MELLON BANK, N.A., A NATIONAL BANKING ASSOCIATION, APPELLANT,
v.
GATEWAY, LTD., A FLORIDA LIMITED PARTNERSHIP, BY AND THROUGH ITS GENERAL PARTNERS, JOSEPH PENNER AND GRACE PENNER; JOSEPH PENNER AND GRACE PENNER, INDIVIDUALLY; SOUTHERN FLORIDABANC SAVINGS ASSOCIATION; AND THE DESIGN ARTS GROUP, INC., A FLORIDA CORPORATION, APPELLEES
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Mellon Bank sought interlocutory review of a trial court order approving leases entered into by a receiver in a foreclosure action, arguing the leases should not have priority over its mortgage. The appellate court dismissed the appeal for lack of jurisdiction, holding that while orders appointing receivers may be subject to interlocutory review, subsequent orders approving specific leases within the receiver's already-granted authority are not.
The appellate court held it lacked jurisdiction to review the order. While orders appointing receivers are nonfinal orders subject to interlocutory review because they determine the right to immediate possession of property, subsequent orders approving specific leases within the receiver's general grant of authority are not subject to interlocutory review.
[1] Orders appointing a receiver are generally not immediately appealable unless they determine the right to immediate possession of property.
[2] Interlocutory review is not available for routine operational decisions of a receiver acting within the scope of their appointed authority.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The 'immediate possession' of this property passed to the receiver by way of the lower court's order of April 18, 1989, which specifically authorized the receiver to enter into leases.”
Establishes that the critical order conferring authority was the April 18, 1989 order, not the July 14, 1989 lease approval order
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMellon Bank made a construction loan secured by a mortgage on an office building. When the loan defaulted, Mellon filed a foreclosure suit and moved f…
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PATTERSON, Judge.
Appellant, Mellon Bank, N.A., pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii), seeks interlocutory review of a trial court order approving leases entered into by a receiver in a foreclosure action. For the reasons stated below we determine that we lack jurisdiction and dismiss this appeal.
Mellon made a construction loan secured by a mortgage upon the office building to be constructed. The loan documents provided that Mellon could take possession of the property upon default. When the loan went into default and Mellon filed suit to foreclose its mortgage, it elected not to exercise this right and moved for the appointment of a receiver. In granting the motion the trial court appointed the receiver Gateway suggested, rather than the receiver Mellon suggested.
Thereafter the receiver moved for the approval of several leases of office space in the building. The trial court’s order of July 14, 1989, which is the subject of this appeal, approved one of those leases and further provided that “said lease shall have priority over the existing mortgage or other interests of plaintiff Mellon Bank ...” It is this provision of the order to which Mellon objects.
The Florida Rules of Appellate Procedure do not specifically provide for the appeal of an order appointing a receiver. See Twinjay Chambers Partnership v. Suarez, 556 So. 2d 781 (Fla. 2d DCA 1990). Such orders, however, have been interpreted to be nonfinal orders which determine the “right to immediate possession of property” and thereby are subject to interlocutory review. See Florida Reinvestment Corp. v. Cypress Savings Ass’n, 509 So. 2d 1352 (Fla. 4th DCA 1987) (en banc); Thunderbird, Ltd. v. Great American Insurance Co., 470 So. 2d 2 (Fla. 1st DCA 1985).
The “immediate possession” of this property passed to the receiver by way of the lower court’s order of April 18, 1989, which specifically authorized the receiver to enter into leases. No appeal was taken from that order. Thereafter the details of the day-to-day activities of the receiver, acting within the general grant of his authority, while subject to plenary appeal at the conclusion of the case, do not fall within the definition of Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii) permitting interlocutory review.
Appeal dismissed.
SCHEB, A.C.J., and PARKER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Fed. Home Loan Mortg. Corp. v. Molko, 584 So. 2d 76 (Fla. 3d DCA 1991)…right to immediate possession of property’ ” as the trial court merely determined that the mortgagee did not establish an equitable right to such an appointment. Twinjay, 556 So. 2d at 782 (emphasis supplied); see Mellon Bank, N.A. v. Gateway, Ltd., 566 So. 2d 870 (Fla. 2d DCA 1990) (immediate possession passes to receiver upon appointment permitting interlocutory review under 9.130(a)(3)(C)(ii)). I agree with that analysis. The committee notes to rule 9.130(a)(3)(C)(ii) provide an example of the rule’s appli…
Authorities Cited
- Fla. 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)
- Twinjay Chambers P'ship v. Suarez, 556 So. 2d 781 (Fla. 2d DCA 1990)