By Barbara Buratti, Esq.
One way to resolve a dispute involving minor damages – a tenant won’t pay back rent, a landlord refuses to return a security deposit, etc. – is to take the conflict to Small Claims Court.
Originating in Cleveland, Ohio in 1913, Small Claims Court was introduced to allow citizens to bring claims quickly before a judge. The concept spread, and now Oklahoma and all other states have adopted the small claims process.
In Oklahoma’s Small Claims Court, recovery is limited to $6,000, and attorneys are optional. The parties may present their own case, but either or both parties may retain an attorney. Common matters handled in small-claims court include disputes involving debts, repayment of loans, failure to provide agreed-upon services, breach or cancellation of contracts, minor personal injuries, breach of warranty (for example, when a purchased product is defective or not as advertised), property damage and return of property (for example, when a person borrows something and does not return it).
A Small Claims action is started by filing a notarized affidavit with the court clerk. Usually you file in the jurisdiction where the defendant (the one being sued) lives; or, if the defendant is a company, where the company being sued does business. Small Claims affidavit forms as well as other forms and helpful information about Small Claims Court are available at the Oklahoma County Court Clerk’s office and online at www.oklahomacounty.org/courtclerk.
When filling out the affidavit, you need the exact name and address of the person, corporation or other type of entity you are suing. In the affidavit, you also state in general terms what you are seeking – usually the amount of money sought or owed, or the value of the property the plaintiff (the one suing) wants returned. When the affidavit is filed, the court clerk will assign a date and time for your trial. Then, the affidavit has to be served on the defendant. Unless the plaintiff wants to hire a private process server or request service by the sheriff, the court clerk will serve the affidavit and Order notifying the defendant of the trial date by certified mail. Fees are involved for filing the affidavit and service.
Once served, the defendant may offer to “settle” the case, offering a compromise or the relief the plaintiff is seeking, or the defendant can counterclaim. A counterclaim is a claim by the defendant against the plaintiff. For example, if John’s landlord won’t return his $1,000 security deposit, John can file a Small Claims action against his landlord. The landlord may file a counterclaim asserting that John owes the money because he damaged the countertops. If John sues for the return of $1,000, and the landlord has spent $1,900 to replace the countertops, the landlord may counterclaim against John for the additional $900. A counterclaim, also limited to $6,000, will be heard by the judge if it is filed with the court clerk at least 72 hours before the time originally set for the Small Claims trial.
If there is no settlement, you will need to get your case ready for trial. Small Claims trials are relatively informal, with the sole object of dispensing speedy justice. Normally, there is no jury in a Small Claims trial. However, if either party wants a jury trial, and if the claim, or counterclaim if there is one, exceeds $1,500, the party who wants a jury must give the court clerk written notice and a $50 deposit at least two working days before the time set for the Small Claims trial.
As the plaintiff, you have the burden of proof. That means you have to demonstrate that you are entitled to the relief you are requesting. Likewise, if the defendant filed a counterclaim against you, he/she has the burden of proof on the counterclaim.
Things you should bring to trial to support your claims or defenses include:
- Documents such as contracts, notes, leases, receipts, work orders, bids and estimates, police reports, etc.
- Damaged goods you’re suing over, or photographs of the goods.
- Photographs or illustrations that explain what happened, such as where a car accident happened.
- Any letters, e-mail messages or other correspondence between you and the other party.
You should also talk to your witnesses and arrange for them to appear at the Small Claims hearing on your behalf, even if that means having a subpoena served to an unwilling witness. The court clerk can issue subpoenas for witnesses.
When you arrive for trial, other people may be in the courtroom because a number of cases may be set at the same time. Each case will be “called,” which is like taking attendance, where the parties announce their presence. If neither you nor the defendant you sued show up at trial, the case will be dismissed. If you fail to appear at trial, the judge will dismiss your case. If the defendant doesn’t show up for trial, you may win by default, where the judge awards the amount of your claim, plus your court costs or filing fees. In the case of a default, you still need to show the judge that your claim against the defendant is valid and that he/she was properly served. Likewise, the defendant may get a default judgment against the plaintiff if he/she shows up and the plaintiff doesn’t.
When both parties are present, the judge will ask if you are willing to try to work out a settlement. If that is not an option, or if you cannot agree on a settlement, the trial will proceed.
The trial process itself is simple and straightforward. You will be asked to explain your case. Tell your story calmly, politely and briefly. First, summarize your claim and damages and then explain why the other person is at fault. At this time, you will also present your evidence, those things mentioned above that you diligently gathered, prepared and brought to trial to support your claim, and your witnesses will testify. Then it’s the defendant’s turn to respond, and present his/her witnesses and evidence. The judge will often ask questions of you, the defendant and other witnesses if there are any.
While Small Claims procedure is informal, the judge must still enforce the rules of evidence, including the hearsay rule. Basically, hearsay is an out-of-court statement. Generally, hearsay evidence is not admissible in court because the source of the evidence is not available to be cross-examined. An estimate for a car repair or a written statement by a witness to an accident is inadmissible hearsay. However, an estimate or other document may be allowed into evidence if the person who prepared the document is present to testify. If a document you need was prepared by someone who is not a party to the case, that person must be present to testify about the document.
The judge will make a decision on who wins, which is called a “judgment.” The judge may announce the judgment immediately or take the case “under advisement,” meaning the judge needs more time to think about it. If a case is taken under advisement, the decision will be mailed to the parties.
Ideally, once judgment is entered, the losing party will voluntarily pay the amount awarded. If the losing party refuses to pay, the party holding the judgment can take steps to collect it. “Post-judgment remedies” to collect a judgment include executing on the defendant’s property or having a garnishment issued against the defendant’s assets or wages. The defendant may be compelled to go to court for a Hearing on Assets to determine what assets are available.
If a person has no money or other assets, he/she may be judgment-proof. So, before you even file a Small Claims case, you may want to do some research into public county real estate records and court records to find out whether the person or business you want to sue has assets, and whether there have been other judgments against them. If the opposing party appears to be judgment-proof, you should think twice before pursuing a lawsuit that will cost you money and time, and may result in a judgment that you will never be able to collect. Remember that winning a case in Small Claims court is not the same thing as getting paid.
Barbara Buratti is an attorney with the Wilson, Cain and Acquaviva law firm in Oklahoma City. Suggestions for future articles may be sent to Barbarab@wcalaw.com