No Protection From Replevin Suit For Person’s Other Than Sheriff, Landlord, or His Agent

Posted on December 23, 2016

Linda Skelton is the Appellant who sued Real Estate Solutions Home Sellers, LLC in Skelton v. Real Estate Sols. Home Sellers, LLC, 202 So. 3d 960, 961 (Fla. 5th DCA 2016).  Appellant appeals a final summary judgment, in which Appellant’s replevin claims were denied. Appellant claimed that Appellee improperly removed her personal property from the house. The Court found disputes regarding issues of material fact in their respective sworn affidavits regarding the alleged removal of Appellant’s property.  

“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law.” Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000) (citing Menendez v. Palms W. Condo. Ass’n, 736 So.2d 58, 60 (Fla. 1st DCA 1999)). “The standard of review of a summary judgment order is de novo and requires viewing the evidence in the light most favorable to the non-moving party.” Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000) (citing Walsingham v. Dockery, 671 So.2d 166, 172 (Fla. 1st DCA 1996)). “If the ‘slightest doubt’ exists, then summary judgment must be reversed.” Id. (citing Hancock v. Dep’t of Corr., 585 So.2d 1068, 1070–71 (Fla. 1st DCA 1991)). “In ruling on a motion for summary judgment, the court may neither adjudicate the credibility of the witnesses nor weigh the evidence.” Id. (citing Hernandez v. United Auto. Ins. Co., Inc., 730 So.2d 344, 345–46 (Fla. 3d DCA 1999)).”

The Trial court relied on “Restoration of possession to landlord” Section 83.62, Florida Statutes (2015) regarding rights and duties of landlords when retaking a leased premises and dealing with any personal property left by the tenant. When Appellee first moved for summary judgment, Mr. Hemlock, the manager, first stated that he properly obtained a writ of possession pursuant to section 83.62. Both parties agree that there was not a landlord-tenant relationship between them and thus the Trial Court erred when it relied on this section for the writ of possession. Therefore, the writ of possession improperly gave Appellee permission to evict Appellant and remove her personal property.

In 2014, Appellant successfully won the bid at a foreclosure auction for the subject real property (“the house”). A certificate of title was issued to Appellant and she moved into the house in 2014. Appellant considered the house her personal residence. In May 2015, in a separate foreclosure action SunTrust Bank obtained a final judgment for the house, against its mortgagors, the Culleys. Appellant was not a named party in the foreclosure action with the Culleys. During the May 2015 Culley foreclosure auction, Appellee won the bid and was issued a certificate of sale and later was issued a certificate of title to the house.

In June 2015, Appellee moved for a writ of possession, certifying that “there are no tenants in possession of the property, or if there are, that such tenants have been provided with requisite notice pursuant to the Federal Protection Tenants at Foreclosure Act”. The writ of possession was issued on June 10, 2015. Notice of the Writ of Possession was posted on the front door of the house by the Sheriff, providing twenty-four-hour notice to the occupants that they must evacuate the residence.

The Appellee also contends that Section 83.62 granted Appellee immunity from any suit for replevin or damages concerning personal property removed form the house. The Appellee is mistaken though, as Section 83.62 only grants immunity to the sheriff, the landlord, or the landlord’s agent. Given that the Appellee was not the landlord’s agent and the absence of a landlord-tenant relationship between the parties, there is no immunity to Appellee for suit for replevin or damages.

Appellee finally argues that he did not possess any of Appellant’s personal property. In a replevin action “although possession by the defendant of the subject property is essential, actual manual possession is not necessary. It is sufficient if a defendant has constructive possession, that it has such control over the property that he may deliver the possession of it” Bush v. Belenke, 381 So.2d 315, 316 (Fla. 3d DCA 1980).

Therefore, the Trial Court erred in granting summary judgment for the reasons above. The District Court reversed the final summary judgment and remanded for further proceedings.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or gmednick@mednicklawgroup.com.

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