Application of summary procedure by agreement: a proposal to expedite litigation.

Too often, litigation can become mired in long, drawn-out proceedings, draining the finances of the litigants and the energies of their attorneys. However, several statutes provide for the expedited consideration of disputes, or "summary procedure." Summary procedure has the benefit of streamlining litigation, resulting in a prompt resolution of the underlying dispute. It works well in areas where it has been used. Arguably, summary procedure is underutilized. Many cases lingering on the dockets could have been expeditiously resolved if summary procedure were applied. To expedite dispute resolution, it is suggested that new rules or statutes be adopted to allow parties who agree to use summary procedure in areas currently outside its scope. The task at hand is to consider a mechanism which accords litigants the benefits of summary procedure without violating the rights of defendants to properly defend their cases. This article examines the authority for proceeding summarily under one particular statute, F.S. [section] 51.011, and proposes a vehicle for extending the benefits of summary procedure to all parties who contract to use such procedure to resolve disputes. (1)

The Summary Procedure Statute

While most civil procedure is governed under rules, the underlying basis of authority for summary procedure in civil matters is statutory and is set forth in F.S. [section] 51.011, entitled "Summary Procedure." (2) This statute, referred to as the "summary procedure statute," contains a preamble and five subparts. A preliminary discussion of each subsection demonstrates its powerful impact.

The preamble addresses application of the summary procedure statute. It states as follows:

The procedure in this section applies only to those actions specified by statute or rule. Rules of procedure apply to this section except when this section or the statute or rule prescribing this section provides a different procedure. If there is a difference between the time period prescribed in a rule and in this section, this section governs.

Two points can be gleaned from this preamble. First, the summary procedure statute only applies to actions specified by statute or rule. Second, while rules of procedure govern, they are superseded if in conflict with the provisions of the summary procedure statute. (3)

Arguments that the statute is unconstitutional for the reason that it improperly supersedes rules of procedure adopted by the Florida Supreme Court have uniformly been rejected. The case of Crocker v. Diland Corporation, 593 So. 2d 1096 (Fla. 5th DCA 1992), is on point. In Crocker, the defendant filed a motion to dismiss under Rule 1.140 in lieu of filing an answer. The plaintiff filed the complaint utilizing the procedure set forth in the summary procedure statute. The court discussed an argument made by the defendant that rules of procedure must take precedence over the summary procedure statute since rule-making authority lies within the exclusive domain of the Supreme Court. The argument was rejected. Citing Gonzalez v. Badcock's Home Furnishings Center, 343 So. 2d 7, 8 (Fla. 1977), the court in Crocker noted that the Supreme Court has indicated that if there is some aspect of a special statutory procedure it disapproves, it will say so by rule, and unless it does so the special statutory procedures apply. Accordingly, the court rejected the defendant's attempt to resolve the case by motion. 593 So. 2d at 1098. See also Hayden v. Beese, 596 So. 2d 1207, 1208 (Fla. 4th DCA 1992), holding that the summary procedure statute is not unconstitutional for the reason that Fla. R. Civ. P. 1.010 provides that summary procedure statutes only apply to the extent they are not in conflict with rules of civil procedure. (4)

The case of Salvador v. Fennelly, 593 So. 2d 1091 (Fla. 4th DCA 1992), provides further authority in support of the summary procedure statute from challenges on constitutional grounds. Salvadore addressed the Public Records Act, F.S. [section] 119.01 et seq. The petitioner sought by mandamus an order directing the trial court to hold an immediate hearing as specifically provided in [section] 119.11(1). Citing language from Rule 1.010, the Salvadore court noted that unless statutory provisions governing court procedure are in direct conflict with a rule, the statutory provision remains in effect as a rule promulgated by the Florida Supreme Court. It concluded that there was no direct conflict between the statutory rule set forth in the Public Records Act and a rule promulgated by the Supreme Court. Id. at 1093-94. (5)

Rule 7.010(2) governing the scope of small claims rules probably provides the strongest support. The rule states that "[i]f there is a difference between the time period prescribed by these rules and section 51.011, Florida Statutes, the statutory provision shall govern." Certainly, if the summary procedure statute was an unconstitutional encroachment upon the rule-making authority of the Supreme Court, the Supreme Court would not have expressly provided for its application in a small claims rule.

The first subsection of the summary procedure statute addresses pleadings. It provides as follows:

(1) Pleadings. Plaintiff's initial pleading shall contain the matters required by the statute or rule prescribing this section, or if none is so required, shall state a cause of action. All defenses of law or fact shall be contained in defendant's answer which shall be filed within 5 days after service of process. If the answer incorporates a counterclaim, plaintiff shall include all defenses of law or fact in his or her answer to the counterclaim and shall serve it within 5 days after service of the counterclaim. No other pleadings are permitted. All defensive motions, including motions to quash, shall be heard by the court prior to trial.

This subsection sets forth the expedited procedure of [section] 51.011.

In Berry v. Clement, 346 So. 2d 105 (Fla. 2d DCA 1977), the court considered [section] 51.011(1) in the context of computing the time for filing defensive pleadings. The court held that the provisions of Rules 1.010 (regarding scope of rules) and 1.090 (which addresses computation of time) control disputes governed by the summary procedure statute. The court noted that while the summary procedure statute does not prescribe the method for calculating the stated five-day period, Rule 1.090 does. The cited rule states that "[i]n computing any period of time prescribed ... by any applicable statute ..., (w)hen the period of time prescribed ... is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation." Thus, the provisions of Rule 1.090 were held to apply. (6)

A different issue arises when causes of action entitled to be heard under the summary procedure statute are joined with others outside the scope of [section] 51.011. For example, if a landlord chooses to make use of of the fast track provided in the summary procedure statute for an eviction action, the landlord nevertheless will be required to wait the full 20-day period before entering a default on a count for damages joined in the complaint. If the tenant were to file an answer 10 days after service of the summons, the pleading would be timely filed with respect to the damages count. However, the tenant could nevertheless be in default on the eviction claim. See Stein v. Hubbs, 439 So. 2d 1005, 1006-07 (Fla. 5th DCA 1983). (7)

The second subsection of the summary procedure statute addresses discovery. It provides as follows:

(2) Discovery. Depositions on oral examination may be taken by any party at any time. Other discovery and admissions may be had only on order of court setting the time for compliance. No discovery postpones the time for trial except for good cause shown or by stipulation of the parties.

Fla. R. Civ. P. 1.290, regarding taking of depositions before action or pending appeal, does not appear to be in conflict with the summary procedure statute. However, Rule 1.440 contains time frames which are in direct conflict with the provisions of the statute. (8) When a conflict arises, the procedure set forth in [section] 51.011(2) controls. In other respects, this subsection of the summary procedure statute appears to be in conflict with timetables set forth in most rules regarding discovery. Under the provisions of the preamble to the summary procedure statute, the statute controls. (9)

The third subsection of the statute addresses juries. It provides as follows:

(3) Jury. If a jury trial is authorized by law, any party may demand it in any pleading or by a separate paper served not later than 5 days after the action comes to issue. When a jury is in attendance at the close of pleading or the time of demand for jury trial, the action may be tried immediately; otherwise, the court shall order a special venire to be summoned immediately. If a special venire be summoned, the party demanding the jury shall deposit sufficient money with the clerk to pay the jury fees which shall be taxed as costs if he or she prevails.

This provision fails to address those situations when a jury trial is not requested by the parties.

The cases arising under this section do not have a common theme. In Pitman v. Haselwood, 214 So. 2d 43 (Fla. 1st DCA 1968), the appellate court considered the case of a trial court that ordered a jury trial despite the fact that neither party requested one. It was ruled that while in certain similar circumstances the trial judge may use his discretion to order a jury trial, it would be an abuse of discretion to order a jury trial as a surprise to the parties on the day set for trial. Id. at 44. In Moffett v. MacArthur, 291 So. 2d 134 (Fla. 4th DCA 1974), the court considered the requirement that the defendant deposit costs. It was noted that the provision of [section] 51.011(3) relating to costs only applies if a special venire is to be summoned. Since a jury pool was available, there was no requirement for a special venire, and thus no need for the defendant to deposit costs in order to have his case tried before a jury. Id. at 136. In Jacques v. Wellington Corp., 133 Fla. 819, 183 So. 22 (1938), the Florida Supreme Court reversed a directed verdict ordered by a trial court in an eviction action--an action governed by summary procedure. The statute providing for summary procedure did not specifically authorize judges to direct verdicts. The Supreme Court held that a statute providing for summary procedure must be strictly construed and must be substantially followed. None of these cases should have a significant impact upon causes of action governed by the summary procedure statute.

By contrast to the preceding subsections of the summary procedure statute, the provisions of subsections four and five relating to new trials and appeals are less significant in terms of their departure from the time frames set forth in the Florida Rules of Civil Procedure. The subsections provide as follows:

(4) New Trial. Motion for new trial shall be filed and served within 5 days after verdict, if a jury trial was had, or after entry of judgment, if trial was by the court. A reserved motion for directed verdict shall be renewed within the period for moving for a new trial.

(5) Appeal. Notice of appeal shall be filed and served within 30 days from the rendition of the judgment appealed from.

Subsection four modifies Rule 1.530(b) by reducing the time to file a motion for a new trial from 10 days in the case of a jury trial to five days. Subsection (5) is in accordance with the provisions of Rule 9.110(b) of the Florida Rules of Appellate Procedure which require the filing of a notice of appeal within 30 days of rendition of the order to be reviewed.

Application of the Summary Procedure Statute

The summary procedure provided in F.S. [section] 51.011 is expressly called for in various statutes which govern two types of situations. The first relates to disputes among primarily private litigants and involves, either directly or peripherally, specific types of property rights. The remedies available under the statutes relating to property rights are varied and include eviction, monetary damages, determination of right of possession, foreclosure of a lien, and certain types of equitable actions against condominium and cooperative associations. Summary procedure is also available to certain regulatory bodies. It is authorized for matters relating to investigations, subpoena enforcement, and discipline of regulated professionals.

The area most frequently associated with the summary procedure statute is that of landlord-tenant law. In fact, there are two landlord-tenant statutes which call for application of the summary procedure statute. Both apply in the cases of residential landlord-tenant eviction actions. Section 83.21, regarding removal of residential tenants, provides that:

The landlord, the landlord's attorney or agent, applying for the removal of any tenant, shall file a complaint stating the facts which authorize the removal of the tenant, and describing the premises in the proper court of the county where the premises are situated and is entitled to the summary procedure provided in [section] 51.011.

A similar statute regarding removal of holdover residential tenants is codified in [section] 83.59 and again provides that the landlord is entitled to the summary procedure in [section] 51.011. It further provides that the court shall "advance the cause on the calendar." F.S. [section] 83.59(2). In both instances, the summary procedure relates only to the eviction action, and not an action for damages attributable to unpaid rent. (10) Section 723.061 is consistent with the provisions of F.S. Ch. 83. It provides that mobile home park owners are entitled to summary procedure when applying for the removal of a mobile home owner or a mobile home.

Similarly, F.S. Ch. 82, regarding forcible entry and unlawful detainer, confers remedies under the summary procedure statute for aggrieved parties entitled to possession of property. Section 82.03 specifically creates a remedy for a possessor of property who is dispossessed by one or more persons wrongfully in possession of the property by unlawful entry or forcible entry. Section 82.04 gives a dispossessed party the right to use summary procedure while exercising this remedy. The statute states as follows:

(1) If any person enters or has entered in a peaceable manner into any lands or tenements when the entry is lawful and after the expiration of the person's right continues to hold them against the consent of the party entitled to possession, the party so entitled to possession is entitled to the summary procedure under [section] 51.011, at any time within 3 years after the possession has been withheld from the party against his or her consent.

(2) This section shall not apply with regard to residential tenancies.

The remedies created in Ch. 82 are for monetary damages and right of possession. (11)

A particularly important entitlement to the use of summary procedure is set forth in [section] 85.011, Enforcement by Persons in Privity with the Owner Section 85.011 governs enforcement of "[a]ll liens on real or personal property provided for by part I or part II of chapter 713." (12) The use of summary procedure is accorded specifically to laborers claiming a lien on a tenant's personal property located on the premises for labor performed on the property and to landlords claiming a lien for accrued rent due under [section] 713.691. The relevant provisions of [section] 85.011 state as follows:

(5) Summary action.

(a) By a person claiming a lien for labor performed, or claiming a landlord's lien under [section] 713.691, filing in the court having jurisdiction of the amount of the lien claimed, a complaint describing the property on which a lien is claimed and stating the facts which authorize or create the lien. Such person is entitled to the summary procedure under [section] 51.011. (b) If the issues are found for plaintiff, judgment shall be entered for the amount found to be due him or her with 15 percent attorneys' fee and costs. The judgment is a prior lien on the property described in the petition over all other liens accruing or that may be filed subsequent to the day the lien for such labor performed or unpaid rent accrued, but if such issues are found for defendant, judgment shall be entered dismissing the action.

While the statute does not clearly state the nature of the cause on which the plaintiff is entitled to summary procedure, the case law indicates that the action is one of foreclosure of a lien. In Bybee v. Stearn, 95 So. 2d 529 (Fla. 1957), the court considered an action by a plumbing subcontractor to foreclose a mechanics' lien against property owned by the defendant. The court held that summary procedure (13) was available for enforcement of a mechanics' lien. However, as to the liability of the owner, privity required that the prime contractor be joined as an indispensable party. Id. at 530-01. (14)

The summary procedure statute also applies to certain actions involving condominium associations. For example, [section] 718.116(8) requires condominium associations, within 15 days of a request for the same, to provide a certificate to a unit owner, purchaser, or mortgagee which states all assessments and other moneys owed to the association by the unit owner with respect to the condominium parcel. If the condominium association fails to comply with this statute, the aggrieved party can commence an action under the summary procedure statute to compel compliance. In addition, [section] 718.302 relates to contracts for the operation, maintenance, or management of condominium associations, and the ability of the unit owners to cancel the same and provides that actions (ostensibly by unit owners against developers) to compel compliance with either [section] 718.301 (15) or [section] 718.302 may be brought utilizing the summary procedure set forth in [section] 51.011. Sections 719.301 and 719.302, governing cooperatives, contain language which effectively mirrors those relating to condominiums.

The summary procedure statute has also been enacted to effectuate prompt investigations and disciplinary actions by governmental and quasi-governmental bodies against numerous classes of regulated professionals, as well as matters concerning trade and commerce, financial institutions, and unclaimed property. For example, summary procedure is available to regulators to compel physical examinations of medical professionals suspected of being unable to practice by reason of abuse of alcohol, narcotics, or other drugs. (16) It is also available for investigators to enforce subpoenas issued during the investigative process. Various laws governing financial investigations also contain provisions authorizing use of summary procedure to enforce subpoenas. (17)

Proposal for Expanding Application of the Statute

The body of law contains numerous situations where the importance of expediting litigation is emphasized. Indeed, Rule 4-3.2 of the Rules Regulating The Florida Bar provides that "a lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client." The comment to this rule continues by stating that "delay should not be indulged merely for the convenience of the advocates or for the purpose of frustrating an opposing party's attempt to obtain rightful redress or repose." The comment concludes by stating that "realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client."

In 1995, the Florida Supreme Court recognized the need to expedite the family law litigation process and modified Florida Family Law Rule 12.490 which required a general master to take evidence in writing. The rule was modified to allow the master to take evidence electronically. See In re Family Law Rules of Procedure, 663 So. 2d 1049, 1051-52 (Fla. 1995), where it was noted that by allowing the master to take evidence electronically and eliminating the requirement to take evidence in writing, the family law litigation process would be expedited. In Ideal Rock Products Co. v. Henry's Drive-In of Florida, 152 So. 2d 791, 792 (Fla. 3d DCA 1963), the Third District noted the importance of conducting litigation in an expeditious manner, stating that "the rules of court should be administered for an expeditious disposal of litigation in the interest of justice."

As so eloquently stated by Judge Pierce in Enix v. Diamond T. Sales & Service Co., 188 So. 2d 48, 54 (Fla. 2d DCA 1966), "we have passed out of the horse and buggy era of procedure and have progressed well into the streamlined processes of the diesel age, but we have not yet gotten completely off terra firma into the supersonic mode of practice." (18) Perhaps in these days of the Internet, e-commerce, and cloning, the time has come to enter such a mode of practice.

The summary procedure statute is an example of a legislative enactment designed to expedite litigation. Additional examples include F.S. Ch. 682, the Florida Arbitration Code, as well as rules 1.700 through 1.830 of the Florida Rules of Civil Procedure relating to mediation and arbitration. If parties are able to agree to have their disputes resolved through mediation or arbitration, why not give them the right to elect application of the summary procedure set forth in F.S. [section] 51.011 when they so choose?

As noted previously, the preamble to the summary procedure statute states that the summary procedure set forth in the statute "applies only to those actions specified by statute or rule." In the spirit of streamlining the legal process, the Supreme Court may wish to consider expanding application of the summary procedure statute to those instances where the parties provide for such procedure by agreement before litigation. This can be done by adopting a rule which allows for its application if all parties so agree prior to initiation of litigation. In the alternative, the summary procedure statute itself could be amended, or a separate statute could be enacted, so that a plaintiff could be entitled to the summary procedure of [section] 51.011 if the parties agreed to its application in the event of a dispute which results in litigation. Certainly if rules regulating the conduct of attorneys compel conducting litigation in an expeditious manner, clients should be able to elect application of expedited procedure as well.

Keeping in mind the need to avoid potential abuse of summary procedure which could create results which are unfair, it is suggested that certain safeguards be provided in the nature of exceptions. First, the use of summary procedure should not be extended to resolve disputes in consumer transactions. Such an extension could lead to overreaching by those with an unfair advantage in bargaining power. Second, it is suggested that summary procedure must be made mutually available to parties to a contract. If one party were able to invoke a clause allowing for the use of summary procedure and another party was contractually foreclosed from doing so, this would be patently unfair and lead to potential abuse. Third, when one party to a transaction is represented by counsel during the contract negotiations and another party is not, it is suggested that an exception be carved out due to the unequal bargaining power of the represented party. Fourth, any use of summary procedure pursuant to stipulation in a contract should be expressly conditioned upon the agreement of all necessary and indispensable parties to the dispute. Absent such a provision, problems could arise in that some parties to the dispute would be bound by an agreement to use summary procedure, while other parties would not. Fifth, it is suggested that the court be granted authority to avoid use of summary procedure upon a showing by clear and convincing evidence of the aggrieved defendant that its use is inappropriate or otherwise unfair. In particular, if a defendant could show that there are complex factual issues which require additional time for development, such a showing should suffice to allow a court to opt out of application of summary procedure.

Extension of application of the summary procedure statute would in fact serve to streamline the litigation process by providing for prompt resolution of disputes. By extending application of the summary procedure set forth in F.S. [section] 51.011 to parties who agree to the same, the Supreme Court (or the legislature) will serve the judicial system well by saving time and money for both the court and the litigants. Perhaps this will bring us into the expeditious mode of practice contemplated by Judge Pierce.

(1) This article will focus upon the provisions and application of FLA. STAT. [section] 51.011, which is entitled "Summary Procedure." There is another Florida statute, i.e., [section] 747.051, which is also entitled "Summary Procedure." Section 747.051 is narrow in scope and is limited to isolated situations relating to transfer of property, by the wife or next of kin of an absentee, which is worth less than $5,000. In addition to the statutory authority for summary procedure, there are other instances where summary procedure applies as well (e.g., in criminal contempt proceedings and certain matters relating to administrative proceedings). Also, procedural rules governing small claims used to be entitled "Rules of Summary Procedure." This article only addresses cases governed by [section] 51.011.

(2) Under Florida's constitution, the power to adopt rules is vested in the Supreme Court. See FLA. CONST. art. V, [section] 2. The summary procedure statute is nevertheless a legislative enactment which, in certain instances, overrides procedural rules adopted by the Florida Supreme Court.

(3) But see FLA. R. CIV. P. 1.010.

(4) Also, in Lane v. Brith, 313 So. 2d 91, 92 (Fla. 4th D.C.A. 1975), the court ruled that the cited provisions of Rule 1.010 and [section] 51.011 are consistent, and that the summary procedure of [section] 51.011 is in fact authorized under the Rules of Civil Procedure.

(5) The courts are not always consistent. Cf. Military Park Fire Control Dist. v. DeMarois, 407 So. 2d 1020 (Fla. 4th D.C.A. 1981), which held that a statute creating the right to an "expeditious" hearing on appeal is an unconstitutional invasion of the Supreme Court's procedural rule-making powers.

(6) See also Moffett v. MacArthur, 291 So. 2d 134 (Fla. 1st D.C.A. 1974).

(7) Notwithstanding the differences between the eviction and liability claims, the court ruled that it was not necessary to serve the tenant with both a five-day and 20-day summons. A single five-day summons was sufficient. See Stein, 439 So. 2d at 1007.

(8) Rule 1.290 allows, under certain circumstances, depositions to be taken outside the usual time frame as dictated by the course of the litigation. Rule 1.440 contains time frames for setting an action for trial which clearly exceed those as set forth in the summary procedure statute.

(9) But see FLA. R. CIV. P. 1.010 and Berry v. Clement, 346 So. 2d 105 (Fla. 2d D.C.A. 1977), and the discussion relating to conflicts between the rules and statutes.

(10) However, see Stein v. Hubbs, which allows a single five-day summons to be used for a complaint containing both an eviction action and an action for damages.

(11) See FLA. STAT. [section] 82.05(1999) (stating that no question of title, but only right of possession and damages are involved in the action); see also FLA. STAT. [section] 82.071 (1999) (relating to evidence of damage at trial).

(12) Part I of Ch. 713, FLA. STAT. [sub section] 713.001--713.37, covers construction liens. Part II of Ch. 713, FLA. STAT. [sub section] 713.50-713.79, covers miscellaneous liens. The summary procedure statute is limited in its application and does not apply to all types of liens set forth in Parts I and II of Ch. 713.

(13) As set forth in a statute preceding the summary procedure statute.

(14) The term "privity" as used in the lien statute was defined in Foley Lumber Co. v. Koester, 61 So. 2d 634,639 (Fla. 1952), as implying special knowledge showing active consent or concurrence on the part of the owner.

(15) Section 718.301 governs transfer of association control from the developer to the unit owners under several different scenarios relating to the number of units sold and the passage of time.

(16) The list includes Florida statutes governing regulation of acupuncture ([section] 457.109), osteopaths ([section] 459.015), chiropractors ([section] 460.413), nurses ([section] 464.018), dental professionals ([section] 466.028), nursing home administrators ([section] 468.1755), veterinarians ([section] 474.214), clinical laboratory personnel ([section] 483.825), physical therapists ([section] 486.125), and psychologists and counselors ([sub section] 490.009 and 491.009).

(17) The relevant Florida statutes address investigations. FLA. STAT. [section] 17.05 makes the summary procedure statute applicable to actions to enforce subpoenas served by the comptroller. The procedure set forth in [section] 51.011 is also available for investigations relating to mortgage brokering and lending ([section] 494.011), solicitation of funds ([section] 496.419), funeral and cemetery services ([section] 497.123), securities transactions ([section] 517.201), retail installment sales ([section] 520.954), money transmitters ([section] 560.109), financial institutions ([section] 655.032), usury lending ([section] 687.144), and unclaimed property ([section] 717.1301).

(18) The trial judge in Enix took the extraordinary step of granting summary judgment in favor of the plaintiff despite the fact that no motion was filed. The Second Circuit reversed the lower court ruling granting summary judgment on the merits, not on procedure used by the trial judge.

Daniel Morman holds an LL.M. in taxation from New York University, a J.D. from Temple University School of Law, and a B.B.A. from the University of Pennsylvania. He previously served as an attorney with the Internal Revenue Service and as a panel member bankruptcy trustee in Pennsylvania and Delaware. Mr. Morman is currently associated with the law firm of Patrick C. Barthett, P.A., Miami, and practices in the field of commercial litigation.