Wickham v. Famco Services, Inc., 77-551
| Decision Date | 26 October 1977 |
| Docket Number | No. 77-551,77-551 |
| Citation | 350 So.2d 1159 |
| Parties | Alfred J. WICKHAM and Edith Wickham, Appellants, v. FAMCO SERVICES, INC., Appellee. |
| Court | Florida District Court of Appeals |
Lester W. Jennings, Miami, for appellants.
Shepherd D. Johnston of Smathers & Thompson, Miami, for appellee.
The Wickhams appeal and Famco Services cross-appeals from the trial court's judgment wherein Famco was denied replevin of a mobile home occupied by the Wickhams, yet was awarded "rent" from the Wickhams for the use of the mobile home. We find the judgment totally inconsistent. We therefore reverse and remand for a new trial.
The Wickhams purchased a mobile home from a dealer under a retail installment contract. The dealer then assigned the contract to Famco. In September 1973 Famco sought to replevy the mobile home, alleging that the Wickhams had failed to make payments as required by the contract. The Wickhams answered with a general denial and affirmative defenses, but did not file a counterclaim.
After several hearings, the trial court entered an order on November 18, 1976 (nunc pro tunc January 26, 1974), denying Famco's requested relief but granting Famco "rent" of $125 per month from the time of the Wickhams' alleged delinquency (April 2, 1973) until such time as they should vacate the mobile home. The Wickhams, in turn, were granted a setoff of $1,250, representing their initial down payment under the contract. Thereafter, on February 23, 1977, the trial judge entered a final judgment in favor of Famco for $4,625, representing the "rent" due for the period of the Wickhams' occupancy less their setoff.
Replevin actions in this state are governed by Chapter 78, Florida Statutes. The issue to be determined in a replevin action is whether the plaintiff has the right to possession of personal property which is being wrongfully withheld by the defendant. Section 78.055, Florida Statutes (1973). If the plaintiff prevails on this issue, damages incident to the wrongful withholding of possession may then be assessed. Section 78.01, Florida Statutes (1973).
Even though the trial judge denominated the award in favor of Famco as "rent" we must interpret it as damages for wrongful detention, since no landlord and tenant relationship could be implied from the context of this vendor-vendee contract. Here the court by its order explicitly found Famco had no right to possession; yet in finding Famco entitled to "rent" implicitly held Famco had been wrongfully deprived of possession.
In effect, the trial judge attempted to accomplish a rescission of the contract; the Wickhams...
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