County Civil Court:  CIVIL PROCEDURE – jurisdiction - common-law certiorari review is proper to review order denying transfer to circuit court – trial court departed from the essential requirements of law in denying plaintiff’s motion to transfer action to circuit court based on the trial court’s own determination of what the plaintiff may be able to recover  - order reversed.  Townsend v. Asset Acceptance Corp., Appeal No. 05-0102AP-88B (Fla. 6th Cir. App. Ct. Dec. 6, 2006). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

KIMBERLY JOYCE TOWNSEND,

                        Appellant,

 

 

vs.                                                                                    Appeal No.05-0102AP-88B

                                                                                         UCN522005AP000102XXXXCV

 

 

ASSET ACCEPTANCE CORPORATION,

                        Appellee.

____________________________________/

 

 

ORDER GRANTING PETITION FOR WRIT OF CERTIORARI

 

THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Response, and the Reply.  Upon consideration of the same, the record and being otherwise fully advised, the Court finds that the Petition must be granted as set forth below.

This is the second time this matter is before the Court on appeal.  The underlying facts are that Kimberly Joyce Townsend filed suit against Asset Acceptance Corp., on August 19, 2002, alleging that Asset attempted to collect a debt in violation of the Florida Consumer Collection Practices Act (FCCPA), Florida Statutes, section 559.92.  The trial court granted Asset’s Motion to Dismiss.  In an Order and Opinion, entered August 6, 2004, Appeal No. 03-1921CI-88A, this Court, albeit a different panel, reversed that decision finding that the trial court erred in going outside the four corners of the complaint in considering whether to dismiss the statement of claim.  The Order and Opinion also found that Townsend had sufficiently pled a FCCPA cause of action and that Townsend sought all damages that were statutorily available.  The Second District Court of Appeal affirmed this decision in Townsend v. Asset Acceptance Corp., 899 So.2d 507 (Fla. 2d DCA 2005).  However, the Second District declined “to express an opinion as to the portion of the circuit court’s opinion regarding emotional damages because that issue was not properly before the circuit court on appeal.” 

            On remand, Townsend filed a Renewed Motion to Transfer Jurisdiction seeking to transfer the case from the Small Claims Division to the Circuit Civil Division based on Townsend’s belief that damages, if awarded, would exceed the County Court’s jurisdictional limit of $ 15,000.00.  The trial court denied the Motion upon which Townsend filed her petition seeking common-law certiorari review. 

Before this Court, Townsend argues that the trial court departed from the essential requirements of law in failing to transfer the case to Circuit Court.  In conducting common-law certiorari review, the Court must find that Townsend has demonstrated that the trial court violated a clearly established principle of law for which there is no adequate remedy on appeal.  See Combs v. State, 436 So.2d 93, 96 (Fla. 1983); see also State Farm Mutual Automobile Insurance Company v. Peters, 611 So.2d 597, 598 (Fla. 2d DCA 1993).  Certiorari review is proper in this case.  See Soler v. Independent Fire Ins. Co., 625 So.2d 905 (Fla. 3d DCA 1993)(exercising certiorari jurisdiction to review an order transferring case to county court); Kassier v. United National Bank, 5 Fla. L. Weekly Supp. 739 (Fla. 11th Cir. App. Ct. June 19, 1998)(exercising certiorari jurisdiction to review order denying motion to transfer case to circuit court).

            “Jurisdiction of the circuit court depends on the good faith allegations of the plaintiffs, not on the trial court’s preliminary determination of the amount which they may actually recover.”  See Grunewald v. Warren, 655 So.2d 1227, 1229 (Fla. 1st DCA 1995); see also Soler, 625 So.2d at 906; Rocco v. Coffey, 163 So.2d 21, 23 (Fla. 2d DCA 1964).  In applying this rule, it does not matter that the plaintiff ultimately recovers less than the jurisdictional limit of the Circuit Court.  See A.W. Neumann v. R.D. Brigman, 475 So.2d 1247, 1249 (Fla. 2d DCA 1985).  As expressed in A.W. Neumann, if there is an ambiguity, it should be resolved in favor of the movant.  Further, as applicable in this case, the availability of a punitive damages claim can satisfy the jurisdictional limits.  See Warren v. Monahan Beaches Jewelry Center, Inc., 548 So.2d 870, 873 (Fla. 1st DCA 1989).

The Court finds that the trial court departed from the essential requirements of law in failing to transfer the case to Circuit Court based on the trial court’s own determination of what Townsend may be able to recover.  There is nothing in the record to show that Townsend’s allegations were not made in good faith or that she was forum shopping, as argued by Asset during the hearing.[1]  Additionally, and unique to this case, is the application of section 559.77(2) that plainly states that the trial court may, in its discretion, award punitive damages and provide other equitable relief.  It’s impossible for the trial court to determine whether a Circuit Court judge, after a trial on the merits, would impose such damages in his or her discretion.

Also notable is this Court’s previous finding that Townsend had sufficiently pled all damages statutorily available to her, a decision that was affirmed by the Second District Court of Appeal.  The Second District’s decision to not address the specific claim of emotional distress damages does not change this outcome.  The Court does find that the language in the first decision concerning emotional distress damages is dicta and not the law of the case.  Lastly, the Court finds that the matter can be returned to County Court if it is later determined that the jurisdictional amount is, without dispute, less than

$ 15,000.00.  See Soler, supra.

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is granted and the Order Denying Transfer is quashed. 

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of December 2006.

 

 

                                                            ______________________________

                                                            DAVID A. DEMERS

                                                            Circuit Judge, Appellate Division

 

 

 

 

 

_____________________________                          _____________________________

PETER RAMSBERGER                                          ANTHONY RONDOLINO

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

 

 

Copies furnished to:

Judge Walt Fullerton

 

Mark T. Tischhauser, Esquire

3134 North Boulevard

Tampa, FL  33603

 

Dale T. Golden, Esquire

201 East Kennedy Blvd., Suite 1700

Tampa, FL  33602

 

Barbara Sinsley, Esquire

2840 Falkenburg Road

Riverview, FL  33569



 

[1] There was no testimony or evidence presented during the hearing, only argument of counsel.