MIGUEL RECAREY, JR., AND ASSOCIATED DOCTORS HOSPITAL, INC., A FLORIDA CORPORATION, APPELLANTS,
v.
LUKE RADER AND ALMA RADER, HIS WIFE, ET AL., APPELLEES

Fla. 3d DCA | 1975-10-14
Nos. 75-1465, 75-1494
Before PEARSON, HENDRY and NATHAN, JJ.
320 So. 2d 28 Florida District Court of Appeal, Third District (1975) Positive Treatment
Cited by 12 cases

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Holding

The court held that a prior income tax audit does not bar a subsequent excise tax investigation for the same year under 26 U.S.C. § 7605(b), and that the "one inspection" rule does not apply to incomplete investigations or taxes with different reporting periods.


Headnotes

[1] The appointment of a receiver for a going corporation is a last-resort remedy that should not be employed when another adequate remedy is available.

[2] A court should not appoint a receiver unless, after a careful examination of all the facts, the exigencies of the case demand it and no other protection to the applicants…

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Facts & Procedural History

The IRS issued summonses for corporate records to investigate excise tax liability. The district court partially granted enforcement, refusing to enfo…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellants, defendants below, bring this appeal from an order of the trial court, as amended, appointing a special receiver for appellant, Associated Doctors Hospital, Inc. Appellees filed in the trial court their amended petiton for a writ of mandamus and other relief against appellants and other defendants not parties to the appeal. Appellees alleged that appellant Miguel Re-car ey, Jr., had abused his position as secretary-treasurer of appellant Associated Doctors Hospital, Inc., a Florida corporation, for his own enrichment and was guilty of mismanagement to the detriment of the interests of the Hospital and its stockholders. Both appellees are minority stockholders in the Hospital. It was further alleged that appellants voted at a stockholders’ meeting to sell the Hospital under such terms and conditions that would eliminate all of appellees’ equity as stockholders. Appellees demanded a writ of mandamus requiring that appellants produce the books and records of the corporation for inspection and copying, that an injunction without notice be entered restraining appellants from selling the Hospital, that an accounting be made, and that the court appoint a receiver to take charge of the assets and operations of the Hospital.

Subsequently, appellees filed a motion for the appointment of a receiver to take control of all of the books and records of the Hospital, to conserve its assets, and to continue the management of the operation of the Hospital. Appellees alleged that a genuine emergency existed regarding the continued profitable operation and management of the Hospital, and that the appointment of a receiver was necessary in order to prevent its financial collapse.

On August 22, 1975, a hearing was held on this motion and on the same day the trial court issued an order, amended by a subsequent order dated September 10, 1975, pursuant to a petition for instructions, which appointed a receiver for the Hospital and instructed him to take immediate and complete control of its books and records, to take possession of certain stock certificates owned by appellant Recarey and appellees, and granted the receiver the absolute authority in supervising the operation of the Hospital. From this order, as amended, appellants appeal.

Appellants contend that the trial court abused its discretion in appointing a receiver without a sufficient predicate in the pleadings, that the trial court abused its discretion in appointing a receiver when the pleadings and testimony did not reveal an emergency situation or a necessity for the appointment, and that the trial court erred in appointing a receiver at the initiation of appellees without requiring them to post an indemnification bond.

Appellees contend that the trial court properly exercised its discretion in appointing a special receiver for the Hospital, because the evidence established mismanagement and the impending insolvency of the Hospital, and the wrongful concealment of its records from appellees as stockholders.

The appointment of a receiver is not a matter of right, but is one resting in the sound discretion of the court, to be ex ercised or withheld, according to the circumstances and facts of each particular case. Nevertheless, basic limitations on the court’s equity jurisdiction and conditions are observed and the power of a court to appoint a receiver of a corporation or its property should be exercised with great caution to the end of preserving the property of the corporation and the rights and interests of its stockholders and others. Courts should not interfere by such appointment unless absolutely necessary to do complete justice. In various cases our courts have pointed out the reluctance with which such drastic relief is granted, and the broad rule emerges that a receiver should not be appointed unless, after a careful examination of all the facts in the case, the exigencies of the case demand it and no other protection to the applicants can be devised by the court. In other words, the appointment of receiver for a going corporation is a last-resort remedy, and should not be employed when another adequate remedy is available. Papazian v. Kulhanjian, Fla.1955, 78 So. 2d 85; McAllister Hotel v. Schatzberg, Fla. 1949, 40 So. 2d 201; Deauville Corporation v. Blount, 1946, 157 Fla. 322, 25 So. 2d 812; Tampa Waterworks Co. v. Wood, 1929, 97 Fla. 493, 121 So. 789; Conlee Construction Company v. Krause, Fla.App.1966, 192 So. 2d 330; 65 Am.Jur.2d, Receivers, § 59; and 27 Fla.Jur., Receivers §§ 7-8.

In light of the rules set forth above and after a careful reading of the record, all points in the briefs and arguments of counsel, it is our opinion that the trial court could have granted appropriate and effective relief to appellees without the necessity of appointing a receiver for the Hospital.

Therefore, for the reasons stated and the authorities cited, the order, as amended, of the trial court appealed is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Buckley Towers Condo., Inc. v. Buchwald, 340 So. 2d 1206 (Fla. 3d DCA 1976)
    …ces. Fleming v. Otis Elevator Co., 107 Fla. 557, 145 So. 201 (1933). We have held that the appointment of a receiver rests in the sound discretion of the court and is to be exercised according to the facts of each particular case. Recarey v. Rader, 320 So. 2d 28 (Fla.3d DCA 1975). After a careful review of the record and the long history this case has endured, we do not feel that the trial judge abused his discretion in either sequestering the funds held by the association or in appointing a receiver to man…
  • Cooper v. State, 356 So. 2d 911 (Fla. 3d DCA 1978)
    …fendant waits until the middle of a trial to request a statement that he knew to be in existence prior to trial, the trial court will not be held in error for refusing to stop the trial and secure the statement for examination. See Yanetta v. State, 320 So. 2d 28 (Fla. 3d DCA 1975); Wilcox v. State, 299 So. 2d 48 (Fla. 3d DCA 1974); and Kelsey v. State, 267 So. 2d 685 (Fla. 1st DCA 1972). In the present instance, it is clear that the defendant knew of the statement at the time he took Mrs. Cooper’s depositio…
  • Rader v. Recarey, 352 So. 2d 550 (Fla. 3d DCA 1977)
    …at the award of attorneys’ fees was in error. Accordingly, the order appealed is affirmed in part and reversed in part. In the instant case, the receiver was removed and the receivership dissolved pursuant to our mandate issued in Recarey v. Rader, 320 So. 2d 28 (Fla.3d DCA 1975). Thereafter, appellee Associated Doctors’ Hospital filed a motion seeking to collect its costs and attorneys’ fees expended in obtaining the removal of the receiver and the dissolution of the receivership. The motion was granted by…

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