This information is meant to be a guide to Small Claims in Clay County. It is not legal advice, and should not be looked upon as such. This is compiled from a group of counties in Florida and the author expresses no opinion as to the validity of the contents and disclaims any liability based on the contents. Any person seeking legal advice should consult an attorney.

SMALL CLAIMS COURT

"Small Claims Court" is a term used to described the procedure of resolving civil disputes involving amounts of money or value of property not exceeding $5,000.00. Any dispute involving money or property valued above this amount is considered a Civil Action and falls under a completely different set of rules set up by the Florida Small Claims Rules adopted by the Supreme Court of Florida. If you are unsure of which rules govern your civil dispute, it would be to your advantage to consult an attorney.

EVALUATING THE CASE

Prior to filing a suit, the party contemplating the filing of a lawsuit should evaluate the claim to be made. One way would be to ask yourself the following questions about your claim:

• Is the claim for $5,000.00 or less?

• Is the claim a valid legal claim?

• Is there proof to back up the claim?

• Is there evidence that the court can truly consider?

• Is the party that my claim is against identifiable by:

• full legal name, and..

• complete address?

• Have all avenues to settle this matter been exhausted?

If, after reading the above questions, you feel that you still have a doubt as to the validity of your case, this is not the time to file a case. If you have no doubt that your case answers yes to all of the above questions, a lawsuit may be properly filed.

COMMENCING A CASE

A Small Claims case may be filed by any individual or business entity. Minors must be represented by a parent or legal guardian in order to sue. Likewise, if an incorporated business plans to file a suit, it must be represented by an officer or authorized employee.

A case is commenced by filing a Statement of Claim, along with an appropriate fee, with the Clerk of the Circuit Court. Forms and assistance in ONLY the preparation of the forms is provided by the Clerk’s office. Please understand that Judges, Judicial Assistants, Clerks of Court, and Sheriff’s Department employees CANNOT practice law or give you legal advice. They can ONLY point out the existence of certain procedures, but CANNOT tell you how to follow them or how effective they will be. ONLY A LAWYER CAN GIVE YOU LEGAL ADVICE. You should talk with a lawyer if you have any questions about your rights.

If your claim is based upon a written document, the written document must be attached to the Statement of Claim. The person filing the Statement of Claim must sign it and include thereon his or her address and telephone number, including area code. Furthermore, the names, addresses, and telephone numbers of all persons who are parties to the lawsuit must be stated in the statement of claim.

PROPER PLACE OF FILING

In order to properly file a Statement of Claim, the person filing the claim, hereinafter referred to as the "Plaintiff’, must do so in the proper county. In most cases, the Plaintiff may properly file a Statement of Claim in a county described below:

• Where the contract was entered into…

• If the suit is on an unsecured promissory note, where the note was signed

• If the suit is to recover property or to foreclose a lien, where the property is located…

• Where the event giving rise to the suit occurred…

• Where any one of the defendants resides…

If the party being sued, hereinafter referred to as "Defendant", believes the State of Claim was filed in the wrong county, the defendant may request that the case be transferred to the county which he believes is proper. If the case has to be transferred, the party who initially filed in the wrong county will have to pay a new filing fee.

PROPER PARTIES

The Plaintiff must name the proper party as a Defendant. If the Defendant is an individual, the Plaintiff should determine the person’s full legal name and any aliases prior to filing the lawsuit. If the Defendant is a business, the Plaintiff must determine if the business is a corporation, a partnership or a sole proprietorship. The corporate status of any corporation legitimately doing business in the State of Florida can be determined by contacting the Florida Secretary of State, Division of Corporations, in Tallahassee. The Clerk’s Office is able to supply you with the correct form needed to find this out. If the business entity to be sued is a corporation, the corporation should be named as a Defendant, NOT its officers. IF the business entity is either a partnership or a sole proprietorship, the entity and the individuals should be named as Defendants, e.g. John Smith, d/b/a Crazy John’s Car Repair.

NOTICE AND SERVICE OF PROCESS

After the Statement of Claim is filed, the Plaintiff must ensure that the Defendant receives a copy of the Statement of Claim. The procedure for informing the Defendant of the pending action is called service of process.

Service of process may be perfected by delivery of the Statement of Claim to the Defendant by a representative of the appropriate Sheriff’s Office. The Plaintiff may also complete service of process upon a Florida Resident by certified mail. However, the Defendant or someone authorized to receive mail at the Defendant’s residence or place of business must sing the receipt for the mail. If they have any idea of the case being filed, they may refuse the certified mail, and therefore this constitutes non-service. For corporate entities, the addressee should be the registered agent of the corporation, who will be the person identified by the corporate status check with the Secretary of State as discussed in the preceding paragraph. Either of the methods described above require the payment of an additional expense by the Plaintiff.

PRE-TRIAL CONFERENCE

A notice to appear is attached to, and served with, the Statement of Claim. This notice informs the Defendant of the time, date, and place of the pre-trial conference. On this appointed day, the Plaintiff and the Defendant are to appear before the court in order to discuss the case.

At this conference, the court will determine if there are any contested issues of fact. If there are contested issues of fact, the case will be referred to mediation in an effort to aid the parties in settling the case. Mediators will be present at the pre-trial conference. If mediation is not successful the mediator will send the parties back to the judge who will narrow the factual issues to be resolved at trial and settle any legal issues which are subject to determination at the pre-trial state. If the case is not settled at this conference, the court will set a time, date, and place for the trial. The Plaintiff and Defendant are not to bring witnesses to the pre-trial conference.

DISMISSAL AND DEFAULT

Failure to attend either the pre-trial conference or the trial can result in dire consequences for the party failing to attend. If the plaintiff fails to attend, the case can be dismissed. If the Defendant fails to attend, the Plaintiff is entitled to a default and the Plaintiff prevails.

PLEADINGS

In addition to just appearing at the appointed time, the Defendant may also file documents with the court. These include, but are not limited to, a motion to dismiss, an answer, an affirmative defense, a counterclaim, and a third-party complaint. An answer is simply an admission or denial of the claims made by the Plaintiff. The other documents, called pleadings, are discussed in more detail below. Copies of all pleadings are required to be served on the other party or the party’s attorney. This subsequent service may be accomplished by regular mail.

MOTIONS TO DISMISS

A motion to dismiss attempts to demonstrate to the court why the Plaintiff should not be allowed to continue regardless of the truth of the Plaintiff’s claim. The following are examples of basic motions to dismiss and simple explanations of these motions:

• Lack of Jurisdiction over the subject matter – the action is not properly filed in small claims court because it involves more than $5,000.00 or involves an equitable claim (i.e. a divorce claim).

• Improper Venue – the complaint is filed in the wrong county.

• Insufficiency of process – the summons was not served on the Defendant properly.

• Failure to join indispensable parties – the complaint does not seek damages from any other party who should be liable along with the Defendant if the Plaintiff is successful.

AFFIRMATIVE DEFENSES

Affirmative defenses, unlike other defenses, seek to avoid liability by asserting a legal excuse as to why the Plaintiff whould not be awarded any damages based on the clam. Some of examples of affirmative defenses are:

• Accord and Satisfaction – the Defendant has paid or satisfied the amount due or has paid a mutually agreed upon settlement.

• Failure of Consideration – the Defendant agreed to pay the Plaintiff if the Plaintiff performed a service for the Defendant; however, the Plaintiff’s performance was so shoddy that the Defendant should not be liable to the Plaintiff for payment.

• State of Limitations – the Plaintiff failed to file to Statement of Claim by the time required by law. For a more detailed explanation of the Statue of Limitations, consult Chapter 95 of the Florida Statutes.

COUNTERCLAIMS

Counterclaims can be described as a lawsuit which the Defendant files against the Plaintiff after he is served with the Plaintiff's lawsuit. Counterclaims fall into two (2) categories, compulsory and permissive. To be compulsory, the counterclaim must be based upon the incident which is the subject of the Plaintiff's suit. Permissive counterclaims are not based upon the incident. A Defendant wishing to file a counterclaim must do so not less than five days prior to the appearance date or such time as the Court designates or it is deemed to be abandoned.

THIRD-PARTY COMPLAINTS

Third party complaints are filed with the permission of the court when the Defendant feels that another party should be responsible for the amount of damage claimed by the Plaintiff. If a Defendant wishes to file a third-party complaint, he must request permission of the court at the pre-trial conference. If the court allows the filing of a third-party complaint, the court will set a time for filing and schedule another pre-trial conference. Likewise, the Plaintiff may request leave of court to file a third-party complaint in response to any counterclaim made by the Defendant.

DISCOVERY

Parties to any lawsuit should be aware that they may be subjected to discovery prior to trial. Discovery is an attempt by a party to gain information about the strength of the opposing party's position. Although generally not allowed in Small Claims cases with parties not represented by an attorney, discovery is nonetheless possible in certain circumstances. A complete discussion of discovery is not within the scope of this pamphlet. Those wishing to gain more information on discovery as it relates to Small Claims should consult Rule 7.020(b), Florida Small Claims Rules.

VOLUNTARY DISMISSAL

The Plaintiff in a Small Claims case may end the lawsuit by voluntarily dismissing the suit. In order to properly do this, property must not have been seized, nor may property be in the custody of the courts, and .

• the Plaintiff must inform the Defendant and the Clerk of the Court of the dismissal prior to the trial date; or..

• the parties must enter into joint stipulation for dismissal.

Any dismissal by the above described methods shall be without prejudice, unless otherwise requested by the Plaintiff or stipulated to by the parties. The "without prejudice" designation allows the lawsuit to be re-filed even though it may allege the exact grounds as the previously dismissed case. However, if a Plaintiff chooses to again dismiss a lawsuit which had previously been voluntarily dismissed, the second dismissal will bar subsequent attempts to re-file. No other dismissals are allowed except by order of the court. Furthermore, a lawsuit in which a counterclaim has been filed will not be dismissed over the counterclaimant's objections unless the counterclaim is allowed to go forward as an independent lawsuit. For more information on grounds for dismissal, see Rule 7.110, Florida Small Claims Rules.

SETTLEMENT

Cases may also fail to reach the trial stage due to settlement. The parties may agree to settle the case at any stage of the proceedings, and in most cases are encouraged to do so at the pre-trial conference. If the case is settled, the Plaintiff must notify the Clerk of the Court. The settlement may bring about a dismissal or continuance, the continuance being based upon the payment or performance by a party. When a settlement is agreed upon at the pre-trial conference, both parties enter into a written agreement called a Stipulation. Failure of the Defendant to comply with a Stipulation will result in a final judgment being entered upon the filing of an affidavit of noncompliance by the Plaintiff and service by mail of a copy upon the Defendant.