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

• Author: Morman, Daniel
• Position: Florida

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 Second, while rules of procedure govern, they are superseded if in conflict with the provisions of the summary procedure statute.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...