Comcoa v. Honorable Jack M. Coe

We hold in this case that upon the satisfaction of the statutory prerequisites for a writ of replevin without notice pursuant to section 78.068, Florida Statutes (1989), the trial court is mandatorily required to issue the writ in accordance with that provision. The case began in the Dade County Court when the appellant, Comcoa, sought to replevin furniture it had leased because the required rental payments had not been made. Although Comcoa's papers fully complied with the requirements of section 78.068,1{/Cite} including a verified allegation ""that the defendant has failed to make payment as agreed"" under 78.068(2) and the bond required by 78.068(3), the county court judge declined, for no stated reason, to issue the writ. Instead, he ordered the plaintiff to submit an order setting the application for subsequent hearing before the court, after notice to the defendant, as is prescribed under 78.0652{/Cite} and 78.067,3{/Cite} Florida Statutes (1989). At that point, Comcoa filed a petition for writ of mandamus in the circuit court to require the county court judge to perform the duty to issue the writ without notice under 78.068. Sua sponte, the circuit court dismissed the application on the ground that the issuance of the writ was only a discretionary act by the trial judge as to which, under familiar principles, mandamus would not lie.4{/Cite} Compare, e.g., Sandegren v. State ex rel. Sarasota County Pub. Hosp. Bd., 397 So.2d 657 (Fla. 1981) (mandamus lies to compel performance of clear legal duty) with Moneyhun v. Purdy, 258 So.2d 505 (Fla. 3d DCA 1972) (mandamus not available to compel discretionary act). See generally 35 Fla.Jur.2d Mandamus and Prohibition ?? 30-34 (1982). We find to the contrary that the issuance of the writ by the trial court under 78.068 is mandatory or ministerial in nature and that mandamus not only lies but must in this case be issued in order to require the performance of that duty.