Filing # 185879859 E-Filed 11/09/2023 06:09:55 PM
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`IN THE CIRCUIT COURT OF THE
`ELEVENTH JUDICIAL CIRCUIT IN AND
`FOR MIAMI-DADE COUNTY, FLORIDA
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`CASE NO. 2023-022055-CA-01 (09)
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`MIGUEL YANEZ,
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`Plaintiff,
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`v.
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`AMERICAN
`COMPANY,
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`SECURITY
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`INSURANCE
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`Defendant.
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`DEFENDANT’S MOTION TO DISMISS FOR FAILURE
`TO INCLUDE INDISPENSABLE PARTY
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`Defendant, American Security Insurance Company (“ASIC”), through its undersigned
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`counsel and pursuant to Florida Rule of Civil Procedure 1.140, moves to dismiss the Complaint
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`filed by Plaintiff, Miguel Yanez1 (“Plaintiff”) because it fails to include his spouse Sonia E. Wichy-
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`Yanes, the co-owner of the insured property, who is an indispensable party. In support thereof,
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`ASIC states as follows:
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`1.
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`ASIC issued a lender-placed insurance policy insuring the residential property
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`located at 6635 SW 136th Ct., Miami, FL, 33183-2344, bearing policy number MLR745901005
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`(the “Policy”), with effective dates of coverage from November 20, 2019 through November 20,
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`2020. A true and correct copy of the Policy’s declaration page is attached hereto as Exhibit A.
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`2.
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`Plaintiff filed a Complaint on August 28, 2023, which was served upon ASIC on
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`1 According to the operative ownership documents and the applicable Policy, which are attached hereto as exhibits,
`the Plaintiff’s actual name is “Miguel A. Yanes.”
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`2023-022055-CA-01 (09)
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`September 20, 2023.
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`3. Miguel Yanez is the only Plaintiff named in the Complaint. However, Sonia E.
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`Wichy-Yanes is the Plaintiff’s spouse and a co-owner of the Property as listed on the applicable
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`deed recorded in the Miami-Dade County Official Records as of the applicable Policy period. She
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`is also listed as a co-insured on the Policy. As such, Ms. Wichy-Yanes has an insurable interest in
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`the subject property. A true and correct copy of the Warranty Deed is attached hereto as Exhibit
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`B.
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`4.
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`Sonia E. Wichy-Yanes is therefore an indispensable party who has an interest in
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`the outcome of this lawsuit, but she was not named as a party.
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`5.
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`Consequently, for the reasons discussed infra, Plaintiff’s Complaint should be
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`dismissed because it failed to include Sonia E. Wichy-Yanes.
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`ARGUMENT
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`A.
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`Legal Standard.
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`Indispensable parties must be included in a litigation, and if they are not added under Rule
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`1.250(e), then the action is subject to dismissal. Martinez v. Balbin, 76 So. 2d 488 (Fla, 1954).
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`The rationale for the rule requiring joinder of indispensable parties is that it is necessary to protect
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`the defendant from the expense of defending multiple separate lawsuits and the exposure of
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`multiple separate judgments arising out of the same claim. See DeToro v. Dervan Investments Ltd.
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`Corp., 483 So. 2d 717 (Fla. 4th DCA 1985).
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` B.
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`Plaintiff’s Complaint Fails to Include an Indispensable Party Who Has an
`Interest in the Outcome of This Lawsuit.
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`Here, pursuant to Florida Rule of Civil Procedure 1.140(b), the Complaint should be
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`dismissed upon Plaintiff’s failure to join all persons listed on the warranty deed of the subject
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`property.
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`2
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`2023-022055-CA-01 (09)
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`An “[i]ndispensable party” is one whose interest in the subject matter of the action is such
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`that if he is not joined, complete and efficient determination of equities and rights and liabilities
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`of other parties is not possible. Grammer v. Roman, 174 So. 2d 443 (Fla. 2d DCA 1965); Kephart
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`v. Pickens, 271 So. 2d 173 (Fla. 4th DCA 1972); see also Insurance Company of North America
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`v. Braddon, 285 So. 2d 634 (Fla. 3rd DCA 1973) (insured was an indispensable party who must
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`be joined in an action against insurer).
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`“[I]n support of a motion to dismiss for failure to join indispensable parties, it is permissible
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`to support the motion with evidence outside the complaint.” Fresh Del Monte Produce, N.Y. v.
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`Chiquita Int’l Ltd., 664 So. 2d 263, 265 (Fla. 3d DCA 1996); see also City Nat’l Bank of Miami v.
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`Simmons, 351. So. 2d 1109, 1110 (Fla. 4th DCA 1977).
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`Moreover, under Florida law, real property acquired by a married couple is afforded a
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`presumption of tenancy by the entireties ownership. Beal Bank, SSB v. Almand and Associates,
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`780 So. 2d 45, 52 (Fla. 2001) (recognizing history of tenancy by the entireties presumption in real
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`property, and concluding that the presumption also applies to financial accounts).
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`The deed of record identifies Sonia E. Wichy-Yanes as the Plaintiff’s spouse and, therefore,
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`a person with an interest in the outcome of this lawsuit. Thus, at a minimum, Ms. Wichy-Yanes
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`must be joined in order to avoid multiple trials, multiple recovery, inconsistent results and
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`duplication of efforts by all parties, and unnecessary costs or delay. Failing to include all interested
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`parties in the instant matter may impede on the rights to any awarded proceeds, should the Plaintiff
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`prevail, in this matter.
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`Alternatively, should ASIC successfully defend against the cause of action, the absence of
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`all interested parties may keep the claim from reaching finality, as any adverse decision against
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`Plaintiff may not bar Sonia E. Wichy-Yanes from bringing a similar type of action. As the
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`3
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`2023-022055-CA-01 (09)
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`Plaintiff’s spouse and a co-owner of the Property, Ms. Wichy-Yanes has an insurable interest in
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`the subject property and is an indispensable party to the action, such that her absence from the
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`litigation may “leave the controversy in such a condition that its final termination may be wholly
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`inconsistent with equity and good conscience.” Florida Dept of Revenue v. Cummings, 930 So.
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`2d 604, 607 (Fla. 2006). Consequently, in its present form, Plaintiff’s Complaint must be
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`dismissed, since Sonia E. Wichy-Yanes, an indispensable party to this lawsuit, was not joined as
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`a party on the Complaint.
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`WHEREFORE, based upon the foregoing argument and authorities, Defendant, American
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`Security Insurance Company, respectfully requests this Honorable Court grant its Motion to
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`Dismiss the Complaint for the reasons set forth herein, and such other relief as is deemed just and
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`proper.
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`Respectfully submitted,
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`WARGO, FRENCH & SINGER LLP
`Counsel for Defendant American Security
`Insurance Company
`1 Alhambra Plaza, Suite 1410
`Coral Gables, Florida 33134
`Telephone:
`(305) 777-6000
`Facsimile:
`(305) 777-6001
`Email: ayanez@wfslaw.com
`Service: flservice1@wfslaw.com
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`By: /s/ Anthony R. Yanez
`DANIEL H. PEREZ
`Florida Bar No. 106141
`ANTHONY R. YANEZ
`Florida Bar No. 45219
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`4
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`2023-022055-CA-01 (09)
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`CERTIFICATE OF SERVICE
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`I HEREBY CERTIFY that a true and correct copy of the foregoing has been served via E-
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`Service upon: Edward de la Osa, Esq., De Prado | De La Osa, Counsel for Plaintiff at
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`eservice@ddlawyers.com on November 9, 2023.
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`/s/ Anthony R. Yanez
`ANTHONY R. YANEZ
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`5
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`EXHIBIT “A”
`EXHIBIT “A”
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`AMERICAN SECURITY INSURANCE COMPANY
`PO BOX 50355, ATLANTA, GA 30302
`A Stock Insurance Company
`CERTIFICATE PERIOD:
`EFFECTIVE DATE
`11/20/2019
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`EFFECTIVE TIME
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`12:01 am
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`NAMED INSURED and Mailing Address:
`BRANCH BANKING & TRUST CO.
`ITS SUCCESSORS AND OR ASSIGNS
`PO BOX 7933
`SPRINGFIELD, OH 45501-7933
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`DECLARATIONS
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`EXPIRATION DATE
`11/20/2020
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`CERTIFICATE NUMBER:
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`MLR21067459010
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`Issued under the provisions of
`Master Policy No.:
`MIP-RCH-02106-00
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`For Company Use:
`Basis:
`Territory: 0026
`Class:
`Other: FIR SFD 021060000
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`DESCRIBED LOCATION. The property covered by this Certificate is at the described location unless otherwise stated:
`6635 SW 136 CT
`MIAMI, FL 33183
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`COVERAGE AND LIMITS OF LIABILITY – Coverage is provided only where a premium is shown for the coverage, subject
`to all conditions of this Certificate.
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`RESIDENTIAL PROPERTY:
`LIMIT OF LIABILITY
`Coverage A - $136,516
`Coverage B - 10% of Coverage A
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`DEDUCTIBLES
`Windstorm, Hail or Hurricane: 2% of the Limit of Liability or
`$2,000, whichever is greater.
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`All Other Perils: $2,000
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`PREMIUM
`$3,320.00
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`COMMERCIAL PROPERTY:
`LIMIT OF LIABILITY
`Building -
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`TOTAL PREMIUM
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`$3,320.00
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`DEDUCTIBLES
`Windstorm, Hail or Hurricane:
`% of the Limit of Liability or
` , whichever is greater.
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`PREMIUM
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`All Other Perils:
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`TOTAL PREMIUM
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`Optional Coverages, Assessments, Surcharges, Taxes, Fees (if applicable):
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`FORMS AND ENDORSEMENTS which are made a part of this Certificate at the time of issuance:
`MIP 223 AS (01-12),MIP 233 (01-12),MIP 05 FL (01-12),MIP 243 FL (12-17)
`MIP 304 FL (02-13),NOTI1256 (03-14),MIP 219 (01-12),MIP 239 FL (02-13)
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`TOTAL AMOUNT
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`$3,320.00
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`BORROWER - Name and address:
`MIGUEL A YANES
`SONIA WICHY
`6635 SW 136TH CT
`MIAMI, FL 33183-2344
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`CLAIMS:
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`1-800-652-1262
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`ALL OTHER INQUIRIES:
`1-866-940-2464
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`Loan No.:
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`4692
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`Issue Date:
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`12/03/2019
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`Countersignature (where required)
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`MIP 04 AS (01-12)
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`Page 1 of 1
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`MIP04ASR-1116
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`REDACTED
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`EXHIBIT “B”
`EXHIBIT “B”
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`FRBR5B45 79 1992 DEC 09 nET4E9
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`DGC STRIDES
`Pe h.it SUPT X
`HARVEY PuvIN,
`CLERK SADE COUNTY: FL
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`SPACE ABOVE TH88 UNE FOR PROCEBEING DATA
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`BPACE ABOVE T98 UNE FOR RECORDING DATA
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`WARRANTY DEED ( STATUTORY FORM - SECTION 689.02, FS.)
`This Indenture, made this
`day of November, 1998, Between
`MARIA T. CARPINTERO, A Sin5/e User. of the County of DADE , State of Florida . grantor®, and MIGUEL
`A. YANES and SONIA E. WICHY-YANES, As Hueband and Wife whosc post office address is 6635 S.W., 136
`COURT, MIAMI, Fi 33183 of the County of DADE . State of Flosida , granicc*,
`vues. Dollars, and
`Witnesseth that said grantor, for and in consideration of the sum of Ten ........
`the receipt whercof is hereby
`other good and valuable consideration to said grantor in hand paid by said grantec,
`acknowledged, has granted and sold to the said granice, and grantee’s heirs and assigns forever, the following describcd
`land, situatc, lying and being in DADE County, Florida, to-wit:
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`Lot tl, Block 18, in SUNSET WEST SECTION FOUR,the Plat of which was recorded in Plat Book
`107, Page 50, of the Public Records of Dade County, Florida.
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`and said grantor docs hereby fully warrant the title to said land, and will defend the same against the lawful claims ofall
`persons whomsocver.
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`**Grantor” and “grantee” are used for singular of plural, as context requires.
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`In Witness Whereof, grantor has bercunto set grantor’s hand and seal the day and year first above written.
`Signed sealed and delivered in our presence:
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`Poet Mice Kadree 78 5 a) Fee COWLT SMLAIRL FL ISHS
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`STATE OF FLORIDA
`COUNTY OF DADE
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`day of November, 1998, by
`The foregoing instrument was acknowledged before me this—<t-/
`MARIA T. CARPINTERO, A fo-5/e Semen who are personally known to me or who have
`protuced a FL DRIVERS LICENSE as idcatification and did take an oath.
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`CC6s87327
`Ao OCT. 7,2001
`My COsmaSRIOnN DPRES
`My Commission Expires:
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`State of Florida at Large
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`NOTARY PUBLIC:
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