Third District Court of Appeal
State of Florida
Opinion filed February 13, 2019.
Not final until disposition of timely filed motion for rehearing.
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No. 3D18-2351
Lower Tribunal No. 15-19538
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Asset Recovery Group, LLC, et al.,
Petitioners,
vs.
Kyle Wright, et al.,
Respondents.
A Case of Original Jurisdiction—Prohibition.
Conroy Simberg, and Diane H. Tutt (Hollywood), for petitioners.
James C. Blecke, for respondent Kyle Wright.
Before SALTER, SCALES and LINDSEY, JJ.
SCALES, J.
Petitioners, Asset Recovery Group, LLC and Wayne Ginter (collectively,
“the Receiver”), seek to prohibit the trial court from further exercising jurisdiction
to adjudicate Counts III and IV in the underlying premises liability action filed by
the plaintiff below, respondent, Kyle Wright. We have jurisdiction. See Asset
Recovery Group, LLC v. Cabrera, 233 So. 3d 1173, 1176 (Fla. 3d DCA 2017)
(granting a writ of prohibition to prevent the circuit court from exercising
jurisdiction over a receiver that was appointed by the court in a separate
foreclosure action). Because it is not clear from the face of the operative pleading
that the Receiver acted outside the scope of the Receiver’s delegated, legal
authority, we grant the petition for writ of prohibition and quash the order under
review without prejudice to Wright seeking leave to file suit against the Receiver
from the foreclosure court that appointed the Receiver. See Desulme v. Rueda,
252 So. 3d 293, 294-95 (Fla. 3d DCA 2018).
I. RELEVANT FACTS AND PROCEDURAL BACKGROUND
Kyle Wright was a tenant of an apartment complex located in Homestead,
Florida. On June 20, 2013, Wright was allegedly stabbed by an assailant at the
apartment complex. At the time of the incident, the property was under a court-
imposed receivership in a commercial foreclosure action then pending in the
Miami-Dade County Circuit Court. See Samjack Homestead LLC v. 1200
Homestead 72 (LLC), Case No. 2011-38747 (Fla. 11th Cir. Nov. 21, 2011).
In the foreclosure action, the trial court appointed petitioner Wayne Ginter
of petitioner Asset Recovery Group, LLC to take possession, custody and control
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of the apartment complex. The alleged stabbing occurred after the subject property
was sold at a foreclosure sale and the certificate of title had issued to the purchaser,
Samjack Homestead LLC, but before the foreclosure court discharged the
Receiver.
As set forth in the foreclosure court’s order of appointment, the Receiver’s
delegated responsibilities included, with limitations, controlling, managing,
operating, and insuring the subject property. The Receiver was also given
authority to maintain the subject property, “making such repairs and renovations as
are necessary and appropriate to ensure the life, health and safety of the
occupants.” The order of appointment contained a judicial immunity provision
providing, among other things, that the Receiver and the Receiver’s attorneys and
agents: (1) “shall not be held liable to anyone for their own good faith compliance
with their duties and responsibilities as a receiver, or as attorney or agent for
Receiver”; and (2) “shall not be liable to anyone for their acts or omissions, except
upon a finding by this Court that such acts or omissions were outside the scope of
their duties or were grossly negligent.” (Emphasis added).
In August 2015, Wright filed the instant premises liability action (lower
court case number 2015-19538) against the apartment complex’s owner, Samjack
Homestead LLC, for negligent security of the apartment complex. Wright alleged
in the complaint that the owner had breached its duty to maintain the apartment
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complex in a reasonably safe condition by not taking measures to provide security
to prevent criminal attacks that the owner allegedly should have known were likely
to occur thereon. Wright further alleged that, as a direct and proximate result of
the owner’s negligence, Wright had suffered great bodily harm from the stabbing
that occurred on June 20, 2013.
In May 2017, Wright filed a second amended complaint in the instant action
to include identical negligent security claims against the Receiver. In December
2017, the Receiver moved to dismiss the second amended complaint for lack of
subject matter jurisdiction, relying upon the judicial immunity provision contained
in the order of appointment entered in the foreclosure action. In the motion, the
Receiver cited to this Court’s then recently issued decision in Cabrera, which, as
discussed further herein, granted a prohibition petition in a similar premises
liability action against this same Receiver where the complaint failed to contain
any allegations that the Receiver had “step[ped] outside the authority granted by
the court or [did] things in [a] personal capacity and not as a receiver.” Cabrera,
233 So. 3d at 1175, n.3 (quoting Murtha v. Steijskal, 232 So. 2d 53, 55 (Fla. 4th
DCA 1970)). The trial court granted the Receiver’s motion to dismiss without
prejudice, giving Wright leave to amend his complaint.
In January 2018, Wright filed his third amended complaint (the operative
complaint) in his premises liability action, alleging the same negligent security
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claims1 against the Receiver. Similar to Wright’s second amended complaint, this
third amended complaint detailed acts and omissions allegedly constituting
negligence of the Receiver; but, unlike Wright’s second amended complaint, the
third amended complaint also alleged – albeit in conclusory fashion – that certain
“acts and omissions of [the Receiver] were outside the authority granted to it as
Receiver by the Appointing Court . . . .” After the trial court denied the Receiver’s
motion to dismiss the third amended complaint and directed the Receiver to file an
answer and defend the action, on March 30, 2018, the Receiver filed a motion
seeking, in part, to require Wright to obtain leave of the foreclosure court that
appointed the Receiver before allowing the instant negligent security action to
proceed against the Receiver (“March 30, 2018 motion”).
Prior to a hearing on the March 30, 2018 motion, this Court issued its
opinion in Desulme, which the Receiver filed as a supplemental authority in the
lower court. At the hearing conducted on the March 30, 2018 motion, the Receiver
argued, in part, that: (1) Wright had failed to adequately plead in his third amended
complaint that the Receiver had acted outside the scope of the Receiver’s authority
granted to the Receiver by the foreclosure court; and (2) therefore, under Desulme
and Cabrera, Wright must seek leave from the foreclosure court to file the instant
suit against the Receiver. At the conclusion of the hearing, the trial court entered
1Count III is against Asset Recovery Group, LLC. Count IV is against Wayne
Ginter.
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the challenged order denying the March 30, 2018 motion, with the Receiver’s
counsel announcing her intention to seek a writ of prohibition in this Court. On
agreement of the parties, the trial court stayed the lower court proceedings pending
the outcome of this prohibition proceeding.
II. ANALYSIS
Under what is known as “the Barton doctrine,” a plaintiff generally must
seek leave from the court that appointed the receiver before the plaintiff can file
suit against a court-appointed receiver. Barton v. Barbour, 104 U.S. 126, 128
(1881). In Cabrera, however, this Court recognized an exception to the Barton
doctrine where the receiver “steps outside the authority granted by the court or
does things in [a] personal capacity and not as a receiver.” Cabrera, 233 So. 3d at
1175 (quoting Murtha, 232 So. 2d at 55).
Cabrera involved the same apartment complex, the same receiver (Asset
Recovery Group, LLC and Wayne Ginter), and the same order of appointment
from the same foreclosure action as this case. Cabrera, who was also stabbed by
an assailant on the subject property, brought a similar premises liability action
against the Receiver for allegedly “failing to maintain the premises in a reasonably
safe condition by not keeping it free from third party criminal conduct.” Id. at
1175. Because Cabrera’s complaint did not contain any allegations that the
Receiver “step[ped] outside the authority granted by the court or [did] things in his
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personal capacity and not as a receiver,” this Court found that the exception to the
Barton doctrine was inapplicable in that case. Id. at 1175, n.3 (quoting Murtha,
232 So. 2d at 55).
Concluding that the trial court lacked subject matter jurisdiction over
Cabrera’s lawsuit as the pleadings were then framed, this Court granted the
Receiver’s petition for writ of prohibition, directing that the trial court dismiss the
claims against the Receiver “without prejudice to allow Cabrera to move to amend
his complaint in an attempt to sufficiently allege that the acts or the omissions of
the Receiver were outside the authority granted to him by the appointing court, or
to seek leave to file the negligence action from the court that appointed the
Receiver.” Id. at 1178 (emphasis added).
In this case, unlike Cabrera, Wright’s third amended complaint contains
allegations, albeit conclusory ones, that the acts or omissions of the Receiver were
outside the authority granted to the Receiver by the court in the foreclosure action.
The threshold question we must resolve, therefore, is whether the subject
allegations against the Receiver are sufficient for the recognized exception to the
Barton doctrine to apply in this case such that the instant proceeding may go
forward.2 Id. If the allegations are not sufficient, the instant action must be
dismissed without prejudice to Wright seeking leave to file suit against the
2 In denying the Receiver’s March 30, 2018 motion, the trial court implicitly found
that Wright’s allegations were sufficient.
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Receiver from the court that established the receivership. See Desulme, 252 So. 3d
at 294-95 (“An exception to [the Barton doctrine] exists where the receiver has
acted outside his or her legal authority. 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.”) (citation
omitted).
We conclude that the third amended complaint does not sufficiently allege
that the Receiver’s alleged acts and omissions were outside the authority granted to
the Receiver by the appointing court. Indeed, many of the alleged acts or
omissions identified therein as falling outside the Receiver’s authority appear to
fall within the Receiver’s authority to operate, manage, maintain, insure and
control the apartment complex. These conclusory allegations include the
Receiver’s alleged: “fail[ure] to manage, preserve, protect and maintain the
Mortgaged Property in a reasonable, prudent, diligent, and efficient manner”;
“fail[ure] to reasonably secure the property despite violent crimes occurring during
the Receivership period . . . which constituted a failure to reasonably manage,
preserve, protect, and maintain the Property in a reasonable, prudent, diligent, and
efficient manner, and was not appropriate to ensure the life, health, and safety of
the occupants”; “fail[ure] to make repairs or renovations as appropriate to ensure
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the life, health and safety of the occupants”; and “fail[ure] to maintain insurance
coverage in accordance with the Court’s Order.”
While the operative complaint may adequately allege a premises liability
action for negligent security, it fails to allege, with any specificity, how the
Receiver’s alleged negligence constituted conduct that was outside the scope of the
Receiver’s authority. This Court, in Desulme, required a heightened level of
pleading when a plaintiff, without obtaining leave of the appointing court, seeks to
hold a receiver liable for tort damages: the face of the complaint must clearly
demonstrate that the receiver acted outside of the scope of the authority of the
appointment order. See Desulme, 252 So. 3d at 294-95.
Because it is not clear from the face of the third amended complaint whether
the Receiver acted outside the authority granted by the appointing court, “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.” Desulme,
252 So. 3d at 294-95; Cabrera, 233 So. 3d at 1176 (“[E]ven when the receiver has
been discharged, as in the instant case, leave from the court that had appointed the
receiver must still be obtained to file suit against the receiver.”).
III. CONCLUSION
Despite Wright’s best efforts, the third amended complaint suffers the same
shortcoming as his second amended complaint. The pleading does not sufficiently
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allege that the Receiver’s alleged acts and omissions were outside the authority
granted to the Receiver by the appointing court. Accordingly, we grant the petition
for writ of prohibition, quash the order under review, and remand with directions
to enter an order dismissing counts III and IV of the third amended complaint
without prejudice to Wright seeking leave from the foreclosure court to assert his
claims against the Receiver.3
Petition granted; subject order quashed; remanded with instructions.
3 We express no opinion as to whether Wright has demonstrated the “prima facie
case of liability” required for the appointing court to grant leave to file suit.
Cabrera, 233 So. 3d at 1176. Given our resolution of this petition, we need not,
and therefore do not, reach the question of when, and in what manner, the trial
court should consider a receiver’s entitlement to judicial immunity where the
plaintiff sufficiently alleges that the Receiver acted outside the authority of the
appointing court.
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