MEIRELES TRUCK SALES, INC., APPELLANT,
v.
INDUSTRIA DEL AUTOBUS, C.A., A/K/A INBUS, C.A., APPELLEE
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Florida appellate court reversed trial court's denial of motion to dissolve prejudgment writ of replevin, holding that defendant was entitled to a hearing on the merits under Fla. Stat. § 78.068(6) rather than being forced to post a bond.
A defendant may obtain dissolution of a prejudgment writ of replevin by contradictory motion within 10 days of service, and the trial court must hold a hearing on the merits of that motion rather than requiring the defendant to post a bond.
[1] A trial court must conduct a hearing on the merits of a defendant's contradictory motion to dissolve a prejudgment writ of replevin under Fla. …
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Join FLexlaw to unlock all legal intelligence“the defendant, by contradictory motion filed with the court within 10 days after service of the [prejudgment] writ [of re-plevin], may obtain the dissolution of a prejudgment writ of replevin unless the petitioner proves the grounds upon which the writ was issued.”
Statutory provision from Fla. Stat. § 78.068(6) establishing the defendant's right to challenge the writ by motion.
Meireles Truck Sales obtained a prejudgment writ of replevin against Industria del Autobus. The defendant filed a contradictory motion to dissolve the…
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PER CURIAM.
Section 78.068(6), Florida Statutes (1987), provides:
[t]he defendant, by contradictory motion filed with the court within 10 days after service of the [prejudgment] writ [of re-plevin], 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) [which requires posting of a bond].
Here, although the trial court set a hearing on defendant’s motion to dissolve the prejudgment writ of replevin, it failed to permit defendant to present any testimony, stating that it would not entertain the merits of the case and that defendant’s only option was to post a bond as required by section 78.068(4), Florida Statutes (1987). This ruling was in error; section 78.068(6) states specifically that its provisions are in lieu of those set forth in section 78.068(4). Additionally, we note that the purpose of the hearing under section 78.068(6) is to permit the trial court to adjudge which party is entitled to possession during the pendency of the action, not to determine the ultimate disposition. Weigh Less for Life, Inc. v. Barnett Bank, 399 So. 2d 88 (Fla. 1st DCA 1981). Accordingly, we reverse the order denying the motion to dissolve the prejudgment writ of replevin and remand to the trial court for a hearing.
Reversed and remanded.
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Citator
Cited By
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McMURRAIN v. Fason, 573 So. 2d 915 (Fla. 1st DCA 1990)…h DCA 1983) (trial court conducted an evidentiary hearing on motion to dissolve writ of replevin at which the petitioner proved the grounds for issuance of the prejudgment writ). In fact, in Meireles Truck Sales, Inc. v. Industria Del Autobus, C.A., 555 So. 2d 1253 (Fla. 3d DCA 1989), the third district reversed an order denying a motion to dissolve a prejudgment writ of replevin because the trial court failed to permit the defendant to present any testimony at the hearing on the motion to dissolve. Waite Airc…
Authorities Cited
- Weigh Less FOR Life, Inc. v. Barnett Bank OF Orange Park, 399 So. 2d 88 (Fla. 1st DCA 1981)