FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
for Certiorari Review of Order from the Circuit Court for
Volusia County, Christopher A. France, Judge.
J. Angell, of O'Connor & O'Connor, LLC, Winter
Park, for Petitioner.
A. Monaco and John N. Bogdanoff, of The Carlyle Appellate Law
Firm, Orlando, for Respondents, Michael P. Short and Kathy M.
Appearance for Respondent, PKC Roofing, Inc. d/b/a
Wayne's Roofing & Sheet Metal.
Condominiums, Inc. ("Martinique") seeks certiorari
review of an order granting Michael and Kathy Short's
("Shorts") motion to sever Martinique's
third-party action against PKC Roofing, Inc., d/b/a
Wayne's Roofing & Sheet Metal ("Wayne's
Roofing") from the main action. Concluding that the
Shorts' claim for damages as alleged in their complaint
filed against Martinique and Martinique's third-party
claim against Wayne's Roofing are inextricably
interwoven, we grant the petition and quash the order.
Shorts own a condominium unit in a condominium complex
operated and maintained by Martinique. The Shorts filed suit
against Martinique, alleging various causes of action that,
at their core, assert that they have sustained damages due to
a leak in the roof of the building where their unit is
located. The Shorts contend that this leak was proximately
caused by Martinique's breach of its contractual,
statutory, or common law duty owed to the Shorts to properly
repair and maintain the roof. Martinique answered the
complaint and, as one of its affirmative defenses, alleged
that the damages complained of by the Shorts resulted from
"actions or inactions of third parties over which
[Martinique] has no control, nor any right of control,
including Wayne's Roofing."
later filed a third-party action against Wayne's Roofing,
asserting causes of action for common law indemnity and
contribution, among others. In its third-party complaint,
Martinique alleged that in 2005, it hired Wayne's Roofing
to construct a roof on the subject condominium complex and
that over the subsequent years, Wayne's Roofing had
performed regular maintenance and repair work on the roof.
Martinique further alleged that Wayne's Roofing is an
independent contractor over which Martinique exercised no
direct control or supervision over the means and methods of
roof installation, repair, and maintenance and to the extent
that Martinique is ultimately found liable for damages to the
Shorts, its liability is the result of the actions or
inaction of Wayne's Roofing.
Shorts filed a motion to sever the third-party action from
their main action, arguing that the third-party action was
significantly affecting the orderly presentation of their
case and was unfairly delaying the resolution of their claims
against Martinique. However, at that time, no party had filed
a notice requesting that the court set the case for trial nor
did there appear to be any record impediment from any party
doing so. The trial court entered the unelaborated order now
under review granting the motion.
seeking certiorari relief "must establish (1) a
departure from the essential requirements of law, (2)
resulting in material injury for the remainder of the trial
(3) that cannot be corrected on postjudgment appeal."
Choi v. Auto-Owners Ins. Co., 224 So.3d 882, 883
(Fla. 2d DCA 2017) (quoting Rogan v. Oliver, 110
So.3d 980, 982 (Fla. 2d DCA 2013)). Although Florida Rule of
Civil Procedure 1.270(b) provides courts with the discretion
to sever claims "in furtherance of convenience or to
avoid prejudice, " certiorari is an appropriate remedy
for orders severing claims that involve interrelated factual
issues because of the risk of inconsistent verdicts.
Minty v. Meister Financialgroup, Inc., 97 So.3d 926,
931 (Fla. 4th DCA 2012) (quoting Kavouras v. Mario City
Rest. Corp., 88 So.3d 213, 214 (Fla. 3d DCA 2011)).
by allowing the main action to remain severed from the
third-party action, there is a clear risk of inconsistent
verdicts. The jury in the main action could find that
Martinique is liable to the Shorts for damages because
Martinique breached its duty owed to the Shorts to repair or
maintain the roof, yet, in the third-party action, a second
jury, based on similar evidence presented regarding the
installation, repair, and maintenance of the roof, may reach
an entirely different result and conclude that there was no
breach of any duty in the installation, maintenance, or
repair of the roof. Under these circumstances, Martinique
would have sustained a material injury that cannot be
remedied on a postjudgment appeal.
because Martinique has demonstrated that the trial court
departed from the essential requirements of the law by
severing claims that involve inextricably related factual
issues, see Choi, 224 So.3d ...