Insua v. Otero , 524 So. 2d 1142 ( 1988 )

FRANK, Judge.

Appellant Insua, the defendant below, appeals from an order of the trial court dismissing him from this lawsuit on the basis that he is not a necessary party to the Oteros’ foreclosure action. In their amended complaint the Oteros have sought reformation of an agreement for deed and promissory note and the foreclosure of an agreement for deed. Insua had executed the agreement for deed in order to secure payment of a promissory note for money owed to the Oteros, and this lawsuit arose following a dispute over whether Insua had fully paid the amounts due. During the penden-cy of the action, the Oteros became aware that the Internal Revenue Service had given a deed to the subject real property to the United States of America, a transaction having its genesis in a levy issued to collect unpaid taxes owed by Insua to the government. The trial court determined that In-sua retained no legal or equitable interest in the real property and accordingly dismissed him from the suit. We reverse that order.

In one count of the amended complaint the Oteros seek to have the agreement for deed reformed to reflect the accurate amount Insua allegedly owes. As long as this count is pending before the trial court, it is error to dismiss Insua over his objection, especially when it appears from the record that the trial court will be called upon to adjudicate the extent of Insua’s obligation to the Oteros.

Accordingly, we reverse the order under review and remand for further proceedings consistent with this opinion.

CAMPBELL, A.C.J., and PARKER, J., concur.