TRANS ATLANTIC DISTRIBUTORS, L.P., APPELLANT,
v.
WHILAND CO., S.A., ETC., ET AL., APPELLEES
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Trans Atlantic Distributors appealed a trial court order awarding attorney's fees and costs to Whiland Co. upon dissolution of a prejudgment writ of replevin. The Fifth District Court of Appeal held that attorney's fees and costs under Florida Statutes section 78.20 are only awardable when the defendant ultimately prevails in the entire replevin action, not merely upon dissolution of the writ.
Attorney's fees and costs under section 78.20 are not immediately awardable upon dissolution of a prejudgment writ. Instead, the statute requires two conditions: (1) the prejudgment writ must be dissolved or property redelivered, and (2) the defendant must ultimately prevail in the replevin action.
[1] Attorney's fees and costs are awardable under section 78.20, Florida Statutes, only when the defendant has prevailed in the replevin action.
[2] The dissolution of a prejudgment writ of replevin alone does not entitle a defendant to attorney's fees and costs under section 78.20, Florida Statutes.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“When property has been retained by, or redelivered to, defendant on his forthcoming bond or upon the dissolution of a prejudgment writ and defendant prevails, he shall have judgment against plaintiff for his damages for the taking, if any, of the property, attorney fees, and costs.”
The statutory language of section 78.20, which the court interpreted to require that the defendant ultimately prevail in the replevin action, not merely upon dissolution of the writ.
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Join FLexlaw to unlock all legal intelligenceTAD filed a replevin action against Whiland Co. seeking recovery of master tapes of motion pictures. The trial court issued a prejudgment writ of repl…
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COBB, Judge.
The issue is whether the trial court erred in finding that attorney’s fees and costs are immediately awardable under section 78.20, Florida Statutes (1993), solely upon the dissolution of a prejudgment writ of replevin. That statute reads:
When property has been retained by, or redelivered to, defendant on his forthcoming bond or upon the dissolution of a prejudgment writ and defendant prevails, he shall have judgment against plaintiff for his damages for the taking, if any, of the property, attorney fees, and costs. The remedies provided in this section and s. 78.21 shall not preclude any other remedies available under the laws of this state.
Trans Atlantic Distributors, L.P. (TAD) filed an action against Whiland Co., S.A. and others seeking, inter alia, a prejudgment writ of replevin and a final judgment of replevin regarding master tapes of motion pictures. The trial court issued a prejudgment writ of replevin without notice pursuant to section 78.068(2), Florida Statutes (1993) and TAD posted a replevin bond. Pursuant to subsection (6) of the statute, Whiland successfully moved to dissolve the prejudgment writ. After entry of the order dissolving the writ, Whiland filed a motion for costs and attorney’s fees pursuant to section 78.20. The trial court ultimately issued a “partial final judgment” awarding fees and costs, giving rise to the instant appeal.
Based upon the plain language of section 78.20, we reverse. Two conditions must be met before a defendant can recover attorney’s fees and costs under this statute. Although the prejudgment writ has been dissolved, the defendant Whiland has not yet prevailed in this action, and may or may not do so. The trial judge apparently read the words “and defendant prevails” to apply only to the proceedings relating to the prejudgment writ, but we do not. That interpretation renders those three words redundant and superfluous. We believe the reference contemplates that the defendant ultimately prevails in the replevin action. See Gimbel v. International Mailing and Printing Co., Inc., 506 So. 2d 1081, 1084 (Fla. 4th DCA 1987) (section 78.20 is merely a make-whole provision for defendants who prevail in re-plevin actions and meet other criteria of entitlement) (emphasis supplied).
In agreeing with the Fourth District’s interpretation of section 78.20, we acknowledge conflict with McMurrain v. Fason, 584 So. 2d 1027 (Fla. 1st DCA), rev. denied, 592 So. 2d 680 (Fla.1991).
REVERSED.
PETERSON, C.J. and THOMPSON, J., concur.
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Jussi K. Kivisto v. Gmac LLC, 978 So. 2d 283 (Fla. 4th DCA 2008)…pon which this issue turns, in a manner contrary to McMur-rain. Gimbel v. Int'l Mailing and Printing Co., 506 So. 2d 1081 (Fla. 4th DCA 1987). After McMurrain was decided the fifth district, in Trans Atlantic Distributors, L.P. v. Whiland Co., S.A., 671 So. 2d 883 (Fla. 5th DCA 1996) adopted our holding in Gimbel and disagreed with McMur-rain. We agree that this order is reviewable by certiorari, based on McMurrain, but we disagree with the holding on the merits on McMurrain and agree with Trans Atlantic.…
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Belvant v. Cohen (Fla. 3d DCA 2022)…and a defendant extinguishing, a prejudgment writ of replevin as independent from the adjudication of the underlying claims. 7 See Kivisto v. GMAC LLC, 978 So. 2d 283 (Fla. 4th DCA 2008). 8 See Trans Atlantic Distribs., L.P. v. Whiland Co., S.A., 671 So. 2d 883 (Fla. 5th DCA 1996). Trans Atlantic Distribs., L.P. v. Whiland Co., S.A., 671 So. 2d 883, 884 (Fla. 5th DCA 1996). While we view both approaches as meritorious, we adopt the approach taken by the Fourth and Fifth Districts and certify conflict wit…1 / 2
Authorities Cited
- McMURRAIN v. Fason, 584 So. 2d 1027 (Fla. 1st DCA 1991)
- Savage v. State, 506 So. 2d 1081 (Fla. 4th DCA 1987)