JUSSI K. KIVISTO, PETITIONER,
v.
GMAC LLC F/K/A GENERAL MOTORS ACCEPTANCE CORPORATION, RESPONDENT
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The court held that damages are not automatically due immediately upon dissolution of a writ of replevin, and the trial court may postpone determination of damages.
Plaintiff sued defendant in replevin and prevailed, but the trial court postponed determination of damages. The defendant petitioned for certiorari.…
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PER CURIAM.
The issue raised by this petition for certiorari is when, in a replevin action in which the defendant has prevailed, the court must award defendant damages. In a non-final order the trial court ordered plaintiff to return the vehicle to defendant, but postponed a determination of damages for a later hearing to be scheduled.
In McMurrain v. Fason, 584 So. 2d 1027 (Fla. 1st DCA 1991), the first district granted a petition for certiorari under similar circumstances, holding that damages were due immediately upon the dissolving of the writ. Prior to McMurrain, this court had construed section 78.20, Florida Statutes (2007), upon 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. We certify direct conflict with McMurrain v. Fason, 584 So. 2d 1027 (Fla. 1st DCA 1991).
Petition denied.
SHAHOOD, C.J., POLEN and KLEIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Belvant v. Cohen (Fla. 3d DCA 2022)…erty. McMurrain, 584 So. 2d at 1033. McMurrain thus treats the process of a plaintiff obtaining, 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 mer…
Authorities Cited
- McMURRAIN v. Fason, 584 So. 2d 1027 (Fla. 1st DCA 1991)
- Savage v. State, 506 So. 2d 1081 (Fla. 4th DCA 1987)
- Trans Atl. Distribs., L.P. v. Whiland Co., S.A., 671 So. 2d 883 (Fla. 5th DCA 1996)