Opinion
No. 92-2527.
April 14, 1993. Rehearing Denied June 2, 1993.
Appeal from the Circuit Court, Palm Beach County, Stephen A. Rapp, J.
John T. Kinsey of Kinsey Gleason, Boca Raton, for appellant.
Patrick J. Casey and J. Kory Parkhurst of Boose Casey Ciklin Lubitz Martens McBane O'Connell, West Palm Beach, for appellee.
Before any trial has been held and any final judgment entered, a motion for the appointment of a receiver of the property of the defendant is a drastic matter constituting a taking of property and requires a showing of exigent circumstances. Electro Mechanical Products Inc. v. Borona, 324 So.2d 638 (Fla. 3d DCA 1976). After a plaintiff has acquired a money judgment against a defendant who carries on business as a sole proprietorship, the situation has changed.
The reasons for arguing against a receiver have disappeared. After all, the judgment creditor can now simply send the sheriff out to the judgment debtor's business with the unsatisfied writ of execution and levy against all property of the judgment debtor in sight and, thereby, effectively put the debtor out of business. In this circumstance, where the judgment creditor elects the less drastic remedy of a receiver to take charge of the debtor's accounts receivable, the debtor can hardly be heard to argue that the receiver is more harsh than the levy.
We find no error in this trial judge's decision to grant a receiver of the judgment debtor's property on this judgment creditor's simple showing that he holds an unsatisfied writ of execution and without showing any "exigent circumstances." The unsatisfied writ was all the exigent circumstance he needed.
AFFIRMED.
STONE, J., concurs specially with opinion.
POLEN, J., dissents with opinion.
I concur to note that a trial court has broad discretion under chapter 56, Florida Statutes, in fashioning remedies in aid of unsatisfied execution on judgments. Here, Appellee had unsuccessfully attempted execution on judgments totaling over $235,000. In these supplementary proceedings the trial court obviously determined that it was necessary to appoint a receiver of Appellant's accounts in order to collect the judgment debt out of monies being paid to the debtor and from accounts payable.
Section 56.29, Florida Statutes, authorizes orders subjecting a debtor's nonexempt property to the satisfaction of a judgment. See also, § 56.10, Fla. Stat. (1987). Courts have long recognized that there is a role for receiverships in fashioning relief under a traditional creditor's bill. E.g., Pusey Jones Co. v. Hanssen, 261 U.S. 491, 43 S.Ct. 454, 67 L.Ed. 763 (1923).
I respectfully dissent. Steven L. Warshall appeals from an order appointing a receiver to take possession of, and collect the accounts receivable of his medical practice in post-judgment collection proceedings. Writs of execution were issued on two judgments entered against Warshall. Appellee, Richard Price, the judgment creditor, filed a motion for proceedings supplementary and application for appointment of a receiver. Attached to Price's motion was an affidavit attesting to the entry of the judgment and issuance of writs of execution that were outstanding and unsatisfied. After hearing, and without admitting evidence, the trial court entered an order appointing a receiver.
Neither the majority nor this dissent addresses the propriety of these judgments, which are the subject of two separate appeals pending before this court (case Nos. 91-2816 and 92-1154).
I disagree with the majority's determination that appellee was entitled to appointment of a receiver without showing exigent circumstances, need, and the absence of alternative remedies. The appointment of a receiver is a drastic matter in that it constitutes a taking of property and should not be used by the courts except in cases of necessity. Electro Mechanical Products, Inc. v. Borona, 324 So.2d 638, 639 (Fla. 1976). To be sure, there may be other, more drastic creditor's rights available to appellee. Assuming a sheriff's levy on a debtor's accounts receivable is available to the judgment creditor (I'm not clear how the sheriff or the creditor would then apply such accounts receivable to satisfy the judgment), this does not presuppose that other, albeit arguably less drastic, remedies can be had without some minimal showing of necessity beyond "the judgment has not been satisfied after execution."
See also Florida Rule of Civil Procedure 1.620, referencing rule 1.610 as to notice provisions.
I would hold that the trial court erred in appointing a receiver on the strength of Price's affidavit, and in the absence of evidence showing that the property was susceptible to deterioration and that a receiver was necessary for the preservation of the property. I would reverse the trial court's order appointing a receiver and remand with instructions that an evidentiary hearing be conducted to determine the necessity for such an appointment.