FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D18-1025

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CHRISTINA CONNER,

Appellant,

v.

THE HONORABLE JOHN MORAN,

COUNTY JUDGE

Appellee.

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On appeal from the Circuit Court for Duval County.

Eric C. Roberson, Judge.

August 9, 2019

BILBREY, J. 

Appellant challenges the circuit court’s denial of her petition 

for writ of mandamus to compel Duval County Judge John Moran

to grant her requests for jury trial in the pending county court case. 

Because the circuit court was not reviewing any order entered by 

the county court, and the record lacks any such order or ruling, the 

appeal of the circuit court’s order invokes this court’s appellate 

jurisdiction, not this court’s second-tier review or certiorari 

jurisdiction. Compare Fla. R. App. P. 9.110 & 9.100. We affirm 

the order on appeal because the circuit court’s denial of the writ of 

mandamus was correct. 
2

Appellant is the defendant and counterclaim plaintiff in a 

county court action initiated in 2013 by Benjamin H. Clark, her 

former fiancé. Mr. Clark, as plaintiff in the county court, filed a 

statement of claim under rule 7.050, Florida Small Claims Rules, 

seeking the return of the engagement ring or the monetary value 

thereof ($5,000.00) from Appellant. Upon the filing of the claim, 

the notice to appear for pretrial conference was issued to both 

parties. See Fla. Sm. Cl. R. 7.060. Appellant timely filed her 

answer and counterclaim, including her request for jury trial. See

Fla. Sm. Cl. R. 7.150. Appellant admitted that she and Mr. Clark

had been engaged to be married but denied that he was entitled to 

return of the ring or its monetary value upon the termination of 

the engagement. In her counterclaim, Appellant sought a 

declaratory judgment of her right to retain the ring but did not 

request monetary relief. 

The day before the scheduled pre-trial conference, Appellant 

filed her motion to transfer the case “to county court,” based on her 

allegation that her counterclaim raised an amount in controversy 

which exceeded the small claims jurisdictional threshold of 

$5,000.00. See Fla. Sm. Cl. R. 7.010(b). Consequently, the court 

scheduled a hearing on this motion and cancelled the pre-trial 

conference. 

After a hearing, the county court denied Appellant’s motion to 

transfer the case. The county judge noted that the case was 

pending in county court, that the amount in controversy did not 

exceed $15,000.00, and that transfer within the county court —

from small claims to civil — was not available because a county 

court hears both small claims and other civil claims up to

$15,000.00. See § 34.01(2)(c), Fla. Stat. (2014). Neither the 

transcript of the hearing nor the court’s written order indicate that 

Appellant raised her demand for jury trial during the hearing on 

the motion to transfer. 

Appellant continued her quest to litigate the amount in 

controversy, filing a motion for rehearing and thereafter, a petition 

for writ of mandamus in the circuit court to compel transfer of the 

case within the county court. The circuit court denied the writ, 

finding that the county court did not have a separate division for 

small claims, that less than $15,000.00 was at issue, and the 
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county court had jurisdiction over the case regardless of whether 

it applied the Small Claims Rules or the Rules of Civil Procedure. 

Appellant’s motion for rehearing of the circuit court’s order was 

unsuccessful. 

Several months later, on January 17, 2018, Appellant filed 

another petition for writ of mandamus in the circuit court.1 In that 

second petition she sought to compel the county court to grant her 

demand for jury trial as contained in her answer and 

counterpetition filed January 21, 2014. She argued that she was 

entitled to a jury trial due to the amount in controversy, rather 

than any error by the county court in an order or other denial of a 

request for trial. The circuit court again denied the petition for 

writ of mandamus, finding that Appellant had not demonstrated

that the county court failed or was failing to perform a ministerial, 

non-discretionary official duty, as required for issuance of the writ. 

Here, Appellant appeals that denial. 

Appellant appears to misapprehend the nature of Florida 

Small Claims Rules which do not create a separate “Small Claims 

Court” even if colloquially referred to by that name. “[F]or the 

purposes of the concept of subject matter jurisdiction, a county 

court that applies the Florida Small Claims Rules in a particular 

proceeding is not a separate court from a county court that applies 

the Florida Rules of Civil Procedure.” LaSalla v. Pools by George 

of Pinellas Cty, Inc., 125 So. 3d 1016, 1016 (Fla. 2d DCA 2013). 

“This is true even if a county court has elected to create a ‘small 

claims division’ to handle cases under the Florida Small Claims 

Rules.” Id. 

The second petition for writ of mandamus filed by Appellant 

in the circuit court is similar to the petition for writ of mandamus 

to compel a judge to set a case for trial in Parkinson v. Kia Motors 

Corp., 54 So. 3d 604 (Fla. 5th DCA 2011). The court in Parkinson 

denied the petition for writ of mandamus because the “trial court 

 1 That petition, which is before us on appeal, should have been 

styled Christina Conner v. Benjamin H. Clark, and Judge Moran 

should not have been named as a respondent. See Fla. R. App. P. 

9.100(b)(3)(A)
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has not refused to set a trial date.” Id. at 607. There the court 

recognized the trial court’s duty to set a matter for trial once the 

case was “at issue and properly noticed”. Id. 

Unlike the situation in Parkinson, however, Appellant did not 

point to any motion or request she made to set a jury trial, other 

than her general demand in her pleadings. She makes no 

reference to a notice for trial by any party under rule 1.440, Florida 

Rules of Civil Procedure, or any order issued by the county court 

which thwarted any attempt by either party to set the matter for 

trial.2 

The writ of mandamus is available only to compel a nondiscretionary ministerial duty by a public official where the 

petitioner has no other legal remedy to obtain the relief sought. 

Hatten v. State, 561 So. 2d 562 (Fla. 1990); Rhea v. Dist. Bd. of Trs. 

of Santa Fe College, 109 So. 3d 851, 855 (Fla. 1st DCA 2013). The 

circuit court’s denial of the writ of mandamus was correct because 

Appellant had another legal remedy to obtain a jury trial —

namely, to file a notice for trial in the county court under rule 

1.440(b).

Only upon a notice under rule 1.440(b) would the county court 

have a clear legal duty to set the matter for trial. As explained in 

Gawker Media, LLC v. Bollea, 170 So. 3d 125, 129 (Fla. 2d DCA 

2015): 

Rule 1.440(a) provides that an action is deemed at issue 

“after any motions directed to the last pleading served 

have been disposed of or, if no such motions are served, 

20 days after service of the last pleading.” Thereafter, 

 2 Rule 1.440 does not apply to actions operating under the 

Florida Small Claims Rules, unless the county judge orders it to be 

applicable. See Fla. Sm. Cl. R. 7.020(a) & (c). But rule 1.440 does 

apply to other civil actions in county court. See Fla. R. Civ. P. 

1.010. Here, Appellant sought to operate under the Florida Rules 

of Civil Procedure applicable to actions that exceed $5,000 but do 

not exceed $15,000, which would include applying rule 1.440 to any 

motion setting an action for trial. 
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under subsection (b) a party must serve a notice that the 

action is at issue and ready to be scheduled for trial. Per 

subsection (c), the court must then enter an order setting 

trial no fewer than thirty days hence. The rule thus 

prescribes a minimum interval of fifty days between 

service of the last pleading and commencement of trial. 

Strict compliance with rule 1.440 is mandatory. Citimortgage, 

Inc. v. Hill, 140 So. 3d 703 (Fla. 1st DCA 2014). While a court has 

authority to set an action for trial upon its own motion per rule 

1.440(c), the court’s obligation to set the action for trial becomes 

mandatory only upon service of the notice for trial by a party under 

subsection 1.440(b). 

Based on Appellant’s failure to demonstrate a clear legal right 

to the performance of a ministerial, non-discretionary action by the 

county court and failure to establish that she lacked any other 

legal remedy to obtain the relief she sought (a jury trial), the circuit 

court’s denial of the writ of mandamus is AFFIRMED. 

RAY, C.J., and JAY, J., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Neil L. Weinreb, Jacksonville, for Appellant.

Ashley Moody, Attorney General, and Timothy L. Newhall, Senior 

Assistant Attorney General, Tallahassee, for Appellee Honorable 

John Moran.