Opinion
No. 89-2440.
November 14, 1989.
Appeal from the Circuit Court, Dade County, Marvin Gillman, J.
Kluger, Peretz, Kaplan Berlin, and Steven I. Peretz, Miami, for appellant.
Cohen, Chase, Heckerling Trautman, and Dale A. Heckerling, Miami, for appellees.
Before COPE, LEVY and GERSTEN, JJ.
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. Appellees, Herbert Jay Cohen and Dale A. Heckerling, 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. Appellees 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 appellees 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.