DULCE KERMES v. CITIZENS PROPERTY INSURANCE CORPORATION

• Court: District Court of Appeal of Florida
• Decided: July 21, 2021
• Docket: 20-1568
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed July 21, 2021. Not final until disposition of timely filed motion for rehearing.

________________

Nos. 3D20-1568 and 3D21-746 Lower Tribunal No. 19-27222 ________________

Dulce Kermes, Petitioner/Cross-Respondent,

vs.

Citizens Property Insurance Corporation, Respondent/Cross-Petitioner.

On Petitions for Writ of Certiorari from the Circuit Court for Miami-Dade County, Mavel Ruiz and Carlos Lopez, Judges.

Barket Law, P.A., and Matthew A. Barket; Colson Hicks Eidson, and Wm. Allen Bonner, for petitioner/cross-respondent.

Lewis Brisbois Bisgaard & Smith LLP, and Kathryn L. Ender, for respondent/cross-petitioner.

Before EMAS, GORDO and BOKOR, JJ.

EMAS, J. This consolidated proceeding involves two related petitions for

certiorari. The litigation below arises out of an insurance claim filed by Dulce

Kermes with her insurer, Citizens Property Insurance Corporation, following

a water leak to her home. After Kermes filed suit, Citizens filed a motion to

dismiss, asserting that Kermes failed to join an indispensable party. The

indispensable party, according to Citizens, is Kermes’ estranged husband.

Kermes acknowledges that she and her husband own the home as tenants

by the entireties, but avers he has not lived in the home for fifteen years, and

is not named as an insured under the policy.

The trial court initially granted Citizens’ motion to dismiss for failure to

join her husband an indispensable party. The dismissal order was entered

without prejudice, allowing Kermes to file an amended complaint joining her

husband. After entry of that order, Kermes filed the instant petition with this

court (3D20-1568) as well as a motion for reconsideration with the trial court.

While the certiorari petition was pending, the trial court granted Kermes’

motion for reconsideration, vacated the order of dismissal, concluded that

Kermes could proceed without the joinder of her husband, and denied

Citizens’ motion to dismiss.1 Citizens filed its petition for writ of certiorari

1 Unlike the filing of an appeal from a final order—which generally divests the trial court of jurisdiction—the filing of a petition for writ of certiorari challenging an interlocutory order does not divest the trial court of jurisdiction

2 (3D21-746) seeking review of that subsequent order denying the motion to

dismiss for failure to join an indispensable party.

We dismiss as moot Kermes’ petition. See, e.g., Marshalls of M.A.,

Inc. v. Witter, 186 So. 3d 570 (Fla. 3d DCA 2016) (dismissing petition for

certiorari as moot where, during pendency of certiorari proceedings, trial

court granted petitioner the relief it was seeking in its petition); State Farm

Fla. Ins. Co. v. Bellamy, 302 So. 3d 1081, 1082 (Fla. 1st DCA 2020)

(dismissing petition for certiorari as moot where the lower court set aside the

order under review).

Further, we dismiss for lack of jurisdiction Citizens’ petition seeking

certiorari review of the trial court’s subsequent order denying its motion to

dismiss for failure to join Kermes’ husband as an indispensable party. See

Citizens Property Ins. Corp. v. San Perdido Ass’n, Inc., 104 So. 3d 344, 351

(Fla. 2012) (holding that before a court may grant certiorari relief from the

denial of a motion to dismiss, petitioner must establish the following three

elements: “(1) a departure from the essential requirements of the law, (2)

resulting in material injury for the remainder of the case (3) that cannot be

and, absent a stay, the filing of such a petition does not prevent the trial court from proceeding to adjudicate the case. See Gibraltar Private Bank & Trust v. Schacht, 220 So. 3d 1234, 1235 (Fla. 3d DCA 2017); State Farm Fla. Ins. Co. v. Bellamy, 302 So. 3d 1081, 1082 (Fla. 1st DCA 2020).

3 corrected on postjudgment appeal.... The last two elements are jurisdictional

and must be analyzed before the court may even consider the first element.”)

(additional citations omitted). See also City of Miami v. Village of Key

Biscayne, 199 So. 3d 300, 302 n. 2 (Fla. 3d DCA 2016) (noting: “This Court

has declined to grant certiorari relief of an order denying a motion to dismiss

for failure to join an indispensable party. Fresh Del Monte Produce, N.V. v.

Chiquita Int'l Ltd., 664 So. 2d 263 (Fla. 3d DCA 1995) (Mem). In Mantis v.

Hinckley, 547 So. 2d 292, 293 (Fla. 4th DCA 1989), a case cited by the

dissent in Fresh Del Monte, the Fourth District found ‘unusual facts’ that

‘demonstrated a lack of an adequate remedy by plenary appeal.’ No species

of unusual facts exists in this case. Therefore, we decline to treat the City's

petition as seeking certiorari review of the trial court's order.”)

Petitions dismissed.