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Now case really is closed

Pinellas County owed Dennis Esposito $117,000, but he had to pay $50 to get it. So he went to court.

By JOSE CARDENAS, Times Staff Writer
Published January 25, 2008


Dennis Esposito stands in front of the home at 3005 Ninth Ave. N in St. Petersburg, which he paid $117,000 for at a foreclosure auction. But a few days later the sale was declared null because it was discovered that the homeowners had declared bankruptcy.
photo
[Dirk Shadd | Times (2007)]
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As it turns out, Dennis Esposito's legal fight over a $50 fee to "reopen" a court case that he says should never have been closed was not a trivial matter.

The 2nd District Court of Appeal recently said so, sending a clear signal that there's a problem with the way court clerks in Florida collect the fee.

And now, after fighting Esposito for two years, Pinellas Clerk of the Circuit Court Ken Burke agrees.

Burke recently sent Esposito a check for $115.15 - the $50 Esposito had to pay to reopen a case, what he paid to file a small claims complaint to get back the reopening fee, plus interest.

Burke said he pushed the seemingly small matter to the appeals court because clerks needed legal clarification of what constitutes a "closed case."

"It was never a matter about this $50," Burke said.

But that's how it started.

Esposito, 55, is a longtime landlord from Massachusetts who now owns a television production company in St. Petersburg. In 2005, he successfully bid to buy a house in foreclosure.

He deposited $117,000 in the county's registry after the auction. But the sale fell through when the clerk's office discovered the homeowners had entered into bankruptcy protection.

That meant the clerk needed to give Esposito his $117,000 back - after he paid $50 to re-open the case. He did, grudgingly, and filed a small-claims case to get his money back.

Esposito, who is a college graduate but has no legal background, argued his case against a county lawyer for about an hour and won in small claims court.

Burke appealed to circuit court. Esposito used Burke's pleadings as samples to write his own.

Esposito then won in circuit court, and Burke appealed to the 2nd District Court of Appeal in Lakeland.

On Jan. 11, the 2nd District Court of Appeal refused to hear Burke's appeal. In so doing, Judge Chris Altenbernd wrote that Esposito's case illustrated a broader problem in the clerks' method of collecting fees.

The law was designed essentially to raise more than $6-million in taxes to help pay for court operations, but the judge wrote that it did not define what "previously reported as disposed of" means.

Altenbernd did not write that clerks should stop charging the fees. He just pointed out that clerks are using a definition meant for other purposes within the legal system, not one meant to decide when to collect fees.

Because of the fuzziness of the definition, "some clerks may be charging filing fees to 'reopen' cases that, from any reasonable perspective, should never have been 'closed,'" he wrote. He added that legislation or case law is needed to clear up the definition.

And that might be the end result of the 30 hours Esposito put into trying to get his fifty bucks back.

Now that the court of appeals ruled in his favor, "I'm happy for the residents of Pinellas that they feel there's light at the end of the tunnel when they have a bona fide complaint," Esposito said.

Burke said he will ask the legislative committee of the Florida Association of Court Clerks and Controllers to review the opinion and try to get a legislator to submit a bill that would clear up the ambiguity. He hopes that would pass this year.

Burke also said that besides the 18 exemptions to the fee, now the clerk's office will not charge the fee in one other instance: when people try to retrieve money they are owed from the clerk's registry, as Esposito tried to do.

In the meantime, along with the check for $115.15, Burke also sent Esposito his congratulations on his victory.

"The appeal on your matter was taken purely on the basis of the significance of the issue to the clerks of the court," Burke wrote. "You did an excellent job of representing yourself."

Jose Cardenas can be reached at jcardenas@sptimes.com or 727 445-4224.

The statute

The $50 reopening fee is part of Florida law.

What Statute 28.241 says: A party reopening any civil action, suit or proceeding in the circuit court shall pay to the clerk of court a filing fee set by the clerk in an amount not to exceed $50. For purposes of this section, a case is reopened when a case previously reported as disposed of is resubmitted to a court and includes petitions for modification of a final judgment of dissolution.

What the 2nd District Court of Appeal said: "While the clerk may be attempting in good faith to comply with section 28.241 (1) (b), there is no reported case law defining 'previously reported as disposed of.' ...

"The broader issue revealed by this case needs thoughtful resolution that is binding on all clerks of court in Florida."

[Last modified January 24, 2008, 23:32:42]


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