AM. EASTERN INV. v. ORIGINAL OLIVER, 549 So.2d 711 (Fla.App. 4 Dist. 1989)

No. 88-2997.District Court of Appeal of Florida, Fourth District.
September 20, 1989. Rehearing Denied October 20, 1989.

Appeal from the Circuit Court, Broward County, W. Herbert Moriarty, J.

Martin G. Brooks of Martin G. Brooks, P.A., Hollywood, for appellant.

Thomas R. Shahady of Houston, Shahady Hatch, P.A., Fort Lauderdale, for appellee-Baring Industries.

Page 712

PER CURIAM.

American Eastern Investment Corporation appeals an order and final judgment entered in favor of Baring Industries on Baring’s counterclaim for replevin. We reverse.

It is well settled that an action for replevin may only be brought when the party bringing the action is entitled to immediate possession of the property in question. See Rinzler v. Carson, 262 So.2d 661 (Fla. 1972). Furthermore, the holder of a chattel mortgage does not have a right to immediate possession of the mortgaged property upon default; rather, the mortgage creates a lien on the property which may be acquired by judicial foreclosure. Martyn v. First Federal Savings and Loan Association of West Palm Beach, 257 So.2d 576 (Fla. 4th DCA 1971). Thus, in the instant case the trial court erred in ruling that Baring Industries, the holder of the chattel mortgage, was entitled to replevin. Our reversal is without prejudice to Baring Industries bringing an action for foreclosure, provided, that such an action would otherwise be allowable under the statute of limitations and other relevant statutes governing foreclosure actions. Additionally, the validity of Baring Industries’ mortgage, the priority of the liens of the parties and the effect of the landlord’s waiver would remain to be determined in such action.

REVERSED.

DOWNEY and WALDEN, JJ., concur.

GARRETT, J., dissents with opinion.

GARRETT, Judge, dissenting.

Appellant, American East Investment Corp., argues that no replevin action could be maintained because appellee, Baring Industries, Inc. (Baring), the supplier, did not have a right to immediate possession of certain restaurant kitchen and refrigeration equipment at the time Baring filed a counterclaim to appellant’s complaint for breach of lease by appellee, Original Oliver, Inc. (Original Oliver), the purchaser. The majority adopts the appellant’s argument.

I acknowledge that no action for replevin shall lie for any person unless he has a right to reduce the goods taken into his possession. § 78.02(4), Fla. Stat. (1987). I further acknowledge that if possession is refused by the mortgagor, the mortgagee must resort to foreclosure to acquire possession of the property Snow v. Nowlin, 125 Fla. 166, 169 So. 598 (Fla. 1936); Fincher Motors, Inc. v. Northwestern Bank Trust Co., 166 So.2d 717
(Fla. 3d DCA 1964). However, nothing prevents a mortgagor from voluntarily surrendering possession of the property to the mortgagee as Original Oliver did by its January 4, 1985 letter[1] to Baring, whose attempts to remove the equipment from the premises demonstrated acceptance of the offered possession. Accordingly, I respectfully dissent by finding Baring had the right to possession necessary to maintain the replevin action for the equipment.