Shops of Sunset, Ltd. v. Cohen

District Court of Appeal of Florida

Shops of Sunset, Ltd. v. Cohen

551 So. 2d 1272, 14 Fla. L. Weekly 2663, 1989 Fla. App. LEXIS 6361, 1989 WL 136133

District Court of Appeal of Florida·Decided November 14, 1989·No. No. 89-2440·Published·Cited by 2 cases

Opinion

PER CURIAM.

Appellant, Shops of Sunset, Ltd., appeals a non-final order appointing a receiver for a shopping center, unless appellant posted a $50,000 surety bond within 15 days of the order. We reverse and remand.

Appellant holds a ground lease on the Shops of Sunset Shopping Center. Appel-lees, Herbert Jay Cohen and Dale A. Heck-erling, fee owners and lessors under the ground lease, brought suit against appellant to terminate the lease for appellant’s failure to cure a mortgage default. Appel-lees also filed a motion to appoint a receiver to safeguard rental proceeds collected by the appellant from subtenants. A hearing was held on appellees' motion and, thereafter, the trial court entered an order appointing a receiver for the shopping center, unless appellant posted a surety bond within 15 days. It is from' that order that appellant brings this appeal.

Appellant argued the trial court erred in appointing a receiver because ap-pellees did not establish their entitlement to a receiver. We agree. We hold the trial court erred in appointing a receiver without testimony, sworn pleadings or affidavits submitted in support of appellees’ motion. M.R.D. Properties, Ltd. v. Shangri-La-Resorts II, Inc., 546 So.2d 35 (Fla. 3d DCA 1989); Colley v. First Federal Savings and Loan Association of Panama City, 516 So.2d 344 (Fla. 1st DCA 1987); Boyd v. Banc One Mortgage Corp., 509 So.2d 966 (Fla. 3d DCA 1987); Polycoat Corporation v. City National Bank of Miami, 327 So.2d 126 (Fla. 4th DCA 1976).

We further rule the trial court erred in its appointment of a receiver by failing to require the appellees or the receiver to post a bond. Turtle Lake Associates, Ltd. v. Third Financial Services, Inc., 518 So.2d 959 (Fla. 1st DCA 1988); Boyd v. Banc One Mortgage Corp., 509 So.2d at 967; see Belk’s Department Store, Miami, Inc. v. Scherman, 117 So.2d 845 (Fla. 3d DCA 1960).

Accordingly, the non-final order appealed is reversed and the cause remanded for further proceedings.

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PER CURIAM.

Appellant, Shops of Sunset, Ltd., appeals a non-final order appointing a receiver for a shopping center, unless appellant posted a $50,000 surety bond within 15 days of the order. We reverse and remand.

Appellant holds a ground lease on the Shops of Sunset Shopping Center. Appel-lees, Herbert Jay Cohen and Dale A. Heck-erling, fee owners and lessors under the ground lease, brought suit against appellant to terminate the lease for appellant’s failure to cure a mortgage default. Appel-lees also filed a motion to appoint a receiver to safeguard rental proceeds collected by the appellant from subtenants. A hearing was held on appellees' motion and, thereafter, the trial court entered an order appointing a receiver for the shopping center, unless appellant posted a surety bond within 15 days. It is from' that order that appellant brings this appeal.

Appellant argued the trial court erred in appointing a receiver because ap-pellees did not establish their entitlement to a receiver. We agree. We hold the trial court erred in appointing a receiver without testimony, sworn pleadings or affidavits submitted in support of appellees’ motion. M.R.D. Properties, Ltd. v. Shangri-La-Resorts II, Inc., 546 So.2d 35 (Fla. 3d DCA 1989); Colley v. First Federal Savings and Loan Association of Panama City, 516 So.2d 344 (Fla. 1st DCA 1987); Boyd v. Banc One Mortgage Corp., 509 So.2d 966 (Fla. 3d DCA 1987); Polycoat Corporation v. City National Bank of Miami, 327 So.2d 126 (Fla. 4th DCA 1976).

We further rule the trial court erred in its appointment of a receiver by failing to require the appellees or the receiver to post a bond. Turtle Lake Associates, Ltd. v. Third Financial Services, Inc., 518 So.2d 959 (Fla. 1st DCA 1988); Boyd v. Banc One Mortgage Corp., 509 So.2d at 967; see Belk’s Department Store, Miami, Inc. v. Scherman, 117 So.2d 845 (Fla. 3d DCA 1960).

Accordingly, the non-final order appealed is reversed and the cause remanded for further proceedings.

Shops of Sunset, Ltd. v. Cohen, 551 So. 2d 1272, 14 Fla. L. Weekly 2663, 1989 Fla. App. LEXIS 6361, 1989 WL 136133 (Fla. Ct. App. 1989).

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