No.

87-1515
District Court of Appeal of Florida, Fifth District

Hutchens v. Maxicenters, U.S.A

541 So. 2d 618 (Fla. Dist. Ct. App. 1989)
Decided Apr 13, 1989

No. 87-1515. The factual dispute in this case concerning the

parties' respective rights to the Mercedes does not
April 21, 1988. On Motion for Rehearing En Banc
turn on any sums due under a contract between the
April 13, 1989.
parties. Compare Lease Financing Corporation v.
Appeal from the Circuit Court, Orange County, National Commuter Airlines, Inc., 462 So.2d 564
B.C. Muszynski, J. (Fla. 3rd DCA 1985). Therefore, the only
applicable statutory factor is the value of the car
Harry L. Lamb, Jr., of Perry Lamb, P.A., Sanford,
replevined. Evidence at the hearing indicated
for appellant.
Hutchens paid $34,113.00 for the car. Therefore,
Charles G. DeMarco, P.A., Maitland, for appellee. the replevin bond should be at least double that
amount.
SHARP, Chief Judge.
Accordingly, we affirm, but remand with
Hutchens appeals from a non-final order denying directions to the trial court to set the replevin bond
his motion to dissolve a prejudgment writ of at twice the value of the Mercedes.
replevin and recover possession of a Mercedes
AFFIRM; REMAND WITH DIRECTIONS TO
automobile from Maxicenters, U.S.A. We agree
INCREASE THE REPLEVIN BOND.
that Maxicenters established a prima facie right to
possession of the Mercedes through constructive DAUKSCH and ORFINGER, JJ., concur.
trust principles, and that venue was properly set in
Orange County because the car was actually SHARP, Chief Judge.
seized in Orange County and had been used in
Orange County. § 78.03, Fla. Stat. (1987). ON MOTION FOR REHEARING
EN BANC
However, we agree with Hutchens that the trial
court erred in requiring a replevin bond of only PER CURIAM.
$1,000.00. The replevin statute provides:
The Motion for Rehearing En Banc is denied.
The petitioner must post bond in the
amount of twice the value of the goods SHARP, C.J., and DAUKSCH, ORFINGER,
subject to the writ or twice the balance DANIEL and GOSHORN, JJ., concur.
619 *619 remaining due and owing, whichever
COWART, J., dissents with opinion in which
is lesser as determined by the court as
COBB, J., concurs.
security for the payment of damages the
defendant may sustain when the writ is
COWART, Judge, dissenting.
obtained wrongfully. (Emphasis supplied).

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 Hutchens v. Maxicenters, U.S.A 541 So. 2d 618 (Fla. Dist. Ct. App. 1989)

This case involves a most important and which is inherent in the employee's theft from his
fundamental practice and procedural issue as to employer, or to provide the employer a direct
the present status in Florida of the difference customized EQUITABLE REMEDY. COURTS
between law and equity and the difference OF EQUITY have EXCLUSIVE JURISDICTION
between remedies and causes of action which to do that. By proper allegations of fact and
should be openly addressed en banc by this court demand for relief2 in a complaint in EQUITY the
and the Florida Supreme Court. The essential employer can INVOKE the EXCLUSIVE
issue is whether the 1954 merger of law procedure JURISDICTION of a COURT OF EQUITY to
and equity procedure has resulted in an recognize the TRUST relationship between the
amalgamation of the theory and substance of those employee and the employer, to find and adjudicate
two bodies of law to the extent that a strictly law the employee's breach of that TRUST, and to
remedy, such as replevin, can now be used to exercise the special POWER and AUTHORITY of
directly enforce a strictly equitable cause of that particular branch, system, or body of law
action, such as an action to establish a constructive known as EQUITY or CHANCERY (1) to
trust. recognize an equitable cause of action because of
the lack of power of a COURT of LAW to
An employee steals money from his employer and
recognize the employer's SUBSTANTIVE
uses it to purchase an automobile with the legal
EQUITABLE RIGHTS, which are not known to,
title in the employee's name. Can the employer
or cognizable by, courts of law and (2) to provide
recover possession of the automobile from the
any peculiar and special EQUITABLE
employee by an action at law for replevin? The
REMEDIES that might be needed to enforce the
answer should be no.
employer's substantive equitable rights which are
Replevin is a possessory law action. The employer exemplified by corresponding EQUITABLE
does not have legal title to the automobile1 and is CAUSES OF ACTION. Specifically, the employer
not otherwise entitled to the immediate possession may plead an EQUITABLE CAUSE OF ACTION
of it. The employee, of course, has violated for a CONSTRUCTIVE TRUST, and seek an
substantive legal rights of the employer and the equitable adjudication that the employee's
employer does have the choice of several LEGAL purchase of the automobile with the employer's
REMEDIES to redress the violation of these money resulted, in equity and fairness, in the
rights. The employer can recover his stolen money employee holding the LEGAL TITLE to the
by suing the employee at LAW on one or more automobile in TRUST for the USE AND
theories of recovery (SUBSTANTIVE CAUSES BENEFIT of the employer who thereby became
OF ACTION) (for example, the tort of the beneficial or equitable titleholder, OR, if he
CONVERSION or implied ASSUMPSIT, prefers, the employer can view and plead the facts
specifically, the implied contractual theory known to state an equitable cause of action for an
as the COMMON COUNT for MONEY HAD EQUITABLE LIEN and obtain an adjudication
AND RECEIVED), the same as the employer can that the employee's LEGAL TITLE to the
sue any stranger who converts his property, and automobile is encumbered by an EQUITABLE
obtain a money judgment, have execution issue LIEN in favor of the employer to the extent that
and cause the sheriff to seize and sell the the employer's money was used as purchase
620 automobile *620 (or other leviable property of the money for the automobile. If a CONSTRUCTIVE
employee) to satisfy the judgment. However, a TRUST is established, the equity court may
court of LAW does not have the SUBJECT EXECUTE or enforce the trust by ordering (in the
MATTER JURISDICTION necessary for it to form of a mandatory injunction) the employee to
recognize or adjudicate the breach of TRUST transfer the legal title to, and possession of, the

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 Hutchens v. Maxicenters, U.S.A 541 So. 2d 618 (Fla. Dist. Ct. App. 1989)

automobile to the employer as beneficial owner, to such causes, or (2) the granting of equitable
and enforce that injunction or order by the equity remedies. In order that a cause may come within
court's contempt power,3 and, if necessary, as the scope of equity jurisdiction, one of two
relief incident to the exercise of its exclusive alternatives is essential: (1) either the primary
equity jurisdiction, the equity court can enforce right, estate or interest to be maintained, or the
the employer's resulting legal title and right to violation of which furnishes the cause of action,
possession by any LAW REMEDY available to a must be equitable rather than legal; or (2)(a) the
law court (such as a writ of replevin or a money remedy granted must be in its nature purely
judgment should the automobile become lost or equitable, or (2)(b) if it be a remedy which may
destroyed). If an EQUITABLE LIEN is also be given by a court of law, it must be one
established, the equity court can enforce that lien which, under the facts and circumstances of the
in any manner that a law court can enforce a lien case, can only be made complete and adequate
cognizable by law. through the application of equitable doctrines,
621 principles or remedies.4 It is customary *621 to
1 The legal titleholder of property is
distinguish equitable jurisdiction as exclusive and
presumptively entitled to possession of that
property. Thus in Hughes Trust Banking
concurrent, which distinction relates wholly to the
Co. v. Consolidated Title Co., 81 Fla. 568, nature and form of the remedies and properly
88 So. 266 (Fla. 1921), when officers of an belongs, therefore, only to that part of the
abstract company signed a conditional jurisdiction which is based upon these remedies,
contract of sale subject to ratification by i.e., (2)(a) or (2)(b) above. Equity jurisdiction
stockholders and delivered the physical embraces both cases for the maintenance or
assets of the company to a prospective protection of primary rights, estates and interests
purchaser, the legal title to the assets purely equitable, and cases for the maintenance or
remained in the abstract company, so when protection of primary rights, estates and interests
the stockholders refused to ratify the sale,
purely legal; and in the latter class of cases the
the abstract company's proper remedy to
remedies granted may be of a kind which are
recover its assets was an action at law for
peculiar to equity courts, such as, reformation,
replevin and it was therefore error for the
cancellation, injunction, etc., or remedies of a kind
chancellor not to dismiss the abstract
which are administered by courts of law, as the
company's bill for equitable injunctive
relief.
recovery of money, or of the possession of specific
real and personal property. The distinction
2 Fla.R.Civ.P. 1.110(b).
between the exclusive and concurrent jurisdiction
3 See Fla.R.Civ.P. 1.570(c). of equity represents the fact that the two kinds of
remedies, equitable and legal, may, under proper
"Equity jurisdiction" as distinguished on the one circumstances, be obtained in the class of cases
hand from the general power to decide matters at that involve the recovery of money or of the
all, and on the other hand, from the jurisdiction "at possession of specific things.5
law" or "common-law jurisdiction," is the power
4 1 Pomeroy, Equity Jurisprudence, Sec. I,
to hear certain kinds and classes of civil causes
Fundamental Principles and Divisions, §
according to the principles of the method and
130, p. 176 (5th Ed., Symons, 1941); see
procedure adopted by the courts of chancery, and
also Kooman, Florida Chancery Pleading
to decide them in accordance with the doctrines
and Practice, Sec. 4, Definition of Equity
and rules of equity jurisprudence, which decision Jurisdiction, p. 7 (1939). Also see Malone
may involve either (1) the determination of the v. Meres, 91 Fla. 709, 109 So. 677 (1926).
equitable rights, estates and interests of the parties

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 Hutchens v. Maxicenters, U.S.A 541 So. 2d 618 (Fla. Dist. Ct. App. 1989)

5 1 Pomeroy, Equity Jurisprudence, Sec. I, It is a proposition of universal application

Divisions — Equity Jurisdiction as that courts of law never take cognizance of
Exclusive, Concurrent and Auxiliary, § cases in which the primary right, estate, or
136, p. 186 (5th Ed., Symons, 1941).
interest to be maintained, or the violation
The exclusive jurisdiction of equity extends to and of which is sought to be redressed, is
embraces, (1) all civil cases in which the primary purely equitable, unless such power has
right violated or to be declared, maintained or been expressly conferred by statute; and if
enforced is purely equitable and not legal, and (2) the statutes have interfered and made the
all civil cases in which the adjudication sought right or the violation of it cognizable by
involves a right, estate, title, or interest created by courts of law, such right thereby becomes
equity, and not by law.6 This class of cases, of to that extent legal.
course, includes the equitable concepts of unjust This "proposition of universal application" is no
enrichment and constructive trust and the interest "hyper-technical view."
in property created by a court of equity by
application of the doctrine of constructive trusts. The exclusive jurisdiction of equity includes all
This class of cases falls under equitable civil cases based upon or relating to equitable
jurisdiction alone, because of the nature of the estates, interests, and rights in property as the
primary or substantive right to be established, subject-matter of the action. Chief among these
redressed, maintained, or enforced and not are cases involving the recognition of trusts
because of the nature of the remedies to be arising by operation of law from the conduct of
granted. Although in most such instances, the parties. Constructive trusts are one such species
remedy is also equitable, it need not be necessarily and are raised by equity for the purpose of
so, such as, where, as in this case, the right to working out right and justice, where there was no
possession of a specific automobile is involved. intention of the party to create a trust relationship.
Pomeroy7 states the proposition controlling this All instances of constructive trusts may be
referred to what equity denotes as fraud, either
case, as follows:
actual or constructive, including acts or omissions
6 See generally, 1 Pomeroy, Equity in violation of fiduciary obligations. If one party
Jurisprudence, Sec. I, Exclusive obtains the legal title to property by fraud or by
Jurisdiction — Where Primary Right is violation of confidence or of fiduciary relations or
Purely Equitable, § 137, p. 187 and Sec. II,
in any other unconscientious manner, so that he
The Exclusive Jurisdiction, § 146, p. 198
622 cannot equitably *622 retain the property which
(5th Ed., Symons, 1941).
really belongs to another, equity carries out its
7 1 Pomeroy, Equity Jurisdiction, Part I, Ch. theory of a double ownership, equitable and legal,
I, Sec. I, Exclusive Jurisdiction — Where by impressing a constructive trust upon the
Primary Right is Purely Equitable, § 137, property in favor of the one who is in good
p. 188, Note 17 (5th Ed., Symons, 1941). conscience entitled to it and who is considered in
equity as the beneficial owner. Whenever a person
in a fiduciary capacity breaches his trust and
purchases property with trust funds and takes the
title thereto in his own name, without any
declaration of trust, a trust arises with respect to
such property in favor of the cestui que trust or
beneficiary. Equity regards such a purchase as
made in trust for the person beneficially interested,

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 Hutchens v. Maxicenters, U.S.A 541 So. 2d 618 (Fla. Dist. Ct. App. 1989)

independent of any imputation of fraud and although in a peculiar sense of that word. It clearly
without requiring any proof of an intention to existed as part of the "common and statute laws of
violate the fiduciary obligation because it is England" "down to the 4th day of July, 1776," has
assumed that the purchaser intended to act in not been changed by statute in Florida and is of
pursuance of his fiduciary duty and not in force in this state by virtue of section 2.01, Florida
violation of it.8 Williams Management Enterprises, Statutes. In Florida since the adoption and
Inc. v. Buonauro, 489 So.2d 160 (Fla. 5th DCA ratification of the Constitution of 1868, circuit
1986) in essence, holds only that the common law courts have been courts of general jurisdiction
remedy of replevin relates only to tangible with original jurisdiction in all cases of law not
personal property that a sheriff, executing a writ, cognizable by inferior law courts and with original
can physically identify and seize and is jurisdiction in all cases of equity. In 1954, the
inappropriate as applied to an intangible, such as, Florida Supreme Court merged the 1950 Florida
the debtor-creditor relationship existing between a Common Law Rules and the 1950 Florida Equity
lawyer and a client who has deposited money in Rules into one practice and procedure. However,
the lawyer's trust account or as exists between a neither by constitutional amendment, nor by
depositor and a bank as to monies deposited by the legislative act, nor by court rule, has there been a
depositor with the bank. Therefore, the Buonauro merger or elimination of differences in substance
case is inapplicable in this case where the property between the two bodies of law known as common
sought to be replevined is a specific Mercedes law and equity. The contrary view fails to
automobile. recognize the vast and valuable differences
between substantive law and procedure, between
8 See 1 Pomeroy, Equity Jurisprudence, Sec.
"right" and "remedy," and between "law" and
11, The Exclusive Jurisdiction — Trusts
"equity."
Arising by Operation of Law, § 155, p. 209
and 4 Pomeroy, Equity Jurisprudence, Sec. Unfortunately, equity is no longer taught in our
V, Constructive Trusts § 1044, p. 93 (5th law schools as a separate body of substantive law.9
Ed., Symons, 1941) generally.
The separate treatises on the subject — Pomeroy,
However, where the right to possession of specific Story, and Kooman — are now substantially out of
personal property is not a right in law, such as that print and the field is clearly declining in
of a legal titleholder or one claiming possession 623 recognition *623 and use.10 Generally speaking,
by or through the legal titleholder, but is a right however, law courts have only the jurisdiction to
cognizable only in equity and which must first be render money judgments and common law writs
established by the bringing of a cause of action in of ejectment and replevin. All actions for more
equity the remedy of replevin in a court of law is specific relief, such as, cases involving
unavailable, the claimant must sue in equity to dissolutions of marriage, custody, guardianships,
have the equitable right established and that dissolutions of partnership, accounting, mortgage
equitable right, enforced or established as a legal foreclosure, partition, subrogation, specific
right, and may not, alternatively, file an action at performance of contracts, the adjudication of
law for replevin and establish the right to equitable rights of beneficiaries under express
possession in a court of law based on equitable trusts, the establishment of equitable liens,
principles. resulting trusts and constructive trusts, actions to
reform, cancel or rescind instruments and
The line between these two branches or systems or
agreements, actions for declaratory decrees, and
bodies of law, while unclear and archaic to many
actions for injunctions and to quiet title, are all
who are unfamiliar and impatient with the historic
causes of action which are peculiarly cognizable
reasons for it, was, and is, JURISDICTIONAL,

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 Hutchens v. Maxicenters, U.S.A 541 So. 2d 618 (Fla. Dist. Ct. App. 1989)

only in equity or chancery and are not within the remedies. How much are we to disregard or
jurisdiction of a court exercising only common change? What is the intended or probable result?
law jurisdiction. This court does not have While unnecessarily complicated to those who are
authority to abolish the substantive distinctions unfamiliar with the reason for it, the dual nature of
between common law and equity, nor has the law and equity is essentially based on the differing
effect of such a proposal been carefully needs of a multifaceted society (agricultural,
considered. It is more complicated than merely industrial, business, financial, social, political,
writing, "There is no reason in this case why a etc.) which somewhat reflects the multifaceted
court of law cannot apply equitable principles, and (physical, spiritual, mental, moral, emotional,
grant the legal relief requested" or "There appears social, etc.) nature of man. Equity, as a separate
to be no rational basis to dichotomize this remedy. system or body of law, was conceived and
. . ." Why "in this case"? Is the substantive 624 developed based *624 on the wisdom and
difference between law and equity to be abolished experience of many centuries. It should not be
in Florida case by case? Why are we starting in altered except knowingly and deliberately by those
this case? In the next case are we to approve with authority and a full knowledge of the
ejectment actions at law to enforce a plaintiff's particular reasons for the origin of each of its
claim of an equitable title to a parcel of land? Or many maxims, principles and practices and a clear
use equitable remedies to enforce bare legal rights vision of the effect of any change. The panel
based on contract and tort principles? As the opinion in this case, does not meet those
parties of replevin and ejectment actions are requirements.
entitled to jury trials, will we not need Standard 9 At the University of Florida College of
Jury Instructions explaining to juries the basis
Law, Equity Jurisprudence was taught as a
upon which judges of courts of equity have 5 credit course in 1947-48, a 3 credit
historically applied equity principles and exercised course in 1948-49, and a 2 credit course
judicial discretion in equity cases? Are the parties from 1949 through 1960.
in other cases founded upon equitable causes of
10 In the preface to the first edition of his text
action, including dissolutions of marriage,
book on Equity Jurisprudence in May,
likewise entitled to jury trials? A court of law
1881, Professor John Norton Pomeroy was
adjudicates cases based on legal, not equitable,
greatly concerned about the disastrous
principles and rights and can grant only legal
consequences of the then tendency to
remedies to enforce legal rights and to redress the abolish the external distinctions between
violation of legal rights. A court exercising actions at law and actions in equity, the
equitable jurisdiction adjudicates cases based on union of legal and equitable rights and
equitable and legal causes of action and principles remedies in one proceeding and the
and recognizes both legal and equitable rights but substitution of legal and equitable methods.
may, as needed to enforce equitable rights, use Perhaps history will note that the rise and
either remedies which are exclusively available in decline of Equity as a separate and distinct
equity, or remedies that are available to law courts body of substantive law in Florida as

to enforce legal rights, i.e., money judgments. The parallelling the frequency with which

common law concept of trusts is based on dividing reported Florida cases referred to
Pomeroy's Equity Jurisprudence over the
title to property into two concepts, one legal and
decades, which is illustrated as follows:
the other equitable, with a trust relationship being
1890's — 1; 1900's — 3; 1910's — 5;
involved when the equitable title is separated from
1920's — 11; 1930's — 40; 1940's — 28;
the legal title with the resulting necessity of dual
1950's — 24; 1960's — 23; 1970's — 9;
concepts of legal and equitable rights and 1980's — 4 to date, with this opinion being

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 Hutchens v. Maxicenters, U.S.A 541 So. 2d 618 (Fla. Dist. Ct. App. 1989)

the fifth. Similarly, cases citing Story,

Commentaries on Equity Jurisprudence
(1884) are as follows: 1900's — 1; 1910's
— 0; 1920's — 1; 1930's — 5; 1940's — 2;
1950's — 2; 1960's — 0; 1970's — 2;
1980's — 1 to date with this opinion being
the second.

COBB, J., concurs.