Opinion
No. 3D04-2072.
March 16, 2005.
Appeal from the Circuit Court, Miami-Dade County, Henry H. Harnage, J.
John G. Immer, Miami, in proper person.
Jorge L. Fernandez, Sarasota, and Elsa Jaramillo-Velas and Regine Monestime, Miami, for appellee.
Before COPE, GREEN and FLETCHER, JJ.
John G. Immer appeals an order denying his petition for writ of mandamus, filed in the circuit court. According to the petition, petitioner Immer asked the City of Miami to cancel a building permit issued to The Moorings Property Owners Association. The City refused to do so.
Immer filed a petition for writ of mandamus in the circuit court, requesting an order directing the City to cancel the building permit. In an action to cancel a building permit, the holder of the permit must be joined as a party defendant. Immer failed to join the permit holder — the Association — as a party to the proceeding. We conclude that dismissal was appropriate because Immer failed to join an indispensable party. See Fla. R. Civ. P. 1.140(h); City of Deland v. State ex rel. Watts, 423 So.2d 529, 531 (Fla. 5th DCA 1982); see also Morse Diesel International, Inc. v. 2000 Island Blvd., Inc., 698 So.2d 309, 311-12 (Fla. 3d DCA 1997).
The trial court ruled that mandamus was the incorrect remedy. Under the circumstances present here, we agree. The petition and attachments reveal that there is a disputed factual issue in the case. In applying for the building permit, the Association swore that it was the owner of the land on which the proposed gatehouse was to be constructed. Immer asserts that he is a lot owner in The Moorings and an attorney specializing in real estate. He states that in his opinion the operative real estate documents make the lot owners (not the Association) the owners of the land on which the gatehouse is to be constructed.
Since there is a factual dispute regarding ownership of the property, mandamus is not an available remedy. "[R]elief cannot be afforded by mandamus where the right to which relator claims he clearly is entitled depends on the determination of controverted questions of fact[]." State ex rel. Blatt v. Panelfab Int'l Corp., 314 So.2d 196, 198 (Fla. 3d DCA 1975); see also Morse Diesel, 698 So.2d at 312; City of Deland, 423 So.2d at 530-31; Florence v. Walton County, 593 So.2d 1217, 1218 n. 1 (Fla. 1st DCA 1992).
Affirmed.