Opinion
No. 79-2144.
May 21, 1980.
Appeal from the Circuit Court, Palm Beach County, Thomas E. Sholts, J.
John L. Britton of Friedman, Britton, Cohen, Kaufman, Zinkow, Benson Schantz, Miami, for appellant.
James C. Blecke of Blackwell, Walker, Gray, Powers, Flick Hoehl, Miami, for appellee.
Westminster Foundation, Inc., filed an appeal seeking review of a non-final order of the trial court directing a Receiver to pay to Amerifirst Federal Savings and Loan Association "accrued net income" in the hands of the Receiver. We have treated the matter as a petition for Writ of Common Law Certiorari.
The litigation began when Amerifirst filed a complaint to foreclose a mortgage. Westminster asserted various defenses such as fraud, conspiracy, and estoppel. In addition, Westminster challenged the priority of Amerifirst's mortgage. Amerifirst filed a motion requesting the court to order the Receiver to pay over to Amerifirst, as mortgagee, the monthly accrued net income of the property involved in this litigation. After an evidentiary hearing the trial court entered the order under consideration directing the Receiver to pay to Respondent the monthly accrued net income of $33,885.00. Respondent was required to file a written guaranty wherein Respondent agreed that, in the event the final judgment ultimately entered in the cause was adverse to Respondent, it would repay any funds received pursuant to said order, together with interest "at one quarter of one percent above the rate set in weekly auction of U.S. Treasury Bills".
We have not been favored with a transcript of the evidence adduced at the hearing on Respondent's motion. Petitioner has furnished us with an appendix containing only three trial orders. However, the trial court found in the order being reviewed that Respondent is a financial institution with assets in excess of two billion six hundred million dollars. In addition, the trial court found Respondent had made a prima facie case for its claim to a first lien on the rents, issues, and profits accruing to the Receiver. Also, it appears the court concluded these monthly payments would be advantageous to Respondent without any corresponding detrimental result accruing to Petitioner.
Petitioner has failed to demonstrate any departure from the essential requirements of law. Accordingly, the Petition for Writ of Certiorari is denied.
BERANEK and MOORE, JJ., concur.