NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

DANIEL LASALLA,

      Appellant,                                                           Case No. 10-000003AP-88A

                                                                                                      10-000021AP-88A

 

v.                                                                                 UCN:     522010AP000003XXXXCV

                                                                                                   522010AP000021XXXXCV

 

POOLS BY GEORGE OF PINELLAS                                  CONSOLIDATED

COUNTY, INC.,

      Appellee.

______________________________/

 

Opinion Filed  ______________

 

Appeal from Final Judgment

Pinellas County Court

Small Claims Division

Judge Edwin B. Jagger

 

Courtney L. Fish, Esq.

Leonard S. Englander, Esq.

Attorneys for Appellant

 

Thomas John Dander, Esq.

Attorney for Appellee

 

PER CURIAM.

            Appellant Daniel LaSalla appeals the "Order and Final Judgment on Plaintiff's Amended Motion to Tax Attorney Fees and Costs, and Assess Prejudgment Interest" entered on April 21, 2010.[1]  We reverse and remand.

Statement of Case

            On August 3, 2006, Pools By George of Pinellas County, Inc. (PBG) filed a two-count complaint against Mr. LaSalla.  The case was assigned to the Small Claims Division of the County Court.  Count one is an action for breach of contract and count two seeks to foreclose a construction lien pursuant to Chapter 713, Florida Statutes (2005).  On September 5, 2006, Mr. LaSalla filed an "Answer and Counterclaim" with a "Notice of Counterclaim in Excess of Jurisdiction."  On October 11, 2006, PBG moved to dismiss the counterclaim because Mr. LaSalla failed to pay the required filing fee and the case had not been transferred to circuit court.  On March 29, 2007, the trial court denied the motion to dismiss and limited Mr. LaSalla's recoverable damages to $5,000. 

            A non-jury trial was conducted on June 9, 2009.  On August 4, 2009, the trial court entered final judgment in favor of PBG and against Mr. LaSalla on his counterclaim.  The final judgment states that PBG substantially performed the parties' contract and it is entitled to the full contract price.  It also states that PBG's "failure to provide notice under Fla. Stat. §713.015 does not bar enforcement of its lien as the Defendant was not 'adversely affected.'  The Plaintiff's lien is valid."  PBG was awarded $5,000 in damages.

            Mr. LaSalla filed a notice of appeal, but later voluntarily dismissed the appeal.  Thereafter, a "Motion to Set Aside Final Judgment" pursuant to Florida Small Claims Rule 7.190(b)(4) was filed.  In response to that motion, PBG filed a motion to transfer the case to the Civil Division of the County Court.  The trial court denied Mr. LaSalla's motion on December 18, 2009, concluding that the Small Claims Division of the County Court had subject matter jurisdiction to enter the final judgment for damages.  A motion for rehearing was denied.  The Notice of Appeal of the order denying the motion to set aside the final judgment was filed on January 21, 2010.  The appeal was assigned appellate case number 10-000003AP-88A. 

            On December 24, 2009, PBG filed "Plaintiff’s Amended Motion to Tax Attorney Fees and Costs, and Assess Prejudgment Interest."  In the motion, PBG sought attorney fees as the prevailing party under the contract and on the construction lien pursuant to section 713.29, Florida Statutes. 

            After a hearing on the attorney fee and costs issue, the Court granted the amended motion and entered final judgment on April 21, 2010, for PBG in the amount of $35,875.00 in attorney fees, $875.00 for the attorney fee expert, and $2,927.10 in taxable costs, for a total of $39,677.10.  The appeal from the attorney fee and costs final judgment was assigned appellate case number 10-000021AP-88A.  The appeals were consolidated. 

            On June 15, 2010, PBG's "Motion to Dismiss Appeal" was granted as to appellate case number 10-000003AP-88A, based on the fact that the notice of appeal was untimely; therefore, this Court was without jurisdiction to consider Mr. LaSalla's appeal of the final judgment for $5,000 in damages.  The appeal of the final judgment in case number 10-000021AP-88A for attorney fees and costs is now before the Court.

Discussion

            Mr. LaSalla's appeal is based on the argument that PBG filed the underlying action in the Small Claims Division of the County Court which did not have subject matter jurisdiction over the equitable claim in count two to foreclose a construction lien.  Therefore, it is asserted, the August 4, 2009, final judgment entered for PBG for $5,000 and against Mr. LaSalla on his counterclaim is void and the award of attorney fees also is void.

            As noted above, this Court dismissed the appeal on the validity of the August 4, 2009, final judgment for damages for lack of appellate jurisdiction.  However, the issue of whether the trial court had subject matter jurisdiction to enter the final judgment for damages must be examined in order to determine if a valid final judgment for attorney fees and costs was entered.

            Mr. LaSalla presented the argument to the trial court that the final judgment for damages is void in the Motion to Set Aside Final Judgment.  In the order denying the motion to set aside the final judgment for damages, the trial court rejected Mr. LaSalla's arguments and concluded that

            the defect in jurisdiction here is not the same as 'subject matter' jurisdiction so as to allow a party to raise the issue at any time and attempt to void a final judgment. . . . An error in procedure regarding a case assignment within the same court is not fundamental and cannot operate to defeat the court's subject matter jurisdiction as conferred by the constitution and statute.  See Cunningham v. Standard Guaranty Insurance Co., 630 So. 2d 179 (Fla. 1994)(jurisdictional issue based upon a pleading defect can be cured by waiver or stipulation). 

 

(Emphasis in original). 

            PBG in its Answer Brief states that in denying the motion to set aside the final judgment, the trial court correctly concluded that an error by the Clerk of Court in assigning the case to the Small Claims Division of the County Court rather than to the Civil Division of the County Court was an error that did not defeat the county judge's subject matter jurisdiction.  It is asserted that the trial court was correct in determining that it had subject matter jurisdiction because the county court, including the Small Claims Division of that court, has subject matter jurisdiction to consider all matters at law and in equity within its jurisdictional limits of less than $15,000.  §34.01(1)(c); (4), Fla. Stat. 

            PBG argues that the complaint filed in the present case did not raise an issue of subject matter jurisdiction, but rather "divisional jurisdiction" within the county court.  PBG asserts that the "internal operation of the court system and the assignment of judges to various divisions does not limit a judge's jurisdiction."

Analysis

            The trial court entered a final judgment for damages in favor of PBG based on a contract and on a valid construction lien.  It also awarded attorney fees and costs based on that final judgment for damages.

            A lien foreclosure is an equitable action.  Alexdex Corp. v. Nachon Enters., Inc., 641 So. 2d 858, 861 (Fla. 1994); Corbin Well Pump and Supply, Inc. v. Koon, 482 So. 2d 525, 527 (Fla. 5th DCA 1986).  There is a split of decisions in the appellate divisions of Florida circuit courts concerning whether the Small Claims Division of the County Court has jurisdiction to consider a cause of action in equity.  One circuit court appellate panel has held that when an action for damages is filed that is within the jurisdictional limits of the Small Claims Division of the County Court, an equitable action also may be heard.  See Kossow v. Davids, 11 Fla. L. Weekly Supp. 183a (Fla. 9th Jud. App. Ct. Nov. 12, 2003)(citing to § 34.01(4), Fla. Stat. providing that judges of county courts may hear all matters in equity involved in any case within the jurisdictional amount of the county court, unless otherwise restricted).  Two circuit court appellate panels have determined that such actions cannot be heard in Small Claims Division of the County Court.  See S. Miami 3 Dimensional Inst. Inc. v. Mercury Ins. Co. of Fla., 14 Fla. L. Supp. 588a (Fla. 11th Jud. App. Ct. March 9, 2007) ("Florida Small claims rules require all actions to be at law and not in equity."); All-In-One Enters., Inc. v. McKahand, 12 Fla. L. Weekly Supp. 726b (Fla. 17th Jud. App. Ct. April 18, 2005)("[T]he Small Claims Court does not have equitable jurisdiction, and therefore cannot rule under the equitable principal of quantum meruit."). 

            This issue has not been previously addressed by the Sixth Judicial Circuit Court acting our appellate capacity or by the Second District Court of Appeal.  However, in 1997, the Fourth District Court of Appeal stated in Tax Certificate Redemption's, Inc. v. Meitz, 705 So. 2d 64, 65 (Fla. 4th DCA 1997):

            [I]n small claims court a party may maintain only actions at law.  See Fla. Sm. Cl. R. 7.010(b).  While Alexdex Corp. v. Nachon Enterprises, Inc., 641 So. 2d 858 (Fla. 1994), holds that the county court may exercise equity jurisdiction over matters within its monetary jurisdiction, it does not mandate that such cases be filed in the small claims division.  Therefore, a specific performance action may not be filed in small claims court.  What petitioner seeks, essentially, is for this court to direct a change in the rules of court, something strictly within the jurisdiction of the supreme court.

 

            The petitioner's specific performance count prevented the small claims court from taking jurisdiction pursuant to the rule as the court [sic] is clearly in equity.  Absent that count, the small claims court could have exercised its jurisdiction over the unjust enrichment and quasi contract counts. . . .  Thus, such counts could be brought in small claims court when the amount involved is within the jurisdiction of the court.

 

            In its answer brief, PBG asserts that there are no "Small Claims Courts" as referenced in the Tax Certificate Redemption's opinion, only the Small Claims Division of the County Court.  This Court is directed to section 34.01(4), that states, "Judges of county courts may hear all matters in equity involved in any case within the jurisdictional amount of the county court, except as otherwise restricted by the State Constitution or the laws of Florida." 

            It is argued that rule 7.010 pertains only to the applicability of the Small Claims Rules, not to subject matter jurisdiction.  Subject matter jurisdiction is the “power of the trial court to deal with a class of cases to which a particular case belongs” that is conferred upon a court by constitution or by statute.  Strommen v. Strommen, 927 So. 2d 176, 179 (Fla. 2d DCA 2006) (quoting Cunningham v. Standard Guar. Ins. Co., 630 So. 2d 179, 181 (Fla. 1994).  PBG asserts that the Florida Supreme Court through rule 7.010 cannot affect the subject matter jurisdiction of the county court that is conferred by section 34.01(4), including the equity subject matter jurisdiction of the Small Claims Division of the County Court, because such jurisdiction only can be "restricted by the State Constitution or the laws of Florida."  See §34.01(4).

            PBG acknowledges the decision in the Tax Certificate Redemption's case, but disagrees with its holding.  It also argues that in the case of Partridge v. Partridge, 790 So. 2d 1280, 1284 (Fla. 4th DCA 2001), the Fourth District Court of Appeal has receded from its holding in Tax Certificate Redemption's. 

            The Partridge opinion involved a case filed in the Civil Division of the Circuit Court.  The former wife sought to foreclose on an equitable interest in homestead property that had been awarded in a dissolution action in the Family Division of the Circuit Court.  In finding that the Civil Division of the Circuit Court had jurisdiction to render a decision in the case, the Fourth District Court of Appeal stated:

            We note that appellant's claim is not technically one of a lack of subject matter jurisdiction; rather appellant seeks dismissal due to a lack of divisional jurisdiction.  .  . . This court aptly noted in In the Interest of Peterson, 364 So. 2d 98, 99 (Fla. 4th DCA 1978), that “[a]ll circuit court judges have the same jurisdiction within their respective circuits . . . .  The internal operation of the court system and the assignment of judges to various divisions does not limit a particular judge's jurisdiction.”  See also Maugeri v. Plourde, 396 So. 2d 1215, 1217 (Fla. 3d DCA 1981)(“We think it appropriate to comment that every judge of the circuit court possesses the full jurisdiction of that court in his of (sic) her circuit and that the various divisions of that court operate in multi-judge circuits for the convenience of the litigants and for the efficiency of the administration of the circuits' judicial business.”).

 

Partridge, 790 So. 2d at 1284.  PBG argues that the present case involves a lack of divisional jurisdiction, not a lack of subject matter jurisdiction.  It is asserted that contrary to the holding in Tax Certificate Redemption's, the Small Claims Division of the County Court had subject matter jurisdiction to consider actions in equity as it is a county court and the $5000 amount in controversy was less than the $15,000 subject matter jurisdiction of the county court. 

            We disagree with PBG's argument that the Florida Supreme Court improperly has attempted to restrict the subject matter jurisdiction of the Small Claims Division of the County Court through rule 7.010(b), as explained below.  Further, we are not persuaded that the Fourth District Court of Appeal receded from its holding in Tax Certificate Redemption's when it issued its opinion in Partridge.  However, the holding in Partridge is instructive in the present case and could support a conclusion that the Small Claims Division of the County Court had subject matter jurisdiction in this case in equity and at law when the history of the rule 7.010(b) and section 34.01 are examined. 

            It must first be noted that section 34.01(4), Florida Statutes (1990), creating equity subject matter jurisdiction in county courts was not effective until October 1, 1990.  Ch. 90-269, § 1, Laws of Fla. (providing that a county court may hear all matters in equity that are within jurisdictional amount).  The 1990 version of section 34.01(4) stated, "Judges of county courts may hear all matters in equity involved in any case within the jurisdictional amount of the county court, except as otherwise restricted by the State Constitution or the laws of Florida."  Prior to 1990, neither small claims courts, nor county courts had equity subject matter jurisdiction. 

            In 1951, Small Claims Courts were established by the Legislature, under the authority vested in it by article V, section 1, of the Florida Constitution.  In re Advisory Opinion to the Governor, 58 So. 2d 319, 320-21 (Fla. 1952).  The jurisdiction of these Small Claims Courts was restricted to cases "at law."  Id. at 320. 

            The Florida Supreme Court compiled the Summary Claims Procedure Rules in 1967.  In re Summary Claims Procedure Rules, 203 So. 2d 616, 618 (Fla. 1967).

At that time rule 7.010(b) stated:

            Scope. These rules are applicable to all actions of a civil nature in the County Judge's Courts, County Courts, Justice of Peace Courts, Small Claims Court, and in all other courts in which civil jurisdiction is limited to actions at law in which the demand or value of property involved does not exceed $1,000.00 exclusive of costs, interest and attorney's fees.

 

            The revision of article V, of the Florida Constitution, effective January 1, 1973, substantially altered the structure of the state judiciary by consolidating the existing trial courts into the circuit courts and county courts.  Ch. 72-404, § 9, Laws of Fla.  The 1972 version of section 34.01(2) stated:

            The county courts shall have jurisdiction previously exercised by county judges' courts other than that vested in the circuit court . . . and the jurisdiction previously exercised by county courts, the claims court, small claims courts, small claims magistrates courts, magistrates courts, justice of the peace courts, municipal courts, and courts of chartered counties. . . ."

 

The small claims rules were revised in 1972, but did not change the statement that the rules were applicable to actions "at law."  No revision was made because section 34.01(4) had not been enacted and equity subject matter jurisdiction had not been vested in the county courts.  The 1972 revised rule 7.010(b) stated:

            Scope. These rules are applicable to all actions at law of a civil nature in the county courts in which the demand or value of property involved does not exceed $1,500.00 exclusive of costs, interest and attorneys' fees.

 

            The current version of rule 7.010(b) states:

            Scope. These rules are applicable to all actions at law of a civil nature in the county courts in which the demand or value of property involved does not exceed $5,000 exclusive of costs, interest, and attorneys' fees.  If there is a difference between the time period prescribed by these rules and section 51.011, Florida Statutes, the statutory provision shall govern.

 

Other than the reference to section 51.011 and the change in the amount of the demand or the value of property involved in actions to be determined in the Small Claims Division of the County Court, the rule has not changed substantively since 1972.

            In examining the history of section 34.01(2), (4); and rule 7.010(b), it is clear that the Florida Supreme Court was not attempting to restrict the subject matter jurisdiction of the Small Claims Division of the County Court through the small claims rules.  The Small Claims Division of the County Court is a county court and it should be held to have subject matter jurisdiction up to $15,000 for actions at law and in equity just as does the Civil Division of the County Court.  As for the "divisional jurisdiction" explained in Partridge, a logical conclusion is that such divisional jurisdiction should not affect the subject matter jurisdiction of any of the county courts, including the Small Claims Division of the County Court. 

            We are of the opinion that PBG is correct in its assertion that the Small Claims Division of the County Court has subject matter jurisdiction to consider actions in equity within its jurisdictional limits.  However, this Court is required to follow precedent established through opinions of the Florida Supreme Court and the Second District Court of Appeal.  When the Second District Court of Appeal has not issued a decision on a legal issue facing this Court, we are to follow the binding decision any other Florida District Court of Appeal.  See Omni Ins. Co. v. Special Care Clinic, Inc., 708 So. 2d 314, 315 (Fla. 2d DCA 1998); see also Auto Owners Ins. Co. v. Marzulli, 788 So. 2d 1031 (Fla. 2d DCA 2001).  This Court cannot certify a question to the Second DCA involving a county court order.  Under Florida Rule of Appellate Procedure 9.030(b)(4), the certification of an issue of great public importance to the Second DCA must be included in the final order entered by the County Court.  See Fla. R. App. P. 9.160(e); see also State v. Ratner, 948 So. 2d 700, 703-04 (Fla. 2007); Bradley v. State, 615 So. 2d 854, 855 (Fla. 1st DCA 1993).

            Although we strongly disagree with the holding in Tax Certificate Redemption's; until there is a ruling by the Second District Court of Appeal determining otherwise, this Court is required to follow the Fourth District Court of Appeal's holding there is no equity subject matter jurisdiction in the Small Claims Division of the County Court.  See also South Miami 3 Dimensional Inst. Inc., 14 Fla. L. Supp. 588a; All-In-One Enters. Inc., 12 Fla. L. Weekly Supp. 726b.

Conclusion

            Under the holding in Tax Certificate Redemption's it was error for the Small Claims Division of the County Court to have determined that it had subject matter jurisdiction in this case that included a cause of action in equity.  When a court lacks subject matter jurisdiction, any judgment rendered by the court is void.  See Strommen, 927 So. 2d at 179; Fedan Corp. v. Reina, 695 So. 2d 1282, 1283 (Fla. 3d DCA 1997)(citing Malone v. Meres, 91 Fla. 709, 724, 109 So. 677, 683 (1926)).  "[A] judgment entered where the court lacks subject matter jurisdiction is a nullity."  Strommen, 927 So. 2d at 179; see also Ben-David v. Educ. Res. Inst., Inc., 974 So. 2d 1138, 1139 (Fla. 3d DCA 2008). 

            We are required by the decision in Tax Certificate Redemption's, to conclude that the Small Claims Division of the County Court did not have subject matter jurisdiction to enter the final judgment for damages.[2]  Therefore, it also was without subject matter jurisdiction to enter the final judgment for attorney fees and costs based on that judgment.  See Sayre v. JMC Painting, Inc., 778 So. 2d 430, 431-32 (Fla. 4th DCA 2001).  Accordingly, the Final Judgment for Attorney Fees and Costs is reversed and this matter is remanded to the trial court to enter an order vacating the April 21, 2010, final judgment for attorney fees and costs.

            REVERSED AND REMANDED.

 

            DONE AND ORDERED in Chambers in Clearwater, Pinellas County, Florida, this ____ day of _________________, 20101.

 

Original order entered on June 29, 2011 by Circuit Judges Linda R. Allan, W. Douglas Baird, and John A. Schaefer.

 

Copies furnished to:

 

Courtney L. Fish, Esq.

Leonard S. Englander, Esq.

P.O. Box 1954

St. Petersburg, FL 33731

 

Thomas John Dander, Esq.

P.O. Box 24597

Tampa, FL 33623

 

Hon. Edwin B. Jagger


[1]   The appeal of the December 19, 2009, order denying Mr. LaSalla's "Motion to Set Aside Final Judgment" in case number 10-000003AP-88A, previously has been dismissed by this Court for lack of jurisdiction.

[2]   PBG also argues that should this Court find a lack of subject matter jurisdiction, the proper procedure should be for the case to be remanded with instructions to transfer the action to the Civil Division of the County Court.  PBG cites several cases in support of its argument: Ben-David, 974 So. 2d at 1140 (reversing circuit court's final judgment and remanding with directions to the circuit court to vacate the final judgment and transfer the case to the county court); Toledo v. Escamilla, 962 So. 2d 1028, 1031 (Fla. 3d DCA 2007)(granting petition for writ of certiorari and instructing the circuit court to enter an order reversing the county court's judgment of eviction and to transfer action to the circuit court).  Unfortunately for PBG, the appeal of the final judgment in this matter was dismissed for lack of jurisdiction; therefore, if this Court was persuaded and inclined to do so, it has no jurisdiction to follow this line of cases.