DULCE KERMES v. CITIZENS PROPERTY INSURANCE CORPORATION
20-1568
| Fla. Dist. Ct. App. | Jul 21, 2021Background
- Kermes filed an insurance claim with Citizens Property Insurance for water damage to her home, owned by her and her estranged husband as tenants by the entireties.
- Kermes contends the husband has not lived in the house for ~15 years and is not an insured under the policy.
- Citizens moved to dismiss, arguing the husband is an indispensable party that must be joined.
- The trial court initially granted dismissal without prejudice (allowing an amended complaint), but on reconsideration vacated that dismissal and denied Citizens’ motion to dismiss.
- Kermes filed a certiorari petition with the appellate court; after the trial court vacated dismissal, the appellate court dismissed Kermes’ petition as moot.
- The appellate court dismissed Citizens’ certiorari petition for lack of jurisdiction, explaining that certiorari review of a denial of a motion to dismiss requires satisfying jurisdictional prerequisites and is generally not available absent unusual facts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal for failure to join an indispensable party was proper | Kermes: Husband is not an insured, has not lived at the property for years, so joinder is unnecessary | Citizens: Husband owns property by entireties and is an indispensable party who must be joined | Trial court ultimately held joinder not required; appellate court did not reach merits in certiorari review (dismissed Citizens’ petition for lack of jurisdiction) |
| Whether Kermes’ certiorari petition was moot | Kermes: Petition moot because trial court vacated the dismissal and denied the motion to dismiss | Citizens: (Did not prevent appellate action; pursued its own petition) | Appellate court dismissed Kermes’ petition as moot because the relief sought had been granted by the trial court |
| Whether Citizens’ certiorari petition challenging denial of dismissal is reviewable | Kermes: Appellate certiorari is inappropriate because petitioner must meet jurisdictional prerequisites | Citizens: Sought certiorari review of trial court’s denial of motion to dismiss | Appellate court dismissed Citizens’ petition for lack of jurisdiction—petitioner failed to meet the jurisdictional prerequisites for certiorari review of a denial of a motion to dismiss |
| Standard for certiorari review of denial of motion to dismiss for failure to join an indispensable party | Kermes: Denial does not typically satisfy certiorari prerequisites; ordinary appeal may be adequate | Citizens: Impliedly urged that immediate review was warranted | Held: Court reiterated San Perdido test—petitioner must show (1) departure from essential requirements of law, (2) resulting material injury for the remainder of the case, and (3) no adequate remedy on appeal; the last two are jurisdictional and were not shown; certiorari rarely granted for such denials absent unusual facts |
Key Cases Cited
- Marshalls of M.A., Inc. v. Witter, 186 So. 3d 570 (Fla. 3d DCA 2016) (petition for certiorari dismissed as moot when trial court granted relief during pendency)
- State Farm Fla. Ins. Co. v. Bellamy, 302 So. 3d 1081 (Fla. 1st DCA 2020) (dismissing certiorari as moot where lower court set aside the order under review)
- Citizens Property Ins. Corp. v. San Perdido Ass’n, Inc., 104 So. 3d 344 (Fla. 2012) (establishes three-element test for certiorari review of denial of motion to dismiss; last two elements are jurisdictional)
- City of Miami v. Village of Key Biscayne, 199 So. 3d 300 (Fla. 3d DCA 2016) (declining certiorari review of denial 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) (discusses rare circumstances warranting certiorari for denial of dismissal)
- Mantis v. Hinckley, 547 So. 2d 292 (Fla. 4th DCA 1989) (example of ‘unusual facts’ justifying certiorari where plenary appeal was inadequate)
- Gibraltar Private Bank & Trust v. Schacht, 220 So. 3d 1234 (Fla. 3d DCA 2017) (noting that filing a certiorari petition does not divest the trial court of jurisdiction)