NOTICE: THIS OPINION IS SUBJECT TO REVISION OR WITHDRAWAL
UNTIL TIME EXPIRES FOR REHEARING OR FURTHER APPELLATE
REVIEW AND, IF FILED, DETERMINED
County Civil Court:
JURISDICTION – Small Claims Court – return of fees from Clerk of Court –
waiver of jurisdiction – Florida Statutes, section 28.241 - Small Claims Court
had jurisdiction to rule on plaintiff’s claim for return of $ 50.00, required
by the Clerk of Court to have plaintiff’s escrow money returned – defendant did
not object to the jurisdiction of the Small Claims Court and waived the issue –
Clerk erred in requiring plaintiff, who was the third party buyer in a
foreclosure action, to pay $ 50.00 to have the Clerk return his purchase price
after sale of property was set aside – foreclosure action should not have been
considered “closed” since the third party buyer still had funds held in escrow
by the Clerk of Court – trial court’s ruling does not violate section 28.241
which provides exemptions for payment of re-open fee - Final Judgment
affirmed. Burke v. Esposito,
Appeal No. 06-0008AP-88A (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
KEN BURKE, CLERK OF COURT,
vs. Appeal No. 06-0008AP-88A
Small Claims Division
Betsy M. Steg, Esquire
Attorney for Appellant
Appellee, pro se
ORDER AND OPINION
THIS CAUSE came before the Court on appeal, filed by Ken Burke, Clerk of Court (Clerk), from the Final Judgment, entered December 15, 2006. Upon review of the briefs, the record and being otherwise fully advised, the Court affirms the trial court’s ruling as set forth below.
The record shows that the Appellee, Dennis Esposito (Esposito), was the successful bidder for residential property at a judicial sale, held on October 19, 2005, as a result of a foreclosure by Wells Fargo Bank against Kimberly and Richard Rusinko, in Circuit Court Case No. 04-9121CI-15. On October 26, 2005, Wells Fargo filed an Ex-Parte Motion to Vacate Certificate of Sale, seeking to have the sale vacated due to the Rusinkos’ pending bankruptcy. The Circuit Court judge granted the Motion on October 21, 2005. No mention was made regarding the return of Esposito’s purchase money, $ 117,000.00, held by the Clerk. On October 28, 2005, Esposito, pro se, filed a Motion for Release of Funds seeking a return of his money. In accepting the Motion, the Clerk required Esposito to pay a $ 50.00 reopen fee. On November 1, 2005, the Circuit Court judge granted Esposito’s Motion for Release of Funds and ordered the Clerk to release all funds to Esposito as a result of the sale being vacated.
On November 7, 2005, Esposito filed a Statement of Claim in Small Claims Court against the Clerk seeking the return of the $ 50.00 reopen fee. Both parties sought summary judgment. On December 15, 2005, the trial judge denied the Clerk’s motion for summary judgment and granted Esposito’s motion for summary judgment, ruling that the Clerk should return the $ 50.00 fee to Esposito. On January 12, 2006, the Clerk filed its Notice of Appeal. This Court relinquished jurisdiction to the trial court, on October 13, 2006, for the entry of a final judgment finding that the appealed order, which merely granted summary judgment and did not contain words of finality, was not an appealable final order. On December 15, 2006, the trial court entered its Final Judgment.
Court, the Clerk argues that the return of the $ 50.00 fee to Esposito was
erroneous as the trial court lacked jurisdiction over the matter and the reopen
fee was required by Florida Statutes, section 28.241, and the Summary Reporting
System (SRS) Manual. As the issue
presents a pure question of law, the standard of review is de novo. See Martin Daytona Corp. v.
Strickland Construction Services, 941 So.2d 1220 (
Initially, the Court finds that Esposito should have requested the return of his reopen fee in the Circuit Court, in conjunction with his Motion to Release Funds, since it was a collateral issue. While Esposito was not a named party in the Circuit Court case, the trial judge implicitly allowed Esposito to intervene as a third party in granting Esposito’s motion to return his money. Although judicial economy and efficiency would have been served by having the matter addressed in Circuit Court, the facts of this case do not mandate it.
Esposito, proceeding in
the matter pro se, instead filed a Statement of Claim in Small
In reviewing the remaining issues, Florida Statutes, section 28.241(b), states that when a party seeks to reopen a case that has been disposed of, that party must pay a filing fee set by the Clerk not to exceed $ 50.00, unless one of the seventeen listed exemptions apply. The SRS Manual, which implements section 28.241(b), defines disposition as:
The final decision or judgment which terminates a judicial proceeding. Examples include disposed by judge, disposed by jury, no file, dismissed, transferred, convicted after plea, adjudication withheld, acquitted, convicted, dismissed before hearing, dismissed after hearing, bond estreature and non-jury trial.
In this case, the Circuit Civil case was “disposed of” when the Final Judgment of Foreclosure was entered on March 22, 2005. Thereafter, each time a motion was filed, the case had to be “reopened” and the $ 50.00 fee had to be paid since none of the statutory exemptions applied. The Clerk’s docket shows that, in the proceedings that followed the Final Judgment of Foreclosure, no less than six reopen fees were paid, each time in conjunction with the filing of a motion or request for relief.
The question is whether the Clerk lawfully charged Esposito the $ 50.00 fee when he was not a party to the foreclosure case and was only attempting to have his money returned to him upon the entry of the Order Granting Ex-Parte Motion to Vacate Certificate of Sale, which failed to address the return of his money. The Plaintiff, Wells Fargo, had already paid the $ 50.00 fee in filing its Ex-Parte Motion to Vacate Certificate of Sale. While there was not a written stipulation, no one disputes that Esposito’s purchase funds should have been returned to him following the Certificate of Sale being vacated. See Fla. Stat. 28.241(b)16.(listing stipulations as one of the exemptions to payment of the reopen fee).
The Small Claims judge ruled that “an order to vacate a foreclosure sale is not an end to judicial action when monies are in the Registry of the Court and need a Court order to be paid out.” The Court finds that this ruling does not violate section 28.241(b), as the Small Claims judge logically concluded that the return of monies is intrinsic to a Certificate of Sale being vacated such that Esposito should not also have been charged a $ 50.00 reopen fee. The Court concludes that the Clerk should have waived the fee in this case and that the trial court’s ruling under these facts is not erroneous.
In addition to the foregoing, the
Court finds that there is a more fundamental issue presented by this appeal. That is, there is nothing of substantial
consequence addressed in this appeal.
The Clerk’s argument should be rejected outright under the doctrine of de minimis non curat lex, the law does
not concern itself with trifles. See
e.g. Korash v. Mills, 263 So.2d 579, 582 (
Therefore, it is,
ORDERED AND ADJUDGED that the Final Judgment is affirmed.
AND ORDERED in Chambers, at
R. TIMOTHY PETERS
Circuit Judge, Appellate Division
GEORGE M. JIROTKA CYNTHIA
Circuit Judge, Appellate Division Circuit Judge, Appellate Division
Copies furnished to:
Honorable Kathleen T. Hessinger
County Court Judge
315 Court Street
Dennis Esposito, Esquire
 This is how the Clerk chooses to handle the matter after a final judgment of foreclosure. There is nothing in the statute or the SRS Manual that requires the Clerk to collect $ 50.00 each time a post-judgment motion is filed, only that the $ 50.00 fee is required to “reopen” a case. (emphasis added). For example, the Clerk could chose to collect just one $ 50.00 fee following a foreclosure which would encompass all ensuing motions involving the judicial sale of the home, which is a predictable and part-and-parcel of a foreclosure action. It can be argued that the Clerk’s policy of collecting a fee every time a motion is filed is contrary to the intent of the statute.