Dana Entertainment, Inc. v. Tucan & Baru Brickell, LLC

Third District Court of Appeal
State of Florida

Opinion filed May 20, 2026.
Not final until disposition of timely filed motion for rehearing.

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No. 3D25-1904
Lower Tribunal No. 25-13194-CA-01
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Dana Entertainment, Inc., et al.,
Appellants,

vs.

Tucan & Baru Brickell, LLC,
Appellee.

An Appeal from a non-final order the Circuit Court for Miami-Dade
County, Daryl E. Trawick and Mavel Ruiz, Judges.

Levine Kellogg Lehman Schneider + Grossman LLP, and Marcelo
Diaz-Cortes for appellants Dana Entertainment, Inc., and Tu Candela Bar
LLC; Quintero Broche & Fonseca-Nader, P.A., and Juan P. Broche, for
appellant Marlon Brian Mejia.

Hirzel Dreyfuss & Dempsey PLLC, and Leon F. Hirzel, for appellee.

Before, SCALES, C.J., and LOGUE and GORDO, JJ.

GORDO, J.
Dana Entertainment, Inc., Tu Candela Bar, LLC, and Marlon Brian

Mejia (“Dana”) appeal the trial court’s non final orders appointing a receiver

over Tucan & Baru Brickell, LLC (“Tucan”) and denying its motion to set aside

the receivership. We have jurisdiction. Fla. R. App. P. 9.030(b)(1)(B);

9.130(a)(3)(D). We reverse and remand.

I.

Tucan runs a nightclub with an average reported gross sales revenue

of approximately $12 million per calendar year since 2021. In July 2025,

Tucan filed a complaint against Marlon Mejia 1 in his individual capacity. It

alleged breach of statutory duties of loyalty and care, common law breach of

fiduciary duty, unjust enrichment, conversion and unfair competition. Tucan

seeks compensatory and consequential damages, imposition of a

constructive trust in favor of Tucan, disgorgement by Mejia of money, assets

or interest acquired through his misconduct and an award of interest and

costs. Tucan did not seek or demand injunctive relief or the appointment of

a receiver within its complaint.

1
Marlon Mejia is co-manager of Tucan & Baru Brickell LLC with Hector
Antunez. Pursuant to the “Operating Agreement of Tucan & Baru Brickell,
LLC,” Mejia—as owner of Tu Candela Bar LLC—owns a 27% interest in the
Tucan & Baru Brickell LLC.

2
At 11:49 p.m. on August 29, 2025—the Friday prior to Labor Day—

Tucan filed an emergency motion for the appointment of a receiver. The

motion was neither verified nor accompanied by an affidavit making factual

averments. On August 30, 2025, Tucan submitted unverified exhibits in

support of its motion. On September 3, 2025, little more than thirty-six hours

following the holiday, the trial court judge entered the order appointing a

receiver without having a hearing or receiving a response. The order was

entered at 1:30 p.m. Sixteen minutes later, the trial court judge recused

himself from the case.

The receivership order found that “good and sufficient cause exists for

the appointment of a receiver” and without further explanation, appointed a

certified public accountant as receiver for Tucan and its assets. It also

delineated such things as the powers of the receiver, froze Tucan’s assets,

suspended all powers and authority of Tucan’s officers, shareholders, and

managers and enjoined all persons other than the receiver from transferring,

encumbering or disposing of any Tucan assets. The order, however, made

no findings of fact and did not identify any irreparable harm facing Tucan or

explain the need for a receiver. The order set the receiver’s bond at $5,000,

despite Tucan generating annual revenue of approximately $12 million.

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In response to the receivership order, Mejia immediately filed his

verified objections and motion to dissolve the receivership. Nonparty

members of Tucan also immediately moved to intervene in the action and

requested dissolution of the receivership. The intervening members

represent approximately 44-47% of the membership interest of the company.

On September 15, 2025, the trial court held a hearing on the motion to

dissolve the receivership. It expressed concern over allegations of theft by

Mejia and summarily rejected Mejia’s arguments about the lack of sworn

evidence, any evidentiary support showing good cause to appoint a receiver,

due process violations in the manner the order was entered and the legal

insufficiencies of the receivership order. To address these concerns, the trial

court continued the receivership and scheduled an evidentiary hearing for

September 22, 2025, to determine whether appointing a receiver over Tucan

was justified.

At the September 22 evidentiary hearing, Hector Antunez (“Antunez”)

testified as owner of Tucan. In his testimony, he made allegations that Mejia

improperly competed and diverted funds, resigned as manager and ruined

Tucan’s profitable business. Due to the allotted time expiring, the hearing

concluded during the cross examination of Antunez—no other witnesses

were called. The trial court subsequently continued the evidentiary hearing

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to October 6, 2025, with the receivership in place. Three days prior the

scheduled hearing, Dana filed this appeal resulting in the trial court refusing

to hold the hearing.

II.

While a decision to appoint a receiver is reviewed for abuse of

discretion, related legal issues—such as compliance with applicable law—

are reviewed de novo. See Fed. Nat’l Mortg. Ass’n v. JKM Servs., LLC for

Cedar Woods Homes Condos. Ass’n, Inc., 256 So. 3d 961, 966 (Fla. 3d DCA

2018) (“The trial court's authority to appoint a receiver for condominium units

in arrears on condominium assessments, whether by statute or as a matter

of equity and common law, is a legal issue reviewable under the de novo

standard of review, but the decision to appoint a receiver is reviewed for an

abuse of discretion.”). “Discretion . . . is abused when the judicial action is

arbitrary, fanciful, or unreasonable[.]” Canakaris v. Canakaris, 382 So. 2d

1197, 1203 (Fla. 1980) (citation omitted).

III.

“The appointment of a receiver is a drastic matter in that it constitutes

a taking of property and, therefore, should not be used by the courts except

in cases of necessity.” Electro Mech. Prods., Inc. v. Borona, 324 So. 2d 638,

639 (Fla. 3d DCA 1976). “The notice provisions of Florida Rule of Civil

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Procedure 1.610 clearly apply to an application for receivership.” DeSilva v.

First Cmty. Bank of Am., 42 So. 3d 285, 288 (Fla. 2d DCA 2010) (“The

provisions of rule 1.610 as to notice shall apply to applications for the

appointment of receivers.” (citing Fla. R. Civ. P. 1.620(a)). “Ordinarily, a

hearing is required before appointment of a receiver.” Id. (citing Edenfield v.

Crisp, 186 So. 2d 545, 548 (Fla. 2d DCA 1966); Phillips v. Green, 994 So. 2d

371, 373 (Fla. 3d DCA 2008)).

In accordance with Rule 1.610, “a receiver may only be appointed

without notice if: (1) it appears from specific facts shown by affidavit or

verified complaint that immediate and irreparable injury, loss, or damages

will result before a hearing can take place; (2) the movant's attorney must

certify in writing any efforts that have been made to give notice, and the

reasons why notice should not be required; and (3) the trial court states the

reasons notice was not required, and how irreparable harm might result if

immediate action is not taken.” Phillips, 994 So. 2d at 373. See also Fla. R.

Civ. P. 1.610(a)(1)-(2).

This Court has long held that a trial court cannot appoint a receiver

without hearing some evidence, either in the form of testimony, affidavits, or

some other sworn pleadings. See Boyd v. Banc One Mortg. Corp., 509

So. 2d 966, 967 (Fla. 3d DCA 1987) (“The trial court erroneously appointed

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a receiver without testimony, sworn pleadings or an affidavit . . . . For this

reason, the interlocutory order under review is reversed[.]”); Lakeview

Townhomes of Cal. Club, Inc. v. Coral Gables Fed. Sav. & Loan Ass'n, 656

So. 2d 240, 240 (Fla. 3d DCA 1995) (“We reverse, as the order was entered

without testimony, sworn pleadings or an affidavit demonstrating a show of

waste which impairs the equity of security.” (quoting Boyd, 509 So. 2d at

967) (internal quotation marks omitted)); M.R.D. Props., Ltd. v. Shangri-La

Resorts II, Inc., 546 So. 2d 35, 36 (Fla. 3d DCA 1989) (“We reverse the order

under review because no sworn proof was ever adduced below . . . . [n]o

testimony or affidavits were presented . . . [in support of the] motion for the

appointment of [a] receiver.”); Shops of Sunset, Ltd. v. Cohen, 551 So. 2d

1272, 1273 (Fla. 3d DCA 1989) (“We hold the trial court erred in appointing

a receiver without testimony, sworn pleadings or affidavits submitted in

support of appellees’ motion.”).

In the case before us, Tucan filed its emergency motion for the

appointment of a receiver at 11:49 p.m. on August 29, 2025—the Friday

evening prior to Labor Day. The motion was neither verified nor

accompanied by an affidavit making factual averments. The following day,

Tucan submitted unverified exhibits in support of its motion. Little more than

thirty-six hours following the holiday, the trial court judge appointed the

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receiver without waiting for a response. The trial court did not provide notice

or a hearing before issuing an order that effectively eviscerated all of Dana’s

property rights. This constitutes an abuse of discretion.

Additionally, the trial court’s order did not comply with the basic

requirements of the rule under which the receivership was sought. See Fla.

R. Civ. P. 1.610. It failed to specify the reasons for entry, define the injury,

state findings why the injury may be irreparable and explain the urgency of

any basis to enter it without due process. See Fla. R. Civ. P. 1.610(a), (c);

DeSilva, 42 So. 3d at 288; Phillips, 994 So. 2d at 373. The order merely

found that “good and sufficient cause exists for the appointment of a

receiver,” without further explanation. This was error.

The error was compounded when the newly assigned trial judge

refused to hold or proceed with the hearing, allowing the receivership to

continue without any basis for more than seven months. “Appointment of a

receiver is not a matter of right.” Twinjay Chambers P’ship v. Suarez, 556

So. 2d 781, 781 (Fla. 2d DCA 1990). “Rather, it is an extraordinary remedy

which must be exercised with caution as it is in derogation of the fundamental

right of the legal owner to possession of the property.” Id. See also Barnett

Bank of Alachua Cnty., N.A. v. Steinberg, 632 So. 2d 233, 234 (Fla. 1st DCA

1994) (same); U.S. Bank Nat’l Ass’n. v. Cramer, 113 So. 3d 1020, 1023 (Fla.

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2d DCA 2013) (“The appointment of a receiver should be approached with

caution and circumspection. . . . A cautious approach to the appointment of

a receiver is appropriate because such an appointment is in derogation of

the fundamental right of the legal owner to possession of the property.”

(internal quotation marks and citations omitted)); Plaza v. Plaza, 78 So. 3d

4, 6 (Fla. 3d DCA 2011) (“Appointing a receiver is a rare and extraordinary

remedy.”); Warshall v. Price, 617 So. 2d 751, 752 (Fla. 4th DCA 1993) (“[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.”).

Dana also argues the trial court erred by setting a grossly inadequate

bond without considering the evidence. We agree. Florida law requires that

a receiver post a bond “sufficient in amount to protect the opposing party

from any losses sustained should it ultimately be concluded that the

appointment of a receiver was improvident[.]” Rescom Invs., Inc. v. Strategic

Consulting & Managing, Inc., 635 So. 2d 1061, 1062 (Fla. 2d DCA 1994)

(citation omitted).

Here, Tucan runs a nightclub with an average reported gross revenue

of approximately $12 million a year since 2021. The trial court set bond for

$5,000. Clearly the bond is inadequate. See Cohen v. Rubin, 554 So. 2d 4,

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5 (Fla. 3d DCA 1989) (reversing order setting receiver bond at $1,000 where

the properties were valued at approximately $1.4M); Rescom Invs., Inc., 635

So. 2d at 1062 (reversing portion of order setting receiver bond at $10,000

where the property was worth between $2.0M and $2.5M). “[A] receiver . . .

[whose] duties will consist of or include the handling of substantial sums of

money, should be required to file a bond, with good and sufficient surety[.]”

Edenfield, 186 So. 2d at 548.

By appointing a receiver without notice and a hearing, issuing an order

lacking conformity to Rule 1.610’s requirements and setting an inadequate

bond the trial court undoubtedly abused its discretion. We reverse and

remand for immediate dissolution of the receivership and further proceedings

consistent with this opinion. 2

Reversed and remanded.

2
We need not address whether a corporation can obtain a receiver for itself
or whether it was error for the trial judge to issue the order minutes prior to
recusing himself.

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