Friday, January 28, 2011

Fifth District Grant Certiorari, Vacates Order That Impacted Rights Of Non-Party

In Generation Investments v. Al-Jumaa (5D09-2933), the Fifth District vacated an order "denying in part, and granting in part" a motion for relief from judgment.  Generation Investments, a non-party in the trial court, "contends that it was error to enter  the injunction because Generation was an indispensable party to the action, but was not joined as a party."  The Fifth District:
elect[ed] to treat the notice of appeal as a petition for writ of certiorari.  An appellate court has certiorari jurisdiction where a nonparty seeks relief from an order and its nonparty status would otherwise deprive the nonparty of an adequate remedy by direct appeal.
The court stated:
The record reveals that Generation, as the tenant of the  property, painted the building, displayed signs, flags, banners, and balloons on the property, and sold timeshares from the property.  Al-Jumaa, as the owner of the property, is required under the injunction to repaint the building, to stop the sale of timeshares from the property, and to remove the signs, flags, banner, and balloons from the property.  Because the injunction requires Al-Jumaa to take steps to change the way in which the property is being used, and Generation is the entity using the property in a way that will be altered by the injunction, the injunction cannot be carried out without affecting Generation's use of the property. 
Generation relies on several authorities, including Alger v. Peters, 88 So. 2d 903 (Fla. 1956), Sheoah Highlands, Inc. v. Daugherty, 837 So. 2d 579 (Fla. 5th DCA 2003) and Stevens v. Tarpon Bay Moorings Homeowners Ass'n Inc., 15 So. 3d 753 (Fla. 4th DCA 2009), for the proposition that the impact of the  injunction makes them an indispensible party to the action.   
The court agreed with Generation and the authority it cited and held: "Because we conclude Generation was an indispensable party to the action, we vacate the order."


Post a Comment