          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.
                  _____________________________


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.
     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 non-
discretionary 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.




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