Fuentes v. Faircloth

Decision Date21 August 1970
Docket NumberNo. 69-1359-Civ-WM.,69-1359-Civ-WM.
Citation317 F. Supp. 954
PartiesMargarita FUENTES, individually, and as a class for all those similarly situated, Plaintiffs, v. Earl FAIRCLOTH, Attorney General for the State of Florida, and Firestone Tire and Rubber Company, Defendants.
CourtU.S. District Court — Southern District of Florida

Economic Opportunity Legal Services, for plaintiffs.

Earl Faircloth, Atty. Gen., for State of Florida.

Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, Fla., for Firestone Tire & Rubber Co.

Shutts & Bowen, Miami, Fla., amici curiae for General Motors Acceptance Corporation.

Before DYER, Circuit Judge, and MEHRTENS and EATON, District Judges.

DYER, Circuit Judge:

Plaintiff brought this suit against Firestone Tire and Rubber Company (Firestone) and the Attorney General of Florida1 for declaratory and injunctive relief against continued enforcement of certain sections of Florida's replevin statutes, F.S. § 78.01, et seq., F.S.A. alleging that they are unconstitutional in that they authorize a taking of property without prior opportunity to be heard in contravention of the Due Process Clause of the Fourteenth Amendment and they authorize a search and seizure without the necessity of a search warrant in violation of the Fourth Amendment. Jurisdiction is founded on 42 U.S.C.A. § 1983 and 28 U.S.C.A. § 1343(3). A three judge court was convened. Testimony has been heard by the Court and a stipulation of facts and briefs have been filed. Plaintiff has moved for summary judgment. Having considered all the evidence and arguments the Court denies plaintiff's motion for summary judgment and, deciding the case on the basis of the record before it, enters judgment for the defendants.

In June, 1967, plaintiff purchased from defendant Firestone a gas stove. In November, 1967, she purchased a stereo set from Firestone. Both purchases were made under conditional sales contracts which provided in part that "in the event of default of any payment or payments, Seller at its option may take back the merchandise". On September 15, 1969, several months after plaintiff had fallen behind in her payments in the total sum of $204.05 and had received notice to pay or return the merchandise, Firestone pursuant to the procedure authorized in the statutes now under attack, submitted a complaint and affidavit in replevin in the Small Claims Court of Dade County, Florida, and posted a replevin bond.2 The Small Claims Court issued a writ of replevin immediately which was executed without prior notice to plaintiff by a deputy sheriff on September 15.

The facts surrounding the actual execution, taken most favorably to plaintiff, show that the deputy sheriff had a communications problem with plaintiff since she spoke little or no English. Gradually, however, he was able to communicate his purpose and the effect of the writ. At this point, plaintiff's daughter-in-law, who lived in the same house with plaintiff, became "upset and emotional" and protested the repossession. She sent for Mr. Leon, the plaintiff's son-in-law, to assist her and the deputy agreed to wait. When Mr. Leon arrived he explained to the deputy in English that his attorney had advised him that a court proceeding was necessary before the merchandise could be repossessed and that, on his advice, he was not going to give up the property. The deputy "explained the effect of the writ to Mr. Leon, that he was obliged to repossess the stove and stereo in accordance with its terms."3 Mr. Leon then agreed to the repossession and let the deputy, who until then had been standing outside on the front porch, and the two men from Firestone, who had been waiting outside in their truck until this time, into the house and showed them where the merchandise was located.

Shortly thereafter plaintiff filed the instant action. Although she admits delinquency in the payments she alleges that she has a meritorious defense to the repossession—apparently that the stove was mechanically defective and that Firestone has failed to make satisfactory repairs.

The specific sections of the Florida replevin statute which plaintiff attacks are F.S. §§ 78.01, 78.08, 78.10, 78.11 and 78.12, F.S.A.4 Under these sections a person whose goods are wrongfully detained may, by posting a bond in twice the amount of the value of the property, have a writ of replevin to recover them (78.01, 78.04 and 78.07). The writ commands the executing officer to replevy the goods and to summon the defendant to answer the complaint (78.08). In executing the writ the officer shall publicly demand delivery of property secreted or concealed in any dwelling house or other building and if it is not then delivered he shall cause the building to be broken open and, if necessary, he shall take to his assistance the power of the county (78.10).

Relying primarily on Sniadach v. Family Finance Corporation, 1969, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349, which held that Due Process requires a prior hearing before wages may be garnished, and Goldberg v. Kelly, 1970, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287, which held that due process requires a prior evidentiary hearing before a State may terminate welfare payments, plaintiff contends that the Fourteenth Amendment prohibits a conditional seller from repossessing property without giving the vendee the benefit of a prior hearing. We find neither case applicable to the replevin situation under scrutiny here.

The Tenth Circuit was recently faced with a similar Due Process objection to the Oklahoma replevin statute in Brunswick Corporation v. J & P, Inc., 10 Cir. 1970, 424 F.2d 100. Brunswick had sold bowling equipment to a bowling alley under a conditional sales contract. When the purchaser defaulted in payments Brunswick filed an affidavit for replevin and a replevin bond. The United States Marshal took possession of the equipment in the bowling alley building by rendering it inoperative by removing some essential parts. He then made constructive delivery to Brunswick who advertised the equipment for sale and sold it at public auction, after execution of the writ but before judgment was obtained in the replevin action. The Tenth Circuit rejected the Due Process attack on Oklahoma's replevin statute and we are in complete agreement with its reasoning:

We find no merit in appellants' additional contention that under the recent Supreme Court case of Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) they have been the victims of a taking of property without the procedural due process required by the Fourteenth Amendment. Sniadach expressly was a unique case involving, "a specialized type of property presenting distinct problems in our economic system." That case involved wage garnishment without notice or hearing prior to judgment on a promissory note. It is not in the least comparable to the case here on appeal involving enforcement of a security interest. Appellants have contractually agreed that, upon default, their creditor Brunswick "* * * may take immediate possession of said property collateral * * in the event of default." Appellants admit that they were in default on the conditional sale, so they cannot now be heard to object to the default procedures they agreed to simply because Brunswick did utilize the legal process of replevin under bond." Id. at 105.

Plaintiff attempts to distinguish Brunswick on the ground that there two commercial parties had executed the conditional sales contract while in the instant case a commercial party and a private individual have contracted together. This is a distinction without a difference as far as Due Process is concerned. Plaintiff also attempts to distinguish Brunswick on the ground that the buyer there admitted "default" on the conditional sale. Plaintiff contends that "default" is a technical term which goes beyond plaintiff's admission in this case of delinquency in payments. Plaintiff argues that if there has been a breach of contract by the seller (which she maintains there is) she cannot be in "default" for failure to make payments. Even assuming (without deciding) that this would ordinarily be so under state law, the contract between plaintiff and Firestone does not give Firestone the right to repossess in the event of mere "default"; it gives Firestone that right in the event of "default of any payment or payments". (Emphasis supplied). The contract thus defines "default" in terms of the seller's remedies if the buyer was behind in payments and plaintiff admitted delinquency in her payments.

Nor do we think that Goldberg v. Kelly, supra (which had not yet been decided on the date of the Brunswick decision), is of any assistance to plaintiff. Again, a special type of property was involved—welfare payments by the State:

"Suffice it to say that to cut off a welfare recipient
...

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