NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
SHERRI DIAMOND, )
)
Petitioner, )
)
v. ) Case No. 2D18-2953
)
ELVIS TOWING, INC., )
)
Respondent. )
)
Opinion filed April 12, 2019.
Petition for Writ of Certiorari to the Circuit
Court for Pinellas County; Amy M.
Williams, Judge.
Felipe B. Fulgencio, Megan N. Daniel, and
Courtney A. Umberger of Fulgencio Law,
PLLC, Tampa, for Petitioner.
Charles E. Lykes, Jr., Clearwater, for
Respondent.
CASANUEVA, Judge.
Sherri Diamond petitions this court for writ of certiorari seeking to quash
an order of the circuit court that transferred her class action lawsuit against Elvis
Towing, Inc. to the county court. We grant her petition because the circuit court erred in
transferring jurisdiction to the county court when the alleged amount in controversy was
more than $15,000.1
Procedural History
Ms. Diamond's first amended complaint was filed as a class action against
Elvis Towing pursuant to Florida Rule of Civil Procedure 1.220(c), and it alleges that
damages are in excess of $15,000. The amended complaint was filed in county court
on April 3, 2017, and Ms. Diamond successfully moved to have the case transferred to
circuit court on July 12, 2017. Elvis Towing thereafter filed a motion to dismiss the
complaint, in part challenging Ms. Diamond's ability to bring a class action. The motion
to dismiss was denied on February 9, 2018.
Elvis Towing also filed a supplemental motion to dismiss the complaint
based on a lack of subject matter jurisdiction. This motion alleged that the circuit court
did not have jurisdiction over the case because the action is based on an ordinance
violation. The motion did not allege that the amount in controversy was below the
jurisdictional threshold. On June 25, 2018, the circuit court denied the supplemental
motion to dismiss. However, on the same day, the court entered an order transferring
the case to county court "until such time as both the action may be certified as a class-
action and that sufficient evidence or cause is given to establish that the jurisdictional
amount of Circuit Court jurisdiction may be established." This ruling is contrary to
clearly established principles of law.
1As noted by this court in Rocco v. Coffey,
163 So. 2d 21, 22 (Fla. 2d DCA
1964) (citing Tantillo v. Miliman,
87 So. 2d 413 (Fla. 1956)), an order of the circuit court
transferring a case to the county court for lack of jurisdiction due to the amount involved
is properly reviewable by petition for writ of certiorari.
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Amount in Controversy
"[T]he jurisdiction of such Circuit Court depends not upon the amount of
damages which is actually recoverable as a matter of law, but rather by the sum in good
faith demanded or actually put in controversy."
Rocco, 163 So. 2d at 23 (citing Knudsen
v. Green,
156 So. 240, 242 (Fla. 1934)). As stated by the Third District in Norris v.
Southern Bell Telephone & Telegraph Co.,
324 So. 2d 108, 109 (Fla. 3d DCA 1975):
There may be a basis in this record for a belief that the
plaintiff exaggerated her claim but it cannot be said that such
a conclusion appears without issue. It is not our purpose to
preclude by this opinion a transfer if later developments in
this case substantiate the trial judge's conclusion in the order
appealed.
See also Ross v. Barnett,
436 So. 2d 1040, 1041 (Fla. 3d DCA 1983) (quashing order
transferring case to county court where it could not be concluded from the record on
appeal that the amount in controversy was unquestionably less than the jurisdictional
threshold or that the allegations asserting the amount in controversy were not made in
good faith).
In the present case, Ms. Diamond's complaint alleges that Elvis Towing
improperly towed her vehicle as well as the vehicles of the other class members and
that the resulting damages are in excess of $15,000, and the evidence before the circuit
court did not establish that the amount in controversy was unquestionably less than that
amount. In fact, the evidence suggests that damages may exceed $15,000. The
deposition of Stephanie Sue Watson-Johnson, Elvis Towing's corporate representative,
reflects that the company tows between 200 and 300 vehicles without the owners'
consent in a four-year period. The company charges a base rate of $100 for the tow
and $3 for every mile the vehicle is towed. Multiplying the base rate of a tow, without
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considering the mileage and cost thereof, by the minimum number of vehicles admitted
by Ms. Watson-Johnson, 200 vehicles, totals $20,000, well above the threshold amount
required for circuit court jurisdiction. See §§ 26.012(2)(a), 34.01(1)(c), Fla. Stat. (2017).
Therefore, the circuit court could not conclude from this record that the amount in
controversy was unquestionably less than $15,000. See
Ross, 436 So. 2d at 1041.
Class Action Determination
It was also improper for the circuit court to rule that the action had to be
certified as a class action before it could proceed in the circuit court. Rule 1.220(d)(1)
provides for the following procedure when a class action complaint has been filed:
As soon as practicable after service of any pleading alleging
the existence of a class under this rule and before service of
an order for pretrial conference or a notice for trial, after
hearing the court shall enter an order determining whether
the claim or defense is maintainable on behalf of a class on
the application of any party or on the court's initiative.
Irrespective of whether the court determines that the claim or
defense is maintainable on behalf of a class, the order shall
separately state the findings of fact and conclusions of law
upon which the determination is based.
"A decision on class certification should be made promptly, but only after
the parties have had an adequate opportunity to discover facts necessary to support all
of the requirements of a class action." Whigum v. Heilig-Meyers Furniture Inc.,
682 So.
2d 643, 645 (Fla. 1st DCA 1996). In the present case, the circuit court failed to hold a
hearing on whether the requirements of a class action had been met and failed to enter
an order determining if the claim was maintainable on behalf of a class. Therefore, it
was premature to enter an order transferring the action to the county court based on the
fact that it had not been certified as a class action.
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Further, we note that the Florida Supreme Court has held that the circuit
court should have jurisdiction of a class action lawsuit "when the aggregated claims of
the class meet the monetary jurisdictional requirement even though an individual claim
of a class member does not reach that threshold." Johnson v. Plantation Gen. Hosp.
Ltd. P'ship,
641 So. 2d 58, 60 (Fla. 1994); see also Galencare, Inc. v. Blanton,
636 So.
2d 547, 547 (Fla. 2d DCA 1994) ("[T]he circuit court's dollar jurisdiction may be satisfied
by aggregating the value of each plaintiff's claim."), approved, 650 So. 2d 42 (Fla.
1995); Galen of Fla., Inc. v. Arscott,
629 So. 2d 856, 857 (Fla. 5th DCA 1993) ("[T]he
amount of the claim of the entire class determines the dollar amount jurisdiction.").
Conclusion
Both of the trial court's rulings were contrary to the essential requirements
of law and result "in irreparable harm for which the remedy of appeal would be
inadequate." Phillips v. Cutler, 388 So. 2d 48, 49 (Fla. 2d DCA 1980). The circuit court
erred in finding that the amount in controversy was less than $15,000 where Ms.
Diamond's complaint alleged that damages are in excess of $15,000 and the evidence
did not show that the amount in controversy was unquestionably less than that amount.
It was also improper for the circuit court to transfer the case to the county court before
making a determination that the requirements of a class action had not been met.
Accordingly, we grant the petition for writ of certiorari, quash the order of the circuit
court transferring the action to the county court, and remand for proceedings consistent
with this opinion.
Petition for writ of certiorari granted; order quashed.
LaROSE, C.J., and MORRIS, JJ., Concur.
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