County Civil Court:  CIVIL PROCEDURE – Pleading – transfer of jurisdiction to circuit court – trial court erred in transferring jurisdiction of matter to circuit court when claim alleged that damages did not exceed $ 5,000, the jurisdictional limit of small claims court - Petition granted.  Midland Credit Management, Inc. v. Rodvik, Appeal No. 06-0099AP-88A (Fla. 6th Cir. App. Ct. June 11, 2007). 












vs.                                                                                                Appeal No.06-0099AP-88A









            THIS CAUSE came before the Court on the Petition for Certiorari from the County Court, 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.

            The record shows that the Petitioner, Midland Credit Management, Inc. (Midland), filed its Complaint for Damages against the Respondent, James Rodvik (Rodvik), seeking damages for an unpaid credit card debt allegedly acquired by Midland pursuant to an assignment from the original lender.  Rodvik served his Answer, Affirmative Defenses and Counterclaim denying that he owed Midland damages and counterclaiming for damages, including punitive damages, pursuant to the Florida Consumer Collections Practices Act (FCCPA), Florida Statutes, section 559.72.  Midland responded by filing a Motion to Strike Claim for Punitive Damages, which was denied by the trial court.  Rodvik then filed Defendant’s Amended Answer, Affirmative Defenses and Counterclaim again denying he owed Midland damages and further seeking damages available to him under the FCCPA, including punitive damages.

Approximately a year and a half later, the trial court granted summary judgment in favor of Rodvik on both the Complaint and Counterclaim.  The trial court found that, “[t]he only issues remaining in the above-styled cause of action are Defendants damages, including actual damages, special damages, statutory damages, punitive damages, prejudgment interest, interest, court costs, and attorneys fees to which the Defendant is entitled as the prevailing party on Plaintiff’s Complaint and Defendant’s Counterclaim.”  Neither party sought a rehearing on the trial court’s summary judgment ruling.  Two months later, Midland filed a motion to strike Rodvik’s claim for punitive damages.  The trial court did not rule on Midland’s second motion to strike and granted Rodvik’s Amended Motion to Transfer Case to Circuit Court.  It is from this order that Rodvik seeks certiorari review.

Before this Court, Midland argues that the trial court erred in transferring the case to circuit court when Rodvik did not properly plead his claim for punitive damages.  In conducting common-law certiorari review, the Court must find that Midland has demonstrated that the trial court has 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).

The Court finds that the trial court committed reversible error in entering its Order Granting Defendant’s Amended Motion to Transfer Case to Circuit Court, entered December 8, 2006, but not based on the issue argued by Midland in its Petition.  Midland argues that Rodvik never properly pled his claim to punitive damages, pursuant to Florida Statutes, section 768.72, and so the trial court erred in transferring the case to circuit court based on a wrongfully pled claim for punitive damages.  While Midland’s statement is correct, Midland did not timely seek certiorari review of the Order Granting Renewed Motion for Summary Judgment, wherein the trial court found that Rodvik may recover punitive damages, and, in any case, did not properly preserve the matter for appellate review. 

In the recent case of Espirito Santo Bank v. Rego, 2007 WL 1062521 (Fla. 3d DCA 2007), the Third District found that the appellate court has certiorari jurisdiction to review a claim alleging failure to comply with the procedural requirements for pleading punitive damages.  The Court finds that Midland should have filed a common-law certiorari petition within thirty days of the summary judgment ruling to timely seek appellate review of whether the trial court erred in permitting Rodvik to plead punitive damages without leave of court.  The case of Kraft General Foods, Inc. v. Rosenblum, 635 So.2d 106, 108 (Fla. 4th DCA 1994), relied upon heavily by Midland to support its argument, supports this conclusion as the Fourth District reviewed Kraft’s claim that the trial court erred in permitting punitive damages via a petition for common-law certiorari, pointing out that: “Kraft’s petition for certiorari or mandamus timely reached us.”

Even if Midland had filed a petition within thirty days of the trial court’s ruling, the Court finds that Midland did not properly preserve the issue for appellate review.  Midland did not file his second motion to strike until after summary judgment had been entered and there is no transcript of the summary judgment hearing to show that Midland objected to Rodvik’s claim to punitive damages.  As explained in Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 381 So.2d 1164, 1166 (Fla. 5th DCA 1980), even when it appears that the trial court committed reversible error, the record must reflect that the party raised the issue before the trial court in order to preserve the issue for appeal.  See also Wildwood Properties, Inc. v. Archer of Vero Beach, Inc., 621 So.2d 691, 693 (Fla. 4th DCA 1993)(concluding that defendant could not contest summary judgment in favor of plaintiff on grounds which were not brought to the attention of the trial court in opposition to motion for summary judgment).

Although the underlying case was filed in Small Claims Court, wherein technical rules of pleading are not to obscure the speedy resolution of disputes,[1] Midland still must demonstrate that it raised the issue at the summary judgment hearing and, hence, did not waive his objection to Rodvik’s claim to punitive damages.  As explained in, Fostock v. Lampasone, 711 So.2d 1154, 1154 (Fla. 4th DCA 1998), “a defendant’s right to relief under section 768.72 is a right that can be waived by failing to assert it.”  In Fostock, the Fourth District Court of Appeal rejected Fostock’s argument that the trial court committed fundamental error by not requiring Lampasone, the plaintiff, to follow the statutory requirements for pleading punitive damages.  While the trial court, presiding over a Small Claims matter, could have sua sponte struck Rodvik’s claim to punitive damages, there was no requirement for the trial court to do so. 

However, the Court finds, as a matter of law, that the trial court erred in transferring the case to circuit court as the allegations set forth by Rodvik in both his Counterclaim, and then Amended Counterclaim upon which the trial court granted summary judgment, specifically stated that his cause of action for damages pursuant to Florida Statutes, section 559.77, did not exceed $ 5,000.00, the jurisdictional limit of Small Claims Court.  Case law is clear that the jurisdiction of the circuit court depends on the good-faith allegations set forth in the complaint.  See Grunewald v. Warren, 655 So.2d 1227, 1229 (Fla. 1st DCA 1995); see also Soler v. Independent Fire Insurance Company, 625 So.2d 905, 906 (Fla. 3d DCA 1993); Rocco v. Coffey, 163 So.2d 21, 23 (Fla. 2d DCA 1964).  Since the good-faith allegations of the Amended Counterclaim did not exceed $ 5,000.00, it was unlawful for the trial court to transfer the case to circuit court.  Indeed, under these facts, any judgment entered by the circuit court would have been a nullity since the amount alleged in controversy was outside the circuit court’s subject matter jurisdiction.  See Fedan Corporation v. Reina, 695 So.2d 1282, 1283 (Fla. 3rd DCA 1997)(finding that circuit court’s judgment against defendants in the amount of $ 250,000.00 was void when the plaintiff’s complaint alleged that the minimum amount claimed was $ 10,000.01). 

            In reversing and remanding this case for action consistent with this Court’s Order and Opinion, the Court finds that the only possible way for Rodvik to have his case transferred to circuit court would be to have the summary judgment set aside and then request that the trial court permit him to amend his Counterclaim.[2]  In so doing, Rodvik can not plead punitive damages unless he follows the dictates of Florida Statutes, section 768.72.  See Espirito Santo Bank, supra. (emphasizing that the statutory procedure of section 768.72 must be followed and cannot be circumvented). 

            Therefore, it is,






            ORDERED AND ADJUDGED that the Petition for Certiorari from the County Court is granted.  The Order Granting Defendant’s Amended Motion to Transfer Case to Circuit Court is reversed and this cause is remanded for action consistent with this Order and Opinion. 

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ______ of June 2007.




                                                         R. TIMOTHY PETERS

                                                         Circuit Judge, Appellate Division






______________________________                        ______________________________

GEORGE M. JIROTKA                                          CYNTHIA J. NEWTON

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division



Copies furnished to:


Honorable Myra Scott McNary

County Court Judge


Honorable Judge Henry Andringa

Administrative Judge, Pinellas County Court


Michael N. Brown, Esquire

Kellie A. Caggiano, Esquire

Donald W. Stanley, Esquire

202 South Rome Avenue, Suite 100

Tampa, FL  33606


M. Joseph Dickerson, Esquire

Robert C. Rogers, Jr., Esquire

104 North Evers Street, Suite 103

Plant City, FL  33563

[1] See Metro Ford, Inc. v. Green, 724 So.2d 706, 707 (Fla. 3d DCA 1999).


[2] The Florida Rules of Civil Procedure, Rule 1.190(b), Amendments to Conform with the Evidence, is not applicable to this Small Claims case.  Even if the Florida Rules of Procedure had been invoked, the Court finds that it would be improper to permit the amendment of the jurisdictional amount plead under the facts of this case.