Opinion
Case No. 2D20-1171
04-07-2021
PEOPLE'S TRUST INSURANCE COMPANY, Petitioner, v. ISLAND ROOFING & RESTORATION, LLC a/a/o Kenneth Rodger & Sharyn Rodger, Respondent.
Stephen W. Bazinsky and Catherine Galvis of Bazinsky, Korman & Baker, P.A., Plantation, for Petitioner Anthony J. Tinelli and Gabriel J. Fernandez of Tinelli Fernandez, PLLC, Coral Gables, for Respondent.
Stephen W. Bazinsky and Catherine Galvis of Bazinsky, Korman & Baker, P.A., Plantation, for Petitioner
Anthony J. Tinelli and Gabriel J. Fernandez of Tinelli Fernandez, PLLC, Coral Gables, for Respondent.
CASANUEVA, Judge.
People's Trust Insurance Company seeks certiorari review of an order granting its motion to dismiss Island Roofing & Restoration, LLC's amended complaint without prejudice and allowing Island Roofing to file a second amended complaint substituting plaintiffs. While we agree that the order allowing substitution of party plaintiffs was erroneous, we do not find that this error amounts to irreparable harm that cannot be remedied on appeal. Thus, we must dismiss the petition.
The insureds, Kenneth Rodger and Sharyn Rodger, executed an assignment of benefits to Island Roofing for damage sustained to their home from Hurricane Irma. Island Roofing filed a one-count breach of contract complaint against People's Trust, claiming it failed to pay amounts due to Island Roofing under the assignment of benefits. People's Trust argued that Island Roofing lacked standing to sue under the assignment. Island Roofing appeared to concede this issue at the hearing but requested and was granted permission to amend its complaint again to join the Insureds as plaintiffs and remove themselves. People's Trust argues that this amounted to an improper substitution of party plaintiff and an impermissible attempt to correct standing.
Island Roofing did not attach a proposed second amended complaint to its motion for leave to amend.
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On certiorari review, a petitioner must establish "(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." Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004) ). The first element, a departure from the essential requirements of the law, contemplates more than mere legal error, but "a violation of [a] clearly established principle of law resulting in a miscarriage of justice." Id. at 1133 (quoting Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 527 (Fla.1995) ). The last two elements, material injury that cannot be corrected on appeal, otherwise termed irreparable harm, are jurisdictional. Citizens Prop. Ins. v. San Perdido Ass'n, 104 So. 3d 344, 351 (Fla. 2012). "If the petitioner fails to satisfy the jurisdictional elements, this court dismisses the petition rather than denying it." Plantz v. John, 170 So. 3d 822, 824 (Fla. 2d DCA 2015).
Here, People's Trust argues that the trial court departed from the essential requirements of the law by allowing Island Roofing to amend its complaint to join the Insureds as plaintiffs to the lawsuit and drop Island Roofing. Florida Rule of Civil Procedure 1.260 sets forth the procedures for substitution of parties under certain circumstances, including death, incompetency, or transfer of interest. It is well settled that a substituted plaintiff stands in the shoes of the original plaintiff and "acquires the standing (if any) of the original plaintiff at the time the case was filed." Nationstar Mortg., LLC v. Bo Chan, 226 So. 3d 330, 332 (Fla. 5th DCA 2017) (quoting Sandefur v. RVS Cap., LLC, 183 So. 3d 1258, 1260 (Fla. 4th DCA 2016) ). The permissible grounds for substitution under rule 1.260 (none of which were argued below) essentially place a new representative in the shoes of the original plaintiff, subject to the same allegations of standing.
At the hearing on the motion to dismiss, counsel for People's Trust argued, among other things, that Island Roofing lacked standing to sue under an assignment of benefits because of assignments from the Insureds to EZ Roofing and the Small Business Administration predating the Insureds' attempted assignment to Island Roofing. Counsel for Island Roofing did not disagree with this argument and sought to substitute the Insureds as plaintiffs in place of Island Roofing, stating it would amend the complaint to attach a release of the EZ Roofing assignment.
People's Trust objected, stating that there were no grounds allowing for substitution of the plaintiff pursuant to rule 1.260. It further argued that a lack of standing at inception of the case cannot be remedied during the pendency of the case and, thus, dismissal with prejudice was required.
In light of these arguments, the trial court initially granted the motion to dismiss with prejudice. Island Roofing then stated it was really just trying to join the Insureds as the proper plaintiffs and then drop Island Roofing. The court granted this ore tenus motion and granted People's Trust's motion to dismiss without prejudice.
Island Roofing may have recharacterized its motion to substitute as a motion to join new plaintiffs and drop the original, but in reality it was an improper substitution, and the trial court erred in allowing it. By all accounts, Island Roofing was in fact attempting to resolve the standing issue by substituting one plaintiff for another (even if doing so in two steps rather than one), thereby avoiding an involuntary dismissal. The result is the same—a plaintiff with no standing—because the Insureds can only step into the shoes of the original plaintiff, Island Roofing. See Bo Chan, 226 So. 3d at 332. "[A] 'party must have standing to file suit at its inception and may not remedy this defect by subsequently obtaining standing.' " Figueroa v. Fed. Nat'l Mortg. Ass'n, 180 So. 3d 1110, 1115 (Fla. 5th DCA 2015) (quoting Venture Holdings & Acquisitions Grp., LLC v. A.I.M. Funding Grp., LLC, 75 So. 3d 773, 776 (Fla. 4th DCA 2011) ). The trial court's ruling allowing this two-step substitution of plaintiff constituted a violation of a clearly established principle of law.
However, this only meets one requirement of certiorari review; the petitioner must also show irreparable harm resulting from the error. "Very few categories of non-final orders qualify for the use of this extraordinary writ." Citizens Prop., 104 So. 3d at 351-52. People's Trust has failed to establish irreparable harm resulting from the challenged nonfinal order. Citing Progressive Express Insurance Co. v. McGrath Community Chiropractic, 913 So. 2d 1281, 1286-87 (Fla. 2d DCA 2005), People's Trust argues that we should nonetheless find irreparable harm in this case because the order has precedential value and the error would be applied to numerous other proceedings. We find this case to be distinguishable and decline the invitation to apply an exception.
Accordingly, People's Trust has failed to establish a jurisdictional basis for certiorari review. We therefore dismiss the petition.
Petition dismissed.
LaROSE and ROTHSTEIN-YOUAKIM, JJ., Concur.