Cole v. Mendelsohn

WALDEN, Judge. Landlords, Sy Cole and Clyde Moore, filed suit in the county court against the tenants, Seymour Mendelsohn, Mendel-sohn’s of New York, and C & J Deli Depot, seeking to evict the tenants and regain possession of certain leased business property. The tenants answered with a general denial, filed affirmative defenses, and asserted a counterclaim. The county judge, in effect, severed the eviction action and upon trial denied the eviction action. Since the issues contained in the affirmative defenses and counterclaims were within the jurisdiction of the circuit court, the county court transferred the remainder of the case, the issues made by the affirmative defenses and counterclaim, to the circuit court. The landlords appeal the order in the county court denying eviction relief. This court has jurisdiction per rule 9.130(a)(6), Florida Rules of Appellate Procedure. Upon review and analysis it is apparent that the matter of eviction is inextricably interwoven into the issues contained in the affirmative defenses and counterclaim. Thus, the order denying eviction was premature. Upon authority of Herrell v. Seyfarth, Shaw, Fairwealher & Geraldson, 491 So.2d 1173 (Fla. 1st DCA 1986), the order of eviction must be vacated and the whole cause remanded to the circuit court with instructions to rule upon the question of eviction after the circuit court has considered the merits of the affirmative defenses and counterclaim filed by the tenants. Reversed and remanded to the circuit court for further proceedings consistent herewith. HERSEY, C.J., and GLICKSTEIN, J., concur.