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. 5D 15

- 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 Au drey Broxton. The lower court dismissed th e 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 operate d as a promissory note.2

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 holde r. On appeal, this court considered the order non

- final and , therefore, non a ppealable 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 pet ition 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 ofte n 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 th ere 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 b e the lower court’s fin ding 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 cou rt’s order specifies that Mi ms

1 Mims v. Broxton , No. 5D14

- 1177 (Fla. 5th DCA July 2, 2015).3

"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 Whole sale Club, Inc. , 106 So. 3d 985, 988 (Fla. 4th DCA 2013) (f in ding order of dismissal to be non - final where language of order was "somewhat equivocal, i.e.,
it ' appears plaintiff failed to exhaust administrative remedies, allegation s in the complaint go be y ond 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 ess ential 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 es sential requirements of
law" with reference to s econd

- tier certiorari review). A determination of th e finality of judgments is well

- established in the law. Because the order denying leave to a mend the complaint effectively deprives Mims of any final judgment to appeal, he clearly has no adequate remed y on appeal. For this reason, the lower court’s order also represents a miscarriage of justice. PETITION GRANTED. COHEN, BERGER and LAMBERT, JJ., concur.