Asset Recovery Group, LLC v. Cabrera
233 So. 3d 1173
| Fla. Dist. Ct. App. | 2017Background
- In 2012 a state court (Miami-Dade) appointed Asset Recovery Group, LLC and Wayne Ginter as receiver over an apartment complex in a commercial foreclosure; the receiver was discharged July 9, 2013.
- On May 7, 2013, Cabrera was stabbed at the apartment complex; in December 2016 he sued the property owner and, after amendment, added the Receiver alleging negligence (Counts IV and V).
- The Receiver moved to dismiss Counts IV and V for lack of subject-matter jurisdiction, arguing Cabrera failed to obtain prior leave from the appointing court as required by Barton v. Barbour.
- Cabrera argued two exceptions: (1) the receiver acted outside authority or in personal capacity (Murtha), and (2) the "carrying on business" exception in 28 U.S.C. § 959(a) permits suit without prior leave.
- The trial court denied the motion to dismiss (relying on Murtha and Patco Energy), and the Receiver petitioned for a writ of prohibition to challenge that non-final order.
- The appellate court held § 959(a) does not apply to receivers appointed by state courts; therefore Barton’s prior-leave requirement applied and dismissal was required without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether suit against a state-court appointed receiver may proceed without prior leave of the appointing court | Cabrera: Murtha exception (receiver acted outside authority) and § 959(a) carrying-on-business exception permit suit without leave | Receiver: Under Barton, leave from the appointing court is required before suing a receiver; § 959(a) does not apply to state-court receivers | Held: Barton applies; § 959(a) (carrying-on-business) does not apply to state-court appointed receivers; dismissal ordered without prejudice |
| Whether the Murtha exception applies here | Cabrera: Receiver may be sued if acting outside authority or personally | Receiver: No such allegations were pled | Held: Murtha exception inapplicable—amended complaint lacks allegations that receiver acted outside authority |
Key Cases Cited
- Barton v. Barbour, 104 U.S. 126 (Sup. Ct. 1881) (requires leave of appointing court before suing a receiver)
- Murtha v. Steijskal, 232 So. 2d 53 (Fla. 4th DCA 1970) (receiver may be individually liable if acting outside authority or in a personal capacity)
- One S. Ocean Drive 2000, Ltd. v. One Ocean Boca, LLC, 182 So. 3d 872 (Fla. 4th DCA 2016) (recognizing Barton doctrine in Florida)
- In re VistaCare Grp., LLC, 678 F.3d 218 (3d Cir. 2012) (discussing § 959(a) as a response to Barton and its scope)
- Carter v. Rodgers, 220 F.3d 1249 (11th Cir. 2000) (describing § 959(a) as permitting tort claims arising from operation of debtor’s business)
- Republic Bank of Chicago v. Lighthouse Mgmt. Grp., Inc., 829 F. Supp. 2d 766 (D. Minn. 2010) (holding § 959(a) does not apply to receivers appointed by state courts)
- Considine v. Murphy, 773 S.E.2d 176 (Ga. 2015) (noting states treating Barton as jurisdictional apply the prior-leave rule even for suits filed in the appointing court)