WAITE AIRCRAFT CORP., JEFFREY B. WAITE AND LOREN D. WAITE, APPELLANTS,
v.
FORD MOTOR CREDIT COMPANY, APPELLEE
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Waite Aircraft Corp. and its owners appealed the denial of their motion to dissolve a prejudgment writ of replevin issued by Ford Motor Credit Company to recover leased heavy equipment. The court affirmed the writ's issuance but remanded for an evidentiary hearing to determine the proper bond amount.
The trial court properly issued the prejudgment writ of replevin because Ford demonstrated appellants' failure to make agreed-upon lease payments under Florida Statute § 78.068(2). However, the bond amount of $220,000 must be reconsidered at an evidentiary hearing because the record lacked sufficient evidence of the property's value.
[1] A prejudgment writ of replevin may be issued when a party demonstrates a right to immediate possession of property based on a breach of a lease agreement.
[2] A party seeking dissolution of a prejudgment writ of replevin is not entitled to relief if they fail to contradict the allegations of non-payment supporting the writ's is…
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Join FLexlaw to unlock all legal intelligence“Appellee demonstrated its right to issuance of the writ based on appellant's failure to make payments as agreed under the lease. Section 78.068(2), Florida Statutes (1981).”
Establishes the legal basis for the writ of replevin based on non-payment
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Join FLexlaw to unlock all legal intelligenceFord Motor Credit Company sought a prejudgment writ of replevin to regain possession of heavy equipment leased to Waite Aircraft Corp. and its owners.…
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DELL, Judge.
Waite Aircraft Corp., Jeffrey Waite and Loren Waite appeal from an order denying their motion to dissolve a prejudgment writ of replevin. This Court has jurisdiction be cause this non-final order determined the right to immediate possession of property. Fla.R.App.P. 9.130(a)(3)(C)(ii).
Appellee Ford Motor Credit Company requested a prejudgment writ of replevin to regain possession of certain heavy equipment leased to appellants. The trial court issued the writ, conditioned upon appellee posting a $220,000 bond. Appellants moved to dissolve the writ on the grounds that appellee’s motion for prejudgment writ of replevin and supporting affidavit failed to meet the statutory requirements for issuance, and that the bond had been set without an evidentiary basis. The trial court ruled that appellee did meet the statutory requirements for issuance of the writ and denied the motion to dissolve.
The trial court properly issued the prejudgment writ of replevin. Appellee demonstrated its right to issuance of the writ based on appellant’s failure to make payments as agreed under the lease. Section 78.068(2), Florida Statutes (1981). Appellants did not contradict the allegations of failure to pay and so were not entitled to dissolution of the writ. § 78.068(6), Fla. Stat. (1981). We affirm the denial of appellant’s motion to dissolve.
However, we must remand for an evidentiary hearing on the amount of bond required to maintain the writ in effect. The only record evidence of the property’s value consists of a lis pendens stating the value to be “in excess of” $110,000. In the absence of a transcript of the bond hearing or some other supporting evidence of value, we cannot determine whether the trial court properly set the amount of the prejudgment replevin bond at $220,000. Vega v. Hughes, 370 So. 2d 1187 (Fla. 4th DCA 1979).
Accordingly, we affirm the denial of appellants’ motion to dissolve the prejudgment writ of replevin and remand for an evidentiary hearing on the amount of bond required to continue the writ in force.
AFFIRMED and REMANDED.
ANSTEAD and GLICKSTEIN, JJ., concur.
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Comcoa, Inc. v. The Honorable Jack M. COE, 587 So. 2d 474 (Fla. 3d DCA 1991)…Airlines, Inc., 462 So. 2d 564 (Fla. 3d DCA 1985); Landmark First Nat’l Bank v. Beach Bait and Tackle Shop, Inc., 449 So. 2d 1287 (Fla. 4th DCA 1983), pet. for review denied, 459 So. 2d 1039 (Fla.1984); Waite Aircraft Corp. v. Ford Motor Credit Co., 430 So. 2d 1003 (Fla. 4th DCA 1983). The appellee claims, however, that, notwithstanding compliance with 78.068, the trial court retains discretion as to whether or not to issue the prejudgment writ without notice so that mandamus may not be employed to require th…
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Lease Fin. Corp. v. Nat'l Commuter Airlines, Inc., 462 So. 2d 564 (Fla. 3d DCA 1985)…issue if the court finds that the defendant has failed to make payments as agreed. Landmark First National Bank of Fort Lauderdale v. Beach Bait & Tackle Shop, Inc., 449 So. 2d 1287 (Fla. 4th DCA 1983); Waite Aircraft Corp. v. Ford Motor Credit Co., 430 So. 2d 1003 (Fla. 4th DCA 1983); § 78.068(2), Fla.Stat. (1983). It is undisputed in the present case that NCA has failed to make payments to LFC that it agreed to make pursuant to the installment sales agreement. It necessarily follows that it was error for the…
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McMURRAIN v. Fason, 573 So. 2d 915 (Fla. 1st DCA 1990)…ct 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 Aircraft Corp. v. Ford Motor Credit Co., 430 So. 2d 1003 (Fla. 4th DCA 1983), does not conflict with these cases, as the opinion in that case does not indicate whether the court had evidence before it that proved the grounds for the writ.…
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- Domingo Vega v. Hughes, 370 So. 2d 1187 (Fla. 4th DCA 1979)