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