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19. THE JUDGE RULES: Petition Cards

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

A candidate for public office may qualify to have his or her name placed on the ballot by getting the required number of petition cards signed.

A candidate who plans to get petition cards signed must first file an oath.  Petition cards can be obtained from the Supervisor of Elections or the candidate can prepare his or her own.  The candidate must be sure that the petition cards include all relevant information.

A qualified voter who chooses to sign a candidate’s petition card must fill in his or her address and voter identification number or date of birth.  A signature on a petition card is not a vote.  The appropriate number of qualified signed petition cards just gets the candidate’s name on the ballot.

Judges or candidates for judge can qualify by filing the appropriate number of petition cards.  Judicial races are non-partisan.  The number of petition cards with the signatures of qualified voters which a judge or candidate must collect and file is equal to one percent of the total number of registered voters in the relevant geographical area.  For example Lake County has about 142,000 registered voters.  A county judge or candidate would need to file about 1,420 petition cards.

After the petition cards are filed, they must be verified.  The Supervisor of Elections makes sure that each signer is a registered voter in the county in question.  Next the Supervisor of Elections compares the signatures on the cards to the signatures that are on file.  Non qualifying cards will not be counted.  The Supervisor of Elections makes sure that the number of qualifying petition cards fulfills the percentage requirement.

The candidate shall pay from his or her campaign account the sum of ten cents per card submitted for verification.  A candidate would ordinarily submit and pay for a larger number of cards than required because some cards will be disqualified.

If the candidate has submitted the required number of qualified petition cards, that information is sent to the Department of State.  The Department of State shall certify the nomination by petition and direct the local Supervisor of Elections to put the name on the ballot.

*****(This example is based on an actual closed case.)*****

During the campaign, Mr. Voter comes up to a campaign volunteer and says that he would like to sign the petition card for the judge but he is not sure if he can because he registered to vote with no party affiliation.

Judge Miller Rules: If Mr. Voter is registered, he can sign the judge’s petition card.

20. THE JUDGE RULES: Replevin

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

If your personal property has been wrongfully detained you may be entitled to a Writ of Replevin to get your property back.

The court can insist that you set a replevin hearing with notice to the other side before you can get the property back.  Even before a hearing, a court could issue an Order allowing you to go with law enforcement to get the property back and then have the hearing.  The court could allow law enforcement to break into the other person’s home or business on your behalf.  You would be allowed to take your property back and then have a hearing.

If the value of the property is under $15,000, the case can be heard before a county judge.  For property over $15,000, a circuit judge would rule.  The replevin case may be brought in the county where the property is located.  It may be brought in the county where the contract was signed or where the Defendant lives.

The replevin complaint must include a detailed description of the property to be replevined.  You must include the reasons you believe the property is yours.  If you have documentation, attach it to the Complaint.  You must explain how it came to be with the Defendant.

If the Court feels that the Defendant should be notified prior to any taking, an Order To Show Cause hearing will be scheduled.  The Defendant will have an opportunity to show cause why the property should not be taken and given to you.  If the Defendant fails to show up at the hearing, the Court will usually find that any objections are waived.  An Order may be signed granting the Replevin.

If you believe that the Defendant is damaging the property or may be removing the property from your reach, you must convince the Court that you need the Replevin before the hearing.  You must post a bond in the amount of twice the value of the property.

If the Defendant is hostile or uncooperative you may need a “break order” to get into the hiding place of the property in question.  A judge may issue “a break order” upon a showing of great need and limited risk.  A deputy will then assist you in getting the property even if doors or fences must be forced in order to do it.

*****(This example is based on an actual closed case.)*****

The Defendant bought a storage shed and agreed to make payments on it to the sales company.  Payments are not made so the storage shed company wants the shed back.  The Defendant refuses to give it back and refuses or is unable to pay.  The shed is behind a locked chain link fence.  There are two large dogs running loose on the fenced property.  The storage shed company wants a “break order” immediately, prior to a hearing, so they can cut the fence and get the shed.

Judge Miller Rules: There is no indication that the Defendant is damaging the shed or is removing the shed.  There is no plan for dealing with the dogs or repairing the fence.  The “break order” is denied at this time.  The case may be set for hearing.

21. THE JUDGE RULES: Garnishment

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

[Column No. 97 has additional information about garnishment.]

Did you know that if you ignore the garnishment papers sent to you concerning an employee, YOU COULD GET A JUDGMENT AGAINST YOU???

Every person who gets a Judgment against another person has a right to a Writ of Garnishment.  The Writ addresses money which would otherwise go to the debtor.  The Writ says that the person who currently has some of the debtor’s money, such as an employer about to do payroll, must give the money to the prevailing party instead.  The employer is called a Garnishee.

After Judgment, the prevailing party may file papers for a Writ of Garnishment.  The papers must state the amount of the Judgment.  As a rule, the money must be demanded from wages, salary or a bank account.

The Writ is delivered to the Garnishee.  Don’t forget that the Garnishee can be an employer of the debtor.  The Garnishee has 20 days after service to answer.  The Garnishee must state whether or not the Garnishee does have money that would be available to the losing party and how much.  If the Garnishee fails to answer, the Court may sign a Judgment ordering the Garnishee to pay the amount in question out of the Garnishee’s own pocket.  Employers, do not fail to answer!

If wages or salary are sought, the court can issue a Continuing Writ of Garnishment.  The employer can charge up to $5 for processing the initial paperwork and up to $2 thereafter.

The losing party may file a claim of exemption from garnishment and may request a hearing.  In the most common claim, he or she claims to be a Head of Household who provides more than one-half of the support for a dependent and has net earnings of less than $500 per week.

The prevailing party has two business days to file an objection to the claim of exemption if the claim was hand delivered or seven days if the claim was mailed.  If there is no objection to the claim, the Writ is dissolved.  If there is an objection, a hearing is set as soon as possible.  Out of town parties may usually appear by phone if they have made a request in writing.

*****(This example is based on an actual closed case.)*****

The divorced non-residential parent files a claim of exemption as Head of Household.  He earns $300 per week and out of that he pays $25 a week child support.  The ex-wife is now married to Joe Millionaire who provides a home, food, clothing, etc. The non-residential parent claims his wages should not be garnished for the money he owes on his credit card because he is paying child support.

Judge Miller Rules: He is not paying more than one-half of the support for his child.  His current request for exemption is denied.

22. THE JUDGE RULES: Property Rights

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

Your property rights are not as absolute as you may believe.

Your property may have a right of way easement which you are required to maintain for another property owner’s use.  You cannot do anything to the easement which would obstruct the other property owner’s access.

When a road is widened the government may need to take all or part of your property.  The government must attempt to negotiate in good faith with you over the price.  The government must put the offer in writing.  If requested, the government must also include a copy of the appraisal which led to the amount of the offer.

Notice to the property owner must identify the portion of the property required for the project.  It must include the nature of the project and may include maps and other documents.  If a partial taking would damage the remaining property, the owner is entitled to additional compensation.

If you are involved with the government taking land, you will want to read Florida Statutes, Chapter 73 very carefully.  You may want to consult with an attorney.  The government may pay your attorney fees for you.

A case in which the government wants to take property and the landowner does not want to part with it or the landowner does not agree with the compensation offered, is called an Eminent Domain proceeding.  The Circuit Court has jurisdiction over Eminent Domain cases.  If your case goes to trial, you are entitled to have a twelve person jury.  It is interesting to note that most other cases in the court system have only a six person jury.

Most property has at least a utility easement.  The government and the utility companies do not need additional permission to tear up your front lawn to work on lines.

You may have deed restrictions which limit the use of your property.  Read your deed restrictions.

*****(This example is based on an actual closed case.)*****

Mr. Homeowner puts the remains of a wrecked car in his front yard as a warning to drivers to be extra careful during the holidays.  The neighborhood association objects based on the deed restrictions.  Mr. Homeowner says that it is his yard and he can put anything he wants on display.

Judge Miller Rules: This deed restriction which limits objects which can be placed in the front yard is enforceable.

23. THE JUDGE RULES: Your Legal Name

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

It is important that you know your legal name and use it when a legal name is required.  For instance, it is a criminal offense to give a law enforcement officer a false name.  The officer needs your legal name to check your records.  It may be a criminal offense to write the wrong name on a legal document, especially if it is done to mislead someone.  Sometimes you can write the name by which you are known or a nickname, but when your legal name is demanded, then your legal name must be given.

Your legal name can be changed by marriage, a dissolution of marriage or by the discretion of a Court upon proper application.  A child’s name can be changed at the time of an adoption.  If you wish to change your name and that change is not part of a marriage or a dissolution, you should read Florida Statute 68.07 carefully.

If you want a name change, you must file a signed Petition in the county in which you reside.  You should include your date and place of birth, your mother and father’s names, your mother’s maiden name and the places you have resided since birth.  If you are married you should include the name of your spouse and where your spouse lives and the same for any children you may have.  Include any relevant information about other name changes.  It may be helpful to state why you want this name change.

Include an employment and education history.  By what name are you generally known and what other names have been used to refer to you?  Have you ever been in bankruptcy court?  Have you ever been convicted of a felony?  Do you have any judgment issues of which the Court needs to be made aware?

You must state that the name change is filed for no ulterior or illegal purpose and granting it will not in any manner invade the property rights of others.

A husband, wife and minor children can all be included on the same Petition.  When only one parent petitions for the change of a child’s name, the other parent must be served notice with an opportunity to be heard.

*****(This example is based on an actual closed case.)*****

The ex-Mrs. Smith is marrying Mr. Jones.  Her name will become Mrs. Jones.  She is the primary residential parent of her child from the marriage with Mr. Smith.  She wants the name of her child changed to Jones and files a Petition to accomplish that.  The father objects.

Judge Miller Rules: The parental rights of the child’s father were not terminated.  Since the child’s father objects, the child’s name will not be changed.  When the child becomes eighteen years old, the child can petition on his own and his father’s wishes will not be a legal obstacle.

24. THE JUDGE RULES: Attorney Fees

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

When a person retains an attorney that person is usually responsible for paying that attorney.  There are times when someone else may also be responsible.

The person who loses in a civil suit may be ordered to pay all or part of the prevailing party’s attorney fees and the costs of a legal assistant to the attorney.  The duty to pay must be specified in the original contract or must be directed by statute.  The duty of the losing party to pay is in the Landlord/Tenant statute and the statute involving insurance.

To get attorney fees the prevailing party must ask for them in the pleadings and must be able to state the legal basis for them.

Even when the other side is the state, there may be a duty for a non-client to pay attorney fees.  An example of this is Eminent Domain.  If the state is taking your real property, you have a right to an attorney and that attorney fee might be paid by the state.

For some civil cases an attorney will take a case and not expect to be paid by the client.  The attorney agrees to be paid only if the lawsuit is won.  At that time the attorney would get an agreed upon percentage of the award or an amount ordered by the Court to be paid by the losing party.

In some civil cases when the other side is required to pay the winner’s attorney, the attorney may be entitled to more than an hourly amount.  Sometimes the hourly rate is multiplied by a court because of special circumstances.  The Legislature and higher courts wanted to encourage attorneys to take high risk cases which may be of great public importance.

When you retain an attorney be sure that you understand the fee arrangement and your obligation to pay. 

*****(This example is based on an actual closed case.)*****

The Plaintiff sues the Defendant for Breach of Contract.  The contract specifically states that if one party sues the other party, the prevailing party will collect attorney fees.  The Defendant does not retain an attorney because he cannot afford one.  If he won he could not get attorney fees because he was not obligated to pay an attorney.  The Plaintiff wins and is the prevailing party and wants his attorney fees reimbursed by the losing party.  The losing party says that he should not have to pay the other side’s attorney fees because he couldn’t even afford to pay an attorney for himself.

Judge Miller Rules: The parties agreed in the contract that the prevailing party would get attorney fees.  While I will consider the reasonableness of the amount of the fee requested by the prevailing attorney, the losing party is obligated to pay.

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