931 So. 2d 78 | Fla. | 2006
In re AMENDMENTS TO THE FLORIDA SMALL CLAIMS RULES (TWO YEAR CYCLE).
Supreme Court of Florida.
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, FL, and Robert N. Clarke, Jr. of Ausley and McMullen, P.A., Past-Chair, Civil Procedure Rules Committee, Tallahassee, FL, for Opponent.
Bruce J. Berman of McDermott, Will and Emery, LLP, Miami, FL, and Henry P. Trawick, Jr., Sarasota, FL, filing Comments.
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.
*79 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 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, 917 So. 2d 176 (Fla.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 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.
*80 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.
PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.
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.
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:
*81 _____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 FloridaNote 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.
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 PARAGRAPHTO 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 *82 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.
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.
FORM 7.343. FACT INFORMATION SHEET
(a) For Individuals
(CAPTION)
FACT INFORMATION SHEETINDIVIDUAL
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 # _____________________________ (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: _________________________________________________________
*83
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.
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 SHEETBUSINESS ENTITY
*84
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)
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) ......
____________________________
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.
*85 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: .......NOTES
[1] In addition to the amendments discussed above, there are also several editorial and housekeeping amendments as reflected in the appendix.