Twinjay Chambers Partnership v. Suarez, 88-00388

• Decision Date: 09 February 1990
• Docket Number: No. 88-00388,88-00388
• Citation: 556 So.2d 781
• Parties: 15 Fla. L. Weekly D394 TWINJAY CHAMBERS PARTNERSHIP, a Florida general partnership, Appellant, v. Josephine Cagnina SUAREZ, a/k/a Josephine C. Suarez, a/k/a Josephina Cagnina Suarez, Josephine Cagnina Suarez, as personal representative of the Estate of Jose N. Suarez, Evis M. Suarez, a/k/a Evis Suarez, Frank Torregiante, Jr., a/k/a Frank Torregiante, and Vivian T. Gentile, a/k/a Vivian Gentile, Appellees.
• Court: Florida District Court of Appeals

Page 781

556 So.2d 781

15 Fla. L. Weekly D394

TWINJAY CHAMBERS PARTNERSHIP, a Florida general partnership, Appellant, v. Josephine Cagnina SUAREZ, a/k/a Josephine C. Suarez, a/k/a Josephina Cagnina Suarez, Josephine Cagnina Suarez, as personal representative of the Estate of Jose N. Suarez, Evis M. Suarez, a/k/a Evis Suarez, Frank Torregiante, Jr., a/k/a Frank Torregiante, and Vivian T. Gentile, a/k/a Vivian Gentile, Appellees.

No. 88-00388.

District Court of Appeal of Florida,

Second District.

Feb. 9, 1990.

Nancy G. Farage of Freedman & Farage, P.A., and William Knight Zewadski of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill, Tampa, for appellant.

Thomas C. Little of Thomas C. Little, P.A., Clearwater, for appellees.

SCHEB, Judge.

Appellant, Twinjay Chambers Partnership, as assignee of a third mortgage and note, brought suit to foreclose after the appellees defaulted. The appellant then sought appointment of a receiver which was denied by the trial court after an evidentiary hearing. This appeal from the trial court's nonfinal order ensued.

The Florida Rules of Appellate Procedure regarding review of nonfinal orders do not specifically provide for review of an order granting or denying a request to appoint a receiver. However, Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii) does provide for review of nonfinal orders which determine the "right to immediate possession of property." Thus, our sister courts have held that an appeal will lie where a receiver is appointed and not only has the right to manage property but also the right of immediate possession. See Florida Reinvestment Corp. v. Cypress Sav. Ass'n, 509 So.2d 1352 (Fla. 4th DCA 1987) (en banc) (property owner is deprived of possession just as surely when a receiver takes possession as when an adverse party does); Thunderbird, Ltd., v. Great American Ins. Co., 470 So.2d 2 (Fla. 1st DCA 1985) (appeal from nonfinal order granting receiver possession to the exclusion of the owner was proper under rule 9.130(a)(3)(C)(ii)).

Appointment of a receiver is not a matter of right. Rather, it is an extraordinary remedy which must be exercised with caution as it is in derogation of the fundamental right of the legal owner to possession of the property. Crippin Printing Corp. v. Abel, 441 N.E.2d 1002 (Ind.Ct.App.1982). Consequently, the rationale for allowing appellate review of a nonfinal order granting the appointment of a receiver has been justified by the receiver obtaining the right to immediate possession of the property.

However, we find that the rationale for allowing a nonfinal appeal where the receiver has obtained possession does not support an appeal from the denial of the appointment of a receiver. See Lee v. Lee, 407 So.2d 366 (Fla. 5th DCA 1981) (declining review by certiorari of order denying appointment of receiver). Because Florida Rule of Appellate Procedure 9.130 does not provide for the availability of appeal regarding the appointment of receivers, any implication of the applicability of rule 9.130 to receivers must be narrowly construed. Here, the trial court merely denied the request to appoint a receiver; consequently, there was no "determination" of the "right to immediate possession of property." See Fla.R.App.P. 9.130(a)(3)(C)(ii). Rather, the court simply found that the mortgagee did not establish an equitable right to appointment of a receiver, despite the provision in the mortgage providing for such an appointment upon default by the mortgagor.

We suggest that the Appellate Rules Committee of the...