Case Information
*1 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED GLORIA F. BERK-FIALKOFF, AS
PERSONAL REPRESENTATIVE OF
THE ESTATE OF ALAN FIALKOFF,
Appellant, v. Case No. 5D22-628
LT Case No. 2021-CA-001400 WILMINGTON TRUST, NATIONAL
ASSOCIATION, IN ITS CAPACITY
AS TRUSTEE, AND H-BAY MINISTRIES,
INC., A TEXAS NON-PROFIT CORPORATION,
Appellees.
________________________________/
Opinion filed March 24, 2023
Nonfinal Appeal from the Circuit Court
for Lake County,
Larry Metz, Judge.
Rainey C. Booth, Jr., and Joanna Greber
Detloff, of Mendes, Reins & Wilander,
PLLC, Tampa, for Appellant.
Kimberly S. Mello, of Greenberg Traurig,
P.A., Orlando, for Appellee, Wilmington
Trust, N.A., In Its Capacity as Trustee.
Cleveland Burke, of Waller Lansden Dortch
& Davis, LLP, Austin, Texas, for Appellee,
H-Bay Ministries, Inc., a Texas Corporation.
PER CURIAM
Gloria F. Berk-Fialkoff, as personal representative of the estate of Alan Fialkoff (the “Fialkoff Estate”), appeals inter alia the trial court’s non-final Order Granting in Part and Denying in Part Receiver’s Amended Motion to Enforce Injunction and Stay Proceedings of Personal Injury Claimants (the “Order”). The Order enjoined the Fialkoff Estate along with other claimants from pursuing personal injury claims against H-Bay Ministries, Inc. (“H-Bay”) and other affiliated entities and individuals for a period of one year, but allowed the claimants to initiate pre-suit procedures and file claims for purposes of the statute of limitations. The Fialkoff Estate raises several issues on appeal, one of which we find meritorious, specifically that the challenged Order does not comply with Florida Rule of Civil Procedure 1.610(c) because it does not specify the reasons for its entry, it does not contain factual findings, and it does not contain any findings regarding the four criteria necessary for entry of an injunction. We agree that the Order is legally insufficient and reverse.
In 2018, H-Bay financed the acquisition of five senior living facilities (the “Facilities”) located on parcels of real property throughout Florida. Three *3 years later, after H-Bay allegedly defaulted on the bond payments, Wilmington Trust, National Association (the “Trustee”) initiated the underlying lawsuit, seeking, among other relief, foreclosure on its liens and appointment of a receiver to assume control of the Facilities. The Trustee also filed an emergency action for appointment of receiver to ensure the well-being of the elderly residents of the Facilities, provide upkeep of the properties, including paying employees, collect rents from residents, provide security, preserve the Trustee’s security interests, and otherwise maintain the status quo pending resolution of the litigation.
The court subsequently entered an order appointing a Receiver (“Receivership Order”) and ordered that the Receiver take exclusive possession and control of the “Receivership Estate.” [1] It authorized the Receiver to “undertake all acts necessary in its sole discretion to operate the Facilities’ business” and stayed all civil legal proceedings of any nature related to any Receivership property.
Approximately one year before the Receivership Order was entered, Alan Fialkoff was admitted to one of the Facilities, where he remained until his death on September 12, 2020. During his residency at the Facility, Fialkoff *4 allegedly suffered from abuse, neglect, and exploitation at the hands of H- Bay along with other entities and individuals. In March 2021, the Fialkoff Estate initiated the pre-suit process against H-Bay asserting violations of Fialkoff’s resident’s rights and deviations from the standard of care. Over the next twelve months the court held several hearings related to motions to enforce the original Receivership Order.
Ultimately on March 4, 2022, the court entered its Order providing that various personal injury claimants, including the Fialkoff Estate, would be enjoined from continuing to pursue their claims arising from their residence or treatment at the Facilities against the Receiver, the Receivership Estate, H-Bay, and any past or present manager of the Facilities, and any individual that provided services to H-Bay, the Facilities, or the management companies. However, the Order authorized the personal injury claimants to proceed with pre-suit activities, including investigation and informal discovery as provided in section 429.293, Florida Statutes. Following the pre-suit activities, the claimants could file suit in any court of competent jurisdiction or initiate arbitration proceedings, provided that H-Bay would promptly file a motion to stay the proceedings until February 10, 2023. This is the order the Fialkoff Estate challenges in this appeal.
A trial court with jurisdiction over receivership property may enjoin a
proceeding against that property “if the injunction is necessary to protect
against misappropriation of, or waste relating directly to, the receivership
property.” § 714.14(2), Fla. Stat. (2021); see also Liberte Cap. Grp., LLC v.
Capwill,
Although receivership courts have broad equitable authority to enter
orders to protect a receivership, section 714.14(3) effectively mirrors the
language in rule 1.610(c), which governs the form and scope of temporary
injunctions. As a result, we find that the rules for injunctions also apply in
*6
receivership cases involving blanket stays, including this case. Typically,
reversal would be warranted when the party seeking the injunction fails to
plead the necessary four elements to obtain the injunction. In accordance with
rule 1.610, the party seeking the injunction must establish: (1) the likelihood
of irreparable harm; (2) the unavailability of an adequate remedy at law; (3) a
substantial likelihood of success on the merits; and (4) considerations of the
public interest. See, e.g., Yardley v. Albu,
Here, the original injunction was essentially sought in the motion for appointment of receiver and in the foreclosure complaint, which were filed by the Trustee. The Trustee alleged that a receivership would be in the best interests of the Facilities’ residents and that unless emergency measures were implemented, the residents and the Facilities would experience irreparable harm. It did not, however, allege the likelihood of success or inadequate remedy at law, and therefore, it did not comply with rule 1.610 for *7 obtaining a temporary injunction. However, the Fialkoff Estate did not move to dissolve the injunction once it received notice of it nor did the Fialkoff Estate challenge the Receivership Order or the motions that led to entry of the Receivership Order. Instead, the Fialkoff Estate involved itself in several hearings, acknowledged that it was not arguing the Receivership Order was “flawed in any way,” and acquiesced to the injunction being amended to provide for a middle ground that, in part, provided the relief it requested. We therefore conclude that the Fialkoff Estate has waived or failed to preserve its argument as to the failure to plead the elements necessary for an injunction. See Pendergraft v. C.H., 225 So. 3d 420 (Fla. 5th DCA 2017) (“When an appeal is taken from the entry of a temporary injunction, Appellants cannot raise arguments that should have been, but were not, raised at the hearing in the trial court.”).
However, the injunction contained in the Receivership Order as well as
the Order on appeal did not contain findings of fact as to each of the four
elements and “[s]trict compliance with [rule 1.610(c)] . . . is required.” Eldon
v. Perrin,
REVERSED and REMANDED, with instructions.
WALLIS, EDWARDS and HARRIS, JJ., concur.
Notes
[1] The Receivership Estate was defined as “[t]he real and personal property of [H-Bay] comprising and relating to [Facilities].”