Kirchoff v. Jenne

• Decision Date: 26 June 2002
• Docket Number: No. 4D01-138.,4D01-138.
• Citation: 819 So.2d 959
• Parties: Robert KIRCHOFF and Alton Rivenbark, Appellants, v. Kenneth C. JENNE, II, as Sheriff of Broward County, Florida, Appellee.
• Court: Florida District Court of Appeals

819 So.2d 959

Robert KIRCHOFF and Alton Rivenbark, Appellants, v. Kenneth C. JENNE, II, as Sheriff of Broward County, Florida, Appellee.

No. 4D01-138.

District Court of Appeal of Florida, Fourth District.

June 26, 2002.

Kenneth J. Kukec of Kenneth J. Kukec, P.A., Miami, and Arthur B. D'Almeida of Arthur B. D'Almeida, P.A., Boca Raton, for appellants.

Joanne Thaler, Fort Lauderdale, for appellee.

MAY, J.

Robert Kirchoff and Alton Rivenbark appeal an order denying their motion for relief from judgment and their petition for replevin. They claim that a final judgment declaring two motorcycles "lost or abandoned" is void. We agree and reverse.

On February 11, 1998, Brad Cregan brought two motorcycles that had been assembled from parts (ASPT), to the Plantation office of the Department of Motor Vehicles for inspection in an effort to obtain title. Cregan was acting on behalf of appellants Kirchoff and Rivenbark, each of whom purport to own one of the motorcycles. The sheriffs office requested that Cregan bring the motorcycles to the Broward Sheriffs Office Auto Theft Task Force for further inspection as Cregan was lacking certain documentation. The motorcycles remained in the possession of the sheriffs office throughout the litigation.

The sheriffs office undertook an investigation of Kirchoff, Rivenbark, Cregan, and others upon suspicion that they were in the business of selling motorcycles that had been assembled from stolen parts. On February 25, 1998, Cregan's attorney wrote to the sheriff's office, demanding return of the motorcycles. In March, the sheriff's office sent registered certified letters to Kirchoff and Rivenbark at the address provided by them on the application for registration of the motor vehicles. The letters were returned unclaimed. On April 3, the sheriff's office responded to the February 25th letter from Cregan's attorney, advising that registered letters had been sent to the purported owners, but had been returned unclaimed, and that the investigation was ongoing.

On April 2, the sheriff's office executed a search warrant at Kirchoff and Rivenbark's premises and seized property not at issue in this case. The sheriff's office then sought forfeiture of the property seized pursuant to the warrant. The trial judge in that proceeding conducted an adversarial preliminary hearing during which the sheriff's office presented evidence relating to the property seized pursuant to warrant and the two ASPT motorcycles. These motorcycles were not encompassed by the forfeiture complaint, but the trial judge mistakenly included them in the oral finding of probable cause. Counsel for the sheriff's office included the two ASPT motorcycles in the proposed written order on probable cause.

On April 28, Kirchoff's counsel informed the sheriff's office that he had received and reviewed a copy of the proposed order in the forfeiture action. The letter identified Kirchoff and Rivenbark as the owners of the ASPT motorcycles taken into custody on February 11, 1998, identified the lawyer representing Rivenbark, and indicated that both the attorneys were authorized to accept service on behalf of their clients. Counsel for the sheriff's office responded in a letter, which stated:

I agree that the motorcycles that were seized at DMV on February 17, 1998 are not a part of this case. They were inadvertently included on the proposed order.

Thereafter, counsel submitted an agreed motion for withdrawal of the probable cause order, which the trial court granted on July 1, 1998.

On July 7 and July 14, 1998, the sheriffs office caused the following to be published.

NOTICE OF LOST PROPERTY TO:

ALL PERSONS who may claim an interest in two 1998 "ASPT" motorcycles which are lost and/or abandoned property found by the Broward Sheriff's Office on or about 2-11-98 at or near 4200 W. Sunrise Blvd., Plantation. Said property is in the custody of the Broward County Sheriff's Office. In the event no person(s) claim an interest in said property by 7-31-98, the Broward County Sheriffs Office shall retain said property for its own use. All claims for said property shall be made to:

KENNETH C. JENNE, II SHERIFF OF BROWARD COUNTY Legal Department 2601 West Broward Boulevard # 3548 Fort Lauderdale, Florida 33312 Telephone (954) 831-8920.

On August 4, 1998, the sheriff's office voluntarily dismissed the forfeiture complaint, sending notice of the voluntary dismissal to Kirchoff's counsel. On August 17, 1998, the sheriff's office filed a "Verified Complaint for Lost and/or Abandoned Property," alleging that Cregan brought the motorcycles to the DMV to be inspected, that he had identified Kirchoff and Rivenbark as the owners of the motorcycles, that Cregan had been asked to have the owners contact the Auto Theft Task Force, and that the owners "have not claimed the motorcycles or made any efforts to contact the Auto Theft Unit." The complaint attached the published notice as an exhibit. The sheriff's office did not serve the complaint on Kirchoff and Rivenbark or their respective counsel. The court entered a final judgment on September 1, 1998, declaring the motorcycles "lost and/or abandoned," and vesting title in the sheriff's office nunc pro tunc to February 11, 1998.

On September 14, 1998 Kirchoff's counsel wrote to the sheriff's office to ask about the status of the...