T AND T AIR CHARTER, INC., APPELLANT,
v.
DUNCAN AIRCRAFT SALES, ET AL., APPELLEES
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The court held that the buyer failed to establish the right to replevin for the aircraft under the UCC.
[1] A buyer has a right of replevin for goods identified to a contract if reasonable efforts to obtain cover are unavailing or would be unavailing, or if the goods were shipp…
[2] A writ of replevin may not be issued when the buyer has not demonstrated reasonable efforts to cover or that such efforts would be unavailing.
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Join FLexlaw to unlock all legal intelligenceThe buyer contracted to purchase an airplane, but the seller claimed the payment was less than the contract price. The seller refused to release the a…
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GARRETT, Judge.
Appellant seeks review of the trial court’s order for the issuance of a writ of replevin.
Appellant listed its airplane with a broker for sale. Appellee contracted to buy the airplane and both parties engaged agents to handle the closing. Appellee’s agent sent what it considered to be the purchase price to appellant’s agent and in return got the bill of sale. However, appellant considered the payment less than the contract price. After appellant refused to release the airplane, appellee filed a complaint seeking replevin and an injunction. The trial judge enjoined any transfer of the airplane and set a $2,000 injunction bond. At the hearing on the order to show cause, the trial judge ordered the issuance of a writ of replevin without setting a replevin bond.
The parties agree that the sale of an aircraft is subject to the provisions of Article 2 of the Uniform Commercial Code. Section 672.716(3) reads:
The buyer has a right of replevin for goods identified to the contract if after reasonable effort he is unable to effect cover for such goods or the circumstances reasonably indicate that such effort will be unavailing or if the goods have been shipped under reservations and satisfaction of the security interest in them has been made or tendered.
Appellee did not establish that it had made reasonable efforts to “cover” the airplane (purchase a substitute) or that such efforts would have been to no avail. Because appellee did not have the right to seek replev-in of the airplane, the trial judge erroneously ordered the issuance of the writ of replevin.
Although a moot issue, we write to address whether appellee should have been required to post a replevin bond. Section 78.065, Florida Statutes (1989), did not require appellee as the party seeking replevin to post a bond. A bond is only required when the defendant in the replevin action wants to stay the order to issue a writ of replevin pending final adjudication. § 78.067(2), Fla.Stat. (1989).
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
HERSEY, C.J., and DOWNEY, J., concur.
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Fort Lauderdale Collection, Inc. v. Posimatas Rosamelia and Debra Rosamelia, 677 So. 2d 973 (Fla. 4th DCA 1996)…the property.” (Emphasis supplied.) There is no provision under this section requiring the plaintiff to initially file any bond if it establishes preliminarily a right to possession of the property. T & T Air Charter, Inc. v. Duncan Aircraft Sales, 566 So. 2d 361 (Fla. 4th DCA 1990), supports FLCI’s position it was error for the trial court to require it to post any bond. See also Morse Operations, Inc. v. Superior Rent-A-Car, Inc., 593 So. 2d 1079 (Fla. 5th DCA 1992). Appellees argue the appellant invited…
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Future Tech Int'l, Inc. v. Tae Il Media, Ltd., 944 F. Supp. 1538 (S.D. Fla. 1996)…, Inc. v. La Corrida Restaurante, Inc., 591 So.2d 271, 272 (Fla. 4th Dist.CtApp.1991); Vega v. Hughes, 370 So.2d 1187, 1188 (Fla. 4th Dist. Ct.App.1979). The Defendant cites T and T Air Charter, Inc. v. Duncan Aircraft Sales, Inc., 566 So.2d 361 (Fla. 4th Dist.Ct.App.1990) as holding that no bond must be posted unless the proceeding is ex parte. In T and T, the panel stated in dicta that "[sjection 78.065, Florida statutes (1989), did not require appellee as a party seeking replevin t…