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Top 10 things lawyers need to know when handling a small claims case

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Top 10 things lawyers need to know when handling a small claims case

Steven G. Rogers
Marion County Court Judge
10. Corporations Can Fly Solo.
Most lawyers are aware that a corporation must be represented by counsel in legal proceedings. See, e.g., Szteinbaum v. Kaes Iversiones y Valores, C.A., 476 So. 2d 237 (Fla. 3rd DCA 1985). However, Florida Small Claims Rule 7.050(a)(2) (2007), provides that a corporation “may be represented at any stage of the trial court proceedings by an officer of the corporation or any employee authorized in writing by an officer of the corporation.”

9. Discovery Rules Do Not Apply to an Unrepresented Party, Unless.. .
Attorneys need not worry about serving discovery requests upon an unrepresented party, as Rule 7.020(b) (2007) provides that a party who is not represented by an attorney is not subject to the discovery rules contained in Florida Rules of Civil Procedure 1.280 – 1.380 (2007). The exception to this rule is that an unrepresented party is subject to the discovery rules if the unrepresented party directs discovery to a party represented by an attorney. Also, Rule 7.020(c) (2007) provides that the court can authorize the small claims action to proceed under one or more of the Florida Rules of Civil Procedure, including the discovery rules.

8. Attendance at the Pretrial Conference is Mandatory — Even If You Filed a Defensive Pleading.

A common error committed by attorneys representing a party in a small claims case concerns the failure to read Rule 7.090(c). Filing a Motion to Dismiss does not “excuse the personal appearance of a party or attorney on the initial appearance date (pretrial conference).”

7. If You Want a Jury Trial, You Need To Ask For One, In Writing, Right Now!

Jury trials are available for small claims cases. However, Rule 7.150 indicates that any request for a jury trial must be in writing and must be requested by the plaintiff at the time of the commencement of the suit or of the defendant within five days after notice of the suit or at the pretrial conference. The rule does not permit an attorney to make an ore tenus demand for a jury trial at the time of the pretrial conference.

6. Bring the Checkbook to Mediation. (Pens Will be Provided by the Court)

Often, attorneys will appear at the pre-trial conference and mediation having just recently been retained and without much knowledge concerning the issues in dispute. Rule 7.090(f) (2006) specifically provides that an attorney or corporate representative may appear on behalf of a party at mediation only if they have full authority to settle the disputed claim, without further consultation.

5. Can you file a Motion for Summary Judgment? Yes and No.

As referenced in #9 above, most of the Florida Rules of Civil Procedure are not automatically applicable in a small claims case. However, hidden (and often overlooked) in the Small Claims Rules is Rule 7.135 titled “Summary Disposition.” The rule provides as follows: “At pretrial conference or at any subsequent hearing, if there is no trial issue, the court shall summarily enter an appropriate order or judgment.” In consideration of the streamlined aspects of the small claims rules, this rule appears to permit the filing of a motion which may be considered by the court at the pretrial conference or a subsequent hearing, in which the court may summarily enter a judgment on behalf of the moving party.

4. Case didn’t settle at Mediation? Get Ready for Trial (and quickly)!

Rule 7.090(d) directs the court to set the case for trial not more than 60 days from the date of the pretrial conference. The rule does allow the parties to stipulate to a shorter or longer time for setting the trial, but any such stipulation is subject to the approval of the court.

3. You Snooze, You Lose. You Nap, You May Still Lose.

Most attorneys are familiar with the one-year rule governing lack of prosecution in most civil actions. However, small claims actions are subject to dismissal for lack of prosecution after only six months of “inactivity,” as provided by Rule 7.120(e).

2. If You Want Monetary Damages in That Eviction Action, Then You Must Get Personal (Service, That Is).

Eviction actions typically involve the claim for eviction as well as a related claim for monetary damages for unpaid rent, late fees, etc. Although posting of the complaint may be sufficient service for the eviction action, the plaintiff must obtain personal service on the defendant(s) in order for the court to award monetary damages. See §83.625 (2006).

1. Is It OK To File an OJ in a SC Case?

Can an attorney protect his/her client’s claim for reimbursement of attorney’s fees by filing an offer of judgment (i.e. proposal for settlement)? The answer is … it depends. Florida Rule of Civil Procedure 1.442 governs proposals for settlement and, as indicated in #9 above, is not applicable in small claims actions without being ordered or prescribed by the court. However, some attorneys have served an offer of settlement pursuant to §768.79 (2007). Some courts have validated the filing of an offer of judgment in a small claims action, and other courts have not. The best practice would be to request application of Rule 1.442 and to receive an order of the court regarding the same.

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