Travelers Cas. & Sur. Co. of Am. v. Culbreath Isles Prop. Owners Ass'n, Inc.

• Decision Date: 19 October 2012
• Docket Number: No. 2D12–61.,2D12–61.
• Citation: 103 So.3d 896
• Parties: TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, Petitioner, v. CULBREATH ISLES PROPERTY OWNERS ASSOCIATION, INC.; Phyllis Ann Kirkwood; Nancy Lewis and Richard B. Lewis, individually; and Saade Chibani, as Class Representative of the Lot Owners Similarly Situated in the Culbreath Isle Subdivision, Respondents.
• Court: Florida District Court of Appeals

103 So.3d 896

TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, Petitioner,

v.CULBREATH ISLES PROPERTY OWNERS ASSOCIATION, INC.; Phyllis Ann Kirkwood; Nancy Lewis and Richard B. Lewis, individually; and Saade Chibani, as Class Representative of the Lot Owners Similarly Situated in the Culbreath Isle Subdivision, Respondents.

No. 2D12–61.

District Court of Appeal of Florida,

Second District.

Oct. 19, 2012.

Andrew V. Tramont and Paulino A. Nunez Jr. of Tramont Guerra & Nunez, P.A., Coral Gables, for Petitioner.

Ronald E. Bush and James J. Wimsatt of Bush Graziano Rice & Platter, P.A., Tampa, for Respondent Culbreath Isles Property Owner Association, Inc.

No appearance for remaining Respondents.

SILBERMAN, Chief Judge.

Travelers Casualty and Surety Company of America seeks certiorari review of the circuit court's order denying its motion to dismiss a supplemental third-party complaint filed by Culbreath Isles Property Owners Association, Inc. (the Association). We convert the petition to one seeking a writ of prohibition and grant the writ because the circuit court exceeded its jurisdiction when it allowed the Association to proceed on the supplemental third-party complaint.

The proceedings below began in 2008 when the Association filed a complaint against Nancy and Richard Lewis based on their alleged violations of the Culbreath Isles deed restrictions. In June 2010, the circuit court entered a final summary judgment in favor of the Lewises based on its finding that the deed restrictions were unenforceable. In the final judgment, the court reserved jurisdiction to award attorney's fees. The Association filed a timely notice of appeal of the final judgment. While the appeal was pending, the circuit court entered a second final judgment awarding the Lewises attorney's fees and costs and reserving jurisdiction solely to consider another motion filed by the Lewises for additional fees and costs. The parties thereafter settled all their claims and filed a joint stipulation for dismissal of the case. The Lewises then filed a notice of withdrawal of their motion for additional attorney's fees and costs, and the Association's appeal was dismissed.

After the settlement but before the Lewises withdrew their pending motion for additional attorney's fees and costs in the circuit court, the Association served a motion to file a supplemental complaint to pursue a third-party indemnification claim against Travelers pursuant to Florida Rule of Civil Procedure 1.180.¹ The circuit court granted the motion, and the Association filed the supplemental third-party complaint. Travelers moved to dismiss the supplemental third-party complaint, asserting that the Association was not authorized to file an indemnification claim under rule 1.180 because the Association was the plaintiff below and no counterclaim had been filed. The court denied the motion to dismiss.

Travelers filed a petition for writ of certiorari in this court challenging the denial of its motion to dismiss. In response to Travelers' petition, the Association argues that certiorari is not a proper remedy because the denial of the motion to dismiss will be subject to review on direct appeal when the case is concluded. We agree that certiorari relief is not available.

In order to establish entitlement to certiorari relief, Travelers “must demonstrate ‘(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.’ ” Trucap Grantor Trust 2010–1 v. Pelt, 84 So.3d 369, 371 (Fla. 2d DCA 2012) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004)), review denied,No. SC12–745, 2012 WL 4052061 (Fla. Sept. 6, 2012). The second and third requirements are jurisdictional and must be met before the first requirement can be addressed. Id.

Generally, certiorari relief is not available from the denial of a motion to dismiss a civil complaint because the aggrieved party has a remedy in the form of a plenary appeal after entry of final judgment. See Fieselman v. State, 566 So.2d 768, 770 (Fla.1990). Travelers has not pointed to any pertinent exceptions to this general rule or argued it would be precluded from seeking postjudgment review of the order denying its motion to dismiss.

Travelers alternatively requests that we treat the petition for writ of certiorari as a petition for writ of prohibition. SeeFla. R. App. P. 9.040(c) (“If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought....”). Travelers claims that a writ of prohibition is a proper remedy because the circuit court exceeded its jurisdiction by allowing the Association to proceed on the supplemental third-party complaint at that stage in the proceedings. We agree.

A writ of prohibition may be appropriate if a circuit court acts in excess of its jurisdiction in a given case. See City of Sanibel v. Maxwell, 925 So.2d 486, 488 (Fla. 2d DCA 2006); City of St. Petersburg v. Circuit Court of the Sixth Judicial Circuit, 422 So.2d 18, 19 (Fla. 2d DCA 1982). The question becomes whether the circuit court in this case had jurisdiction to allow the filing of the supplemental third-party complaint after entry of the final judgment but before the Lewises withdrew their pending motion for additional attorney's fees and costs.

“ ‘The rule is firmly established in this State that the trial Court loses jurisdiction of a cause after a judgment or final decree has been entered and the time for filing petition for rehearing or motion for new trial has expired or same...