Lawsuits can be complicated, and lawyers are expensive. A typical lawsuit in Florida takes more than 12 months to complete and cases often take years. Lawsuits generally have 5 stages: investigation, pleadings, discovery, pretrial proceedings, trial and if someone is unhappy after trial, appeal to a higher court. Interspersed with the stages are motions, court hearings and even settlement discussions. Proceedings are governed by court rules, statutes and “law” developed in the form of previous judicial decisions and even application of law inherited from England known as common law.
A typical person is ill-suited to work through the labyrinth of lawsuit complexity. It would not make financial sense to hire a lawyer when the amount in dispute is small. Plus, many smaller cases cry out for quicker resolution than associated with a traditional lawsuit. For those cases, Florida’s Supreme Court has adopted Florida Small Claims Rules—hereafter referred to as the Rules. The Rules are intended to provide a relatively quick, simple and speedy trial for small cases.
The Rules apply to lawsuits that do not exceed $8,000 exclusive of court costs, interest and attorney’s fees. They do not apply to criminal cases. Because small claims cases move quickly to resolution, it is not unusual for a person with a claim a bit higher than the maximum to reduce the claim to $8,000 and gain access to Small Claims Court. Although that reduction limits the amount that might be awarded by the court, it avoids the complexity of lawsuit for a higher amount. The simpler procedure can be more readily followed by a non–lawyer. A lawyer can still be hired to pursue or defend a small claims case, but the goal of the Rules is to provide a simpler trial procedure which might be pursued without attorneys.
Corporations, LLC’s and other entities are generally prohibited from appearing in court without representation by an attorney. The Rules allow those entities to appear in small claims cases via an officer, member, partner or other principal of the entity. Non-attorney principals may represent the entity at trial, but not on appeal. The Rules recognize that appellate proceedings require greater knowledge of the law and procedure.
A small claims case starts just like any other lawsuit. The party claiming he or she has been damaged files a complaint known as a statement of claim and pays a filing fee to the Clerk of Courts. A filing fee is based on the amount claimed due from the defendant. In Collier County, the filing fee ranges from $55 for claims less than $100 to $300 for claims of $8000. If the claim is based on a written contract or another document, a copy of the document must be attached. The Clerk of Courts is directed to assist in the preparation of a statement of claim if requested by the litigant but, as with other cases, the clerk cannot provide legal advice. The party filing suit is known as the plaintiff and the other party is the defendant.
After the statement of claim is filed, the court sets a date and time for a pretrial conference and prepares a summons/notice to appear for the pretrial conference. The pretrial conference must be set no more than 50 days from the date of filing that action. A copy of the statement of claim and summons must be served on the defendant just like any other lawsuit. That means a process server or Sheriff Deputy must deliver the summons and complaint to the defendant or to someone 15 years of age or older residing in the defendant’s principal place of abode. In small claims cases, service on a Florida resident may also be affected by a certified mail return receipt signed by the defendant or someone authorized to receive mail at the residence or principal place of business of the defendant.
Both parties must appear at the pretrial conference. In Southwest Florida, judges do not usually preside over the pretrial conference, but instead, personnel from the clerk’s office preside. The purpose of the pretrial conference is primarily to discuss settlement, but also to address simplification of issues and other matters to get the case ready for trial. Locally, volunteer mediators are assigned to each case to help the parties reach a settlement. If the case does not settle at the pretrial conference, the case is set for trial not more than 60 days from the date of the pretrial conference. If the defendant does not appear at the pretrial conference, a default will be issued and the plaintiff gets a judgment. If the plaintiff does not show, the case is dismissed.
The defendant does not have to file anything with the court, but the defendant does have to attend all scheduled court appearances or risk judgment. If the defendant files a claim against the plaintiff—known as a counterclaim—the defendant must file it in the same case if it arises from the same circumstances and is generally permitted to file any other claim the defendant may have against the plaintiff. The defendant can also file a statement of claim against a person not a party to the action who may be liable to the defendant for all or part of the plaintiff’s claim against the defendant, but asked to get the court to allow the filing of that claim in the pretrial conference. The plaintiff has a similar right to file a claim against non–parties by getting permission from the court at the pretrial conference. If claims are filed against third parties, the third parties must be served with the claims and the trial is deferred until all the claims are filed, a party served and the case ready to proceed.
Small claims trials are handled as expeditiously as the procedure to get to trial. A typical small claims trial in Southwest Florida takes less than 30 minutes; unless attorneys are involved. When attorneys are involved, cases can take hours and even longer. At the conclusion of the trial, the judge enters judgment awarding the plaintiff an amount of money or in favor of the defendant. The prevailing party in the case is entitled to recover court costs, which are generally the filing and service fees but could also include witness fees and other expenses of a lawsuit in accordance with rules of court. Attorney fees can be recoverable if provided by statute or contract, but attorney’s fees are not recoverable in all cases—nor are they recoverable in all cases filed other than in Small Claims Court. A party’s personal time is not compensable. In most cases, stress and aggravation is also not an element of damages. Before filing, a prospective plaintiff should give thought to how much of his or her time will be required to pursue the amount in controversy.
Perhaps the biggest disappointment to a winning plaintiff is that judgments are not self-executing. The plaintiff must pursue the judgment to collect on it and use all of the tools and options available to any plaintiff prevailing in a Florida court. Many of those options are difficult to pursue and likely require assistance from an attorney. Judgment against a defendant with no money or only assets that are exempt from creditor claims under Florida law (i.e. homestead property or retirement accounts) may be worthless. The United States and Florida Constitutions prohibit jail for failure to pay most debts.
The small claims procedures are intended to simplify and expedite the trial of small claims. They do not guarantee payment.
William G. Morris is the principal of William G. Morris, P.A. William G. Morris and his firm have represented clients in Collier County for over 30 years. His practice includes litigation and divorce, business law, estate planning, associations, and real estate. The information in this column is general in nature and not intended as legal advice.