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Symcon Development Group Corp. v. Passero

Florida Court of Appeals, Fourth District

May 31, 2017

SYMCON DEVELOPMENT GROUP CORPORATION, Appellant,
v.
BINDU PASSERO and ANAND AMARNATH, Appellees.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Mily Rodriguez-Powell, Judge; L.T. Case No. CACE16-001994.

          Susan E. Trench of Arnstein & Lehr LLP, Miami, for appellant.

          Robert S. Miller of Robert S. Miller, P.A., Fort Lauderdale, for appellee Anand Amarnath.

          Forst, J.

         Appellant Symcon Development Group Corp. appeals the trial court's denial of its motion to intervene, arguing the court should not have denied its motion because Appellant had a direct and immediate interest in the subject matter of the underlying lawsuit between Appellees Bindu Passero and Anand Amarnath. As set forth below, we agree with Appellant, and reverse and remand for the trial court to grant Appellant's motion.

         Background

         Bindu Passero ("Plaintiff") filed an amended verified complaint against her brother, Anand Amarnath ("Defendant"), alleging Defendant committed tortious acts leading to the improper transfer of certain real property from their father to Defendant. Allegedly, after their father suffered a stroke, Defendant "unduly influenced the Decedent [father] into executing a Quit-Claim Deed dated November 16, 2011, which had the effect of removing Plaintiff as a remainder beneficiary of the subject real property upon the death of the Decedent." Plaintiff attached the quit-claim deed to the verified complaint, and contended she "would have been a joint owner of the subject real property but for the improper conduct of the Defendant."

         After learning of the suit, Appellant filed an Emergency Motion to Intervene. Appellant sought intervention because "Intervenor has a pending Residential Contract for Sale and Purchase with Defendant, ANAND AMARNATH, to purchase the Property . . . ." Appellant attached the land sale contract to its motion, and stated that it was "affected in a direct and immediate manner such that Intervenor will either gain or lose by the direct legal operation and effect of the Court's final judgment in this matter."

         The trial court denied the motion to intervene. The court's decision found Appellant's interest in the case was "merely indirect, inconsequential, or contingent, " and noted that Defendant could adequately defend Appellant's interest in the underlying lawsuit. It also found that Appellant could sufficiently guard its interest in the property by bringing separate suit. Appellant filed a motion for reconsideration, but the trial court denied it, explaining that because Defendant "no longer desires to go forward with the sale" with Appellant, the matter was moot and intervention unnecessary.[1] The court also noted it was denying the motion for reconsideration because Appellant had since initiated a separate lawsuit to enforce the contract.

         Analysis

         "We review an order denying a motion to intervene for abuse of discretion." De Sousa v. JP Morgan Chase, N.A., 170 So.3d 928, 929 (Fla. 4th DCA 2015).

         Pursuant to Florida Rule of Civil Procedure 1.230, "[a]nyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion." Shedding light on the rule, the Florida Supreme Court has established the definitive test for determining whether a third party can intervene:

"It has generally been held that the interest which will entitle a person to intervene under this provision must be in the matter in litigation, and of such a direct and immediate character that the intervener will either gain or lose by the direct legal operation and effect of the judgment. In other words, the interest must be that created by a claim to the demand in suit or some part thereof, or a claim ...

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