Voss v. Voss

DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
AUSTIN GARRETT VOSS,
Appellant,
v.
ELIZABETH C. VOSS,
Appellee.
No. 2D2024-2781
December 3, 2025
Appeal from the County Court for Pinellas County; Edwin B. Jagger,
Judge.
Corey Szalai of Corey Szalai Law, PLLC, Seminole, for Appellant.
Daniel J. Kortenhaus, St. Petersburg, for Appellee.
MORRIS, Judge.
Austin Garrett Voss appeals from a final order of possession
entered in favor of his mother, Elizabeth C. Voss, in her unlawful
detainer action. Because we conclude that the matter sounded in
ejectment and because county courts lack subject matter jurisdiction
over such actions, we reverse.
We review the issue of subject matter jurisdiction de novo. Artz ex
rel. Artz v. City of Tampa, 102 So. 3d 747, 749 (Fla. 2d DCA 2012).

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Section 34.011(2), Florida Statutes (2023), provides in relevant part
that county courts "have exclusive jurisdiction of proceedings relating to
the right of possession of real property and to the forcible or unlawful
detention of lands and tenements" as long as the amount in controversy
does not exceed the county court's jurisdictional limits. And in unlawful
detainer actions, the county court may only determine "the right of
possession and any damages." § 82.04, Fla. Stat. (2023).1
Section 66.021(2), Florida Statutes (2023), provides that "[c]ircuit
courts have exclusive jurisdiction in an action of ejectment." See also
§ 26.012(2)(f), Fla. Stat. (2023). See generally Pro-Art Dental Lab, Inc. v.
V-Strategic Grp., LLC, 986 So. 2d 1244, 1251 (Fla. 2008) (recognizing
distinction between the jurisdiction of county and circuit courts as it
pertains to unlawful detainer and ejectment actions).
Here, Elizabeth filed an unlawful detainer action, alleging that she
has a superior right of possession, that Austin initially entered into an
occupancy of the house with Elizabeth's consent but that the consent
had since been withdrawn, and that there was no agreement for payment
of rent. Elizabeth also alleged that she did not consent to Austin's
continued occupancy and demanded that he vacate the property but that
Austin refused to do so. Elizabeth alleged that she suffered damages as
a result.
In his answer and affirmative defenses, Austin alleged that
Elizabeth was acting in bad faith and had unclean hands because there
was an agreement that while Elizabeth would put the mortgage in her
1 A county court may not make any determinations related to the
title of real property in an unlawful detainer action "[u]nless it is
necessary to determine the right of possession or the record titleholder."
§ 82.04.

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name, Austin would make the down payment as well as all mortgage
payments with the understanding that he would be the successor in
interest. Austin alleged that he made the down payment and has
continued to make all mortgage payments pursuant to the agreement.
Austin also argued that Elizabeth was estopped from bringing the
unlawful detainer action due to the agreement between the parties.
Austin alleged that the mortgage company agreed to transfer the
mortgage into his name as successor in interest once there was a deed
transferring the property to him, but he contended that Elizabeth elected
not to go forward because she wanted to sell the property even though he
had made all the payments.
The county court entered its final judgment of possession,
concluding that Austin's answer "does not allege the existence of a
freehold (ownership) interest" or "the existence of a non-freeholder
(leasehold) interest" and that he "raised no defense that precludes the
issuance of a judgment for possession in favor of [Elizabeth]." Austin
then filed an emergency motion to stay the entry of the final judgment
and motion to dismiss, wherein he argued that the county court lacked
subject matter jurisdiction because he had asserted an equitable interest
in the property and thus the action was really an ejectment action that
could only be heard in the circuit court. Austin also filed an emergency
motion to stay the execution of the final judgment and for new trial;
within that motion, he again asserted that the county court lacked
subject matter jurisdiction. Austin attached affidavits of payments made
in support of his motions. After a hearing, the county court denied the
motions.
Where a party asserts an equitable interest in the property in
question, the matter should be treated as one in ejectment. Estevill v.

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Estevill, 399 So. 3d 1167, 1170 (Fla. 3d DCA 2024) (relying on Thompson
v. Thompson, 342 So. 3d 818, 820 (Fla. 3d DCA 2022)); see also Babcock
v. Golden Acres S., LLC, 361 So. 3d 406, 408 (Fla. 5th DCA 2023);
Thompson, 342 So. 3d at 820; Dupree v. Dellmar, 323 So. 3d 342, 344
(Fla. 3d DCA 2021); Ward v. Est. of Ward, 1 So. 3d 238, 239 (Fla. 1st
DCA 2008); Toledo v. Escamilla, 962 So. 2d 1028, 1030 (Fla. 3d DCA
2007). Austin's allegations that he made the down payment and that he
paid all mortgage payments were sufficient to assert a claim that he had
an equitable interest in the property. This is so even where Austin did
not use the term "equitable interest" in his answer and affirmative
defenses because "the sum and substance of [his] allegations [were]
sufficiently clear" and requiring the use "of magic words or talismanic
language would promote form over substance." Estevill, 399 So. 3d at
1171.2
We find no merit to Elizabeth's argument that the unlawful
detainer action was appropriate due to statutory amendments addressing
the ability of a county court to determine the issue of title where it was
necessary to determine the right of possession or the record titleholder
and recognizing that an ejectment action is cumulative to other existing
remedies and may not be construed to limit other available remedies.
Because Austin sufficiently alleged an equitable interest in the property
at issue, the action sounded in ejectment. The matter was therefore
required to be brought in the circuit court—the only court that had
subject matter jurisdiction. The county court erred by denying Austin's
2 In Estevill, the appellant's assertion that she paid mortgage, tax,
and insurance payments, along with payment of association dues and
utilities, was found to be sufficient to allege an equitable interest. 399
So. 3d at 1169, 1171.

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motion to dismiss for lack of subject matter jurisdiction and by ruling on
the merits of the action, which rendered the final judgment void. See
Estevill, 399 So. 3d at 1170; Babcock, 361 So. 3d at 408; Thompson, 342
So. 3d at 821. Accordingly, we reverse and remand the final judgment
with instructions to the county court to transfer the case to the circuit
court for further proceedings.3
Reversed and remanded with instructions.
SILBERMAN and LaROSE, JJ., Concur.
Opinion subject to revision prior to official publication.
3 We express no opinion on the underlying merits of the action.