Legal Question in Civil Litigation in Florida

Counterclaim not Filed Correctly or Served

I filed a small-claims suit in Orange County, Fl. I paid $155 in fees, summons was served by the Sheriff. At mediation we were not able to reach an agreement, and a court date was set. I was mailed an application for a counterclaim by the Def., CC'd to the Clerk of Courts. Amount of the counterclaim was ''1000.00+''. AFAIK, this is not a valid amount (it has to be exact).

The Clerk annotated the case file ''RECEIVED STATEMENT OF CLAIM-COUNTERCLAIM FOR DAMAGES''. I was not served any summons for this counterclaim. Clerk's records show Def. never paid filing fees for the claim. Appears that it was never actually filed.

The Def. did not show up at trial. Default judgement, counterclaim dismissed. Clerk recorded ''FINAL JUDGMENT FOR PLTF /COUNTER CLAIM PLTFS SHALL TAKE NOTHING''.

Judge overturned the default judgement as Def. had a valid excuse to miss court. New trial date lists the Def. as counter-claimant. Since I was never served, it was never filed in Orange County, and the dollar amount is not legit, can I file a motion to dismiss the countersuit? Should I just wait until court to ask for dismissl, or should I write a letter to the judge? Could the judge just decide to let the counterclaim proceed for any reason?


Asked on 8/06/08, 1:45 pm

1 Answer from Attorneys
Brent Rose The Orsini & Rose Law Firm

Re: Counterclaim not Filed Correctly or Served

The rules in small claims court can be lax. No summons is necessary for counterclaims and, prior to July 1, no filing fee on counterclaims was required. There is no requirement that a claim state a specific dollar amount.

You could file your motion if you want (it never hurts), but it doesn't sound like it will be successful.

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Answered on 8/07/08, 1:10 pm


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