SC05-146 – In Re: Amendments To The Florida Small Claims Rules (Two Year Cycle)

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SC05-146 – In Re: Amendments To The Florida Small Claims Rules (Two Year Cycle) – Revised Opinion

State: Florida

Court: Supreme Court

Docket No: sc05-146

Case Date: 05/11/2006

Plaintiff: SC05-146 – In Re: Amendments

Defendant: The Florida Small Claims Rules (Two Year Cycle) – Revised Opinion

Preview:Supreme Court of Florida
No. SC05-146
IN RE:  AMENDMENTS TO THE FLORIDA SMALL CLAIMS RULES
(TWO YEAR CYCLE).
[December 15, 2005]
REVISED OPINION
PER CURIAM.
We have for consideration the biennial report of proposed rule changes filed
by the Small Claims Rules Committee (Committee), in accordance with Florida
Rule of Judicial Administration 2.130(c)(4).  We have jurisdiction.  See art. V, §
2(a), Fla. Const.
BACKGROUND
The Committee’s regular-cycle report proposes amendments to rules 7.080
(Service of Pleadings and Papers Other Than Statement of Claim), and 7.090
(Appearance; Defensive Pleadings; Trial Date), as well as the addition of new rule
7.175 (Motions for Costs and Attorneys’ Fees).    The Committee also proposes
amendments to forms 7.322 (Summons/Notice to Appear for Pretrial Conference),
7.340 (Final Judgment), and 7.343 (Fact Information Sheet), and the addition of

new forms 7.321(Notice to Appear for Pretrial Conference/Mediation), 7.335
(Statement of Claim (For Return of Stolen Property)), and 7.350 (Corporate
Authorization to Allow Employee to Represent Corporation at Any Stage of
Lawsuit).  As required by rule 2.130(c)(2), prior to submission to the Court, the
proposed rule amendments were published in The Florida Bar News and on the
internet website of The Florida Bar, and interested parties were invited to
comment.   Several comments were received by the Committee, but no changes
were made to the proposals.  After submission to the Court, the proposals were
again published for comment, and several comments were received.  After
considering the comments and holding oral argument, we adopt a majority of the
Committee’s proposals, with a limited number of exceptions and modifications as
set out below.
AMENDMENTS
First, we decline to adopt the proposed amendment to rule 7.080(b), Service
of Pleadings and Papers Other Than Statement of Claim.  This proposed
amendment would allow service of papers (except the initial claim and notice to
appear) to be made by delivery to the clerk of court if the party’s address is not
known.  However, it fails to specify the consequence of such delivery.  Neither the
comments nor oral argument adequately resolved this uncertainty.  Therefore, we
decline to adopt this proposed rule change.
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We also decline to adopt the proposed amendments to rule 7.090,
Appearance; Defensive Pleadings; Trial Date.  The proposed amendments to
subdivisions (a) and (b) of rule 7.090 were proposed by the Supreme Court
Committee on Alternative Dispute Resolution Rules and Policy (ADR Committee)
in its comment filed with the Court.    The Committee did not object to the
suggested changes.  The proposed amendment to subdivision (a) would have
required, “Whoever appears for a party [at the pretrial conference] must have full
authority to settle for all amounts from zero to the amount of the claim without
further consultation.”  The proposed amendment to subdivision (b) would have
required that the summons/notice to appear specify that mediation may take place
during the time scheduled for the pretrial conference.  This proposal, if accepted,
would conform the notice to appear to the proposed changes to subdivisions (a)
and (f).
The proposed amendment to subdivision (f) would not only provide that
“mediation may take place at pretrial conference,” it would also mandate that each
party or their counsel have full authority to settle.  And, of greatest concern, it
would allow sanctions for failure to comply.  These sanctions include costs,
attorneys’ fees, entry of judgment, or dismissal.  Among our concerns about this
proposal is the impact it would have upon a party who must send counsel to such
conferences on short notice without an adequate opportunity to fully prepare for
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settlement negotiations.  Nonetheless, recognizing the importance of this effort at
encouraging mediated settlement, we refer this proposed amendment back to the
Committee for further consideration.
Next, we decline to adopt the Committee’s proposed amendments to form
7.322, Summons/Notice to Appear for Pretrial Conference.  Having declined to
adopt the proposed changes to rule 7.090, we also decline to adopt new form
7.321, Notice to Appear for Pretrial Conference/Mediation, as proposed by the
ADR Committee, and agreed to by the Committee.
We adopt, as modified, new rule 7.175, Motions for Costs and Attorneys’
Fees, permitting motions for costs and attorneys’ fees if timely filed.  In response
to comments filed, we modify the language originally proposed by the Committee
to reflect that a motion seeking costs or attorneys’ fees or both shall be served “no
later than” thirty days after the judgment is filed.  This change is consistent with
changes to the Florida Rules of Civil Procedure which this Court has adopted in a
separate opinion.  In re Amendments to the Florida Rules of Civil Procedure, No.
SC05-179 (Fla. Dec. 15, 2005).
We also adopt new form 7.335, Statement of Claim (For Return of Stolen
Property).  According to the report,
[t]he form is meant to allow for uniformity in the return
of property that was stolen and then pawned, to be
returned to the rightful owner even before the criminal
case is disposed of.  The committee believed that the
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rightful owner of the property should not be required to
redeem his or her property by making any form of
payment.
Form 7.340, Final Judgment, is amended, as proposed, to delete the
reference to future interest rates.   The amendment to the form is meant to put all
parties on notice of the interest rate that should accrue on judgments.
New subdivision (b) is added to form 7.343, Fact Information Sheet.   The
new subdivision recognizes the distinction between a judgment entered against an
individual and a judgment entered against a corporation.
Finally, we adopt new form 7.350, Corporate Authorization to Allow
Employee to Represent Corporation at Any Stage of Lawsuit.  This new form
provides a mechanism for a corporation to authorize an individual to represent it in
all trial proceedings.  The form will provide written notice to all parties that the
individual appearing at the pretrial and all subsequent proceedings has authority to
act on behalf of the corporation.
We hereby adopt the amendments to the Florida Small Claims Rules as set
forth in the appendix to this opinion.1  New language is indicated by underscoring;
deletions are indicated by struck-through type.  The amendments will become
effective on January 1, 2006, at 12:01 a.m.
It is so ordered.
1.   In addition to the amendments discussed above, there are also several
editorial and housekeeping amendments as reflected in the appendix.
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PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and
BELL, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS.
Original Proceeding - The Florida Small Claims Rules (Two Year Cycle)
Honorable Louis Howard Schiff, Chair, Deerfield Beach, Florida, Honorable
Pauline Drayton, Past-Chair, Jacksonville, Florida, Small Claims Rules
Committee, John F. Harkness, Jr., Executive Director, Madelon Horwich, Bar Staff
Liaison, The Florida Bar, Tallahassee, Florida,
for Petitioner
Honorable Shawn Lee Briese, Chair, Supreme Court Commission on Alternative
Dispute Resolution Rules and Policy, Daytona Beach, Florida, and Robert N.
Clarke, Jr. of Ausley and McMullen, P.A., Past-Chair, Civil Procedure Rules
Committee, Tallahassee, Florida
for Opponent
Bruce J. Berman of McDermott, Will and Emery, LLP, Miami, Florida and Henry
P. Trawick, Jr., Sarasota, Florida,
filing Comments
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APPENDIX
RULE 7.175.                                                                         MOTIONS FOR COSTS AND ATTORNEYS’ FEES
Any party seeking a judgment taxing costs or attorneys’ fees, or both, shall
serve a motion no later than 30 days after filing of the judgment, including a
judgment of dismissal, or the service of a notice of voluntary dismissal. In the
event of a default judgment, no further motions are needed if costs or attorneys’
fees, or both, were sought in the statement of claim.
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FORM 7.335.      STATEMENT OF CLAIM (FOR RETURN OF STOLEN
PROPERTY)
IN THE COUNTY COURT, IN AND
FOR_______________, COUNTY,
FLORIDA
Plaintiff,                                                                          CASE NO.:_____
vs.
Defendant/Pawnbroker.
STATEMENT OF CLAIM FOR RETURN OF PROPERTY
Plaintiff, ______________________ sues defendant, __________________
and says:
1.                                                                                  This is an action for the return of stolen or misappropriated property
pursuant to section 539.001, Florida Statutes.
2.                                                                                  Plaintiff is the owner of the following described property:
__________________________________________________________________.
3.                                                                                  The above-described property was stolen or otherwise
misappropriated from plaintiff on or about the ____ day of ____________,
20____. A copy of the law enforcement report outlining the theft/misappropriation
is attached hereto and incorporated into this statement of claim.
4.                                                                                  The above-described property is currently in the possession of
defendant and is located at a pawnshop as defined in section 539.001, Florida
Statutes, the address of which is ________________________________________
__________________________.
5.                                                                                  Plaintiff has complied with the procedural requirements of section
539.001, Florida Statutes. Specifically, plaintiff notified the pawnbroker of
plaintiff’s claim to the property:
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_____ by certified mail, return receipt requested, OR
_____ in person evidenced by a signed receipt.
The notice contains a complete and accurate description of the purchased or
pledged goods and was accompanied by a legible copy of the aforementioned
police report regarding the theft or misappropriation of the property. No resolution
between plaintiff and defendant pawnbroker could be reached within 10 days after
the delivery of the notice.
WHEREFORE, the plaintiff demands judgment for the return of the
property. Plaintiff further asks this court to award plaintiff the costs of this action,
including reasonable attorneys’ fees.
Plaintiff (signature)
Name
Address
City, State, Zip code
Day telephone number
State of Florida
County of ____________________
The foregoing instrument was acknowledged before me on .....(date)...                      .., by
.., who is personally known to me or has produced ...
as identification and who .....did/did not...                                              .. take an oath.
WITNESS my hand and official seal, on .....(date)...
Notary Public, State of Florida
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Note to Clerk of Court and to Sheriff: Pursuant to Section 539.001(15), filing fees
and service fees shall be waived. Waiver does not require the filing of an affidavit
of insolvency.
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FORM 7.340.                                                                                                                                                        FINAL JUDGMENT
(CAPTION)
                                                                                                                                                                   FINAL JUDGMENT
                                                                                                                                                                   AGAINST (DEFENDANT(S)’S NAME)
                                                                                          It is adjudged that the plaintiff(s), ...                                                                                                                            .., recover from the defendant(s),
                                                                                          .., the sum of $...                                                      . on principal, $...                                                                        . as prejudgment interest,
$...                                                                                      . for attorneys’ fees, with costs of $...                                                                                                                            ., all of which shall bear interest at
                                                                                                                                                                   the rate of .....% for the current year and thereafter at the prevailing rate per year as
                                                                                          provided for by Florida Statute, for all of which let execution issue.
                                                                                          ORDERED at ...                                                           .., Florida, on .....(date)...
County Court Judge
Copies furnished to:
PLAINTIFF(S)
DEFENDANT(S)
Plaintiff(s)’s address:
Defendant(s)’s last known address and
Social Security Number (if known):
(OPTIONAL ENFORCEMENT PARAGRAPH —
TO BE INCLUDED UPON REQUEST PURSUANT TO RULE 7.221)
It is further ordered and adjudged that the defendant(s) shall complete
Florida Small Claims Rules Form 7.343 (Fact Information Sheet) and return it to
the plaintiff’s attorney, or to the plaintiff if the plaintiff is not represented by an
attorney, within 45 days from the date of this final judgment, unless the final
judgment is satisfied or a motion for new trial or notice of appeal is filed.
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Jurisdiction of this case is retained to enter further orders that are proper to
compel the defendant(s) to complete form 7.343 and return it to the plaintiff’s
attorney, or the plaintiff if the plaintiff is not represented by an attorney.
Committee Notes
1992 Amendment. The optional enforcement paragraph was added to
facilitate discovery.
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FORM 7.343.                                                                        FACT INFORMATION SHEET
(a)                                                                                For Individuals
(CAPTION)
FACT INFORMATION SHEET — INDIVIDUAL
Full Legal Name:
Nicknames or Aliases:
Residence Address:
Mailing Address (if different):
Telephone Numbers: (Home)                                                                                                                                        (Business)
Name of Employer:
Address of Employer:
Position or Job Description:
Rate of Pay: $                                                                     per                                                                           . Average Paycheck: $         per
                                                                                   Average Commissions or Bonuses: $                                             per                           . Commissions or bonuses
are based on
Other Personal Income: $                                                           from
(Explain details on the back of this sheet or an additional sheet if necessary.)
Social Security Number:                                                            Birthdate:
Driver’s License Number:
Marital Status:                                                                    Spouse’s Name:
Spouse’s Address (if different):
Spouse’s Social Security Number:                                                                                                                                 Birthdate:
Spouse’s Employer:
                                                                                   Spouse’s Average Paycheck or Income: $                                        per
Other Family Income: $                                                             per                                                                           (Explain details on back of
                                                                                   this sheet or an additional sheet if necessary.)
                                                                                   Names and Ages of All Your Children (and addresses if not living with you):
Child Support or Alimony Paid: $                                                                                                                                 per
Names of Others You Live With:
Who is Head of Your Household?                                                     You                                                                           Spouse                        Other Person
Checking Account at:                                                                                                                                             Account #
Savings Account at:                                                                                                                                              Account #
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(Describe all other accounts or investments you may have, including stocks,
mutual funds, savings bonds, or annuities, on the back of this sheet or an additional
sheet if necessary.)
For Real Estate (land) You Own or Are Buying:
Address:
All Names on Title:
Mortgage Owed to:
Balance Owed:
Monthly Payment: $
(Attach a copy of the deed or mortgage, or list the legal description of the property
on the back of this sheet or an additional sheet if necessary. Also provide the same
information on any other property you own or are buying.)
For All Motor Vehicles You Own or Are Buying:
Year/Make/Model:                                                                         Color:
Vehicle ID #:                                                                            Tag No:                                                                 Mileage:
Names on Title:                                                                                                                                                  Present Value: $
Loan Owed to:
Balance on Loan: $
Monthly Payment: $                                                                       (List all other automobiles, as well as other
vehicles, such as boats, motorcycles, bicycles, or aircraft, on the back of this sheet
or an additional sheet if necessary.)
Have you given, sold, loaned, or transferred any real or personal property worth
more than $100 to any person in the last year? If your answer is “yes,” describe the
property and sale price, and give the name and address of the person who received
the property.
Does anyone owe you money? Amount Owed: $
Name and Address of Person Owing Money:
Reason money is owed:
Please attach copies of the following:
a.                                                                                       Your last pay stub.
b.                                                                                       Your last 3 statements for each bank, savings, credit union, or other
financial account.
c.                                                                                       Your motor vehicle registrations and titles.
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d.                                                                               Any deeds or titles to any real or personal property you own or are
buying, or leases to property you are renting.
UNDER PENALTY OF PERJURY, I SWEAR OR AFFIRM THAT THE
FOREGOING ANSWERS ARE TRUE AND COMPLETE.
Judgment Debtor
STATE OF FLORIDA
COUNTY OF ...
The foregoing instrument was acknowledged before me on .....(date)...                                                                                  .., by
.., who is personally known to me or has produced ...                            .. as
identification and who .....did/did not...                                       .. take an oath.
WITNESS my hand and official seal, on .....(date)...
Notary Public
State of Florida
My Commission expires: ...
MAIL OR DELIVER THIS FORM TO THE CLERK OF THE COURT, AND
MAIL OR DELIVER A COPY OF THE COMPLETED FORM TO THE
JUDGMENT CREDITOR OR THE CREDITOR’S ATTORNEY.
(b)                                                                              For Corporate Entities
(CAPTION)
FACT INFORMATION SHEET— BUSINESS ENTITY
Name/Title of person filling out this form:
Address:
Telephone Number: Home:                                                          Business:
Address of Business Entity:
Type of Entity: (Check One) “Corporation   “Partnership   “Limited Partnership
“Sole Proprietorship                                                             “Limited Liability Corporation (LLC)
“Professional Association (PA)                                                   “Other: (Please Explain)
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Does Business Entity own/have interest in any other business entity?  If so please
explain.
Gross/Taxable income reported for Federal Income Tax purposes last three years:
$                                                                                    $                     $
Taxpayer Identification Number:
List Partners (General or Limited and Designate Percentage of Ownership):
Average No. of Employees/Month:
Names of Officers and Directors:
Checking Account at:                                                                 Account No:
Savings Account At:                                                                  Account No:
Does the Business Entity own any vehicles:
Years/Makes/Models:
Vehicle I.D. Nos.:
Tag Nos.:
Loans Outstanding:
Does the Business Entity own any real property: YES                                  NO
If Yes: Address:
Please check if the business entity owns the following:
Boat                                                                                 Camper
Stocks/Bonds                                                                         Other Real Property
Other Personal Property                                                              Intangible Property
UNDER PENALTY OF PERJURY, I SWEAR OR AFFIRM THAT THE
FOREGOING ANSWERS ARE TRUE AND COMPLETE.
Defendant’s Designated Representative
Title: ...
STATE OF FLORIDA
COUNTY OF ...
The foregoing instrument was acknowledged before me on .....(date)...                .., by
.., who is personally known to me or has produced ...
as identification and who .....did/did not...                                        .. take an oath.
WITNESS my hand and official seal, on .....(date)...
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Notary Public
State of Florida
My Commission expires: ...
MAIL OR DELIVER THIS FORM TO THE CLERK OF THE COURT, AND
MAIL OR DELIVER A COPY OF THE COMPLETED FORM TO THE
JUDGMENT CREDITOR OR THE CREDITOR’S ATTORNEY.
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7.350.                                                                                 CORPORATE AUTHORIZATION TO ALLOW EMPLOYEE
                                                                                       TO REPRESENT CORPORATION AT ANY STAGE OF LAWSUIT
(Caption)
                                                                                       AUTHORIZATION OF CORPORATE OFFICER
..(name)..... is an employee of ...                                                                                                       ..(name of corporation that is a party to
this action)...
This individual has authority to represent the corporation at any stage of the trial
court proceedings, including mediation.
The undersigned giving the authority is an officer of the corporation.
Pursuant to section 92.525, Florida Statutes, under penalties of perjury, I
declare that I have read the foregoing Corporate Authorization and that the facts
stated in it are true.
Dated: ...
SIGNING AUTHORITY: ____________________________________
Print name and title: ...
(president; vice-president; secretary; treasurer)
Address:
Phone number:
I certify that a copy of this form has been furnished to [list all parties
to this action] by .....(hand delivery/mail/fax)...                                    .. on .....(date)...
Name and title: ...
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