DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

SOUTHERN COMFORT GRILL, INC.,

Appellant,

v.

HANKS CONSTRUCTION, LLC; NICK NICO, JR.; and BARBARA J. 

NICO,

Appellees.

No. 4D13-3972

[January 7, 2015]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, 

Indian River County; Cynthia L. Cox, Judge; L.T. Case No. 

312013CA000055.

Robert J. Gorman and John S. Penton, Jr. of Robert J. Gorman & 

Associates, P.A., Fort Pierce, for appellant.

Brian M. Hoag of Boss, Arrighi & Hoag, P.L., St. Petersburg, for 

appellee Hanks Construction, LLC.

CIKLIN, J.

Appellant, Southern Comfort Grill, Inc. (“the grill”), challenges a trial

order denying its motion to intervene and join as a counterclaimant on 

the singular basis that the movant, the grill, “has not shown an interest 

that is indispensable.” Because indispensability is not the full and

proper legal standard by which to consider a motion to intervene, we

must reverse and remand for further proceedings.

The grill operates a restaurant located within a commercial center in 

Vero Beach, Florida. The business is owned by the defendants below, 

Nick Nico, Jr. and Barbara Nico, who entered into an oral contract with 

Hanks Construction, LLC (“Hanks”), the plaintiff below, under which 

Hanks was to make improvements to the leasehold property to make it 

suitable for the grill’s operations. After not receiving the payment

allegedly agreed upon, Hanks recorded a mechanic’s lien on the property 

and filed an action for breach of contract and foreclosure of its lien

against Mr. and Mrs. Nico in their personal capacities. The restaurant’s
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corporate entity, the grill, moved to intervene in the action, contending 

that its principal place of business was the subject of the lien and that it 

was the real party at interest because the Nicos were acting as its agents 

when the agreement was made between the parties. The trial court 

denied the grill’s motion, finding that the grill “has not shown an interest 

that is indispensable.”

In determining whether to grant a motion to intervene, the trial court 

must first determine if the intervenor’s purported interest entitles it to 

intervene:

[T]he interest which will entitle a person to intervene . . . must be 

in the matter in litigation, and of such a direct and immediate 

character that the intervenor 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 to, or lien upon, the property or some 

part thereof, which is the subject of litigation.

Union Cent. Life Ins. Co. v. Carlisle, 593 So. 2d 505, 507 (Fla. 1992) 

(quoting Morgareidge v. Howey, 78 So. 14, 15 (Fla. 1918)).

After concluding that the party’s interest is appropriate to support 

intervention, the trial court “must [then] exercise its sound discretion to 

determine whether to permit intervention.” Id. “In deciding this question 

the court should consider a number of factors, including the derivation of 

the interest, any pertinent contractual language, the size of the interest, 

the potential for conflicts or new issues, and any other relevant 

circumstance.” Id. at 507-08. 

It appears that the trial court did not engage in the complete analysis 

required for intervention and instead accepted Hanks’ bare argument 

that a party’s interest must simply be indispensable. The grill correctly 

argues that the proper and controlling standard for intervention is not 

whether the party seeking to intervene is indispensable in the simple and 

literal meaning of the word, but more directly, whether the party’s 

interest in the litigation is of a direct and immediate character, as 

determined by the complete analysis enunciated by the Florida Supreme 

Court. 

“[A] misconception by the trial judge of a controlling principle of law 

can constitute grounds for reversal.” Applegate v. Barnett Bank of 

Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (citations omitted). 

Consequently, we reverse the order and remand the case for findings and 
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analysis under the proper legal principle.

Reversed and remanded with instructions.

CONNER and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.