Belvant v. Cohen

346 So.3d 1267

Jean Claude BELVANT, Appellant,

v.Abraham COHEN, et al., Appellees.

No. 3D21-862

District Court of Appeal of Florida, Third District.

Opinion filed September 7, 2022.

Debra Kay Cohen, Bay Harbor Islands, for appellant.

Michael S. Kaufman, Miami, for appellee Abraham Cohen.

Before EMAS, SCALES and BOKOR, JJ.

SCALES, J.

Appellant, plaintiff below, Jean Claude Belvant ("Belvant") appeals a March 4, 2021 order captioned as a "Final Judgment Awarding Attorney Fees and Costs In Favor of Defendant Abraham Cohen Against Plaintiff Jean Claude Belvant" ("Fee Judgment"). The Fee Judgment awards $24,695.00 in fees to appellee, one of three defendants below, Abraham Cohen ("Cohen"), after Cohen succeeded in vacating a prejudgment writ of replevin obtained by Belvant. We reverse the Fee Judgment because we conclude that, to be entitled to a fee award under section 78.20 of the Florida Statutes (2014), a defendant must prevail not only in having the prejudgment replevin writ dissolved, but also in the underlying action for replevin, which in this case remains pending. In so doing we align ourselves with the Fourth and Fifth Districts and certify conflict with the First District's decision in McMurrain v. Fason, 584 So. 2d 1027 (Fla. 1st DCA 1991).

I. Relevant Background

In 2008, Belvant and Cohen jointly submitted to Broward County a Taxicab and Luxury Sedan Lottery Application and subsequently became co-holders of a taxi permit ("the Permit").¹ Belvant and Cohen then allegedly entered into an agreement in 2014, whereby a company named Broward Airport Taxi was given the ability to use the Permit and, in exchange, the company provided payment to both Belvant and Cohen. Upon the expiration of this agreement, Belvant requested the Permit back, but was refused by both Cohen and Broward Airport Taxi. Belvant then filed a four-count complaint against Cohen, Broward Airport Taxi and Broward Airport Taxi's managing member wherein Belvant sought, among other relief, issuance of a writ of replevin.²

On September 24, 2015, pursuant to section 78.068 of the Florida Statutes,³ the trial court granted Belvant a prejudgment writ of replevin, requiring the defendants to relinquish the Permit to Belvant upon Belvant posting a nominal bond of forty dollars. Subsequently, however, on August 16, 2016, the trial court vacated its earlier prejudgment replevin order, entering a vacatur order that stated, in relevant part:

[P]laintiff shall have five (5) days to either post a bond in the amount of two hundred thousand dollars ($200,000) with the clerk of court or return the taxi decal previously obtained from the defendant(s) to Michael S. Kaufman, Esq. to be held in trust pending further order of court.

Belvant did not post the bond determined in the vacatur order. Rather, seeking to reverse the vacatur order, and have the prejudgment writ of replevin reinstated, Belvant filed an interlocutory appeal with this Court. On November 21, 2016, during the pendency of this appeal, the trial court entered an order placing the Permit with a receiver.⁴ In April 2017, we affirmed the vacatur order, issuing an unelaborated per curiam opinion. See Belvant v. Saint Vil, 225 So. 3d 819 (Fla. 3d DCA 2017).⁵

Relying upon section 78.20, Cohen then filed a motion in the trial court asserting his entitlement to damages, attorney's fees and costs based on his having the prejudgment writ of replevin vacated. On July 19, 2017, the trial court entered an order granting Cohen entitlement to fees.

On July 17, 2020, the trial court conducted the evidentiary hearing to determine the amount of fees to which Cohen would be entitled. On March 4, 2021, a successor judge entered the order on appeal, the Fee Judgment. This appeal followed. Importantly, the record does not reflect that any of the four counts – including the replevin count – alleged in Belvant's complaint have been adjudicated to conclusion.

II. Analysis

The issue before this Court is whether the Fee Judgment was prematurely entered. Specifically, we must decide whether section 78.20 of the Florida Statutes (2014) allows a defendant, who has succeeded in having a prejudgment writ of replevin vacated, to recover damages, attorney's fees and costs immediately, or whether, as a precondition to an award under section 78.20, a defendant must also prevail in the underlying replevin action. We regard this as an issue involving statutory construction, a pure question of law, hence our review is de novo. See Wright v. City of Miami Gardens, 200 So. 3d 765, 770 (Fla. 2016).

Our sister courts that have addressed this issue are split on whether a defendant who successfully dissolves or vacates a prejudgment replevin writ is entitled to an immediate award of damages. Employing a policy-driven approach, the First District has concluded that a defendant who is successful in having a prejudgment replevin writ dissolved is entitled to "immediate relief without regard to the pending cause of action [for replevin]." McMurrain v. Fason, 584 So. 2d 1027, 1032-33 (Fla. 1st DCA 1991).⁶

Endorsing an approach that focuses upon the text of section 78.20, the Fourth District⁷ and the Fifth District,⁸ certifying and acknowledging conflict, respectively, with McMurrain, reached a contrary conclusion:

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 replevin actions and meet other criteria of entitlement) (emphasis supplied).

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 with McMurrain. The substantive basis for a successful defendant's entitlement to damages, attorney's fees and costs is section 78.20, and we view section 78.20 as a fee statute. See Mich. Nat'l Bank of Detroit v. Maierhoffer, 382 So. 2d 318, 322 (Fla. 3d DCA 1979). As attorney's fee statutes are in derogation of common law, we are required to strictly construe them. Id.

Section 78.20, the statute providing for damages, attorney's fees and costs to a defendant who has prevailed in having a prejudgment replevin writ extinguished, reads, in relevant part, as follows:

When property has been ... redelivered to ... defendant ... upon the dissolution of a prejudgment writ and defendant prevails , he or she shall have judgment against plaintiff for his or her 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.

§ 78.20, Fla. Stat. (2014) (emphasis added).

In construing the statute, we must give meaning to each phrase in the statute. See Hechtman v. Nations Title Ins. of N.Y., 840 So. 2d 993, 996 (Fla. 2003) ("It...