Weigh Less for Life, Inc. v. Barnett Bank of Orange Park, VV-161

• Decision Date: 28 May 1981
• Docket Number: No. VV-161,VV-161
• Citation: 399 So.2d 88
• Parties: WEIGH LESS FOR LIFE, INC., a Georgia Corporation, and Thomas Owen, Appellants, v. BARNETT BANK OF ORANGE PARK, Appellee.
• Court: Florida District Court of Appeals

Page 88

399 So.2d 88

WEIGH LESS FOR LIFE, INC., a Georgia Corporation, and Thomas Owen, Appellants, v. BARNETT BANK OF ORANGE PARK, Appellee.

No. VV-161.

District Court of Appeal of Florida, First District.

May 28, 1981.

Hugh M. Davenport, of Smith, Davenport, Bloom & Harden, Tallahassee, for appellants.

Edward G. Whitaker, Jr. and Calvin E. Hayden, Jacksonville, for appellee.

LARRY G. SMITH, Judge.

The trial judge granted a final summary judgment adverse to appellants based in part upon a determination that an order dissolving a prejudgment writ of replevin obtained by Weigh Less for Life Inc. (Weigh Less) against appellee Barnett, in a separate (case no. 78-777) law suit involving a Lincoln automobile, was a conclusive determination that Weigh Less had no ownership rights in the automobile. Appellants assert on this appeal that an order granting a motion to dissolve a prejudgment writ of replevin under Section 78.068, Florida Statutes (1979) is not a final determination of ownership, but merely determines which party is entitled to possession of the disputed property pending final adjudication of the replevin action. We agree and reverse.

Section 78.068 provides for issuance of a prejudgment writ of replevin "forthwith" upon certain conditions, spelled out in the statute, which must be met by the "petitioner" (plaintiff). Under subparagraph (6), the defendant, by "contradictory motion" filed within ten days after service of the writ, may obtain dissolution of a prejudgment writ of replevin "unless the petitioner proves the grounds upon which the writ was issued." This subsection further provides that the court shall set down such motion for "an immediate hearing." In case no. 78-777 such a motion was filed, and an order dissolving the prejudgment writ of replevin was issued by the trial judge. An interlocutory appeal from that order by Weigh Less resulted in a per curiam affirmance, without opinion, by this court. Weigh Less for Life, Inc. v. Barnett Bank of Orange Park, 374 So.2d 103 (Fla. 1st DCA 1979). In the meantime, Weigh Less and appellee Thomas Owen filed the present action for trespass and other damages, and the replevin action was subsequently voluntarily dismissed by Weigh Less, without prejudice, pursuant to Rule 1.420(a), Florida Rules of Civil Procedure.

The language of Section 78.068 was added in 1976 apparently to provide an additional creditor's remedy to the general revision of the law of replevin enacted in 1973 (Chapter 73-20, Laws of Florida, 1973). Unfortunately, little consideration seems to have been given by the drafters to the problem of integrating the new provisions with the otherwise readily understandable existing replevin statutes. Subsection (6) allows the plaintiff to defeat a motion to dissolve a prejudgment writ of replevin if he "proves the grounds upon which the writ was issued ...," at "an immediate hearing," which must be set by the court. Taken literally, "proves the grounds" implies that the plaintiff must prove his case, once and for all. Based upon that interpretation, plaintiff would either win or lose based upon the outcome of this motion hearing. We are required, however, to read almost two additional pages of the statutes in order to discover whether, or in what manner, these provisions mesh together. In so doing we note the provisions of Sections 78.065 and 78.067 which clearly spell out provisions for determining which party is "entitled to the possession of the claimed property pending final adjudication of the claims of the parties." Section 78.065(2)(e), and 78.067(2). No similar language appears in Section 78.068. ¹ On the other hand, the sections of the statute which follow make it clear that further proceedings are contemplated. This is evident from the provisions of Section 78.20, which provides that when property has been redelivered to the defendant "upon the dissolution of a prejudgment writ" ² (or upon his forthcoming bond) and "defendant prevails," the defendant is entitled to judgment against the plaintiff for damages for the taking, attorney's fees, and costs. Section 78.21 makes similar provision for judgment in favor of the defendant under circumstances where the goods have not been retained by or redelivered to him, if "he prevails ...." Finally, Section 78.18 provides for recovery by the plaintiff of his damages caused by the taking and detention, together with costs, in instances where the plaintiff has recovered the property under the writ.

These statutory provisions, read in pari materia, persuade us that the dissolution of a prejudgment writ of replevin, on motion, under Section 78.068(6), has no effect other than to determine the right to possession of the property pending final adjudication of the claims of the parties. This is obvious from a reading of the statutory provisions referred to above, as well as from the fact that Section 78.068 does not set forth a remedy complete in and of itself, since other provisions must be referred to in order to discover essential procedural and substantive aspects of a replevin action.

We therefore cannot agree with the finding contained in the trial court's order for summary judgment that "Plaintiff's claim of ownership right in the Lincoln automobile in this law suit has been conclusively determined by the replevin action of Case No. 78-777-CA ...." The order dissolving the prejudgment writ of replevin recites that the...