In Re AMENDMENTS TO the FLORIDA SMALL CLAIMS RULES

Supreme Court of Florida
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No. SC16-166
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IN RE: AMENDMENTS TO THE FLORIDA SMALL CLAIMS RULES.
[September 8, 2016]
PER CURIAM.
This matter is before the Court for consideration of proposed amendments to
the Florida Small Claims Rules. We have jurisdiction. See art. V, § 2(a), Fla.
Const.
BACKGROUND
The Florida Bar’s Small Claims Rules Committee (Committee) has filed its
regular-cycle report proposing amendments to the Florida Small Claims Rules
(Small Claims Rules). See Fla. R. Jud. Admin. 2.140(b). The Committee proposes
amendments to the following Small Claims Rules: 7.050 (Commencement of
Action; Statement of Claim), 7.080 (Service and Filing of Pleadings and
Documents Other Than Statement of Claim), 7.090 (Appearance; Defensive
Pleadings; Trial Date), and 7.160 (Failure of Plaintiff or Both Parties to Appear).
The Board of Governors of The Florida Bar unanimously approved the proposals.
Consistent with Florida Rule of Judicial Administration 2.140(b)(2), the
Committee published the proposed amendments for comment prior to filing them
with the Court. No comments were received by the Committee. After the
Committee’s report was submitted to the Court, the proposed amendments were
again published for comment. No comments were received by the Court.
Upon consideration, we adopt the amendments to rules 7.050, 7.090, and
7.160 as proposed by the Committee. We adopt modified amendments to rule
7.080, as further explained below.
AMENDMENTS
Rule 7.050
Rule 7.050 is amended to correct a mistaken cross-reference. Currently
subdivision (e) of rule 7.050 includes a reference to rule 7.050(d) (Memorandum
on Hearing Date); however, the correct reference should be to rule 7.090(b)
(Notice to Appear; Pretrial Conference) which addresses pretrial conferences.
Thus, the last line of subdivision (e) is amended to correct this error.
Rule 7.080
The Committee proposes amendments to rule 7.080(b). The Committee
indicates that its proposed amendments are meant to address e-mail service for
parties not represented by an attorney. Service on and by parties not represented
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by an attorney is expressly addressed by Florida Rule of Judicial Administration
2.516(b)(1)(C), which provides:
(C) Service on and by Parties Not Represented by an Attorney.
Any party not represented by an attorney may serve a designation of a
primary e-mail address and also may designate no more than two
secondary e-mail addresses to which service must be directed in that
proceeding by the means provided in subdivision (b)(1) of this rule. If
a party not represented by an attorney does not designate an e-mail
address for service in a proceeding, service on and by that party must
be by the means provided in subdivision (b)(2) of this rule.
Subdivision (b)(1) of rule 2.516 describes service by e-mail and e-service through
the Florida Courts E-filing Portal. Subdivision (b)(2) of rule 2.516 sets forth
service “by other means,” including service by mail, by hand delivery to an
attorney’s or party’s office, and by faxing to an attorney’s or party’s office.
The Committee’s proposal would divide subdivision (b) of rule 7.080 into
two new subdivisions (b)(1) and (b)(2), addressing service when a party is
represented by an attorney and when a party is unrepresented, respectively.
However, we are concerned that, as proposed, the amendments do not appear to
provide sufficiently clear guidance and may be confusing, especially for pro se
parties who will likely be involved in small claims matters. Accordingly, we
amend rule 7.080(b) to simply incorporate the provisions of Florida Rule of
Judicial Administration 2.516 governing service by e-mail as follows:
(b) How Made. When a party is represented by an attorney,
service of papers other than the statement of claim and notice to
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appear shall be made on the attorney unless the court orders service to
be made on the party. When an attorney is serving another attorney,
sService on an attorney or a party not represented by an attorney must
be made in compliance with the Florida Rules of Judicial
Administration 2.516. In all other instances, service must be made by
delivering the paper to the party or the party’s attorney, as the case
may be, or by mailing it to the party’s last known address.
We adopt other amendments to rule 7.080 as proposed by the Committee.
Current subdivision (d) provides that the filing of documents is made by filing
them with the clerk, except that a judge may permit documents to be filed with the
judge, in which case the judge must note thereon the filing date and transmit them
to the clerk, who must file them as of the same day they were filed with the judge.
Additionally, it provides that parties represented by an attorney must file
documents in compliance with the electronic filing (e-filing) requirements of the
Florida Rules of Judicial Administration; parties not represented by an attorney
“may file documents in compliance with the e-filing requirement if permitted by
the Florida Rules of Judicial Administration.” This subdivision is amended to add
a specific reference to Florida Rule of Judicial Administration 2.525 in the
sentence pertaining to filing by parties represented by an attorney.
Finally, current subdivision (e) of rule 7.080 provides language for a
certificate of service as follows: “I hereby certify that a copy hereof has been
furnished to (here insert name or names and address or addresses) by
(delivery)(mail)(e-mail if an attorney) on …date….” In contemplation of
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unrepresented parties participating in e-mail service, this language is amended to
delete the words “if an attorney” after the word “e-mail.”
Rule 7.090
Rule 7.090 is amended to address concerns regarding “non-served” parties.
According to the Committee’s report, in several Florida counties, plaintiffs are
required to attend the pretrial conference even when there is verified non-service of
the defendant e-filed with the court. In those counties, if a plaintiff fails to attend
the pretrial conference, the court dismisses the case. To address this issue,
subdivision (a) (Appearance) is amended to state that the requirement that a party
appear at the pretrial conference is subject to the notice provisions in subdivision
(b) (Notice to Appear; Pretrial Conference). Subdivision (b) (Notice to Appear;
Pretrial Conference) is also amended to create an exception when a return of non-
service is filed at least five days prior to a pretrial conference. In that instance, the
court would be required to cancel the pretrial conference as to any non-served
party. The plaintiff is then provided the opportunity to request a new summons,
along with a new initial appearance date for a pretrial conference. These
amendments are intended to protect the due process rights of parties who have not
been properly served and create uniformity among the courts by putting guidelines
in place that do not currently exist.
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Finally, subdivisions (d) (Trial Date) and (f) (Appearance at Mediation;
Sanctions) are rephrased for grammatical purposes.
Rule 7.160
Rule 7.160 is amended to include references to rule 7.090(b) (Notice to
Appear; Pretrial Conference). Specifically, the phrase “subject to rule 7.090(b)” is
added to the end of subdivisions (a) (Plaintiff) and (b) (Both Parties) to make it
clear that a non-served party is entitled to have a pretrial conference rescheduled if
the return of service showing non-service is filed 5 days before the pretrial
conference.
CONCLUSION
Accordingly, we amend the Florida Small Claims Rules as reflected in the
appendix to this opinion. New language is underlined; deleted language is struck-
through. The amended rules shall become effective January 1, 2017, at 12:01 a.m.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, 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 Committee
Alison Verges Walters, Chair, Florida Small Claims Rules Committee, Kelley
Kronenberg Attorneys at Law, Tampa, Florida; Andrew J. Daire, Past Chair,
Florida Small Claims Rules Committee, Boca Raton, Florida; John F. Harkness,
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Jr., Executive Director, and Heather Savage Telfer, Staff Liaison, The Florida Bar,
Tallahassee, Florida,
for Petitioner
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APPENDIX
RULE 7.050. COMMENCEMENT OF ACTION; STATEMENT
OF CLAIM
(a) – (d) [No change]
(e) Replevin. In those replevin cases to which these rules are applicable,
the clerk of the county court shall set the hearing required by section 78.065(2)(a),
Florida Statutes, (prejudgment replevin order to show cause hearings) and rule
7.050(d)7.090(b) (pretrial conferences) at the same time.
Committee Notes
[No change]
Court Commentary
[No change]
RULE 7.080. SERVICE AND FILING OF PLEADINGS AND
DOCUMENTS OTHER THAN STATEMENT OF CLAIM
(a) [No change]
(b) How Made. When a party is represented by an attorney, service of
papers other than the statement of claim and notice to appear shall be made on the
attorney unless the court orders service to be made on the party. When an attorney
is serving another attorney, sService on an attorney or a party not represented by an
attorney must be made in compliance with the Florida Rules of Judicial
Administration 2.516. In all other instances, service must be made by delivering
the paper to the party or the party’s attorney, as the case may be, or by mailing it to
the party’s last known address.
(c) [No change]
(d) Filing with the Court Defined. The filing of documents with the
court as required by these rules is made by filing them with the clerk, except that
the judge may permit the documents to be filed with the judge, in which event the
judge shall note thereon the filing date and transmit them to the clerk, and the clerk
shall file them as of the same date they were filed with the judge. Parties
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represented by an attorney must file documents in compliance with the electronic
filing (e-filing) requirements set forth in rule 2.525 of the Florida Rules of Judicial
Administration. Parties not represented by an attorney may file documents in
compliance with the e-filing requirement if permitted by the Florida Rules of
Judicial Administration.
(e) Certificate of Service.
(1) When any party or attorney in substance certifies:
“I certify that a copy hereof has been furnished to (here insert name or
names and address or addresses) by (delivery) (mail) (e-mail if an attorney) on
.....(date)......
Party or party’s attorney”
the certificate is prima facie proof of such service in compliance with all rules of
court and law.
(2) When any paper is served by the clerk, a docket entry shall be
made showing the mode and date of service. Such entry is sufficient proof of
service without a separate certificate of service.
(f) [No change]
Court Commentary
[No change]
RULE 7.090. APPEARANCE; DEFENSIVE PLEADINGS;
TRIAL DATE
(a) Appearance. On the date and time appointed in the notice to appear,
the plaintiff and defendant shall appear personally or by counsel, subject to
subdivision (b).
(b) Notice to Appear; Pretrial Conference. The summons/notice to
appear shall specify that the initial appearance shall be for a pretrial conference.
The initial pretrial conference shall be set by the clerk not more than 50 days from
the date of the filing of the action. In the event the summons/notice to appear is
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non-served and the return of service is filed 5 days before the pretrial conference,
the pretrial conference shall be canceled by the court as to any non-served party.
The plaintiff may request a new summons/notice to appear and include a new
initial appearance date for the pretrial conference. The pretrial conference may be
managed by nonjudicial personnel employed by or under contract with the court.
Nonjudicial personnel must be subject to direct oversight by the court. A judge
must be available to hear any motions or resolve any legal issues. At the pretrial
conference, all of the following matters shall be considered:
(1) The simplification of issues.
(2) The necessity or desirability of amendments to the pleadings.
(3) The possibility of obtaining admissions of fact and of
documents that avoid unnecessary proof.
(4) The limitations on the number of witnesses.
(5) The possibilities of settlement.
(6) Such other matters as the court in its discretion deems
necessary.
Form 7.322 shall and form 7.323 may be used in conjunction with this rule.
(c) [No change]
(d) Trial Date. The court shall set the case for trial not more than 60 days
from the date of the pretrial conference. Notice of Aat least 10 days’ notice of the
time of trial shall be given. The parties may stipulate to a shorter or longer time for
setting trial with the approval of the court. This rule does not apply to actions to
which chapter 51, Florida Statutes, applies.
(e) – (g) [No change]
Committee Notes
[No change]
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Court Commentary
[No change]
RULE 7.160. FAILURE OF PLAINTIFF OR BOTH PARTIES TO
APPEAR
(a) Plaintiff. If plaintiff fails to appear on the initial appearance date
(pretrial conference), or fails to appear at trial, the action may be dismissed for
want of prosecution, defendant may proceed to trial on the merits, or the action
may be continued as the judge may direct, subject to rule 7.090(b).
(b) Both Parties. If both parties fail to appear, the judge may continue the
action or dismiss it for want of prosecution at that time or later as justice requires,
subject to rule 7.090(b).
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