BERENGO v. DALEY LAW FIRM PLLC (2022)

ON ORDER TO SHOW CAUSE

Appellants Gabriella Berengo and Nelvio Fardin seek appellate review of an order adopting a receiver's report and recommendations as to El Venexin, Inc.’s shareholders.¹ Appellants seek review under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii) as an order determining the right to immediate possession of property. Because the order does not determine the immediate possession of property, we ordered the parties to show cause as to why the appeal should not be dismissed as taken from a non-final, non-appealable order. Two days later, Appellees Gino Biscaro, Francesco Luise, Agostino Luise, and Ivone Sartori filed a motion to dismiss.

Upon review of the order on appeal, Appellants’ response to the Court's order to show cause, Appellees’ motion to dismiss, the plain language of Rule 9.130(a)(3)(C)(ii), and the body of caselaw applying said rule, we conclude that we lack jurisdiction to consider this premature appeal.

The order on appeal adopts a receiver's report and recommendation that outlines: (a) the nature of contributions made by the parties; (b) the percentage of ownership or number of shares issued to the parties; and (c) other issues that concern the ownership of the company. The order does not divest Appellants, or any other shareholders, of immediate possession of their shares. See Hollinger v. Hollinger, 292 So. 3d 537, 541 (Fla. 5th DCA 2020) (reviewing order that divested appellants of possession of two shares that had been transferred in contravention of a buy-sell agreement). Nor does the order set aside any contested share transfers or direct the receiver to alter the corporate registry to reflect a change in the shareholders’ current ownership. See Sticky Holsters, Inc. v. Wagner, 277 So. 3d 1067, 1067-68 (Fla. 2d DCA 2019) (order on appeal set aside the share transfers at issue and directed the corporate registry to be corrected to reflect that appellee remained a shareholder).

The order on appeal is simply an interlocutory order listing each shareholder's percentage of ownership in El Venexian, Inc. The “parties’ respective claims to immediate possession remain subject to determination.” Higgins v. Ryan, 81 So. 3d 588, 589 (Fla. 3d DCA 2012) (holding that an order outlining the percentage of ownership each shareholder was entitled to did not determine the right to immediate possession of property). As such, judicial labor is not complete.

We must narrowly construe Rule 9.130 to limit piecemeal appeals. See Jenne v. Maranto, 825 So. 2d 409, 413 (Fla. 4th DCA 2002) (“The enumerated categories of permissible nonfinal review stated in rule 9.130 must be limited to their plain meaning.”). We interpret Rule 9.130(a)(3)(C)(ii)’s plain language to only permit review of orders that determine the immediate right to possession of property. The order Appellants seek to appeal does not fall within this category. As such, we dismiss this appeal as taken from a non-final, non-appealable order.

Dismissed.

FOOTNOTES

1.   This cause originated as an interpleader action for funds in escrow which were owned by El Venexian, Inc. Appellants and several Appellees are shareholders of El Venexian.

PER CURIAM.