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  1. #1
    TXHank08 is offline Junior Member
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    Trial De Novo - How to get it dismissed

    What is the name of your state (only U.S. law)?

    TX - Texas

    I have question regarding Trial De Novo.

    I am the plaintiff in a small claims court case in which I am suing a contractor for negligence and breach of contract. The evidence against the Defendant is overwhelming, and I am all but guaranteed to win.

    The Defendant has hired a lawyer who recently made a settlement offer for a substantially reduced amount. The Defendant's lawyer claims the Defendant is broke and this is all he can afford. He also said if I win the case for the full amount ($10K plus potential treble damages for fraud), his client will file for a Trial De Novo.

    My question is:

    If I win my small claims court and given how overwhelming the evidence is against the Defendant, what is the best approach for asking the new court to dismiss the case? Should I simply file a motion for summary judgment?

    Also, could I counter-sue in the new court for abuse of process - basically the Defendant's lawyer knows the Defendant cannot win and is using the Trial De Novo to force me to accept the settlement under duress.
  2. #2
    seniorjudge is offline Senior Member
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    I am the plaintiff in a small claims court case in which I am suing a contractor for negligence and breach of contract. The evidence against the Defendant is overwhelming, and I am all but guaranteed to win.
    Wrong. Your BEST chance is about 50-50, more or less.


    The Defendant has hired a lawyer who recently made a settlement offer for a substantially reduced amount. The Defendant's lawyer claims the Defendant is broke and this is all he can afford. He also said if I win the case for the full amount ($10K plus potential treble damages for fraud), his client will file for a Trial De Novo.
    That would be what any lawyer would do.


    My question is:

    If I win my small claims court and given how overwhelming the evidence is against the Defendant, what is the best approach for asking the new court to dismiss the case? Should I simply file a motion for summary judgment?
    You will have to go through with another trial.


    Also, could I counter-sue in the new court for abuse of process - basically the Defendant's lawyer knows the Defendant cannot win and is using the Trial De Novo to force me to accept the settlement under duress.
    Not even in the same universe.
    There are two rules for success:

    (1) Never tell everything you know.
  3. #3
    TXHank08 is offline Junior Member
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    Will I need to get a lawyer for the new trial, or can I represent myself?
  4. #4
    seniorjudge is offline Senior Member
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    Quote Originally Posted by TXHank08 View Post
    Will I need to get a lawyer for the new trial, or can I represent myself?
    I would certainly never go to court without a lawyer.

    But...you may be a lot smarter than I am.
    There are two rules for success:

    (1) Never tell everything you know.
  5. #5
    Crispix is offline Member
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    Some things to think about, from my experience:

    1. He probably does not have the money nor the inclination to pay an attorney for a full civil trial, for the same reasons you do not want a new trial. On the other hand, his attorney may be a family member and offering services for free or close to free. Still, I don't expect many attorneys to do trial work for free, even for friends/family. (My Cousin Vinny being the exception, of course.)

    2. Still, he can make things miserable for you in a trial de novo and almost all cases will be settled before trial anyway. You'll end up paying a lawyer a bunch of money.

    3. Bird in the hand. I was once offered a settlement for 1/4 of what was owed and did not take it. I should have. The defendant ended up going out of business and bankrupt within a few months and I got nothing.

    4. Even if you do win in small claims, collecting can be difficult.

    So, yes, it sucks not to get all your money, but sometimes a little bit of money is better than no money.

    And then, take some time to analyze the situation and see if there is anything you can do to prevent similar problems in the future.
  6. #6
    TXHank08 is offline Junior Member
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    Need advice on the following:

    1) It my understanding that the Rules of Civil Procedure and Rules of Discovery do not apply in small claims court in Texas. Despite the non-applicability of these rules, the Defendant's attorney submitted the following documents to me: 1) Interrogatories Directed to Plaintiff by Defendant, 2) Defendantís Request for Discovery Pursuant to Rule 196 to Plaintiff, and 3) Defendantís Request for Disclosure to Plaintiff. In one of the documents, he stated that I was "required per the rules of civil procedure" to return the response.

    My questions are:
    1A). Do I need to respond to these? I thought the rules of civil procedure and rules of discovery did not apply in small claims.
    1B). If I do not need to respond, did the Defendant's attorney do anything wrong by sending these requests to me knowing they are not required and also knowing that I am not an attorney?


    2) The Defendant has made (through his attorney) a ridiculously low settlement offer. In presenting the settlement offer, the attorney said the following:

    a) his client cannot afford any more than what was offered. Should I go to trial and win the full amount requested, his client will file bankruptcy and I will not collect anything.

    b) his client has a general liability policy that is covers him should he be named a Defendant in a law suit. Thus, the Defendant is getting "free" legal representation. Should I win the trial, he will file for "Trial De Novo" which will force the matter to be retried in County (not JP) court. He said Trial De Novo can be granted without any cause - all he has to do is request it and it will be granted.

    My question is:
    2A) Was the attorney acting unethically by making statements to effectively "scare me" into accepting this ridiculous settlement?
    2B) Can he actually just request a new trial simply because the original was filed in small claims? What's the point of having a small claims court if anyone can simply request a new trial, at will?
  7. #7
    Texas Pooh is offline Member
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    My questions are:
    1A). Do I need to respond to these? I thought the rules of civil procedure and rules of discovery did not apply in small claims.


    Yes. Or seek a hearing in court to argue to the court that they are irrelevant, burdensome, or otherwise inappropriate.

    1B). If I do not need to respond, did the Defendant's attorney do anything wrong by sending these requests to me knowing they are not required and also knowing that I am not an attorney?

    No. You can not assert that the other side's lawyer acted unethically towards you. When you represent yourself, you are held to the same standard as a lawyer; thus, you can not use your non-lawyer status as an excuse.

    2) The Defendant has made (through his attorney) a ridiculously low settlement offer. In presenting the settlement offer, the attorney said the following:

    a) his client cannot afford any more than what was offered. Should I go to trial and win the full amount requested, his client will file bankruptcy and I will not collect anything.


    Perfectly normal, and, in fact, what happens all the time.


    2A) Was the attorney acting unethically by making statements to effectively "scare me" into accepting this ridiculous settlement?

    See answer above.

    2B) Can he actually just request a new trial simply because the original was filed in small claims? What's the point of having a small claims court if anyone can simply request a new trial, at will?

    Yes, he can. Happens all the time - the loser in small claims requests the new trial in County Court and you do the whole thing all over again.
  8. #8
    TXHank08 is offline Junior Member
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    Thanks Texas Pooh. I have another couple of questions.

    The Defendant's attorney has stated that "his client is in the process of shutting down the business."

    1) My question is, can (or should) I motion the Small Claims Court to file an injunction to prevent the Defendant from liquidating the businesses assets before we get to trial?

    2) Should I subpoena the financial records of the company to verify that they are truly in financial distress?
    Last edited by TXHank08; 10-23-2008 at 10:55 AM.
  9. #9
    mmmagique is offline Member
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    Couldn't hurt to try!

    Here is some information on Trial de novo. One good thing being that if he does apply for one, he has to make a deposit with the court in the amount of damages he was ordered to pay by the first court, and if he loses again it goes straight to you.

    [url=http://www.criminal-law-lawyer-source.com/terms/de-novo.html]Trial De Novo - Criminal Law Lawyer Source[/url]
  10. #10
    Texas Pooh is offline Member
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    You can't ask for an injunction in small claims court.

    There is no requirement in Texas to post a bond or deposit the amount of the judgment in order to appeal the decision to the county court.
  11. #11
    Zigner is offline Senior Member
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    Quote Originally Posted by mmmagique View Post
    Couldn't hurt to try!

    Here is some information on Trial de novo. One good thing being that if he does apply for one, he has to make a deposit with the court in the amount of damages he was ordered to pay by the first court, and if he loses again it goes straight to you.

    [url=http://www.criminal-law-lawyer-source.com/terms/de-novo.html]Trial De Novo - Criminal Law Lawyer Source[/url]
    Your advice isn't relating to the same state as our op.

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