Kolessar of BFAL Assoc., LLC, as court-appointed receiver v. SJP Investment Partners, LLC, et al., [Ms. SC-2024-0492, Oct. 24, 2025] __ So. 3d __ (Ala. 2025). The Court (Mendheim, J.; Shaw, Wise, and Sellers, JJ., and Minor, Special Justice, concur; Bryan, J., concurs in the result; Stewart, C.J., and McCool and Lewis, JJ., dissent; Cook, J., recuses) reverses the Jefferson Circuit Court’s July 22, 2024 order requiring Jeffrey Kolessar, in his capacity as Receiver for the Hotel Indigo to pay pre-receivership debts. The Hotel is owned by SJP Investment Partners, LLC (“SJP”), a Georgia limited-liability company.
Kolessar was appointed Receiver of the Hotel on the motion of Wells Fargo Bank, N.A., which, as Trustee for certain bond holders, held a mortgage on the Hotel and associated real and personal property. Wells Fargo alleged that SJP was in default on a $10 million dollar loan and had threatened to close the Hotel. Ms. *4.
After the parties filed cross motions for contempt concerning a dispute over SJP’s insistence that Kolessar pay pre-receivership debts, on July 21, 2024, the Circuit Court ordered Kolessar to pay “pre-receivership expenses of the Hotel…” Ms. *18.
SJP argues it did not request an injunction so that the July 2024 order was not immediately appealable. The Court rejects this argument and concludes based on “the language used in that order in relation to previous orders, that order is injunctive in nature as to Kolessar for purposes of Rule 4(a)(1)(A) and is not a mere clarification of the October 2023 order or May 2024 order. See Southland Quality Homes, Inc. v. Williams, 781 So. 2d 949, 952 (Ala. 2000) (‘[T]his Court looks to the substance of a motion or order, rather than its form.’)” Ms. *29.
On the merits of Kolessar’s appeal, the Court holds:
[W]e see no need to go beyond his argument that the circuit court exceeded its discretion by requiring him to pay the pre-receivership claims without regard to the priority of creditors. Based on Kolessar’s appointment as receiver, we must conclude that Wells Fargo already had established “a reasonable probability of success on the [merits regarding its complaint], and that the subject-matter in controversy [i.e., the Hotel] [was] in danger.” Ashurst v. Lehman, Durr & Co., 86 Ala. 370, 371, 5 So. 731, 731 (1889).
Ms. *30.