
    Lee C. HOWLEY and Sheldon B. Guren as Trustees for U. S. Realty Investments, Appellants, v. SAGE SHOPPING PLAZA CORP., a Florida Corporation, et al., Appellees.
    No. 76-1281.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1976.
    Robert S. Geiger and Richard E. Reckson of Levine, Reckson & Reed, Miami, for appellants.
    Robert J. O’Toole, Fort Lauderdale, for appellee Sage Shopping Plaza Corp.
   ALDERMAN, Judge.

Appellant filed suit to foreclose a $1,200,-000 first mortgage on a shopping center. Simultaneously with the filing of the complaint, appellant petitioned the trial court for the appointment of a receiver to collect rents and protect and preserve the property. An evidentiary hearing was held on the petition for appointment of a receiver. At the conclusion of appellant’s case, appellee moved to dismiss. After considering the arguments of counsel, but without requiring any evidence or testimony from appel-lee, the trial judge involuntarily dismissed the petition for appointment of receiver. From that order this interlocutory appeal is taken.

From our review of the record in this case we conclude that appellant established a prima facie case for appointment of a receiver. The right of a trial court to involuntarily dismiss the claim of a party seeking affirmative relief in an action tried by the court without a jury, at the conclusion of the presentation of his evidence, is based upon Fla.R.Civ.P. 1.420(b). The Florida Supreme Court in Tillman v. Baskin, 260 So.2d 509 (Fla.1972) held that a trial judge cannot weigh evidence when ruling on a defendant’s motion for involuntary dismissal following the presentation of a prima facie case by a plaintiff. As stated by the court in Tillman v. Baskin, supra:

“When a prima facie case is made by plaintiff, fairness would appear to require that the trial judge weigh it in the light of the strength or weakness of the defendant’s defense evidence.” (At 512.)

Reversed and remanded for a new hearing on appellant’s petition for appointment of a receiver. We express no opinion as to the merits of the petition or as to what decision the trial judge should make after he considers and weighs the evidence presented by both the plaintiff and the defendant.

WALDEN, J., concurs.

DOWNEY, J., concurs specially with opinion.

DOWNEY, Judge

(concurring specially).

I agree with the majority opinion that appellants made a prima facie case by their sworn complaint and the evidence adduced in support of their motion for appointment of a receiver, thus requiring reversal of the order appealed from. The appellees had assigned the leases and rents received from the property to the appellants and specifically gave appellants the right to collect those rents when appellants determined “in [their] sole discretion” that appellees were guilty of some act or omission which constituted a default. The mortgage in question also provided for the appointment of a receiver in any action to enforce payment of the mortgage and note. At the very least these contractual provisions placed the burden of proof upon the appellants-mortgagors to show that a receiver should not be appointed. Carolina Portland Cement Co. v. Baumgartner, 99 Fla. 987, 128 So. 241. However, although appellants proved a pri-ma facie case on their motion for appointment of a receiver, appellees adduced no testimony, filed no pleadings and their cross examination of appellant’s witness was insufficient to destroy the necessity of their going forward with the proof. However, I do not believe that the case of Tillman v. Baskin, 260 So.2d 509 (Fla.1972), is applicable here. We are not dealing with an involuntary dismissal but rather with the simple denial of a motion for appointment of a receiver. Thus Fla.R.Civ.P. 1.420(b), and the Baskin case are in my judgment inappo-site.  