DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
NEON INVESTMENTS, LLC,
Petitioner,
v.
AFINA PALLADA, INC., ILYA TORCHINSKY, and
KSENIA KONDRATYUK,
Respondents.
No. 4D20-281
[July 1, 2020]
Petition for writ of certiorari to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Carol-Lisa Phillips, Judge; L.T. Case No.
CACE19006129 (25).
Joseph J. Huss, Cary A. Lubetsky and Benny A. Ortiz of Krinzman Huss
Lubetsky Feldman & Hotte, Fort Lauderdale, for petitioner.
Aresh Alex Dehghani of Dehghani Law, P.A., Miami Lakes, for
respondents.
WARNER, J.
After a final judgment of foreclosure was entered against Afina Pallada,
Inc., the trial court granted a motion to intervene on behalf of the
corporation’s president. The judgment creditor petitions for writ of
certiorari. We grant the petition and conclude that the court departed
from the essential requirements of law in allowing post-judgment
intervention.
Petitioner, Neon Investments Inc., filed a complaint to foreclose a
mortgage on property owned by Afina, together with a notice of lis pendens
on the property. The complaint also named Ilya Torchinsky, the vice
president of Afina. It alleged a default under a promissory note and
mortgage, signed by Torchinsky as vice president. The complaint was
served on Afina’s registered agent. Afina defaulted, and a final default
judgment of foreclosure was entered. After final judgment, Afina and
Torchinsky moved to set aside the default on the ground that Torchinsky
was not properly served. The motion did not claim improper service on
Afina. The trial court denied the motion.
The property was sold at a judicial sale. Later, respondent Ksenia
Kondratyuk filed a motion to intervene and vacate the final judgment,
alleging that she was the president of Afina. Under the bylaws of the
corporation she had the general power of management of the corporation,
and the vice president Torchinsky did not. Kondratyuk also alleged that
she was the president, chairman of the board of directors, and managing
member of Vladsale LLC, an entity which owns all controlling shares of
Afina. She sought intervention pursuant to Florida Rule of Civil Procedure
1.230, which provides:
Anyone claiming an interest in pending litigation may at any
time be permitted to assert a right by intervention, but the
intervention shall be in subordination to, and in recognition
of, the propriety of the main proceeding, unless otherwise
ordered by the court in its discretion.
She claimed that she was an “indispensable party with an interest in the
above styled action.” The trial court granted the motion, although it did
not rule on that portion of the motion which sought to vacate the final
judgment. 1
Neon filed its petition for writ of certiorari, contending that this post-
judgment intervention was a departure from the essential requirements of
law. This order is subject to certiorari review. See Fed. Nat’l Mortgage
Ass’n v. Gallant,
211 So. 3d 1055, 1057-58 (Fla. 4th DCA 2017). In
Gallant, we also held that a post-judgment intervention in a foreclosure
proceeding, which stayed the sale of the property pending the outcome of
another lawsuit between the parties, was sufficient to show material harm
not remediable on appeal. Similarly, we conclude that Neon suffers from
irreparable harm, because the intervention seeks to vacate the final
judgment and prevent any sale of the property while addressing other
claims between the parties.
The trial court departed from the essential requirements of law by
allowing this post-judgment intervention, where the purpose of the
intervention was to attack the final judgment. Post-judgment intervention
1 After this petition was filed, the trial court entered an order of clarification that
its order of intervention did not vacate the final judgment. It did allow the filing
of a counterclaim by Kondratyuk in which she sought invalidation of the
mortgage as well as damages based upon various theories of recovery.
2
generally is not allowed, see Dickinson v. Segal,
219 So. 2d 435, 436 (Fla.
1969), and “this Court has strictly adhered to the general rule against
intervention after final judgment.” See Regency Highland Assocs. v.
Regency Highland Condo. Ass’n, Inc.,
405 So. 2d 788, 789 (Fla. 4th DCA
1981) (citation omitted). Indeed, rule 1.230 allows intervention in pending
litigation, not litigation which has already been concluded by final
judgment. The cases which have allowed post-judgment intervention are
those in which the merits of the underlying judgment are not being
challenged. See e.g., Lefkowitz v. Quality Labor Mgmt., LLC,
159 So. 3d
147 (Fla. 5th DCA 2014); Tech. Chem. & Prods., Inc. v. Porchester Holdings,
Inc.,
748 So. 2d 1090, 1091 (Fla. 4th DCA 2000).
Kondratyuk claims that she should be allowed to intervene as an
interested party, being the president, chairman of the board and
controlling shareholder of Afina. She alleges that Torchinsky, as vice
president and as general counsel executed the note and mortgage, even
though Torchinsky had no authority to do so on behalf of Afina. In
Kondratyuk’s pleadings, she claims that Neon engaged in fraud with
Torchinsky in the execution of the note and mortgage. Kondratyuk also
mentions that she did not learn of the foreclosure until after the final
judgment was entered. These facts, she claims, should allow her to
intervene. If, however, Neon has committed fraud, or if there was “mistake,
inadvertence, surprise, or excusable neglect” in the entry of a default
against Afina, then Afina can seek relief pursuant to Florida Rule of Civil
Procedure 1.540(b). Therefore, the corporation is not without a remedy.
For these reasons, we grant the petition and quash the order of
intervention in these proceedings. Our ruling is without prejudice to the
corporate defendant to seek any authorized post-judgment relief pursuant
to rule 1.540(b).
LEVINE, C.J., and CIKLIN, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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