Howley v. Sage Shopping Plaza Corp.

District Court of Appeal of Florida

Howley v. Sage Shopping Plaza Corp.

336 So. 2d 691, 1976 Fla. App. LEXIS 15388

CourtDistrict Court of Appeal of Florida

DecidedAugust 31, 1976

DocketNo. 76-1281

StatusPublished

Cited by2 cases

This text of 336 So. 2d 691 (Howley v. Sage Shopping Plaza Corp.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Howley v. Sage Shopping Plaza Corp., 336 So. 2d 691, 1976 Fla. App. LEXIS 15388 (Fla. Ct. App. 1976).

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ALDERMAN, Judge.

Appellant filed suit to foreclose a $1,200,-000 first mortgage on a shopping center. Simultaneously with the filing of the complaint, appellant petitioned the trial court for the appointment of a receiver to collect rents and protect and preserve the property. An evidentiary hearing was held on the petition for appointment of a receiver. At the conclusion of appellant’s case, appellee moved to dismiss. After considering the arguments of counsel, but without requiring any evidence or testimony from appel-lee, the trial judge involuntarily dismissed the petition for appointment of receiver. From that order this interlocutory appeal is taken.

From our review of the record in this case we conclude that appellant established a prima facie case for appointment of a receiver. The right of a trial court to involuntarily dismiss the claim of a party seeking affirmative relief in an action tried by the court without a jury, at the conclusion of the presentation of his evidence, is based upon Fla.R.Civ.P. 1.420(b). The Florida Supreme Court in Tillman v. Baskin, 260 So.2d 509 (Fla.1972) held that a trial judge cannot weigh evidence when ruling on a defendant’s motion for involuntary dismissal following the presentation of a prima facie case by a plaintiff. As stated by the court in Tillman v. Baskin, supra:

“When a prima facie case is made by plaintiff, fairness would appear to require that the trial judge weigh it in the light of the strength or weakness of the defendant’s defense evidence.” (At 512.)

Reversed and remanded for a new hearing on appellant’s petition for appointment of a receiver. We express no opinion as to the merits of the petition or as to what decision the trial judge should make after he considers and weighs the evidence presented by both the plaintiff and the defendant.

WALDEN, J., concurs. DOWNEY, J., concurs specially with opinion.

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ALDERMAN, Judge.

Appellant filed suit to foreclose a $1,200,-000 first mortgage on a shopping center. Simultaneously with the filing of the complaint, appellant petitioned the trial court for the appointment of a receiver to collect rents and protect and preserve the property. An evidentiary hearing was held on the petition for appointment of a receiver. At the conclusion of appellant’s case, appellee moved to dismiss. After considering the arguments of counsel, but without requiring any evidence or testimony from appel-lee, the trial judge involuntarily dismissed the petition for appointment of receiver. From that order this interlocutory appeal is taken.

From our review of the record in this case we conclude that appellant established a prima facie case for appointment of a receiver. The right of a trial court to involuntarily dismiss the claim of a party seeking affirmative relief in an action tried by the court without a jury, at the conclusion of the presentation of his evidence, is based upon Fla.R.Civ.P. 1.420(b). The Florida Supreme Court in Tillman v. Baskin, 260 So.2d 509 (Fla.1972) held that a trial judge cannot weigh evidence when ruling on a defendant’s motion for involuntary dismissal following the presentation of a prima facie case by a plaintiff. As stated by the court in Tillman v. Baskin, supra:

“When a prima facie case is made by plaintiff, fairness would appear to require that the trial judge weigh it in the light of the strength or weakness of the defendant’s defense evidence.” (At 512.)

Reversed and remanded for a new hearing on appellant’s petition for appointment of a receiver. We express no opinion as to the merits of the petition or as to what decision the trial judge should make after he considers and weighs the evidence presented by both the plaintiff and the defendant.

WALDEN, J., concurs. DOWNEY, J., concurs specially with opinion.

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336 So. 2d 691, 1976 Fla. App. LEXIS 15388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howley-v-sage-shopping-plaza-corp-fladistctapp-1976.

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