THUNDERBIRD, LTD., A FLORIDA LIMITED PARTNERSHIP; THUNDERBIRD MANAGEMENT, INC., A FLORIDA CORPORATION; FINANCIAL INVESTMENT CORPORATION, A FLORIDA CORPORATION; PHILIP A. BROWNING, JR., AND PATRICIA BROWNING, APPELLANTS,
v.
GREAT AMERICAN INSURANCE COMPANY, AN OHIO CORPORATION, APPELLEE
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Thunderbird Ltd. appealed an interlocutory order appointing a receiver for the Thunderbird Hotel during mortgage foreclosure proceedings. The court held that an order appointing a receiver that grants exclusive possession and control to the receiver is an appealable nonfinal order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii) because it determines the right to immediate possession of property.
An order appointing a receiver that determines the right to immediate possession of property is an appealable nonfinal order under Rule 9.130(a)(3)(C)(ii). The court distinguished prior case law by finding that the receiver order at issue clearly determined the right to immediate possession because it granted the receiver exclusive possession and control of the hotel.
[1] An order appointing a receiver to take exclusive possession and manage property during a mortgage foreclosure action is an appealable nonfinal order under Florida Rule of…
[2] An order appointing a receiver may be considered an order determining the right to immediate possession of property when the receiver is instructed to take exclusive poss…
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Join FLexlaw to unlock all legal intelligence“the rule provides relief where the issue is the right to immediate possession of property. We think this refers to possession by a party with an adverse interest and not to possession by the court.”
Establishes the prior precedent from Mann v. Stein regarding when Rule 9.130 applies
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Join FLexlaw to unlock all legal intelligenceDuring a mortgage foreclosure action against the Thunderbird Hotel, the trial court entered an order appointing a receiver. The order instructed the r…
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PER CURIAM.
Appellee has filed a motion to dismiss this interlocutory appeal from an order appointing a receiver of the Thunderbird Hotel during the pendency of the underlying mortgage foreclosure action. Relying primarily on Mann v. Stein, 379 So. 2d 978 (Fla. 4th DCA 1980), appellee asserts that an order appointing a receiver is not the type of order contemplated by Rule 9.130(a)(3)(C)(ii) of Florida Rules of Appellate Procedure which permits review of nonfinal orders that determine the “right to immediate possession of property.”
In Mann, the court stated that the cause was before it as “an interlocutory appeal from an order of the trial court appointing a receiver for appellee corporation.” No further facts were provided. After finding that the order was not an appealable in junction under Rule 9.130, the court held as follows:
Further, the rule provides relief where the issue is the right to immediate possession of property. We think this refers to possession by a party with an adverse interest and not to possession by the court.
Since we do not know the factual circumstances which were present in Mann, we do not dispute the correctness of the judgment as it may be that in some cases appointment of a receiver would not be an order determining the immediate right to possession of property. Furthermore, there may be times when it is logical to construe the rule as not applying to orders which place property in the possession of the court. However, we find that under the facts and circumstances presently before us, the order in question is clearly one for which interlocutory review was intended under the rule. The order instructs the receiver to take exclusive possession of the property and continue to manage and operate the hotel. In addition, appellants are enjoined from interfering with, or in any way disturbing the receiver’s control and possession of the property. We conclude that the order is one that determines the right to immediate possession of the subject property and, as such, is an appealable nonfinal order under Rule 9.130(a)(3)(C)(ii). The motion to dismiss is therefore denied.
ERVIN, C.J., and SMITH and NIM-MONS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Konover Realty Assocs., Ltd. v. Mladen, 511 So. 2d 705 (Fla. 3d DCA 1987)…n order requiring such a court deposit (or establishing a receivership) is reviewable also under Fla.R.App.P. 9.130(a)(3)(C)(ii) as one determining the right to the immediate possession of property. Thunderbird, Ltd. v. Great American Insurance Co., 470 So. 2d 2 (Fla. 1st DCA 1985). We note that in Florida Reinvestment Corp. v. Cypress Savings Ass’n, 509 So. 2d 1352 (Fla. 4th DCA 1987), the fourth district has overruled its previously held view to the contrary in Mann v. Stein, 379 So. 2d 978 (Fla. 4th DCA…
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Fla. Reinvestment Corp. v. Cypress Sav. Ass'n, 509 So. 2d 1352 (Fla. 4th DCA 1987)…that determine the right to immediate possession of property. Further, we recede from State ex rel. Guter [*1353] ma v. Douglas, 463 So. 2d 538 (Fla. 4th DCA 1985), which states to the contrary. Thunderbird, Ltd. v. Great American Insurance Company, 470 So. 2d 2 (Fla. 1st DCA 1985), states an order instructing a receiver to take immediate possession of property — as the present order does — is reviewable under the rule mentioned above. We agree with our companion court. An older opinion of this court, Mann…
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Interdevco, Inc. v. Brickellbanc Sav. Ass'n & Hollywood Fed. Sav. & Loan Ass'n, 524 So. 2d 1087 (Fla. 3d DCA 1988)…e Procedure 9.130(a)(3)(c)(ii) to review a nonfinal order appointing a receiver to take immediate possession of property. Florida Reinvestment Corp. v. Cypress Sav. Ass’n, 509 So. 2d 1352 (Fla. 4th DCA 1987); Thunderbird, Ltd. v. Great Am. Ins. Co., 470 So. 2d 2 (Fla. 1st DCA 1985). We treat the case as if the proper remedy, appeal, had been sought. Fla.R.App.P. 9.040(c).…
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- Mann v. Stein, 379 So. 2d 978 (Fla. 4th DCA 1980)