
    In re THE FLORIDA BAR SMALL CLAIMS RULES. 
    No. 71687.
    Supreme Court of Florida.
    Sept. 8, 1988.
    Rutledge R. Liles, President, Jacksonville, Stephen N. Zack, Presidentelect, Miami, Paul Sidney Elliott, County Court Judge, Chairman for The Florida Bar Small Claims Rule Committee, Tampa, and John F. Harkness, Jr., Executive Director, Tallahassee, for petitioner, The Florida Bar.
    Harvey L. Goldstein, County Court Judge, Miami, and Karl B. Grube, County Court Judge, St. Petersburg, for Conference of County Court Judges.
   PER CURIAM.

The Florida Bar Small Claims Rules Committee has petitioned this Court to consider proposed amendments to the Florida Small Claims Rules pursuant to Rule of Judicial Administration 2.130. We have jurisdiction. Art. V, § 2(a), Fla. Const.

The following is a brief explanation of the rule changes approved by this Court.

Rule 7.050(a)(2) has been amended to allow corporations to be represented by an officer of the corporation or an employee authorized by an officer of the corporation. Rule 7.050(b) has been amended to require the party’s phone number and the attorney’s Florida Bar number be included on any papers filed with the court. Rule 7.050(e) has been added to combine the pretrial conference and Order to show cause hearings in replevin actions.

Rule 7.060(7) has been added to establish venue in the county where payment is to be made, absent agreement of the parties.

Rule 7.090(b) has been amended to require that pretrial conferences be held within thirty-five days from the date of the filing of the action. The amendment also details issues which should be covered during the pretrial conference. Rule 7.090(c) has been amended to require a personal appearance at the pretrial conference when a defense motion is filed. Rule 7.090(e) has been added to allow waiver of counsel’s appearance at the pretrial conference where all parties are represented by counsel.

Rule 7.100(e) has been added to provide for third party claims so that all issues may be addressed and resolved.

Rule 7.140(f) has been amended to allow witness or party testimony to be taken over the telephone with or without an agreement to that effect, and authorizes attorney representation over the telephone.

Rule 7.210(a) has been amended to allow the court to stay levy as well as judgment or execution.

Rule 7.221 has been added to provide a procedure, through a hearing in aid of execution, for post-judgment discovery.

In addition, The Florida Bar Board of Governors has recommended that we amend rule 7.010 to increase the jurisdictional limit of Small Claims Courts to $5,000.00, and rule 7.090(b) to require the judge to personally preside over the pretrial conference. However, upon consideration of these proposed amendments, we decline to follow the board’s recommendation. Accordingly, the proposed amendments to rules 7.010 and 7.090(b) regarding jurisdictional limit and judicial presence at pretrial conferences will not be accepted.

Appended to this opinion are the amended and new Florida Small Claims Rules. Deletions are indicated by use of struck-through type. New language is indicated by underscoring. All rules and statutes in conflict with the following rules are hereby superseded as of the effective date of these rules. The committee notes are not adopted by the Court. These amendments shall become effective January 1, 1989, at 12:01 a.m.

It is so ordered.

EHRLICH, C.J., and OVERTON, MCDONALD, SHAW, GRIMES and KOGAN, JJ., concur.

BARKETT, J., dissents with an opinion.

BARKETT, Justice,

dissenting.

I would approve the recommendations of The Florida Bar Board of Governors to increase the jurisdiction of the county court to $5,000 and to articulate a requirement that county judges personally preside over the pretrial conference. Although I enthusiastically approve and endorse the use of mediators as part of a pretrial proceeding, I cannot agree that the practice of uniform and complete substitution of a mediator for a judge for all pretrial conferences is appropriate.

APPENDIX

RULE 7.050 COMMENCEMENT ACTION, STATEMENT OF CLAIM

(2) Party not represented by attorney to sign. A party, individual, or corporation, handling such cause, shall sign his or its statement of claim or other paper and state his or its address and telephone number including area code. Provided, however, if the trial court in its discretion shall determine that the plaintiff is engaged in the business of collecting claims, and holds such claim being sued upon, by purchase, assignment, or management arrangement in the operation of such business, the court may require such corporation to provide counsel in the prosecution of the cause. A corporation may be represented at any stage of the trial court proceedings by an officer of the corporation or any employee authorized by an officer of the corporation.

RULE 7.050

(b) Parties. The names, and addresses and telephone numbers, including area code of all parties or their attorneys, if any, must be stated therein. Additionally, attorneys shall include their Florida Bar number on all papers filed with the Court.

(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 (Pre-Judgment Replevin Order to Show Cause Hearings) and rule 7.050(d), Small Claims Rules (Pretrial Conferences) at the same time.

RULE 7.060 PROCESS AND VENUE

A summons entitled Notice to Appear stating the time and place of hearing shall be served on the defendant. The Summons or Notice to Appear shall inform the defendant in a separate paragraph containing bold type, of his right to venue. This paragraph shall read:

RIGHT TO VENUE. The law gives the person or company who has sued you the right to file suit in any one of several places listed below;. However, if you have been sued in any place other than one of these places, you, as the defendant, have the right to request that the case be moved to a proper location or venue. A proper location or venue may be one of the following:

(1) where the contract was entered into;

(2) if suit is on an unsecured promissory note, where note is signed or where maker resides;

(3) if the suit is to recover property or to foreclose a lien, where the property is located;

(4) where the event' giving rise to suit occurred;

(5) where any one or more of the defendants sued reside;

(6) any location agreed to in a contract.

(7) In an action for money due, if there is no agreement as to where suit may be filed, proper venue lies in the county where payment is to be made.

If you, as a defendant, believe the plaintiff has not sued in one of these correct places, you may appear on your court date and orally request a transfer or you may file a written request for transfer, in affidavit form (sworn to under oath) with the court seven days prior to your first court date and send a copy to the plaintiff or plaintiff’s attorney, if any.

A copy of the statement of claim shall be served with said notice the summons/notice to appear.

RULE 7.090 APPEARANCE; DEFENSIVE PLEADINGS; TRIAL DATE

(b) 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 35 days from the date of the filing of the action. At the Pretrial Conference, all matters specified in Rule 1.200(a) Florida Rules of Civil P-r-ocedure 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 of the number of witnesses;

(5) the possibilities of settlement; and

(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) Defensive Pleadings. Unless required by order of court, written pretrial motions and defensive pleadings are not necessary. If filed, copies of such pleadings shall be served on all other parties to the action at or prior to the pretrial conference or within such time as the court may designate. The filing of a motion or a defensive pleading shall not excuse the appearance of a party or his attorney on the initial appearance date (pretrial conference).

(e) WAIVER OF APPEARANCE AT PRETRIAL CONFERENCE. Where all parties are represented by an attorney counsel may agree to waive personal appearance at the initial pretrial conference, if a written agreement of waiver signed by all attorneys is presented to the Court prior to or at the pretrial conference. Said agreement shall contain a short statement of the disputed issues of fact and/or law, the number of witnesses expected to testify, an estimate of the time needed to try the case and any stipulations of fact. The Court shall forthwith set the case for trial within the time prescribed by these rules.

RULE 7.100 COUNTERCLAIMS, SET-OFFS, THIRD-PARTY COMPLAINTS. TRANSFER WHEN JURISDICTION EXCEEDED.

(e) A defendant may cause a statement of claim to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiffs claim against him. A defendant must obtain leave of court on motion made at the initial pretrial conference and must file the third-party complaint within such time as the court may allow. The clerk shall schedule a supplemental pretrial conference and on the date and time appointed in the notice to appear the third-party plaintiff and the third-party defendant shall appear personally or by counsel. If additional time is needed for the third-party defendant to prepare a defense, the court may continue the action. Any party may move to strike the third-party claim or for its severance or separate trial. When a counterclaim is asserted against the plaintiff the plaintiff may bring in a third-party under circumstances which would entitle a defendant to do so under this rule.

RULE 7.140 TRIAL

(f) HOW CONDUCTED. The trial may be conducted informally but with the decorum befitting a Court of Justice. Rules of Evidence applicable to trial of civil actions apply but are to be liberally construed. At the discretion of the Court and upon agreement of-the partiesy testimony of a non-party any party or witness may be presented over the telephone. Additionally, at the discretion of the Court an attorney may represent a party or witness over the telephone without being physically present before the Court.

RULE 7.210 STAY OF JUDGMENT AND EXECUTION

(a) Judgment or Execution or Levy Stayed. When judgment is to be entered against a party, the judge may inquire and permit inquiry about the earnings and financial status of the party and has discretionary power to stay an entry of judgment, or if entered to stay execution or levy upon such terms as are just and in consideration of a stipulation on the part of the judgment debtor to make such payments as will insure a periodic reduction of the judgment until it is satisfied.

RULE 7.221 HEARING IN AID OF EXECUTION

The Judge, at the request of the judgment creditor, shall order a judgment debt- or to appear at a Hearing In Aid of Execution at a time certain 30 or more days from the date of entry of a judgment for the purpose of inquiring of the judgment debt- or under oath as to earnings, financial status, and any assets available in excess of exemptions to be applied towards satisfaction of judgment. The provisions of this rule shall only apply to a judgment creditor who is a natural person and was not represented by an attorney prior to judgment. Forms 7.342, 7.343 and 7.344 shall be used in connection with this rule.  