León Cosgrove

Covid-19 Litigation: Replevin as a Recovery Device

By: Alec Schultz

Replevin, a little-known and rarely used claim under Florida law, may be a centerpiece of Covid-19 litigation seeking recovery of real property. Parties should be aware, however, that while replevin claims are a powerful tool, they are not without risks.

Chapter 78 of the Florida statutes provides a right of replevin to “[a]ny person whose personal property is wrongfully detained by any other person or officer.” Fla. Stat. § 78.01. Replevin claims can create excellent litigation leverage, as they are analogous to preliminary injunction claims. Specifically, upon the filing of a replevin complaint, the plaintiff is entitled to a show cause hearing and can obtain a prejudgment writ of replevin authorizing plaintiff to reclaim possession of the disputed goods pending a future final judgment. This is a particularly valuable tool with the ongoing suspension of civil jury trials in Florida. The expedited nature of the proceeding is apparent from the express terms of the statute: “the court shall promptly issue an order directed to the defendant to show cause why the claimed property should not be taken from the possession of the defendant and delivered to plaintiff.” Id. at 78.065(2). Once a pre-judgment writ issues, the defendant may only retain the property by posting a bond for the property’s full value.

In pursuing replevin claims, parties will want to exercise caution, as while the right to an expedited hearing and possession is attractive, an ultimate failure of the replevin claim at final judgment can lead to a defendant seeking fee shifting. Florida law allows a defendant who posts a bond in the face of a prejudgment writ in the plaintiff’s favor to recover attorney’s fees if the defendant later dissolves the writ, or if the defendant ultimately prevails on the replevin claim at trial. Id. at 78.20. Overall, parties and their counsel will need to weigh this risk against the prospect of recovering possession of property in a timeframe dramatically faster than that available through a final judgment after a jury trial.