final until disposition of timely filed motion for rehearing.
of Original Jurisdiction - Prohibition Lower Tribunal No.
BeharBehar, and Jaclyn Ann Behar and Sharita R. Young
(Sunrise), for petitioners.
Offices of Stephen M. Cohen, P.A., and Stephen M. Cohen (Palm
Beach Gardens), for respondent Lazaro Cabrera.
ROTHENBERG, C.J., and LAGOA and SCALES, JJ.
defendants below, Asset Recovery Group, LLC, and Wayne Ginter
(collectively, "the Receiver"), petition this Court
for a writ of prohibition, challenging the trial court's
non-final order denying the Receiver's motion to dismiss
for lack of subject matter jurisdiction Counts IV and V of
the amended complaint filed by Lazaro Cabrera
("Cabrera"). Because Cabrera was required to obtain
leave of court from the trial court appointing the Receiver
prior to filing his negligence action against the Receiver,
we grant the petition for writ of prohibition, quash the
order under review, and remand with directions to enter an
order granting the motion to dismiss without
FACTS AND PROCEEDINGS BELOW
petition relates to two cases filed in the Miami-Dade Circuit
Court. First, Case No. 11-38747 (Judicial Section CA05) is a
commercial foreclosure action, during which the trial court
(Judge Schumacher) appointed the Receiver and ordered the
Receiver to take control of the mortgaged property-an
apartment complex located in Homestead, Florida ("the
apartment complex"). Second, Case No. 16-31938 (Judicial
Section CA06) is a premises liability action filed by Cabrera
against the owners of the apartment complex and the Receiver
for injuries sustained during a stabbing that occurred at the
apartment complex on May 7, 2013, prior to the discharge of
the Receiver in Case No. 11-38747. The facts in each case are
Case No. 11-38747-Commercial Foreclosure
November 2011, U.S Century Bank filed a commercial
foreclosure action against 1200 Homestead 72, LLC ("1200
Homestead"). Thereafter, U.S. Century Bank filed an
emergency motion to appoint a receiver, or in the
alternative, a motion for sequestration of rent. In February
2012, the trial court (Judge Schumacher) granted the motion
and appointed the Receiver. The order appointing the Receiver
provides that the Receiver shall take possession, custody,
and control of the mortgaged real property-the apartment
complex. Paragraph 16 of the appointing order provides:
Judicial Immunity. The Receiver and the
Receiver's attorneys and agents: . . . (iii) shall not be
liable to anyone for their good faith compliance with the
duties and responsibilities as a receiver, or as attorney or
agent for Receiver; and (iv) 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.
Homestead, LLC ("Samjack"), was substituted as the
plaintiff for U.S. Century Bank. In March 2013, a final
judgment of foreclosure was entered in favor of Samjack and
against defendant 1200 Homestead and others. In April 2013,
the apartment complex was sold at the foreclosure sale to
Samjack, and on July 9, 2013, the Receiver was discharged.
Case No. ...