OF FLORIDA. An Appeal from the Circuit Court for Miami-Dade County, Michael A. Genden, Judge.

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1 NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, A.D JORGE CAMPOS, Appellant, vs. COURTESY FORD, INC., f/k/a COURTESY MERGER, INC., d/b/a WORLD FORD, a Florida Corporation. Appellee. CASE NO. 3D LOWER TRIBUNAL NO Opinion filed April 27, An Appeal from the Circuit Court for Miami-Dade County, Michael A. Genden, Judge. George M. Evans, for appellant. Richard J. Caldwell, for appellee. Before COPE, GREEN, and WELLS, JJ. PER CURIAM. The plaintiff, Jorge Campos, was a mechanic employed by the defendant, World Ford, in its automobile repair department. In May 1998, Campos was terminated from his employment. For some

2 time after the termination, World Ford refused to release Campos s tools. This refusal was premised on Campos s request that World Ford release the tools to third persons. Ultimately, Campos filed a petition for writ of replevin seeking the return of his tools and damages for loss of use and the depreciation of his property. After the petition was filed, Campos s tools were returned. Thereafter, World Ford filed a motion for summary judgment claiming that the damages sought by Campos were essentially for lost wages and, therefore, not recoverable under the replevin statute. The trial court granted World Ford s motion. Following the denial of Campos s motion for rehearing, this appeal ensued. For the following reasons, we affirm. Under the replevin statute: Any person whose personal property is wrongfully detained by any other person or officer may have a writ of replevin to recover said personal property and any damages sustained by reason of the wrongful taking or detention as herein provided , Fla. Stat. (1998). The courts have routinely held that compensation may be obtained by a plaintiff whose property has been wrongfully withheld: Generally speaking, interest on the value of the property wrongfully detained is the proper measure of damages in an action of replevin. But where the use of the property is valuable the rule stated does not furnish the plaintiff adequate compensation, and in such cases he is entitled, not to interest on the value, but to the value of the use. 2

3 Ocala Foundry & Machine Works v. Lester, 38 So. 51, 53 (1905). See also Heg, Inc. v. Bay Bank & Trust Co., 591 So. 2d 1011, 1013 (Fla. 1 st DCA 1991)( Many authorities hold and this court herein agrees that the true measure of damages [in a replevin action] is the fair, reasonable, ordinary value of the use of the property. )(quoting Ocala Foundry & Machine Works, 38 So. at 53); Butter v. Mirabell, 179 So. 2d 868, 871 (Fla. 2d DCA 1965)(loss of use damages awardable in replevin action if competent substantial evidence supports such a claim). In this case, although Campos s complaint claims differently, the record shows that the only damages that he seeks are for loss of income. During Campos s deposition, his attorney, Mr. Marinello, explained to World Ford s attorney, Mr. Stinson, the damages Campos seeks. Mr. Marinello: The only thing we re looking for is the loss of income from date of termination or the date that he could have been reemployed to the date that he finally became employed on a steady job. * * * Mr. Stinson: Okay. And so I m clear again, you re not going to pursue any loss of value for tools themselves? Mr. Marinello: Not at all. * * * 3

4 Mr. Stinson: In your complaint, Paragraph 16, and let s go to B first,... it says you re claiming damages for the depreciation of your property. Can you tell me what the depreciation was and what the value is that you re placing on that depreciation? Mr. Marinello: Well, we re not pursuing that since now we have the tools back. * * * Mr. Stinson: Are you pursuing damages for depreciation of property? Campos: No. We have found no Florida case awarding lost wages in a replevin action. Indeed, our research has found only one case in the country that confronts this issue. In the Minnesota case of Widgren v. Massie, 352 NW 2d 420 (Minn. 1984), the court specifically held, under a replevin statute similar to ours, that: [t]he reasonable value of [a property s] use during the wrongful detention does not include respondent s lost wages for that period. Id. at 426. We find that the Minnesota court was right. Accordingly, since the property has been returned and the damages sought by Campos are not recoverable, we affirm the summary judgment entered in favor of World Ford. Affirmed. GREEN and WELLS, JJ., concur. 4

5 Campos v. Courtesy Ford Case No. 3D COPE, J. (dissenting). Under the replevin statute, Any person whose personal property is wrongfully detained by any other person... may have a writ of replevin to recover said personal property and any damages sustained by reason of the wrongful taking , Fla. Stat. (1998) (emphasis added). For purposes of the summary judgment motion of defendant-appellee Courtesy Ford, Inc., the record must be read in the light most favorable to plaintiff-appellant Jorge Campos. Read in the required light, the plaintiff was a mechanic employed by the defendant automobile dealership in its repair department. In May 1998, the defendant fired the plaintiff. There was a period of time following the firing that the defendant refused to release the plaintiff s tools to persons authorized by the plaintiff to pick the tools up. After the filing of the petition for writ of replevin, the defendant returned the tools to the plaintiff. The defendant filed a motion for summary judgment arguing in essence that since it had returned the tools to the plaintiff, the plaintiff was not entitled to any damages. But, as quoted above, section provides that the plaintiff may 5

6 recover for any damages sustained by reason of the wrongful taking. The plaintiff s claim is that he was unable to find other employment as a mechanic until such time as his tools were returned to him. The defendant s main argument is that such damages are not recoverable in a replevin action. The First District has held that compensation may be had where the defendant wrongfully detains the tools of the plaintiff s trade. Heg, Inc. v. Bay Bank & Trust Co., 591 So. 2d 1011 (Fla. 1st DCA 1991). The Florida Supreme Court has said: Generally speaking, interest on the value of the property wrongfully detained is the proper measure of damages in an action of replevin. But where the use of the property is valuable the rule stated does not furnish the plaintiff adequate compensation, and in such cases he is entitled, not to interest on the value, but to the value of the use. Ocala Foundry & Machine Works v. Lester, 38 So. 51, 53 (Fla. 1905) (citations omitted); see 12 Fla. Jur. 2d Conversion and Replevin 78 (1998); see also Restatement (Second) of Torts 927(2)(b),(d) & comment b (1979) (applicable to replevin proceedings) (cited in Christopher Advertising Group, Inc. v. R & B Holding Company, Inc., 883 So. 2d 867, 873 (Fla. 3d DCA 2004)). Since the defendant has based its position in this appeal on the proposition that damages are not recoverable by the 6

7 plaintiff as a matter of law, and since that analysis is incorrect, we should reverse the summary judgment. 7