitled to have the court consider his or her affidavit(s) and/or testimony in reaching its decision as to which party is entitled to possession of the disputed property. Kingswood South, Inc. v. J.I. Case Credit Corporation, 623 So. 2d 584, 585 (Fla. 4th DCA 1993).

While [section] 78.065 sets forth the requirements for issuance of an order to show cause, the statute which actually governs show cause hearings is F.S. [section] 78.067. The statute contains two subsections. Subsection (1) provides that if the defendant has waived the right to be heard under [section] 73.075, the court will dispense with a hearing and issue an authorizing the clerk to issue a replevin writ. Subsection (2) provides that the court shall consider affidavits and other showings made by the defendant at the hearing, and make a determination of which party, "with reasonable probability," is entitled to possession. If the plaintiff is determined to be entitled to possession the court shall issue an order directing the clerk to issue the replevin writ. The order shall be stayed, however, if the defendant posts a bond equal to the value of the property.

F.S. [section] 73.075 addresses waiver by the defendant. There are effectively two ways in which a defendant can waive his or her right to a show cause hearing. The first is by engaging in conduct indicating that he or she wants to forego being heard. The most common example of such conduct (an example which is mentioned in [section] 73.075) is failure to attend the hearing after proper service of the order to show cause--an order which also serves as a notice of hearing. Another example of such conduct, while not specifically set forth in the statute, would likely include a voluntary surrender of the disputed property. One can also waive a show cause hearing by signing a written waiver. The statute sets forth specific language which would be deemed sufficient to constitute such a waiver, and the reader is directed to the statute if it is desired to proceed in this fashion.

Absent a waiver by the defendant, a show cause hearing will be held. As noted in Kingswood South, Inc., the debtor is permitted to testify and is entitled to have the court consider his affidavits before reaching a decision. In one case, Morse Operations, Inc. v. Superior Rent-A-Car, Inc., 593 So. 2d 1079 (Fla. 5th DCA 1992), the standard applied by both the trial court and the district court was whether the plaintiff established "with reasonable probability" its right to possession of the disputed property. Both courts agreed upon the standard. They differed, however, in their ultimate conclusions. The plaintiff leased automobiles to the defendant under a master lease agreement. The defendant subsequently defaulted and filed for Chapter 11 bankruptcy protection. The plaintiff obtained a stay relief order in the bankruptcy proceedings and thereafter filed a replevin action. Following a full blown evidentiary hearing, the thoroughly confused trial court determined that the parties' business relationship was too complex to unravel, and declined to enter an order directing issuance of a writ of replevin. On appeal, the district court noted that lease agreement provided that the plaintiff was entitled to possession upon default and reversed the lower court, directing it to immediately issue a writ of replevin, noting that the defendant could stay the order by posting a bond under [section] 78.067(2). Id. at 1081. The "reasonable probability" standard set forth by the Fifth District in Morse was subsequently adopted by the Fourth District in Midway Manufacturing Co. v. Family Fun Corp., 668 So. 2d 327 (Fla. 4th DCA 1996).

As to final disposition of the underlying action following a show cause hearing, the court in Gil v. Shively, 320 So. 2d 415 (Fla. 4th DCA 1975), focused upon whether the complaint itself properly states a cause of action for replevin. Having concluded that a cause of action for replevin was properly alleged, the trial court's dismissal of the complaint following a show cause hearing was reversed. In doing so, the district court noted that the purpose of a show cause hearing is to serve as a preliminary hearing determining who should or should not have possession of the property pending a final hearing. Id. at 416.

A plaintiff who joins a replevin action with a foreclosure proceeding is entitled to use the show cause procedure set forth in [section] 78.067. In General Electric Company v. O'Keefe, 309 So. 2d 231, 232 (Fla. 4th DCA 1975), the court upheld the show cause procedure as a remedy to obtain immediate possession of property by an aggrieved creditor pending resolution of complex foreclosure litigation. In doing so, the court noted that the defendant had the option of filing a bond equal to the value of the property as set forth in [section] 78.067.

Conclusion

What the statutes and cases illustrate is that, to a large degree, the creditor is in the driver's seat when it comes to the replevin of personal property. The circumstances of each situation will by necessity dictate the approach--with or without notice, with or without a bond, prejudgment or postjudgment. Very often, early disposition of the replevin issue, even if in the nature of a mere preliminary ruling, will effectively bring the parties' dispute to a prompt resolution. The reader is encouraged to consider this discussion in the broader overall context of other remedies available under the Uniform Commercial Code and other Florida Statutes outside of Ch. 78 when deciding how to proceed.

(1) While replevin is a remedy available to aggrieved parties who may not be part of a creditor-debtor relationship, the lion's share of disputes relate to defaulted obligations.

(2) Another vehicle is peaceable repossession under the U.C.C., FLA. STAT. [section] 679.609.

(3) We hesitate to refer blanketly to all such remedies as "prejudgment writs of replevin" due, inter alia, to the confusing wording of Florida Statutes on this topic.

(4) The remedy of replevin is often not the exclusive method of obtaining possession of property. See 159 East, Inc. v. Margolis, 702 So. 2d 286 (Fla. 4th D.C.A. 1997), holding that while improper use of prejudgment replevin proceedings precluded issuance of a replevin writ, a landlord could enforce its statutory lien to avail itself of its possessory rights to personalty. See also KDC Financial Corporation v. American Rock, Inc., 578 So. 2d 757 (Fla. 3d D.C.A. 1991), where it is noted

that voluntary surrender and peaceable repossession to the extent permitted under the Uniform Commercial Code remain alternative remedies for obtaining possession of property.

(5) Cf. FLA. STAT. [section] 78.068, which refers to party seeking a prejudgment writ of replevin as a "petitioner."

(6) See Robinson, 356 So. 2d at 844-45, which held that a replevin action could be brought via a counterclaim.

(7) It is suggested that the reader carefully review the precise wording of the cited statute and draft a replevin complaint using language as close to the statutory language as possible.

(8) However, in Al-Hakim v. Holder, 787 So. 2d 939 (Fla. 2d D.C.A. 2001), the court considered a replevin action which was initiated by a petition.

(9) While the court did not expressly state so, it clearly was referring to procedures for obtaining a replevy writ prior to entry of a final judgment.

(10) See former FLA. STAT. [subsection] 78.07, 78.08.

(11) Discussed at greater length infra.

(12) The plaintiff also posted a bond along with the motion.

(13) While the district court eventually held that the writ should have been dissolved, it failed to take exception to the fact that the ex parte hearing was held on the same day the complaint was filed.

(14) However, the cases fail to disclose whether or not the plaintiffs chose to proceed on an ex parte basis.

(15) This is logical because if exigent circumstances are not present, the party seeking replevin may proceed using the notice procedures of FLA. STAT. [subsection] 78.065 and 78.067, and thus eliminate the requirement of posting a bond.

(16) In Prestige Rent-A-Car, Inc., 656 So. 2d at 545, the court stated that an affidavit which merely states that it is based on information and belief is insufficient as well.

(17) Cf. FLA. STAT. [section] 78.067(2), providing that if there is an adjudication during a show cause hearing that the plaintiff is entitled to immediate possession, the order directing issuance of a writ of replevin can be stayed if the defendant posts a bond equal to the value of the property.

(18) The court noted that replevin and peaceable repossession are consistent remedies and that the commencement of one does not preclude utilization of the other. Further, it ruled that the collateral could be sold at a private sale. KDC Financial, 578 So. 2d at 759.

(19) It should not be lost upon the reader that cases involving replevin disputes often contain issues arising under the U.C.C. which should be considered along with the provisions of FLA. STAT. ch. 78.

(20) The opinion is an excellent source of information for those interested in the historical development of these common law remedies and is recommended reading for those who have inquiries relating to causes of action to be set forth in cases involving possessory related disputes.

Patrick C. Barthet holds a J.D. granted by the University of Miami School of Law in 1979, an M.A. from New York University in 1971, and a B.A. from Fordham University in 1968.

Daniel Morman holds an LL.M. in taxation granted by New York University in 1986, a J.D. from Temple University School of Law in 1984, and a B.B.A. from the University of Pennsylvania in 1981. He previously served as an attorney with the Internal Revenue Service and as a panel member bankruptcy trustee in Pennsylvania and Delaware.

Both attorneys are associated with the law firm of Patrick C. Barthet, P.A., Miami, concentrating in commercial litigation.