Corporations Cannot Represent Themselves in Small Claims Post-Collection Proceedings, Court Says

It is established law that a business entity (Corporation or LLC) cannot represent itself, pro se, in court proceedings but rather must appear through an attorney.  The purpose for this rule, as courts have stated, include:

1. A single designated spokesperson, who will be accountable to the court, is necessary because companies are special entities, with often multiple shareholders who are insulated from personal responsibility;
2. Attorneys, unlike corporate agents, are subject to professional rules of conduct; and
3. Attorneys are trained with the legal skills necessary to competently participate in litigation and other proceedings.

As a result of this rule, a plethora of court papers submitted by corporate officers, usually small business owners, have been stricken and declared void.

Like most rules, however, this one has an exception. In Florida small claims court, where amounts in controversy are less than $5000, a corporation may be represented “at any stage of the trial court proceedings by an officer of the corporation or any employee authorized in writing by an officer of the corporation.” (To quote a portion of Rule 7.050 of the Florida Small Claims Civil Rules.)

Recently, the 13th Judicial Circuit in and for Hillsborough County issued an opinion discussing whether this exception applied to post-judgment collection litigation, and held that it does not.  Judge Herbert M. Berkowitz, writing for the Court, held:

The phrase “trial court proceedings” as used in Fla. Sm. Cl. R. 1.7050 (a) (2), does not extend corporate self-representation to post judgment proceedings. Once a small claim final judgment has been entered, wherein a corporation is a party, any further representation of that corporation must only be by duly licensed counsel.

Auto Credit of Tampa, LLC v. Guerra, Case No. 12-CC-031183, FLWSUPP 2101AUTO (Fla. 13th Jud. Cir., Hillsborough County September 12, 2013).

In determining whether the phrase “trial court proceedings” as found in the Small Claims Rule applies beyond the entry of a final judgment, the Court analyzed the history of the rule, the intent behind it, and, because “exceptions or provisos should be narrowly and strictly construed,” the term “trial court proceedings.”  It noted that, “once final judgments are entered, all subsequent litigation activities in pursuit of collection are typically referred to as ‘post-trial proceedings.’”

The Court also explained that:

To extend the definition of “trial court proceedings” to post judgment collection activities would be to ignore the concerns and warnings as expressed in State v. Sperry, 140 So.2nd 587, 595 (Fla., 1962). In Sperry, the Court noted that the reason behind prohibiting the unlicensed practice of law is “to protect the public from being advised and represented in legal matters by unqualified persons over whom the judicial department can exercise little, if any, control in the matter of infractions of the code of conduct which, in the public interest, lawyers are bound to observe.” Conducting the necessary legal steps essential to the prosecution of post judgment collection activities, inherently and unquestionably constitutes the practice of law, because such prosecution requires legal skill and knowledge of the law greater than that possessed by the average citizen. See The Florida Bar v. Florida First Financial Group, Inc., 695 So.2nd 275, 277-78(Fla. 1997) [22 Fla. L. Weekly S134a].

Post-judgment collection activities, which include depositions in aid of execution, the production of personal financial documents, post-judgment writs of garnishment, and more,  lack the simplicity of regular small claims practice.  The Court reasoned:

Allowing a corporation to represent itself in trial court proceedings in small claim matters was certainly not intended to extend to the myriad of complex and technical proceedings that follow the entry of a final judgment and its consequent attempts at collection. To do so would effectively allow corporate agents and officers to engage in the unlicensed practice of law, unfettered and uncontrolled in post judgment proceedings in small claims litigation.

After making its ruling, the Court dissolved a writ of garnishment a pro-se plaintiff had obtained because it was not entered while the plaintiff was represented by an attorney.

Bottom line?  If you run a small (or any) business and are involved in litigation of any sort, always consult with an attorney. Finally, realize that, even if you technically can represent yourself in court, that doesn’t always mean you should. (And here are 3 reasons you shouldn’t.)

To schedule a consultation with Attorney Conlin, call our office at 407-965-5519, or click here for our contacts page.