         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


JOHN WESLEY MIMS,

              Petitioner,

 v.                                                      Case No. 5D15-4447

AUDREY BROXTON,

              Respondent.

________________________________/

Opinion filed May 20, 2016

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

John Wesley Mims, Cross City, pro se.

No Appearance for Appellee.


PER CURIAM.

       John Mims petitions this Court for a writ of certiorari, seeking review of the lower

court’s denial of his motion for leave to amend his complaint to add an indispensable

party. We grant the petition and quash the order under review.

       The facts stem from a foreclosure lawsuit filed by Mims against Audrey Broxton.

The lower court dismissed the action on the note for failure to join an indispensable party.

In the same order, the trial court found that Mims had not established that a mortgage

existed, but rather that the litigated document only operated as a promissory note.
Although the court found that Mims "may" be entitled to recover the unpaid portion of the

promissory note, instead of determining entitlement, the court dismissed the action

without prejudice for failure to join the joint note holder.

       On appeal, this court considered the order non-final and, therefore, non-

appealable and dismissed the appeal.1 Following this, Mims filed a motion to amend the

complaint. The trial court denied the motion finding the case was closed. This timely

petition followed.

       To receive relief under certiorari review, the petitioner must show that (1) the lower

court departed from the essential requirements of the law, (2) the petitioner will suffer a

material injury for the rest of the case, and (3) there is no adequate remedy on post-

judgment appeal. Holmes Reg’l Med. Ctr., Inc. v. Dumigan, 151 So. 3d 1282, 1284 (Fla.

5th DCA 2014) (citing Allan & Conrad, Inc. v. Univ. of Cent. Fla., 961 So. 2d 1083, 1087

(Fla. 5th DCA 2007)). The last two requirements "are often combined into the concept of

'irreparable harm . . . .'" Id. (citing Citizens Prop. Ins. Corp. v. San Perdido Ass’n, 104 So.

3d 344, 351 (Fla. 2012)). Irreparable harm is jurisdictional, and must be found before a

court may even consider whether there has been a departure from the essential

requirements of the law. Id.

       The order currently before this Court denies Mims’ motion to amend, which was

filed in an attempt to add the indispensable party. The only justification for this denial

appears to be the lower court’s finding that the case was closed. However, as this Court

found in Mims’ prior appeal, the lower court’s dismissal was not a determination on the

merits. Despite concluding no mortgage existed, the trial court’s order specifies that Mims



       1   Mims v. Broxton, No. 5D14-1177 (Fla. 5th DCA July 2, 2015).

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"may" be entitled to recover the remainder of the amount owed under the note. This

language is equivocal and leaves the issue open for future judicial determination. See

Paulino v BJ's Wholesale Club, Inc., 106 So. 3d 985, 988 (Fla. 4th DCA 2013) (finding

order of dismissal to be non-final where language of order was "somewhat equivocal, i.e.,

it 'appears plaintiff failed to exhaust administrative remedies, allegations in the complaint

go beyond those arguably presented in the administrative charge . . . .'") Accordingly, the

case was not closed.

       As the order below was not final, the order denying leave to amend the complaint

was erroneous. Nevertheless, for such an error to reach the level of "[a] departure from

the essential requirements of law," it must violate "a clearly established principle of law

[resulting] in a miscarriage of justice." State Farm Fla. Ins. Co. v. Lorenzo, 969 So. 2d

393, 397 (Fla. 5th DCA 2007) (discussing "departure from the essential requirements of

law" with reference to second-tier certiorari review). A determination of the finality of

judgments is well-established in the law. Because the order denying leave to amend the

complaint effectively deprives Mims of any final judgment to appeal, he clearly has no

adequate remedy on appeal. For this reason, the lower court’s order also represents a

miscarriage of justice.

       PETITION GRANTED.

COHEN, BERGER and LAMBERT, JJ., concur.




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