1. Introduction
2. To Sue Or Not To Sue?
3. How To File A Small Claims Case
4. Where To File
5. Fees
6. Service of Process
7. Counterclaims
8. Preparing For Pre-Trial Conference
9. Settlements Out Of Court
10. The Trial
11. Collecting The Judgment
12. Important Things To Remember

1. INTRODUCTION

In county court cases in which the amount being sued for is not more than $5,000.00, the Florida Small Claims Rules apply.  Many litigants in cases that come under these rules will choose to represent themselves, for several reasons.  First, the relatively small amounts of money involved in these cases sometimes make it impractical to hire an attorney.  Further, the small claims rules provide for simplified procedures, making it easier for a non-attorney to handle such case.  The rules also require the court clerk to assist any litigant who requests assistance in the preparation of many of the papers that must be filed with the court.

Below are examples of typical lawsuits that may be filed:

 - Mr. Smith bought a TV from a local store.  The next week the set would not work.  The store had a posted warranty that it refused to honor.
 - Ms. Jones paid a security deposit when she moved into her apartment.  Although she complied with the lease and did not damage the apartment, her landlord will not return the security deposit.
 - Mr. James was fired from his job.  He claims the company owes him one week's pay, however, the company will not pay him.
In each example, a person can file suit and ask for money damages.  Keep in mind that generally, anyone in America can sue anyone else for just about anything, but winning the lawsuit and actually collecting money for your injury is an entirely different matter.

2. TO SUE OR NOT TO SUE

The first step is deciding whether to sue.  Remember, you must prove that the person or business you are suing owes you something.  Do you have some proof of the debt such as a receipt, note, bill of sale, warranty or a witness?  In deciding to sue, consider whether you have any evidence.  In addition, in order for the Court to pass judgment in your case, you have to sue the correct entity (i.e., person, corporation).  The person you sue is called the "Defendant".

If the Defendant is an individual, or the sole proprietor of a business, they should probably be sued in the county where they live (but there are exceptions, as you will see).  If the Defendant owns a business which is not incorporated (a sole proprietorship), and your claim is against the business, you may sue the person and the trade name he or she does business under in the county where the owner resides, regardless of where the business is located (i.e., John Doe dba ? doing business as - John's Grocery).  You can usually find out the exact trade name as it is registered through the County Superior Court Clerk's office.  You can personally go to the record room and look up this information.  If the Defendant is a corporation, you must sue the corporation rather than someone who works for the corporation, and the business or the Registered Agent must be in the County.  The Court or the Court Clerk cannot advise you on who to sue or if you have a good claim.  You can get the correct corporate name and the registered fictitious names of any Florida corporation by calling the Florida Secretary of State, Division of Corporations at (850) 488-9000.  The Division of Corporations can also give some information on non-Florida corporations that are authorized to do business in Florida.  The operators at that number are very busy so be ready with paper and pencil. (If you have a fax machine, they can send it to you by fax).  However, repeat back all of the information you get, because a small mistake can be hard or impossible to fix later. The Division of Corporations can also tell you the names and addresses of the corporate officers, the name and address of the registered agent for the corporation and the current status of corporation.  They can also give you some historical information, i.e. when was the last time the corporation filed an annual report.

In general, if you are dealing with a corporation you will not be able to sue the individuals that run the corporation.  Suits involving corporations are sometimes more complex than those dealing only with individuals.  You should consider consulting an attorney for such a case.

Now, let?s talk about where to file suit. As a general rule, if you are going to sue someone, you have to sue them where they reside. In Florida though, the plaintiff can file suit in any one of several places (such as where the contract was entered into; if the suit is on an unsecured promissory note, where the note is signed or where the borrower resides; 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; any location agreed to in a contract; or in an action for money due, if there is no agreement as to where suit may be filed, where payment is to be made). If the defendant has been sued in any place other than one of these places, the defendant has the right to request that the case be moved to a proper location. If a defendant believes the plaintiff has not sued in one of these correct places, he or she must appear on the court date and orally request a transfer or file a written request for transfer in affidavit form (sworn to under oath) with the court 7 days prior to the first court date and send a copy to the plaintiff or plaintiff's attorney.

In the case of a suit against a corporation, you will probably want to file in the county where such corporation has, or usually keeps, a business office; or where the cause of action accrued; or else where the property in litigation is located. Actions against out of state corporations doing business in Florida can be brought in any one of the above places, or in a county where it has an agent or other representative. 

3. HOW TO FILE

To start the process of filing a small claims case, you must first fill out a Statement of Claim Form. To file electronically, go to the Home Page of this Web site and click Statement of Claim.  Then begin the several steps of data input by clicking the continue button at the top of each page.  The last step is the collection of fees against your credit card.

Or, you may obtain a physical document from the court.  On this form, enter the name and address of the person or corporation you are suing, state the exact amount of money you are suing for and explain why you are suing.  You may represent yourself, act as an agent for your corporation, or you may sue on behalf of a minor should you be the guardian.  However, you cannot represent someone else if you are not an attorney.  In addition, you must put your name, mailing address and telephone number on the claim form.  Your case may be dismissed if the Court cannot locate you.  Remember, you must sue a corporation in the county where it is doing business or where it is incorporated.  You may also sue a corporation in the county where the registered agent is located (The registered agent is the party that should be served for the corporation).

4. WHERE TO FILE

You may file online starting from the Home page of this Website. Simply select the Statement of Claim form under Online Filing Forms.  Or you may personally file the claim form in the Court of your County.  Claims against Defendants residing outside the State of Florida are usually filed in the state where the Defendant is located.  You should consult an attorney regarding these cases.

5. FEES

If you are suing someone you must pay a filing fee and a service fee.  There is also a modest convenience fee for filing online.  Filing fees and Service fees are county specific. At the Judge's discretion, if you win the case, the person you sue typically reimburses costs.

6. SERVICE OF PROCESS

Service of process must occur as provided in the Florida Rules of Civil Procedure. The Sheriff or private process server must serve the person you sue in a Statement of Claim and Summons, and you pay a service cost of approximately $20 - $30 per defendant. Do NOT deliver them yourself or have a friend do it.

For corporations, service should be on the registered agent.  The exact methods you may use will depend on the circumstances.  There are special alternative forms of service for corporations.  You can get some information on this by calling the Florida Secretary of State, Division of Corporations and asking for information on substituted service of process.

For out-of-state defendants you will frequently need to hire a process server to deliver the Statement of Claim and Summons/Notice of Pretrial Conference directly to the plaintiff.  Process servers are listed in the yellow pages, and typically charge $20-$30 for each defendant.  Prices in other areas may vary.  In many places, local police can do service of process.

The process server should give you a certificate showing that the defendant was served.  If you do not get such a certificate, contact the process server, since you will be unable to proceed if you cannot show the court that the defendant was properly served.

7. COUNTERCLAIMS

The defendant is allowed to file a counterclaim against the plaintiff. If you are a defendant, and you have a claim against the plaintiff (a "counterclaim"), and that claim arose out of the same transaction or occurrence as is the subject of the plaintiff's claim, you must file the counterclaim against plaintiff at least five (5) days before the day set for the pretrial conference, unless the court has given you a different deadline.  If you do not file it on time, you will lose your counterclaim.

If your counterclaim against the plaintiff does not arise out of the same transaction or occurrence, as is the basis for the plaintiff's claim against you, then you will not lose the counterclaim if you don't file it.  However, if you choose not to file the counterclaim in the time allowed you will not be able to assert it in this case ?  you will probably have to file a separate action against the defendant if you want to assert the counterclaim.  If you are not sure whether your counterclaim arose out of the same transaction or occurrence, as is the basis for the plaintiff's claim against you, you should file it five (5) or more days before the day scheduled for the pretrial conference so that you will not risk losing your right to present your counterclaim.

8. PREPARING FOR PRE-TRIAL CONFERENCE

The Court has a long history of requiring appropriate dress and conduct. Informal attire such as baseball caps, tank tops, halters, and shorts are extremely discouraged.

Arrive on time for the pre-trial conference and give yourself ample time to find parking and find your way to the appropriate courtroom.  It is important to bring certificates of service with you.  You do not need to bring witnesses.  However, you should be prepared to negotiate the settlement of the case.  Have an idea of what you would accept to drop the case.  Remember to make allowance for your filing fee, which is not refunded.  Also, be prepared to tell the judge how many witnesses you will call, and how long you think it will take for you to present your case.  Err on the high side, as the judge will be more than irritated if you say it will take 20 minutes and it takes two hours.

A clerk will read off the names of the cases for which pre-trials are scheduled.  When you hear your name, call out so the clerk knows you are present.  He will then call the name of the defendant.  If the defendant still does not respond, you should ask for entry of a default judgment.  The judge's clerk will generally tell you what you need to do to get the default judgment entered.

If the defendant is present, you and the defendant will have a conference with the judge.  The judge will be interested in getting a general idea of what the important issues in the case are, exploring the possibility of settlement and, if the case cannot be settled, figuring out how long the trial will likely last.  You should know how many witnesses you will have at the trial.  The judge may also wish to eliminate any claim you raised for which there is no legal basis.

Direct your statements to the judge, not to the defendant.  Address the judge as "Your Honor," or as "Judge _______" (the Judge's name will usually be on a placard in front of him or her).  Make your comments short and direct.  Remember that this is not a trial and the Judge is too busy to hear the case now and again on the trial date.

FOR THE DEFENDANT

If someone who is not a party to the case may be liable to you for all or a part of the plaintiff's claim against you, you may want to ask the court for permission to file a third-party complaint.  If this is granted, then you must write your complaint and a notice of supplemental pretrial conference and have them served on the third person (the "third-party defendant").  You will then need to attend this additional pretrial conference.

9. SETTLEMENTS OUT OF COURT

If a settlement is reached in your case, the terms of the agreement should be put in writing.  You do not have to submit those terms to the Court unless requested by the Court.  However, if those terms are not submitted, a dismissal without prejudice should be filed immediately with the Clerk of Court.  If you settle your case and the defendant is willing to pay you, and the payment arrangement is acceptable to you, you should ask the Clerk for a stipulation form.  This form will enable you to put the terms of the agreement in writing with both parties' signature and the Judge?s signature.  Should the defendant fail to pay as per the stipulation terms, you would not be required to appear in Court to start collection proceeding.  If the defendant does not work or have any money or assets, you may not be able to collect on your judgment.  The Court cannot force the defendant to pay the monies owed.

10. THE TRIAL

If you are unable to settle the case, you will be given a trial date. 

Although this is a people's Court, rules of evidence are still applied when presenting a case.  The Court will not accept affidavits or letters that are considered "hearsay".  Estimates of repair bills without the maker of the estimates are not accepted either.  You must have the maker of any documents in Court in order to offer them into evidence.  In some cases you may need to seek the advice of an attorney in order to submit your evidence.  The Judges or Clerk of the Court cannot tell you how to try your case; however, the Clerk can assist you in preparing your paperwork.  While waiting for the trial you should gather all your documents (receipts, repair bills, warranties, etc) and have them ready.  If you have witnesses you should notify them of your Court date.  Should a witness refuse to come to Court, you may have the Clerk issue a subpoena for their appearance.  To do this you must go to a Clerk of Court and tell them the name and address of your witness.  If the witness resides outside of the county, ask the Clerk for a copy of the law on issuing subpoenas.

You must make sure you and your witnesses are there at the scheduled time and place.  You may wish to subpoena even cooperative witnesses in case they either turn out to be less cooperative than you expected or in case unforeseen circumstances prevent their attendance at the trial.

Have the originals of all relevant documents, if possible.  If you have only copies, be prepared to explain why you cannot produce the originals.  If pictures would help explain what happened, bring pictures that fairly and accurately depict the relevant thing or place.

Although the rules of evidence are applied more liberally in small claims cases than other cases, those rules do apply, so it is possible that some evidence or testimony you want the judge to consider will be excluded and you will not be allowed to present it.  If the evidence is being kept out because it is not relevant, you may try to explain how it relates to your right to recover, but do not test the judge's patience.  If you cannot get the evidence in, continue to present your case, using other evidence to establish the facts giving you a right to recover damages.

As at the pretrial, address the judge as "Your Honor" and all parties with proper titles; Mr., Miss, Ms., Dr., etc.  Do not interrupt.  Only one person should talk at a time.  The plaintiff presents his case first.  Tell the judge who your first witness will be.  Stick to the issues, and do not ask about things that, while they might make you mad or make the defendant look like a bad person, do not relate to your legal right to recover damages from the defendant.

If the judge or the other side asks you questions, direct your answer to the question.  Be careful about volunteering additional information.  Be brief and direct.  Do not argue with the judge or the defendant or other witnesses.                        

11. COLLECTING THE JUDGMENT

In many cases, collecting the judgment is harder than proving a case in Court.  THE COURT DOES NOT COLLECT THE JUDGMENT FOR YOU.

When the defendant is not paying the judgment, there are a number of legal devices you may be able to use to collect the judgment. One that may be particularly useful to plaintiffs who were not represented by an attorney prior to judgment is the "Hearing in Aid of Execution." If the judge grants your request for this hearing, the defendant will be ordered to appear in court to answer questions about his earnings, financial status and assets available to pay the judgment you have against him. The rules provide forms for the papers you will need to file to get this type of hearing. Please note that a re-open fee applies to filing a request for this hearing.

You may also use the following additional legal devices to assist with collecting your judgment:

• Secure a certified copy of your final judgment from the court and record it with the Clerk of the Circuit Court in the county where the defendant owns real estate.  Said judgment then becomes a lien on defendant's interest in said real property for ten (10) years.  Pursuant to Florida Statute 55.10, this lien may be extended for an additional period of ten (10) years.

• Secure an Execution from the court and deliver it to the Sheriff of the county in which the defendant resides, or where any of his/her property is located and request levy upon his/her property that you may be able to locate.

• If you know of a third person, such as a bank, who owes the defendant money or who may have possession of any of the defendant's personal property, you may secure from the court a Writ of Garnishment against such third person to be served by the Sheriff.

12. IMPORTANT THINGS TO REMEMBER

1.  If I file a case and then think better of it, is there a way to stop it?

Yes, you may voluntarily dismiss a case.  See Florida Small Claim Rule 7.110 for more information on dismissals.

2.  How long after something happens can I take to file suit?

That depends on the nature of your cause of action.  The Florida Statutes provide periods of limitation for the bringing of civil suits.