Florida Business Litigation Lawyer Blog
A cause of action for replevin is a valuable tool to recover property that is wrongfully retained by another. For businesses, replevin can be useful in recovering company property that a former employee or business partner wrongfully possesses and refuses to return. “[R]eplevin is a possessory statutory action at law in which the main issue is the right to immediate possession and the gist of the action is the wrongful detention of the property . . . .” Ethiopian Zion Coptic Church v. City of Miami Beach, 376 So. 2d 925 (Fla. 3d DCA 1979). The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.
In an action for replevin, the “sole legal issue is the right of immediate possession, not ownership or title.” Williams Management Enterprises, Inc. v. Buonauro, 489 So. 2d 160 (Fla. 5th DCA 1986). It also does not matter whether the defendant acquired possession to the property rightfully or wrongfully. The question is whether the defendant’s retention of the property is unlawful. Brown v. Reynolds, 872 So. 2d 290 (Fla. 2d DCA 2004). The property that can be recovered in an action for replevin is limited to tangible property that can be specifically identified and manually seized. Williams Management Enterprises, Inc. v. Buonauro, 489 So. 2d 160 (Fla. 5th DCA 1986). Money may not be seized in an action for replevin because money is fungible and can be commingled, rendering it incapable of specific identification.
Chapter 78, Florida Statutes, sets out the procedures for an action of replevin. According to section 78.055, Florida Statutes, a plaintiff must commence the action by filing a detailed complaint alleging a description of the property, that the plaintiff is the owner of the property or entitled to possession of it, the property is wrongfully detained by the defendant, and the means by which the defendant came into possession thereof. Fla. Stat. § 78.055. The court must then issue an order to show cause to the defendant to explain why the property should not be taken from the defendant and delivered to the plaintiff. The court will schedule a hearing within five days after the order the served on the defendant and the court which party is entitled to possession of the property at that hearing. If the court rules in favor of the plaintiff, the clerk of courts is required to issue a writ of replevin mandating the sheriff to seize the property.
Florida law allows writ of replevin to be issued ex parte, which means the plaintiff and the court do not need to notify the defendants before the writ is issued. However, these ex parte writs are only permitted when the court finds the property is at risk of destruction, concealment, waste, or transfer. The plaintiff must post a bond for twice the value of the property to obtain a writ of replevin ex parte. Id. § 78.068(3).
The issuance of the writ of replevin is not a final judgment. The case proceeds in accordance with the Florida Rules of Civil Procedure, allowing for discovery and trial. Coastal Palms Holdings, LLC v. Paxton, 110 So. 3d 36 (Fla. 2d DCA 2013). At the conclusion of the proceeding, the court will issue a final judgment as to which party is entitled to possession of the property. If the plaintiff obtained a writ of replevin and seized the property, but final judgment is entered in favor of the defendant, the plaintiff will be required to return the property to the defendant.
If a business ever has business property taken from it by a former employee or business partner, it should consider an action for replevin. It can be a quick way of recovering valuable property that could contain confidential information of the business.
The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.