Summons - Notice to Appear for Pretrial Conference
Note: This summary is not intended to be an all-inclusive
discussion of the law and procedures of small claims in Florida, but it
does contain basic and other information. This summary only discusses civil
claims (property and money claims that may be filed in small claims court).
Criminal charges are not discussed.
Definition - Small claims courts,
also sometimes called "Peoples Court", is a court of limited jurisdiction.
Limited jurisdiction means only certain matters may be filed and heard
by the small claims court. There is also a maximum claim amount limitation.
Small claims court offer a quick, informal and inexpensive way of resolving
many types of disputes you may have with particular individuals or companies.
Maximum Amount of Claim Small Claims Court may
hear in Florida: $5,000.00 or less--excluding court costs, interest
and/or attorney's fees, if applicable).
Which Court hears small claims in Florida? Small
claims cases are heard in the civil division of the county court.
Who hears the claims in small claims court? The
claim will be heard by a judge.
Claims over which the Small Claims Court has Jurisdiction:
The small claims court in Florida may hear any of the following
claims if the amount in controversy does not exceed $5,000.00 or less--excluding
court costs, interest and/or attorney's fees, if applicable):
1. money debts
2. property dispute
3. The above list is not exhaustive but does contain most of the
common claims. The following claims may not be heard in small claims court:
libel, slander, professional malpractice, assigned claims, and punitive
damages.
Who may file a claim in small claims court?
An
individual (age 18 or older), partnership or corporation (or LLC)
may file a claim against another individual(s), partnership or corporation
(or LLC) in small claims court if jurisdiction exists to hear the claim
and the amount of the claim or property involved does not exceed $5,000.00.
A person under eighteen years old may also sue in small claims, but only
if his parent(s) or guardian files the suit for him.
Must you be represented by an attorney? An
attorney may advise a party on the validity of his or her claim as well
as what evidence which will be needed to prove the claim.
Things to do before you File a Claim: Get
the facts straight so you can complete the forms correctly and answer any
questions court personnel may need to know. Be sure to obtain the correct
legal name of the defendant, correct address and place/address of employment.
If the defendant is a Corporation or Limited Liability Company you would
use the legal corporate or LLC name as the defendant. If the defendant
is a Corporation or LLC, you may need to contact the secretary of state
in your state and obtain the proper name and address to serve with a copy
of the suit. This person is called a registered agent and is designated
by the corporation to receive process or summons when the corporation is
sued. Be sure to also contact the small claims court to determine the filing
fee for filing the claim.
How to File the Claim: The plaintiff
must complete a Statement of Claim form. At the time the form is completed,
the plaintiff must have the proper name and address of the party being
sued. A filing fee is due at the time the lawsuit is filed. The amount
of the filing fee is based upon the amount of your lawsuit. If the claim
is based upon a written document(s) (such as a promissory note, sales contract,
lease, repair bill, etc.), you must have copies of it to attach to the
Statement of Claim.
Where to File your Claim: If
you feel you are prepared to file a lawsuit, you should go to or contact
the Clerk of Court in any one of the following counties:
* the county where the defendant (the person you want to sue) lives;
or
* the county where the dispute or event which gave rise to the
lawsuit (called the cause of action); or
* the county where the property in dispute is located; or
* if the case involves a secured promissory note, the county where
the payment is received.
If you do not file your lawsuit in one of these counties, the
defendant could request the court to move the trial (called change of venue)
to one of the appropriate counties. If the defendant does request a change
of venue, a judge would decide whether or not to allow the trial to be
moved.
What happens after the claim is filed? The
defendant is be notified of the lawsuit. This notification procedure is
called "Service of Process". The Statement of Claim is attached to a "Notice
to Appear" form (a summons) and these papers are sent to the defendant.
This can be accomplished in one of two ways. One method of service of process
is by mail. You can have the clerk send the lawsuit papers to the defendant
by registered mail with a return receipt requested so that delivery is
restricted to the defendant only.
There is a fee that you must pay the clerk if you want service
by mail. Again, if you win your case, you may recover your court costs
from the losing party. If mail service is not desirable or if it proves
to be unsuccessful, you may want to pay the Sheriff's' Office to attempt
personal service. This means the sheriff will try to locate the defendant
and deliver suit papers to him or at his home for a specific fee. If the
defendant lives in another county, you can get the sheriff of that county
to attempt service for you.
In the event that mail service and/or sheriff's service proves to
be unsuccessful and you still want to try to serve notice on the defendant,
contact the Clerk's Office about other options that might be available
to you.
How are hearings scheduled? The clerk
of the court will provide you with the procedure to set the case for trial
or hearing at the time you file your claim. You should, at the time you
file your small claims lawsuit, receive a notice of the date, time and
place the "pretrial hearing" will be held. The pretrial hearing
(sometimes called a pretrial conference) is not a final hearing or trial.
The purpose of a pretrial hearing is to determine the real issues in dispute.
If the defendant admits he owes you the money or property,the case
could be settled. If the defendant needs time to pay you and you agree
to the terms, the court may enter a stipulation. The stipulation will spell
out the terms and conditions for settling the case.
If the defendant appears at the pretrial hearing and denies the
claim, the judge will ask him why he does not feel he owes the money or
property. If the defendant does not have a valid legal defense or reason
for not owing the money, the judge will tell him and a judgment could be
entered against him at this point. If the defendant does appear to have
a legal or factual defense, the judge will order the parties to mediation.
This takes usually place at the courthouse at the time of the pretrial
hearing with volunteer mediators. If the case does settle, the terms of
the settlment agreement will be set out by the mediator and signed by the
parties and filed. If the case does not settle at the mediation conference,
the clerk will set the case for trial. The judge will need to know the
number of witnesses who will testify to know how long the trial will take
so that enough time will be set aside for the judge to listen to all of
the witnesses. If the parties are going to testify they will need to include
themselves as witnesses.
What should you do to prepare for trial? If
an agreement cannot be reached, both the plaintiff and defendant should
get together all papers, receipts, bills, sales tickets, estimates, photographs,
etc., having anything to do with the claim.
You should write down the details and facts of the case to assist
you in telling your side of the story at the trial.
As the plaintiff or defendant, you may bring any witnesses you feel
can help explain your case. If there is any reason to believe a witness
will not voluntarily appear, you may ask the clerk to issue a witness subpoena
requiring that person to appear. You will be required to pay a witness
subpoena fee.
If you do not feel confident and prepared to present your case yourself
(plaintiff) or to defend your case yourself(defendant), you should contact
an attorney.
Subpoena of Witnesses: If witnesses
are required but unwilling to voluntarily attend unless they are subpoenaed,
you may obtain a subpoena issued by the court clerk for service on the
witness. The subpoena is an order for the witness to appear at the hearing
and testify. Some employers may require that an employee be subpoenaed
in order to be excused from work.
Trial Procedures: The trial procedure
is generally informal than other courts although the formality will vary
from county to county and judge to judge. The case will usually be called
in open court and you will respond that you are present and ready to proceed.
You will then be advised when to present your claim. Be prepared
to present your claim in your own words. Be prepared to question witnesses
if witnesses are needed.
What happens if the defendant does not appear at
trial? Usually, if the defendant does not appear at trial,
a default judgment will be entered in your favor for the amount of the
claim or other relief. If the defendant fails to appear at the pretrial
hearing, the court will enter a default against him, after it is shown
to the judge that the suit was filed in the proper county and the defendant
was legally notified. A final judgment will be entered by the court against
the defendant who defaulted, if the judge feels there is sufficient evidence
to show that damages claimed in the lawsuit are accurate.
Judgment: If the defendant fails
to appear, or if the court rules for you after the hearing, a judgment
will be entered by the court for the amount of the claim, or other relief
sought.
Appeal: An unsatisfied party has the
option of appealing to the circuit court. If either party is unhappy
with the court's decision, they can file a written "motion for a new hearing"
with the court prior to an appeal. This must be done within ten (10) days
after the judgment is rendered. The court will rule on the motion by deciding
whether or not there are grounds for a new hearing.
Collection of Judgment: The prevailing
party may request that the court issue a writ of execution or a levy upon
the losing party's property in order to satisfy judgment.
The Clerk of the Court cannot collect a judgment or give legal
advice, however, the following procedures may help obtain payments:
Request the Court to enter an Order directing the judgment debtor
to complete a Fact Information Sheet which may assist in identifying assets
of the debtor and collecting on the Judgment.
Purchase a certified copy of the Final Judgment and record the certified
copy in the Official Records in any Florida county where the defendant
owns real property. This will potentially create a Lien on the property.
Request that a Writ of Execution be issued (A Writ of Execution
is a method directed by the Court to attempt to enforce a judgment that
has been granted. It authorizes a sheriff to levy on property belonging
to the defendant). If judgement holder can locate and describe any property
owned by the defendant, real or personal, he/she may secure a Writ of Execution
from the Clerk's office after a ten (10)day period has elapsed from date
of judgement. Once issued, the judgment holder may file the writ with the
Sheriff. This will allow the Sheriff to seize and sell the property subject
to statutory limitations.
Often defendants or persons who have a money judgment against them
are unable to take care of the judgment immediately and sometimes forget
that there is an outstanding judgment against them. Several years may pass
and the plaintiff or person holding the judgment may have moved or gone
out of business. The judgment may then be satisfied by the Clerk of Court
upon payment of the full amount of judgment and interest and payment of
the cost for recording, satisfying the judgment and notifying the judgment
holder as prescribed by the Florida Statutes. The Clerk shall issue a receipt
for the money and record the satisfaction of judgment. There are certain
restrictions governing judgments. Please refer to Chapter 55, Florida Statutes.
There are other procedures available for obtaining information to
help in the collection of a judgment,however, the Clerk's office is unable
to assist you any further. If you do not have an attorney, you may contact
the LAWYERS REFERRAL SERVICE for assistance. The telephone number is 1-800-342-8011.
References which are available at the local Law Library are:
Florida Statutes 55.141 and 701.04
Florida Rules of Civil Procedure
Florida Small Claims Rules
Trawick's Florida Practice and Procedure
All final judgments for the payment of money rendered in the courts
of the State of Florida may be satisfied at any time prior to the actual
levy of execution issued by payment of the full amount of the judgment,
including interest. The defendant may pay the full amount of judgment and
interest, from the date of entry of the judgment, directly to the plaintiff.
The plaintiff, or attorney of record, shall execute in writing an instrument
acknowledging satisfaction of the judgment. It shall be acknowledged and
recorded in the Official Records Book in the proper county.
Within 60 days of receiving full payment of the judgment, the person
required to acknowledge satisfaction of the judgment shall send the recorded
satisfaction to the person who made the full payment.
Pursuant to Florida Statute 30.231 the Volusia County Sheriff's
Office serves Summons, Notice,Garnishment, Notice of Tax Sale and other
types of process . There is a fee for such service. It is the responsibility
of the party requesting the service of process to furnish the Sheriff with
the original process signed and sealed by the Clerk's office along with
sufficient copies of the originals to be served on each party.
Complete addresses for service must be submitted to the Sheriff's
office with the papers to be served.Those with incomplete addresses will
be returned without service. Contact the Sheriff's Civil Division at 386/254-4660
or FAX 386/239-7769 for additional information regarding fees for additional
services.
If you are the Defendant, what should you do after
being served with a Statement of Claim? You may choose to settle
with the plaintiff before the date the claim is set for trial. If you do
settle, then the claim may be dismissed, with no judgment entered against
you. If you choose not to settle or you are unable to settle, you must
answer the Complaint within 14 days after being served, admitting or denying
all or part of the claim. Remember, your answer must be filed within 14
days or a default judgment may be entered against you. As the defendant,
you may also choose to file a Counterclaim, which is a claim that you have
against the plaintiff.
All parties to a small claims case are encouraged to try and reach
a settlement agreement prior to trial.
All settlement agreements should be in writing and should state
who is to pay the court costs. If the defendant does not agree to pay the
court costs as part of the settlement, the plaintiff will be responsible.
If a settlement agreement is reached before the trial, the plaintiff
must immediately notify the clerk so that the trial can be cancelled.
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Other Matters:
Are Motions allowed? Motions are allowed
by the parties on a limited basis.
Continuances: A continuance
will only be granted for good cause.
Out-of-Court Settlement: If the parties
decide to settle before trial, the court clerk must be informed.
When Payment is Received: When the judgment
has been satisfied, the receiving party must send written notice to the
court that the judgment has been satisfied.
Cross-Claims, Counterclaims, and Third-Party Claims:
Defendant(s)
may file a counterclaim against the plaintiff Any claim against plaintiff
arising out of the same transaction or occurrence which is the subject
matter of the plaintiff's claim, will be filed not less than five days
prior to the initial appearance date.
What happens if a defendant has filed bankruptcy?
If
the plaintiff has filed a claim against the defendant and the plaintiff
is aware that the claim is listed as a debt in a bankruptcy proceeding,
federal law prohibits the plaintiff from pursuing the claim in small claims
court.
Common Forms used in Small Claims Court:
Claim Statement/Complaint
Summons
Return of Summons
Answer
Subpoena
Abstract of Judgment
Court Rules:
In Florida the special rules of procedure which are used in small
claims cases are called the Small Claims Rules (S. C. R.).
This summary contains some of the provisions from the Florida Small
Claims Rules but does not include a comprehensive discussion of all rules.
For all Rules which apply to Small Claims actions in Florida see http://smallclaims.homestead.com/.
References:
References which are available at the local Law Library are:
Florida Statutes 55.141 and 701.04
Florida Rules of Civil Procedure
Florida Small Claims Rules