DULCE KERMES
v.
CITIZENS PROPERTY INSURANCE CORPORATION
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A petition for writ of certiorari challenging a trial court's denial of a motion to dismiss for failure to join an indispensable party lacks jurisdictional basis and must be dismissed, as the remedy must be pursued through postjudgment appeal.
[1] A petition for writ of certiorari challenging an order denying a motion to dismiss for failure to join an indispensable party lacks jurisdictional basis unless the petiti…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“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 corrected on postjudgment appeal.... The last two elements are jurisdictional and must be analyzed before the court may even consider the first element.'”
Court's statement of the three-element test from Citizens Property Ins. Corp. v. San Perdido Ass'n, Inc. for certiorari relief from denial of motion to dismiss
Kermes filed an insurance claim with Citizens for water damage to her home, which she and her estranged husband own as tenants by the entireties, thou…
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Third District Court of Appeal
State of Florida
Opinion filed July 21, 2021. Not final until disposition of timely filed motion for rehearing.
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Nos. 3D20-1568 and 3D21-746 Lower Tribunal No. 19-27222
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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
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Authorities Cited
- Citizens Prop. Ins. Corp. v. SAN Perdido Ass'n, Inc., 104 So. 3d 344 (Fla. 2012)
- Mantis v. The Honorable Harry G. Hinckley, Jr., 547 So. 2d 292 (Fla. 4th DCA 1989)
- Marshalls OF M.A., Inc. v. Mecca Witter, 186 So. 3d 570 (Fla. 3d DCA 2016)
- Gibraltar Private Bank & Tr. v. Schacht, 220 So. 3d 1234 (Fla. 3d DCA 2017)
- State Farm Fla. Ins. Co. v. Bellamy, 302 So. 3d 1081 (Fla. 1st DCA 2020)
- City OF Miami v. Vill. OF KEY Biscayne, 199 So. 3d 300 (Fla. 3d DCA 2016)
- Fresh del Monte Produce, N.V. v. Chiquita Int'l Ltd., 664 So. 2d 263 (Fla. 3d DCA 1995)