Landmark First Nat. Bank of Ft. Lauderdale v. Beach Bait and Tackle Shop, Inc., 82-1728
| Decision Date | 05 October 1983 |
| Docket Number | No. 82-1728,82-1728 |
| Citation | 449 So.2d 1287 |
| Parties | LANDMARK FIRST NATIONAL BANK OF FORT LAUDERDALE, Appellant, v. BEACH BAIT AND TACKLE SHOP, INC., John J. Day and Henrietta Day a/k/a Hedy Day, Appellees. |
| Court | Florida District Court of Appeals |
Brian F. Leary of English, McCaughan & O'Bryan, Fort Lauderdale, for appellant.
Alan H. Fein of Arky, Freed, Stearns, Watson & Greer, P.A., Miami, for appellees.
Appellant Bank obtained a prejudgment writ of replevin based on a verified pleading in which it averred that appellee failed to make payment as agreed. Thereafter, at the defendant/appellee's request, the trial court conducted an evidentiary hearing and dissolved the writ even though the bank substantiated its allegation. We reverse.
Section 78.068, Florida Statutes (1981), was crafted by the Florida Legislature to conform with the principles enunciated in Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974). The statute withstood a due process challenge in Gazil v. Super Food Services, Inc., 356 So.2d 312 (Fla.1978). Section 78.068(2) indicates that a "prejudgment writ of replevin may issue if the court finds ... that the defendant has failed to make payment as agreed." Commenting on the adequacy of this ground, the Florida Supreme Court observed that "[w]e do not see in Mitchell or any subsequent Supreme Court decision a limitation on the state's right to identify the circumstances which are appropriate for replevin." Gazil v. Super Food Services, Inc., supra at 313 n. 4.
ON PETITION FOR REHEARING
The petition for rehearing of appellees is hereby denied.
I would grant the petition for rehearing, vacate our prior opinion and affirm the trial court's order granting the motion to dissolve the prejudgment writ of replevin.
Section 78.068 provides:
78.068 Prejudgment writ of replevin.--
(1) A prejudgment writ of replevin may be issued and the property seized delivered forthwith to the petitioners when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts shown by the verified petition or by separate affidavit of the petitioner.
(2) This prejudgment writ of replevin may issue if the court finds, pursuant to subsection (1), that the defendant is engaging in, or is about to engage in, conduct that may place the claimed property in danger of destruction, concealment, waste, removal from the state, removal from the jurisdiction of the court, or transfer to an innocent purchaser during the pendency of the action or that the defendant has failed to make payment as agreed.
(3) 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.
(4) The defendant may obtain release of the property seized under a prejudgment writ of replevin by posting bond within 5 days after serving of the writ in the amount of one and one-fourth the amount due and owing on the agreement for the satisfaction of any judgment which may be rendered against him.
(5) A prejudgment writ of replevin shall issue only upon the signed order of a circuit court judge or a county court judge.
(6) The defendant, by contradictory motion filed with the court within 10 days 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).
This section uses both "may" and "shall." See, e.g., §§ 78.068(1) and 78.068(5). Furthermore, throughout chapter 78 the drafters have used both "may" and "shall." See, e.g., §§ 78.03 and 78.19(2). Thus, it may be inferred that the drafters carefully chose "may" or "shall"...
To continue reading
Request your trial
-
Future Tech Intern., Inc. v. Tae Il Media, Ltd., 95-2512-CIV.
...Corporation v. Intex Recreation Corp., 570 So.2d 366 (Fla. 4th Dist.Ct.App. 1990) and Landmark First National Bank v. Beach Bait and Tackle Shop, Inc., 449 So.2d 1287 (Fla. 4th Dist.Ct.App.1983). We do not agree that these cases establish the principle for which they are cited. In Transtar,......
-
Comcoa, Inc. v. Coe
...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., 4......
-
McMurrain v. Fason
...sequestration statute, purported to be the model for Florida's replevin statute, Landmark First Nat'l Bank v. Beach Bait and Tackle Shop, Inc., 449 So.2d 1287 (Fla. 4th DCA 1983) (Anstead, C.J. dissenting), rev. denied, 459 So.2d 1039 (Fla.1984), and held the statute constitutional because ......
-
Lease Financing Corp. v. National Commuter Airlines, Inc., s. 84-812
...issue if the court finds that the defendant has failed to make payments as agreed. Landmark First National Bank of Fort Lauderdale v. Beach Bait & Tackle Shop, Inc., 449 So.2d 1287 (Fla. 4th DCA 1983); Waite Aircraft Corp. v. Ford Motor Credit Co., 430 So.2d 1003 (Fla. 4th DCA 1983); § 78.0......
-
Obtaining a replevin writ prior to final judgment: with or without notice.
...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 sho......