Chanin v. Joel Feigenheimer, Individually, Shari Gherman, Individually, Jach, Inc.

• Decision Date: 17 April 2013
• Docket Number: No. 4D12–549.,4D12–549.
• Citation: 111 So.3d 292
• Parties: Lesley CHANIN, Appellant, v. Joel FEIGENHEIMER, individually, Shari Gherman, individually, Jach, Inc., a Florida domestic corporation, and China Grill Management, Inc., a Florida domestic corporation, I. Salver CPA, a Certified Public Accountant, and John Polsenberg, individually, Appellees.
• Court: Florida District Court of Appeals

111 So.3d 292

Lesley CHANIN, Appellant,

v.Joel FEIGENHEIMER, individually, Shari Gherman, individually, Jach, Inc., a Florida domestic corporation, and China Grill Management, Inc., a Florida domestic corporation, I. Salver CPA, a Certified Public Accountant, and John Polsenberg, individually, Appellees.

No. 4D12–549.

District Court of Appeal of Florida,

Fourth District.

April 17, 2013.

Michele Watt of the Law Office of Michele Watt, Greenacres, for appellant.

Deborah P. FitzGerald and Kelly Vogt of Walton Lantaff Schroeder & Carson, LLP, Fort Lauderdale, for appellees I. Salver, CPA, and I. Salver, CPA, P.A.

Cory S. Carano and Roderick F. Coleman of Coleman & Associates, P.A., Boca Raton, for appellees Joel Feigenheimer, Shari Gherman, and Jach, Inc.

John S. Trimper and Matthew T. Ramenda of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for appellees China Grill Management, Inc., John Polsenberg and Jack Polsenberg.

WARNER, J.

Appellant, who was divorced from appellee Feigenheimer, filed a petition for modification of child support as well as various counts of fraud, deceptive and unfair trade practices, and negligence against Feigenheimer's company, its managers, as well as the company's C.P.A., for their alleged assistance in helping Feigenheimer hide his income so as to lower his child support. The trial court, who presided in the Family Division of the circuit, dismissed all of the fraud, statutory violation, and negligence counts without prejudice to appellant filing them in the civil division. Appellant challenges that dismissal, claiming that the court had jurisdiction to hear all claims. We agree that the circuit court had jurisdiction, and dismissal was an improper remedy.

The parties concede that, “[a]ll circuit court judges have the same jurisdiction within their respective circuits.” In Interest of Peterson, 364 So.2d 98, 99 (Fla. 4th DCA 1978). Nevertheless, the appellees claim that dismissal is proper because the fraud and negligence claims should have been brought in the civil division. See, e.g., Partridge v. Partridge, 790 So.2d 1280 (Fla. 4th DCA 2001). Because the circuit court had jurisdiction, however, the court should not have dismissed the case. “If an action is filed in the incorrect division, the proper remedy is to transfer the case to the correct division, subject to the payment of any filing fee and subject to the requirements of any local administrative rule.” Fort v. Fort, 951 So.2d 1020, 1022 n. 2 (Fla. 1st DCA 2007).

While the appellees note that the appellant did not request transfer, she opposed dismissal, and dismissal was not the proper remedy. We distinguish Garcia–Roque v. Roque–Velasco, 855 So.2d 668 (Fla. 3d DCA 2003), relied upon by the...