County Small Claims Court: CIVIL PROCEDURE – Jurisdiction – On remand from reversal of final judgment for attorney's fees and costs, small claims court entered order that transferred case from Small Claims Division to Civil Division of County Court for the hearing of motion for attorney’s fees and costs.  Trial court had jurisdiction to transfer case based on retention of jurisdiction contained in the final judgment.  Petition denied.  LaSalla v. Pools By George of Pinellas County, Inc., No. 11-000047AP-88A (Fla. 6th Cir. App. Ct. July 19, 2012).

 

 

 

 

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,

                        Petitioner,

                                                                                    Case No. 11-000047AP-88A

                                                                                    UCN522011AP000047XXXXCV

v.

 

POOLS BY GEORGE OF PINELLAS

COUNTY, INC.,

                        Respondent.

______________________________________/

 

Opinion Filed  ______________

 

Petition for Writ of Certiorari

from non-final order

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.

            Petitioner/Defendant-below Daniel LaSalla seeks certiorari review to challenge the Order granting Respondent/Plaintiff-below Pools By George of Pinellas County, Inc.'s motion to transfer the action from the Small Claims Division of the County Court to the Civil Division of the County Court.  The petition is denied.

            In 2009 and 2010, the trial court entered two orders in the Small Claims Division of the County Court in Pools By George v. Daniel LaSalla, case number 06-006095SC: (1) the denial of Mr. LaSalla's motion to set aside a final judgment for damages that had been entered on August 5, 2009, and (2) an order and final judgment awarding attorney's fees and costs to Pools By George.  The appeal of the denial of the "Motion to Set Aside Final Judgment" for damages in appellate case number 10-000003AP-88A, was dismissed by this Court for lack of jurisdiction. 

            In LaSalla v. Pools By George of Pinellas County, Inc., 18 Fla. L. Weekly Supp. 750a (Fla. 6th Cir. App. Ct. June 29, 2011)(hereinafter "LaSalla I"), this Court entertained Mr. LaSalla's appeal of the final judgment for attorney fees and costs entered in favor of Pools By George. 

This Court stated:

 

            Under the holding in Tax Certificate Redemption's[, Inc. v. Meitz, 705 So. 2d 64, 65 (Fla. 4th DCA 1997)], 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.  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.

 

In dictum this Court stated in LaSalla I that the final judgment for damages entered on August 5, 2009, is a nullity.  However, as noted by Mr. LaSalla in his reply brief, that judgment for damages has not been set aside by the trial court and at this time Mr. LaSalla has not filed a motion for relief from judgment based on this Court's opinion in LaSalla I.  The mandate from this Court in LaSalla I only directed that on remand the order and final judgment awarding attorney's fees and costs be vacated.  No further direction was given. 

            In the petition currently before the Court, Mr. LaSalla argues that the trial court deviated from the essential requirements of law by not following this Court's mandate when after remand it entered the non-final order transferring the case to the Civil Division of the County Court for consideration of Pools By George's motion for attorney's fees and costs.  It is asserted that the transfer of the case to the Civil Division of the County Court causes material harm that cannot be remedied on appeal.

            Mr. LaSalla argues that the trial court does not have jurisdiction to enter the order transferring the case from the Small Claims Division of the County Court to the Civil Division of the County Court.  However, this Court takes judicial notice of the final judgment for damages entered on August 5, 2009, that still remains valid.  (Exhibit A).

            The August 5, 2009, final judgment for damages states that the trial court retained jurisdiction to enter orders and final judgments "that are consistent with this ruling" and it reserved jurisdiction on the issue of attorney's fees and costs.  The trial court complied with this Court's directions in LaSalla I to vacate the final judgment on attorney's fees and costs because the Small Claims Division of the County Court did not have jurisdiction to enter it. 

            At the September 1, 2011, hearing on the motion to transfer the action, Pools By George urged the trial court to enter orders nunc pro tunc on the motion to transfer and motion for attorney's fees and costs.  The propriety of nunc pro tunc orders was discussed and the trial court took the matter under advisement.  On September 9, 2011, the trial court entered the order transferring the case from the Small Claims Division to the Civil Division of the County Court.  The transfer order was not entered nunc pro tunc. 

            This Court notes that no hearing on the motion for attorney's fees and costs has been conducted in the Civil Division of the County Court.  However, on September 20, 2011, Pools By George presented the trial court with a proposed final judgment on attorney's fees and costs to be entered nunc pro tunc to April 21, 2010.  This is the date of the entry of the final judgment for attorney's fees and costs that was reversed in LaSalla I due to lack of jurisdiction.  (App., Tab 11).  This Court notes that the function of an entry nunc pro tunc is to correct the record to reflect a prior ruling made in fact but defectively recorded.  See De Baun v. Michael, 333 So. 2d 106, 108 (Fla. 2d DCA 1976).  The jurisdiction of the court is a substantive matter, not a clerical error or a matter that can be resolved with the nunc pro tunc entry of judgment.  See e.g. Wilkinson v. Clarke, 37 Fla. L. Weekly D1577a (Fla. 2d DCA June 29, 2012)(not yet final); Hunter v. Hunter, 487 So. 2d 1160, 1161 (Fla. 5th DCA 1986).

            This Court's opinion in LaSalla I reversing the final judgment for attorney's fees and costs has returned this case to the status it held prior to the entry of the final judgment on attorney's fees and costs.  Because the trial court has not entered an order setting aside the August 5, 2009, final judgment for damages, jurisdiction is retained by the trial court under that judgment to enter orders necessary for review of the issue of attorney's fees and costs.  Accordingly, Mr. LaSalla's argument that the trial court has no jurisdiction to consider a request by Pools By George to transfer the case and to conduct a new hearing in the Civil Division of the County Court on the motion for attorney's fees and costs is without merit.  

            This Court concludes that the trial court did not depart from the essential requirements of law.  The trial court has jurisdiction to enter orders in relation to the issue of attorney's fees and costs based on the reservation of jurisdiction contained in the August 5, 2009, final judgment.  Therefore, the petition is denied.

 

            Petition for Writ of Certiorari is denied.

            DONE AND ORDERED in Chambers in Clearwater, Pinellas County, Florida, this 19 day of July, 2012.

 

Original order entered on July 19, 2012 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