         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                              NOT FINAL UNTIL TIME EXPIRES TO
                                              FILE MOTION FOR REHEARING AND
                                              DISPOSITION THEREOF IF FILED

MARTINIQUE CONDOMINIUMS, INC.,

             Petitioner,

 v.                                                  Case No. 5D17-1546

MICHAEL P. SHORT, KATHY M.
SHORT AND PKC ROOFING, INC.
D/B/A WAYNE'S ROOFING & SHEET
METAL,

             Respondents.

________________________________/

Opinion filed December 1, 2017

Petition for Certiorari Review of Order
from the Circuit Court for Volusia County,
Christopher A. France, Judge.

Derek J. Angell, of O'Connor & O'Connor,
LLC, Winter Park, for Petitioner.

David A. Monaco and John N. Bogdanoff,
of The Carlyle Appellate Law Firm, Orlando,
for Respondents, Michael P. Short and
Kathy M. Short.

No Appearance for Respondent, PKC
Roofing, Inc. d/b/a Wayne’s Roofing &
Sheet Metal.


PER CURIAM.

      Martinique 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.

       The 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.”

       Martinique 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.




                                            2
       The 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.

       A party 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)).

       Here, 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




                                             3
circumstances, Martinique would have sustained a material injury that cannot be

remedied on a postjudgment appeal.

       Accordingly, 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 at 884, we grant the petition for certiorari and

quash the order.

       PETITION GRANTED; ORDER QUASHED.

COHEN, C.J., LAMBERT and EISNAUGLE, JJ., concur.




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