Comcoa, Inc. v. Coe

• Citation: 587 So.2d 474
• Decision Date: 30 July 1991
• Docket Number: No. 91-735,91-735
• Parties: 16 Fla. L. Weekly D2005 COMCOA, INC., Appellant, v. The Honorable Jack M. COE, County Court Judge, Appellee.
• Court: Florida District Court of Appeals

Page 474

587 So.2d 474

16 Fla. L. Weekly D2005

COMCOA, INC., Appellant, v. The Honorable Jack M. COE, County Court Judge, Appellee.

No. 91-735.

District Court of Appeal of Florida Third District.

July 30, 1991.

Rehearing Denied Nov. 13, 1991.

Gary S. Gostel, Miami, for appellant.

Robert A. Ginsburg, County Atty. and Roy Wood, Asst. County Atty., for appellee.

Before SCHWARTZ, C.J., and BARKDULL and GERSTEN, JJ.

SCHWARTZ, Chief Judge.

We hold in this case that upon the satisfaction of the statutory prerequisites for a writ of replevin without notice pursuant to section 78.068, Florida Statutes (1989), the trial court is mandatorily required to issue the writ in accordance with that provision.

The case began in the Dade County Court when the appellant, Comcoa, sought to replevin furniture it had leased because the required rental payments had not been made. Although Comcoa's papers fully complied with the requirements of section 78.068, ¹ including a verified allegation "that the defendant has failed to make payment as agreed" under 78.068(2) and the bond required by 78.068(3), the county court judge declined, for no stated reason, to issue the writ. Instead, he ordered the plaintiff to submit an order setting the application for subsequent hearing before the court, after notice to the defendant, as is prescribed under 78.065 ² and 78.067, ³ Florida Statutes (1989). At that point, Comcoa filed a petition for writ of mandamus in the circuit court to require the county court judge to perform the duty to issue the writ without notice under 78.068. Sua sponte, the circuit court dismissed the application on the ground that the issuance of the writ was only a discretionary act by the trial judge as to which, under familiar principles, mandamus would not lie. ⁴ Compare, e.g., Sandegren v. State ex rel. Sarasota County Pub. Hosp. Bd., 397 So.2d 657 (Fla.1981) (mandamus lies to compel performance of clear legal duty) with Moneyhun v. Purdy, 258 So.2d 505 (Fla. 3d DCA 1972) (mandamus not available to compel discretionary act). See generally 35 Fla.Jur.2d Mandamus and Prohibition Secs. 30-34 (1982). We find to the contrary that the issuance of the writ by the trial court under 78.068 is mandatory or ministerial in nature and that mandamus not only lies but must in this case be issued in order to require the performance of that duty.

There seems to be no question that, under the scheme embodied in the present version of Florida's replevin statutes, the plaintiff-creditor is granted an unreviewable election of two alternative procedural methods to replevin its property upon non-payment:

The replevin statute enables the attorney to choose between two separate and distinct procedures. Under F.S. 78.055 and 78.075, a mini-trial known as a "show cause hearing" must occur before a replevin writ will issue. Under F.S. 78.068 the replevin writ is issued without notice or a "show cause hearing." The creditor, however, is required to post a bond.

Basic Creditors' and Debtors' Rights in Florida, The Florida Bar, CLE Sec. 3.95 (1988). There is no doubt either of (a) the desirability under some circumstances of proceeding without notice under 78.068 so as to avoid the very real chance that the personalty in question will disappear before the matter may be heard or (b) in view of the bond requirement and the remedies provided by sections 78.068(4), 78.068(6) and 78.20, for the recovery of improperly replevined property, that 78.068 is constitutionally valid, Gazil, Inc. v. Super Food Services, Inc., 356 So.2d 312 (Fla.1978), ⁵ and fully enforceable in accordance with its clear terms. Transtar Corp. v. Intex Recreation Corp., 570 So.2d 366 (Fla. 4th DCA 1990); ITT Commercial Finance Corp. v. DDD Appliance Serv. & Sales, Inc., 509 So.2d 341 (Fla. 2d DCA 1987); Lease Financing Corp. v. National Commuter Airlines, Inc., 462 So.2d 564 (Fla. 3d DCA 1985); Landmark First Nat'l Bank v. Beach Bait and Tackle Shop, Inc., 449 So.2d 1287 (Fla. 4th DCA 1983), pet. for review denied, 459 So.2d 1039 (Fla.1984); Waite Aircraft Corp. v. Ford Motor Credit Co., 430 So.2d 1003 (Fla. 4th DCA 1983).

The appellee claims, however, that, notwithstanding compliance with 78.068, the trial court retains discretion as to whether or not to issue the prejudgment writ without notice so that mandamus may not be employed to require the lower court to do so. See, e.g., Green v. Walter, 161 So.2d 830 (Fla.1964). This argument is in turn based entirely on the fact that 78.068(2) provides not that the writ of replevin shall be issued, but rather that it "may issue if the court finds [that the statutory requirements have been fulfilled]." This contention is wrong.

(a) Of primary importance in this determination is the conclusion that, in a statute such as this one, the term "may," which indeed ordinarily implies the exercise of choice or discretion, simply does not do so, and must, in contrast, be given a definition equivalent to the mandatory "shall." It is well-settled that, according to the context and surrounding circumstances, a statutory "shall" is to be read as "may" and vice versa. See Allied Fidelity Ins. Co. v. State, 415 So.2d 109 (Fla. 3d DCA 1982), and cases cited. Specifically,

an imperative obligation is sometimes regarded as imposed by a statutory provision notwithstanding that it is couched in permissive, directory, or enabling language. Thus where a statute says a thing that is for the public benefit 'may' be done by a public official, the courts may construe it to mean that it must be done. Permissive words in a statute respecting courts or officers are said to be imperative in those cases where the individuals affected have a right that the power conferred be exercised.

49 Fla.Jur.2d Statutes Sec. 18 (1984) (emphasis supplied) (footnotes omitted). The provisions of section 78.068(2) clearly fall within the latter category. This was the clear holding of Weston v. Jones, 41 Fla. 188, 25 So. 888 (1899). Weston dealt with a provision of the attachment statute conceptually indistinguishable from the one we now consider. Section 1656, Revised Statutes (1892) provided that, under stated conditions, the judge "may, upon application of either party require formal pleadings...." ⁶ Weston v. Jones, 41 Fla. at 192, 25 So. at 890. The court held this provision was not discretionary:

The judge of the court below refused the motion in this case, evidently believing that the use of the word "may" invested him with a discretion as to whether he should require the filing of pleadings in such cases; but we entertain a contrary opinion. It is a familiar rule that, when a statute directs the doing of a thing for the sake of justice, the word "may" means the same as "shall." Mitchell v. Duncan, 7 Fla. 14. Again, permissive words in a statute respecting courts or officers are imperative in those cases where individuals have a right that the power conferred be exercised. Suth.St.Const. Secs. 461, 462. Viewed in this light, we think the word "may" in this section is not used in the sense of giving the courts or judges a discretion to refuse an application of this character, seasonably made, in cases where the issues have not already been made up in the main suit, but to confer authority upon the court to require such pleadings when duly applied for. Macdougall v. Paterson, 11 C.B. 755. In this case the defendant had filed no answer to the bill of complaint, and no issues had been made up in the foreclosure suit, as to the debt or sum demanded. Either party was therefore, under the statute, entitled to an order requiring formal pleadings upon demand therefor seasonably made.

Weston, 41 Fla. at 194-95, 25 So. at 890 (emphasis supplied); accord Williamson v. State, 510 So.2d 1052 (Fla. 3d DCA 1987) (provision that "courts may order" sealing of file properly read as mandatory); see also Seaboard Air Line R.R. v. Wells, 100 Fla. 1027, 130 So. 587 (1930); Little River Bank & Trust Co. v. Johnson, 105 Fla. 212, 141 So. 141 (1932). This language alone requires reversal here.

(b) Our position that the word "may" is properly given a mandatory meaning as a matter of an appropriate interpretation of the will of the legislature, the object of every process of statutory construction, State ex rel. Bie v. Swope, 159 Fla. 18, 30 So.2d 748 (1947), is strengthened by the title of 78.068 in its original form. See State v. Webb, 398 So.2d 820 (Fla.1981) ("title ... is direct statement by legislature of its intent"); Berger v. Jackson, 156 Fla. 251, 23 So.2d 265 (1945) (same). Chapter 76-19, Laws of Florida, was titled:

AN ACT relating to replevin; creating s. 78.068, Florida Statutes, providing for the issuance of a prejudgment writ of replevin upon a certain showing by the petitioner and the posting of a bond ; providing that the defendant or petitioner may obtain release of property subject to such writ upon furnishing certain security; requiring such writ to be issued by a circuit or county court judge and permitting a defendant to obtain a dissolution of such writ upon a failure of the petitioner to make a certain showing; amending s. 78.20, Florida Statutes, providing for damages and attorney's fees....

Ch. 76-19, Laws of Fla.

This language establishes that the use of the word "may" in 78.068 was, as Weston v. Jones states, merely a means of conferring authority upon the court to require the issuance of the writ "when duly applied for." Weston, 41 Fla. at 195, 25 So. at 890.

(c) Perhaps most important of all in our conclusion that the issuance of the writ is not discretionary, is the total inability of the appellee to suggest, or of us to imagine, any cognizable or appropriate basis upon which the discretion of the court could properly be exercised to deny the relief sought. Williamson v. State, 510 So.2d at 1054. Surely, it cannot be, as the appellee's attorney suggests, the judge's own belief that it would be "more equitable" or "better" to proceed only after...