Robinson v. Cinema Intern., Ltd.

Decision Date14 March 1978
Docket NumberNo. 76-2020,76-2020
Citation356 So.2d 843
PartiesChris ROBINSON, Appellant, v. CINEMA INTERNATIONAL, LTD., Appellee.
CourtFlorida District Court of Appeals

Larry Klein, West Palm Beach, and Cone, Owen, Wagner, Nugent, Johnson & McKeown, P. A., West Palm Beach, for appellant.

Warren J. Knaust, of Militana, Militana & Militana, St. Petersburg, for appellee.

LETTS, Judge.

This case involves a complaint for replevin and an appeal from the trial court's action striking a counterclaim thereto, with prejudice. We reverse.

The appellant kept possession of the actual film, shot for a motion picture which he had been commissioned, by the appellee, to produce, direct and act in. The appellee filed a replevin action to recover same and the appellant filed a counterclaim alleging that he was supposed to become a 50% Owner of the picture and that this co-ownership agreement had been breached.

Said counterclaim was struck, with prejudice, by the trial court for the sole reason that:

"The court (is) of the opinion that by the very nature of the replevin action . . . no counterclaim may be asserted. . . ."

One has only to read the appellee's brief to reconstruct what law must have been cited to the trial judge to cause the latter to make this error. (The appellee did not appear for oral argument before this court). Up until 1967, Florida was possessed of Statute § 46.08, Fla.Stat. (1965), which read in part:

"Causes of action, of whatever kind, by and against the same parties in the same rights, may be joined in the same suit, except that replevin and ejectment shall not be joined together nor with other causes of action."

We need not speculate whether the above would properly forbid a counterclaim, as distinct from forbidding a multicount complaint, because the quoted language was removed from the statute books by Chapter 67-254, Laws of Florida, § 3, under which only the venue provisions of the removed section survived to become § 47.041, Fla.Stat. (1975). Accordingly, the line of Florida cases supporting the judge's ruling were all decided prior to the repeal of § 46.08 and cannot now be relied on. See Seven Seas Frozen Products, Inc. v. Fast Frozen Foods, Inc., 43 So.2d 181 (Fla.1949); Butler v. Mirabelli, 179 So.2d 868 (Fla. 2d DCA 1965), and National Leasing Corp. v. Bombay Hotel, 159 So.2d 111 (Fla. 3d DCA 1964).

Nor do we construe § 78.02(3) to bar a counterclaim in a replevin action as it appears to us that this latter section simply forbids a defendant from the re-replevin of property which has already been replevined, in the same cause, by the opposing party.

Research does not reveal any recent Florida cases which pass on the propriety of filing a counterclaim in an action for replevin, although Fla.R.Civ.P. 1.170(b) would appear to permit it. The general rule in other jurisdictions, however, is that such counterclaims are...

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1 cases
  • Neil v. South Florida Auto Painters, Inc., 79-2039
    • United States
    • Florida District Court of Appeals
    • April 28, 1981
    ...117 So.2d 519 (Fla. 3d DCA 1960), the repeal of that statute paved the way for counterclaims to replevin. Robinson v. Cinema International, Ltd., 356 So.2d 843 (Fla. 4th DCA 1978) (allowing permissive counterclaim in replevin action, but erroneously employing compulsory counterclaim languag......
1 books & journal articles
  • Obtaining a replevin writ prior to final judgment: with or without notice.
    • United States
    • Florida Bar Journal Vol. 76 No. 11, December 2002
    • December 1, 2002 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 ......

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