A TRIAL COURT ENTERTAINING A MOTION TO DISSOLVE A PREJUDGMENT WRIT OF REPLEVIN HAS THE DISCRETION TO GRANT THAT MOTION IF THE PLAINTIFF DID NOT COMPLY WITH THE ATTESTATION REQUIREMENTS OF FLORIDA STATUTES, SECTION 78.068(1)

Defendants purchased an air conditioning business from Plaintiffs.  Subsequent to the sale, Plaintiffs entered into employment and non-compete agreements with Defendants.  One year later, Defendants terminated Plaintiffs’ employment.  Plaintiffs opened a competing business and, thereafter, filed a lawsuit against Defendants seeking back pay, as well as injunctive and declaratory relief regarding the non-compete obligations.  Some months later, without leave of court, Defendants filed a “Verified Counterclaim” and a motion seeking the issuance of a prejudgment writ of replevin.  That same day, Defendants attended a non-emergency, ex-parte hearing where thy secured an order directing the issuance of a prejudgment writ of replevin. Defendants executed the prejudgment writ at Plaintiffs’ business premises and left those premises with more than 30,000 documents.

Plaintiffs moved to dissolve the writ and secured an emergency hearing, where they argued that the  “Verified Counterclaim” was a legal nullity and could not support the writ, in part, because it was not notarized or declared to be made under penalties of perjury.  The trial court agreed and dissolved the writ.  Defendants appealed, arguing that the trial court should not have dissolved the writ because the facts set forth in the counterclaim and the limited testimony taken at the emergency hearing supported the writ’s issuance.  Defendants also asserted that the trial court should have afforded them an opportunity during the emergency hearing to present evidence to support the allegations in the counterclaim.

The appellate court disagreed and affirmed the ruling on appeal, finding that the trial court did not abuse its discretion in dissolving the writ.  Noting that Florida’s replevin statutes clearly provide that a prejudgment writ may issue only if facts set forth in a verified pleading or separate affidavit support its issuance, the appellate court determined that Defendants did not comply with that requirement.  Significantly, the appellate court held that a trial court has the discretion to grant a motion to dissolve a prejudgment writ of replevin based upon non-compliance with the attestation requirements of Florida Statutes, Section 78.068(1).  In so holding, the appellate court rejected Defendants’ argument that the trial court’s evaluation of a motion to dissolve a prejudgment writ of replevin should be based upon the record as it existed at the time that the motion to dissolve is heard, and not as it existed at the time of the issuance of the prejudgment writ.  Curiously, and in spite of having noted that constitutional due process concerns required that a prejudgment writ issue only on a verified pleading or affidavit, the appellate court stated that a trial court has the discretion to excuse technical non-compliance with the attestation requirements of Section 78.068(1) if the party securing the prejudgment writ proves the grounds on which the trial court ordered the issuance of the writ at a hearing on a motion to dissolve the writ.

Lennox Retail, Inc. v. McMillan,
26 Fla. L. Weekly S1492 (Fla. 5^th DCA June 15, 2001).