Jean Claude Belvant, Appellant, v. Abraham Cohen, et al., Appellees. (2025)

Jean Claude Belvant appeals the trial court's order granting Abraham Cohen's motion to dismiss a replevin count with prejudice. For the following reasons, we reverse.

Belvant and Cohen were co-owners of a taxi permit/decal issued in April 2008 that allows taxi drivers to access the airport. They entered into an agreement with Broward Airport Taxi and August J. Saint Vil, Broward Airport Taxi's owner, so Broward Airport Taxi and Saint Vil could use the permit for two years. When the contract for the use of the permit expired, Belvant requested that Broward Airport Taxi and Saint Vil return his permit/decal so that he and Cohen could benefit from the continued ownership of the decal. Belvant was a licensed taxi driver, while Cohen was not. The parties could not agree on the return of the permit.

In July 2015, Belvant sued Cohen, Broward Airport Taxi, and Saint Vil for conversion, civil conspiracy, and civil theft. In addition, he sued Saint Vil and Broward Airport Taxi to obtain injunctive relief by writ of replevin. Belvant did not sue Cohen in the replevin count, as Cohen was co-owner of the permit.

Belvant moved to enter default final judgment as to all three defendants after they failed to serve or file papers in the action. The trial court denied Belvant's motion without prejudice as to Cohen. Saint Vil and Broward Airport Taxi were eventually defaulted in April 2016.

In September 2015, Belvant filed a verified petition for prejudgment writ of replevin against Broward Airport Taxi and its owner Saint Vil because they continued to maintain possession and control of the taxi decal. The trial court issued the prejudgment writ of replevin. Although the writ was never executed, Cohen returned the decal to Belvant on October 5, 2015.

In December 2015, Cohen moved to vacate the writ of replevin. He argued that because he was a co-owner of the permit, replevin was an improper action against him. Belvant responded that Cohen lacked standing to vacate the prejudgment writ of replevin because the action was against Saint Vil and Broward Airport Taxi, and Cohen was never named as a defendant in the replevin action.

Also in December 2015, Cohen moved to dismiss Belvant's complaint for conversion, civil conspiracy, and civil theft for failure to state a cause of action. The trial court granted Cohen's motion to dismiss without prejudice as to the counts for conversion, civil theft, and civil conspiracy but denied it as to the count for replevin. The court gave Belvant 20 days to file an amended complaint.¹

In August 2016, the trial court granted Cohen's motion to vacate the writ of replevin issued against Broward Airport Taxi and Saint Vil. After given a choice between posting a bond or returning the decal to Cohen's attorney to hold in trust pending further order of the court, Belvant surrendered the decal to Cohen's attorney. Belvant appealed, and this Court per curiam affirmed in Belvant v. Saint Vil, 225 So. 3d 819 (Fla. 3d DCA 2017).

Thereafter, in June 2017, Cohen filed a motion for entitlement to attorney's fees/costs/damages pursuant to section 78.20, Florida Statutes (2015), which provides for attorney's fees after the dissolution of a prejudgment writ and a defendant prevails in a replevin action. The trial court granted Cohen's motion and entered a final judgment in favor of Cohen in the amount of $25,695.00.

Belvant then appealed the attorney's fees award, and this Court reversed in Belvant v. Cohen, 346 So. 3d 1267 (Fla. 3d DCA 2022). The Court concluded 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.” Id. at 1268.

Cohen returned to the trial court once more in April 2023 and moved to dismiss the replevin count with prejudice. In August 2023, the trial court dismissed the replevin count (count IV of the complaint) with prejudice, finding that Belvant was required to join Cohen as co-plaintiff in the replevin action against third parties. The trial court stated that because its order was disposing of the replevin count with prejudice, it was thus re-entering the final judgment for attorneys’ fees in favor of Cohen in the amount of $25,695.00 it had previously entered. Belvant now appeals this order.

This Court reviews a trial court's order granting a motion to dismiss under a de novo standard of review. Howard v. Greenwich Ins. Co., 307 So. 3d 844, 847 (Fla. 3d DCA 2020). In addition, review of a statutory fee award, which is an issue of statutory construction and thus a pure question of law, is de novo. Wright v. City of Miami Gardens, 200 So. 3d 765, 770 (Fla. 2016).

Belvant contends that Cohen was not an indispensable party to the replevin claim requiring dismissal of the claim as to all parties with prejudice and that the trial court erred when it reinstated the final judgment of attorney fees in favor of Cohen upon the dismissal of the replevin claim against Broward Airport Taxi and Saint Vil. We agree with Belvant on both points.

In the order on appeal, the trial court stated:

2. The Court notes that [Belvant] did not join as a co-plaintiff the defendant, [Cohen], in the replevin against third party(s). Because [Cohen] is a co-owner of the taxi permit in question it was required that all owners be named as plaintiffs in seeking replevin. The failure to include all owners as plaintiffs rendered the replevin count legally insufficient from the outset and precludes the trial court from acting upon it. ․

(emphasis added). However, Belvant was not required to join Cohen as a plaintiff or an indispensable party because Florida law does not require it. A replevin action in Florida does not always require that all owners of the subject property be joined as plaintiffs because the primary issue in a replevin action is the right to possession of the property, not ownership. As acknowledged in Florida Jurisprudence:

Replevin is strictly a possessory action where the sole legal issue is the right to immediate possession, not ownership or title. In a replevin action, the right of immediate possession is the question to be determined, and that right may prevail even against absolute legal title to the property where title and possession have become separated. Indeed, where the title and the right of immediate possession are separated, a temporary right to possession may prevail against an absolute legal right to the property. Accordingly, the matter of title is secondary.

12 Fla. Jur. 2d Conversion and Replevin § 44 (2025) (footnotes omitted); see Williams Mgmt. Enters., Inc. v. Buonauro, 489 So. 2d 160, 164 (Fla. 5th DCA 1986); Wisniewski v. Historical Ass'n of S. Fla., Inc., 408 So. 2d 746, 747-48 (Fla. 3d DCA 1982); Bringley v. C.I.T. Corp., 160 So. 680, 682-83 (Fla. 1935); Southside Atl. Bank v. Lewis, 174 So. 2d 470, 471 (Fla. 1st DCA 1965).

Florida law recognizes that, generally, replevin cannot be maintained against another co-owner who is legally entitled to possession of the subject property. Parramore v. Smith, 27 So. 2d 670, 671 (Fla. 1946). The critical factor to consider is the wrongful detention. In Brown v. Reynolds, 872 So. 2d 290, 294 (Fla. 2d DCA 2004), the court recognized that replevin concerns the wrongful detention of property. Thus, if a co-owner has a legal right to possess the property in question, that co-owner's possession cannot be wrongful, and a replevin action against that co-owner would be improper.

Belvant filed the replevin count in his complaint against Saint Vil and Broward Airport Taxi because those two defendants had possession of the permit/decal, as they had kept the decal after the agreement between the parties expired. Belvant needed the permit to continue his work as a taxi driver. Thus, it was correct for Belvant to name the two parties that had possession of the subject property at the time he filed his suit, and that is, Saint Vil and Broward Airport Taxi. Here, as co-owner of the taxi decal/permit, Belvant could sue for replevin against Saint Vil and Broward Airport Taxi without joining Cohen as a plaintiff because Belvant had the right to immediate possession of the property. Thus, Belvant had the right to act independently to recover possession of the wrongfully detained taxi decal. Accordingly, the trial court erred when it found that Cohen was an indispensable party to the replevin action, and dismissal was not required.²

Furthermore, at the point in time the trial court entered the order on appeal, both Saint Vil and Broward Airport Taxi had already been defaulted. Because the replevin action had only been asserted against those two defendants, there was no replevin action remaining for the trial court to be able to dismiss. Therefore, the trial court erred in granting Cohen's motion to dismiss as to the replevin action for this reason, as well.

Turning to the portion of the order on appeal where the trial court reinstated the attorney's fees final judgment for Cohen in the amount of $25,695.00, because the trial court erred in granting Cohen's motion to dismiss the replevin action, the attorneys’ fees award in the order on appeal must also be reversed. Section 78.20, Florida Statute (2014), provides:

When property has been retained by, or redelivered to, defendant on his or her forthcoming bond or 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․

As this Court held in Cohen, 346 So. 3d 1267, to obtain an award under section 78.20, “a defendant must not only succeed in having the prejudgment replevin writ dissolved, but also the defendant must ultimately prevail in the underlying replevin cause of action.” Id. at 1271.

Here, Cohen was not a defendant in the replevin cause of action. In addition, because the replevin count in Belvant's complaint was erroneously dismissed, Cohen has not prevailed on the replevin count. There was never an adjudication on the merits of the replevin claim. Thus, Cohen is not entitled to the $25,695.00 in attorney's fees.

Accordingly, we reverse the trial court's order on appeal and remand to the trial court so it can determine damages for Belvant on the replevin count and the other three counts of Belvant's complaint against Saint Vil and Broward Airport Taxi (as Belvant obtained defaults against both Saint Vil and Broward Airport Taxi).

Reversed and remanded.

FOOTNOTES

1.   On October 11, 2016, Belvant filed his First Amended Complaint as to Cohen only, asserting claims for an equitable accounting and dissolution of partnership/certificate of public convenience, involuntary dissolution and liquidation of the partnership, breach of fiduciary duty, and fraud.

2.   Contrary to Cohen's assertion, the per curiam affirmance by this Court in Saint Vil, 225 So. 3d 819, had no precedential value in terms of whether Cohen had standing to address the prejudgment writ of replevin. Vachon v. Travelers Home and Marine Ins. Co., 403 So. 3d 451, 454 (Fla. 2d DCA 2025) (“Without a written opinion, the trial court could only speculate regarding the rationale underlying this court's per curiam affirmance decision.”) (citation omitted).

FERNANDEZ, J.