Third District Court of Appeal
State of Florida
Opinion filed July 11, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-1652
Lower Tribunal No. 15-2026
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Edwidge Marie Desulme,
Appellant,
vs.
Miguel Rueda, etc., et al.,
Appellees.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Lisa S. Walsh, Judge.
Edwidge Marie Desulme, in proper person.
Law Offices of Douglas J. Jeffrey, P.A., and Douglas J. Jeffrey; American
Justice, P.A., and Theresa B. Edwards (Fort Lauderdale), for appellee Miguel
Rueda.
Before ROTHENBERG, C.J., and LOGUE and SCALES, JJ.
LOGUE, J.
Edwidge Marie Desulme appeals an order dismissing her complaint against
a receiver without prejudice to her seeking leave in the case establishing the
receivership to sue the receiver. We affirm.
Desulme owns a unit in a distressed condominium that is subject to a court-
ordered receivership. In Re Petition of Countryside Village Condo. Ass’n, Inc.,
Case no. 2010-61776 CA 32 (Fla. 11th Cir. April 13, 2011). She alleges that the
receiver took possession of her unit, displaced her tenant, altered or repaired the
unit without her consent, and collected higher rents from a new tenant. Although
she agreed at one point to have the rent from the unit pay her long-standing arrears
in condominium assessments, Desulme ultimately sued the receiver, tenant,
association, and management company for forcible entry, unlawful detainer,
ejectment, and trespass. Among other things, she seeks double the rental value and
punitive damages.
In the decision under review, the trial court granted the receiver’s motion to
dismiss. The dismissal was without prejudice to Desulme seeking leave in the case
establishing the receivership to sue the receiver. The dismissal also specified that
the court “has not yet taken evidence or heard whether the receiver has stepped
outside the ambit of the court order appointing him or done an act for personal or
private gain not in furtherance of the receivership which might subject him to
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personal liability. This Court defers on this issue until it hears the Defendant’s
motion for leave to file separate action.”
In dismissing the case without prejudice in this manner, the trial court
properly applied the Barton doctrine, which requires that “before suit is brought
against a receiver leave of the court by which he was appointed must be obtained.”
Barton v. Barbour, 104 U.S. 126, 128 (1881). Florida recognizes this doctrine. See
Asset Recovery Group, LLC v. Cabrera, 233 So. 3d 1173, 1176 (Fla. 3d DCA
2017) (“Even when the receiver has been discharged . . . leave from the court that
had appointed the receiver must still be obtained to file suit against the receiver.
The requesting party must demonstrate a prima facie case of liability before the
appointing court may grant leave to file suit.”) (citation omitted); One South Ocean
Drive 2000, Ltd. v. One Ocean Boca, LLC, 182 So. 3d 872, 874 (Fla. 4th DCA
2016).
An exception to this general rules exists where the receiver has acted outside
his or her legal authority. See generally Murtha v. Steijskal, 232 So. 2d 53, 55 (Fla.
4th DCA 1970). However, when it is not clear from the face of the complaint
whether the receiver acted outside his authority, it is proper to have that review
take place in the context of a request to file suit against the receiver filed and heard
in the case establishing the receivership. This process ensures that the issue is
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resolved by the trial court presiding over the receivership after notice to the parties
to the receivership.
Affirmed.
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