Margarita FUENTES, individually, and as a class for all those similarly situated, Plaintiffs, v. Earl FAIRCLOTH, Attorney General for the State of Florida, and Firestone Tire and Rubber Company, Defendants.
No. 69-1359-Civ-WM.
United States District Court, S. D. Florida.
Aug. 21, 1970.
317 F. Supp. 954
The hearing examiner presumably based his belief that the claimant‘s condition could be improved on the diagnosis made by Dr. Meacham, who examined her soon after the occurrence of her impairment. He could find no organic defects and expressed his belief that absence from her job and getting some rest would alleviate her condition. This diagnosis seems to have been a reasonable one at the time it was made but almost a year later Dr. Bachman stated that her condition had generally not changed at all since her previous examination. It appears that her impairment has not lessened although she has remained away from any work. Although the examiner accepted Dr. Blackford‘s diagnosis of a “psychoneurotic conversion reaction,” he rejected the latter‘s statement that the claimant‘s condition would not be alleviated by psychotherapy. The examiner‘s conclusion that her condition would be helped by psychotherapy is not supported by the opinion of any psychiatrist even though the cause of her trouble was admitted to be an emotional or mental problem. Therefore, this court does not believe that this conclusion is supported by substantial evidence.
It is the opinion of the court that the Secretary‘s final decision denying disability benefits to the claimant is not supported by substantial evidence. It is therefore adjudged and ordered that summary judgment for the plaintiff should be and hereby is granted.
Economic Opportunity Legal Services, for plaintiffs.
Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, Fla., for Firestone Tire & Rubber Co.
Shutts & Bowen, Miami, Fla., amici curiae for General Motors Acceptance Corporation.
Before DYER, Circuit Judge, and MEHRTENS and EATON, District Judges.
DYER, Circuit Judge:
Plaintiff brought this suit against Firestone Tire and Rubber Company
In June, 1967, plaintiff purchased from defendant Firestone a gas stove. In November, 1967, she purchased a stereo set from Firestone. Both purchases were made under conditional sales contracts which provided in part that “in the event of default of any payment or payments, Seller at its option may take back the merchandise“. On September 15, 1969, several months after plaintiff had fallen behind in her payments in the total sum of $204.05 and had received notice to pay or return the merchandise, Firestone pursuant to the procedure authorized in the statutes now under attack, submitted a complaint and affidavit in replevin in the Small Claims Court of Dade County, Florida, and posted a replevin bond.2 The Small Claims Court issued a writ of replevin immediately which was executed without prior notice to plaintiff by a deputy sheriff on September 15.
The facts surrounding the actual execution, taken most favorably to plaintiff, show that the deputy sheriff had a communications problem with plaintiff since she spoke little or no English. Gradually, however, he was able to communicate his purpose and the effect of the writ. At this point, plaintiff‘s daughter-in-law, who lived in the same house with plaintiff, became “upset and emotional” and protested the repossession. She sent for Mr. Leon, the plaintiff‘s son-in-law, to assist her and the deputy agreed to wait. When Mr. Leon arrived he explained to the deputy in English that his attorney had advised him that a court proceeding was necessary before the merchandise could be repossessed and that, on his advice, he was not going to give up the property. The deputy “explained the effect of the writ to Mr. Leon, that he was obliged to repossess the stove and stereo in accordance with its terms.”3 Mr. Leon then agreed to the repossession and let the deputy, who until then had been standing outside on the front porch, and the two men from Firestone, who had been waiting outside in their truck until this time, into the house and showed them where the merchandise was located.
Shortly thereafter plaintiff filed the instant action. Although she admits delinquency in the payments she alleges that she has a meritorious defense to the repossession—apparently that the stove was mechanically defective and that Firestone has failed to make satisfactory repairs.
The specific sections of the Florida replevin statute which plaintiff attacks are
Relying primarily on Sniadach v. Family Finance Corporation, 1969, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349, which held that Due Process requires a prior hearing before wages may be garnished, and Goldberg v. Kelly, 1970, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287, which held that due process requires a prior evidentiary hearing before a State may terminate welfare payments, plaintiff contends that the
The Tenth Circuit was recently faced with a similar Due Process objection to the Oklahoma replevin statute in Brunswick Corporation v. J & P, Inc., 10 Cir. 1970, 424 F.2d 100. Brunswick had sold bowling equipment to a bowling alley under a conditional sales contract. When the purchaser defaulted in payments Brunswick filed an affidavit for replevin and a replevin bond. The United States Marshal took possession of the equipment in the bowling alley building by rendering it inoperative by removing some essential parts. He then made constructive delivery to Brunswick who advertised the equipment for sale and sold it at public auction, after execution of the writ but before judgment was obtained in the replevin action. The Tenth Circuit rejected the Due Process attack on Oklahoma‘s replevin statute and we are in complete agreement with its reasoning:
[W]e find no merit in appellants’ additional contention that under the recent Supreme Court case of Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) they have been the victims of a taking of property without the procedural due process required by the
Fourteenth Amendment . Sniadach expressly was a unique case involving, “a specialized type of property presenting distinct problems in our economic system.” That case involved wage garnishment without notice or hearing prior to judgment on a promissory note. It is not in the least comparable to the case here on appeal involving enforcement of a security interest. Appellants have contractually agreed that, upon default, their creditor Brunswick ” * * * may take immediate possession of said property [collateral] * * * [in the event of default].” Appellants admit that they were in default on the conditional sale, so they cannot now be heard to object to the default procedures they agreed to simply because Brunswick did utilize the legal process of replevin under bond.” Id. at 105.
Plaintiff attempts to distinguish Brunswick on the ground that there two commercial parties had executed the conditional sales contract while in the instant case a commercial party and a private individual have contracted together. This is a distinction without a difference as far as Due Process is concerned. Plaintiff also attempts to distinguish Brunswick on the ground that the buyer there admitted “default” on the conditional sale. Plaintiff contends
Nor do we think that Goldberg v. Kelly, supra (which had not yet been decided on the date of the Brunswick decision), is of any assistance to plaintiff. Again, a special type of property was involved—welfare payments by the State:
“Suffice it to say that to cut off a welfare recipient in the face of * * * ‘brutal need’ without a prior hearing of some sort is unconscionable, unless overwhelming considerations justify it.”
Id. at p. 261, 90 S.Ct. at 1017 (quoting three-judge district court opinion). The hardships facing the welfare recipient, like those facing one whose wages are garnished, are not present in the instant situation where goods purchased are replevied. Furthermore, the welfare situation is not at all comparable to a private contract providing for enforcement of a security interest.
In sum, we think that despite Sniadach and Kelly there are still situations in which prejudgment seizure of goods without a prior hearing is valid, see Sniadach, 395 U.S. at 340, 89 S.Ct. 1820, and that replevin pursuant to a contract which authorizes a conditional seller to repossess in order to protect his security interest in the goods which are the subject of the contract is one of those situations.
We also think the conditional sales contract in the instant case is dispositive of the
This case involves a peaceable entry. Admittedly, plaintiff was reluctant to allow the entry. However, this fact does not change the character of the entry from peaceable to forced. Mr. Leon, who was speaking for the plaintiff, allowed the deputy to enter plaintiff‘s house to repossess the goods after the deputy explained the effect of the writ to him. Thus, the issue really boils down to this: Whether, absent authorization to break down the door or otherwise enter forcibly, the
Plaintiff has cited to the Court many cases relative to both her Due Process and
We hold that the Florida replevin statute,
EATON, District Judge (dissenting).
I respectfully dissent. I believe the question of the constitutionality of
When the state authorizes the forcible entry of a person‘s house prior to the establishment of the probable validity of a creditor‘s claim, it contravenes the Due Process Clause of the
Further, when one signs a contract which includes the words “in the event of default of any payment or payments, seller at its option may take back the merchandise,” he does not waive his