Goodman v. Miller , 17 Fla. Supp. 145 ( 1961 )

JOE EATON, Circuit Judge.

This is an appeal from an order of the small claims court granting plaintiff below a judgment and dismissing defendant’s counterclaim as sham and filed in bad faith.

It appears from the record that the defendant filed a compulsory counterclaim under rule 1.13(1), rules of civil procedure, seeking equitable relief or in the alternative damages at law. The counterclaimant has an adequate remedy at law and therefore is not entitled to equitable relief, but since he has asked for damages at law in his alternative pleading the counterclaim is not sham on its face. Since the counterclaim is compulsory, the plaintiff’s action and the counterclaim should be decided in one forum.

From the pleading as it now stands it is impossible to determine whether the amount in controversy in the counterclaim exceeds the jurisdictional limit of the lower court. Counterclaimant should he permitted to amend his pleading to include a proper ad damnum clause, upon the basis of which the lower court is directed to adjudicate the matter or transfer it to the court of appropriate jurisdiction as provided by section 52.12, Florida Statutes, as well as rule 1.13(10), cf. State v. Hendry, 31 So. 2d 254.

The order appealed from is reversed and the cause is remanded to the lower court for proceedings in accord with this opinion. So ordered.