          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D18-2703
                  _____________________________

LEON COUNTY, FLORIDA,

    Petitioner,

    v.

LAKESHORE GARDENS
HOMEOWNERS’ ASSOCIATION,
INC., a Florida not for profit
corporation; LAKESHORE
GARDENS HOMEOWNERS’
ASSOCIATION, INC., a Florida not
for profit corporation, as the
representative for the class of all
lot owners of Lakeshore
Gardens, as per plat thereof
recorded in Plat Book 12, Page
2, of the Official Records of Leon
County, Florida; LEON COUNTY
TAX COLLECTOR; and LEON
COUNTY PROPERTY APPRAISER,

    Respondents.
               _____________________________


Petition for Writ of Certiorari—Original Jurisdiction.

                         February 28, 2019
PER CURIAM.

     Leon County has filed a petition for writ of certiorari in this
Court seeking review of the circuit court’s nonfinal order granting
the motion to dismiss its Petition in Eminent Domain filed by
Lakeshore Gardens Homeowners’ Association, Inc. Through its
petition filed below, Leon County sought to exercise its eminent
domain authority over certain common area property in the
Lakeshore Gardens neighborhood for use as an easement. The
neighborhood reportedly has more than 100 property owners, all
of which have an interest in the common area.

     The circuit court dismissed the petition on the basis it was
reliant only upon Florida Rule of Civil Procedure 1.221 in naming
the homeowners association rather than joining, as indispensable
parties, each individual property owner as specified in section
73.021, Florida Statutes. In granting the association’s motion to
dismiss, the circuit court ruled that while the homeowners
association contended “it does not have authority to act on behalf
of the homeowners . . . at this stage of the proceedings, it is more
significant that the [petition] contain[ed] no allegations that the
Association has the needed legal authority.” Accordingly, the
circuit court granted Leon County twenty days to submit an
amended petition, presumably to list “[t]he names, places of
residence, legal disabilities, if any, and interests in the property of
all owners . . . ” in the affected area, as prescribed by section
73.021(4), Florida Statutes.

     We grant Leon County’s petition for writ of certiorari. Despite
the general directions in section 73.021(4) for naming
indispensable parties, section 720.303(1), Florida Statutes,
provides in relevant part that “the [homeowners] association may
institute, maintain, settle, or appeal actions or hearings in its
name on behalf of all members concerning matters of common
interest to the members . . . [and] may defend actions in eminent
domain or bring inverse condemnation actions.” (Emphasis added.)
In like manner, rule 1.221 expressly permits a homeowners
association to “institute, maintain, settle, or appeal actions or
hearings in its name on behalf of all association members
concerning matters of common interest to the members, including,
but not limited to: . . . (6) defense of actions in eminent domain or

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prosecution of inverse condemnation actions.” Because, to date,
Florida’s appellate courts have not addressed the propriety of
naming the homeowners association as the sole party representing
the class of homeowners under the statute and rule just cited, we
turn to the decisions of the Second District in Tedeschi v. Surf Side
Tower Condominium Ass’n, 35 So. 3d 915 (Fla. 2d DCA 2010), and
the Third District in Trintec Construction Inc. v. Countryside
Village Condominium Ass’n, 992 So. 2d 277 (Fla. 3d DCA 2008).
Both Tedeschi and Trintec Construction addressed the issue as it
relates to condominium associations in the context of petitions for
writs of certiorari and both held that rule 1.221 authorizes a
plaintiff to name only the condominium association, rather than
having to name all the condominium unit owners as indispensable
parties. We apply the logic expressed in Tedeschi and Trintec
Construction to reach the same conclusion in the instant case.

    As a preliminary matter,

        [b]efore a court may grant certiorari relief from the
    denial of a motion to dismiss, the petitioner must
    establish the following three elements: “‘(1) a departure
    from the essential requirements of the law, (2) resulting
    in material injury for the remainder of the case (3) that
    cannot be corrected on postjudgment appeal.’”

Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011) (quoting Reeves
v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004)
(quoting Bd. of Regents v. Snyder, 826 So. 2d 382, 387 (Fla. 2d DCA
2002))). “The last two elements are jurisdictional and must be
analyzed before the court may even consider the first element.” Id.

     In Tedeschi, the Second District held that by failing to
acknowledge the provisions of rule 1.221, “[t]he circuit court
departed from the essential requirements of the law by requiring
the [petitioners/plaintiffs] to include the more than eighty other
members of the condominium association in their lawsuit . . . .” 35
So. 3d at 919. Significantly, it went on to find that the circuit
court’s order improperly requiring the petitioners/plaintiffs “to file
their complaint against over eighty additional defendants, [] would
cause a material injury for the remainder of the proceedings for
which there is no adequate remedy on appeal.” Id. at 920 (citing
Trintec Constr., Inc., 992 So. 2d at 280). The Second District
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expressed its logic in the following discussion of case law, including
Trintec Construction:

    In Parkway Bank v. Fort Myers Armature Works, Inc.,
    658 So. 2d 646, 649-50 (Fla. 2d DCA 1995), this court
    noted that where the issues to be resolved address
    procedures designed to avoid litigation, those issues can
    be reviewed by certiorari. For example, “an order
    dispensing with a statutorily mandated presuit
    procedure, which is a condition precedent to a legal
    proceeding,” is reviewable by certiorari “because the
    purpose of the presuit screening is to avoid the filing of
    the lawsuit in the first instance.” Id. at 649. In Parkway
    Bank, this court further noted that limited certiorari
    review was permitted to consider cases involving “the
    statutory procedures for amending a complaint to allege
    punitive damages because those safeguards cannot be
    remedied postjudgment.” Id.

         In Trintec Construction, Inc., 992 So. 2d at 280, the
    court concluded that “the cost and delay inherent in
    identifying, pleading against, and serving a multitude of
    owners (and then substituting a new owner for a
    predecessor during the pendency of the case as units are
    sold or otherwise transferred) would be substantial.” See
    also Mantis v. Hinckley, 547 So. 2d 292, 293 (Fla. 4th
    DCA 1989) (concluding that circuit court erred in denying
    motion to dismiss where mortgagee failed to join a
    dissolution receiver as an indispensable party, and
    therefore, the petitioners established the circuit court
    departed from the essential requirements of law and
    there was a lack of an adequate remedy on appeal).

Id. at 919-20 (emphasis added).

     We perceive no legal impediment to applying the rationales
expressed in Tedeschi and Trintec Construction to cases involving
homeowners associations. Accordingly, in the present case, we
conclude that by dismissing Leon County’s petition for failure to
join indispensable parties—namely, all one hundred or more of the
property owners—the circuit court departed from the essential
requirements of the law by failing to apply Section 720.303(1) and
                                  4
rule 1.221, which would permit Lakeshore Homeowners’
Association, Inc., to be named as the proper party to defend against
an eminent domain proceeding on behalf of the individual
homeowners. Moreover, as in Tedeschi and Trintec Construction,
we hold the circuit court’s action in dismissing Leon County’s
petition for failure to join indispensable parties caused a material
injury to Leon County for which there would be no adequate
remedy on appeal.

     Consequently, for the reasons expressed, we grant Leon
County’s petition for writ of certiorari and quash the order of the
circuit court.

RAY, KELSEY, and JAY, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Daniel J. Rigo and Katherine Vernet, Assistant County Attorneys,
Tallahassee, for Petitioner.

John A. Grant of The Law Office of John A. Grant, P.A,
Tallahassee; Edwin R. Hudson of Henry Buchanan, P.A.,
Tallahassee, for Respondent Lakeshore Gardens Homeowners’
Association, Inc.




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