What Can I Do if This Guy Refuses Certified Letter Notice?

[michelletx]

dcatz...as for the type of businesses, both were service providers (99.99% of our clients are service providers)...as for the "domestication" process as you describe it...I am now wondering whether the results of the judgment were merely filed at the courthouse or if it resulted in something more or less like a new summons, as you described...I do know that the process servers handled it both times, but I need to refresh my memory as to what forms/fees/processes were involved.

As I said, I'll check next week and see what I can find as I get the time on the previous two judgments, as I get the time, but in the meantime, I am finding the info you have thus far provided to be quite illuminating, especially as we will most likely have another SC case coming up.

Thanks, dcatz!

 

[michelletx]

And here's an update--

The CCRRR letter was never claimed by former client, so the PO returned it to me...however, I'm afraid it has been lost by our illustrious PO (not unknown for them), as it has been over a week and I've still not received the returned CCRRR letter. As it only took it two days to reach its destination, I don't have high hopes for it ever being returned to me, as it as been a week now.

Which leads me to these next questions:

1. Would a letter from the PO verifying that the original CCRRR notice was refused, then returned to me but lost in transit, be sufficient to allow me to go ahead and file the SC case? Or do I have to start over again with another notice?

2. If I have to start over again with another notice, would there be any benefit to also sending the notice via regular mail as well as CCRRR? (As suggested by Ginny and also another friend of mine who works in a legal office.)

3. When I finally DO get to file in court, if the plaintiff chooses to have the venue moved to his courthouse (which I know he can do), if I win the case (which I obviously think I have a good chance of doing), would it be permissible to include my travel/lodging costs resulting from having to travel to Houston in the final judgment, or is that just out of pocket expense for me?

dcatz--thanks for your offer of help on the other two SC judgments we won...I still can't find one of the cases (which bugs me--our filing and records are pretty well organized, but we have had a few folks helping us administratively, part-time, on a few different occasions, so something could have been misfiled/mislabeled during that time--or, of course, either my DH or I could have made a filing/labeling error, especially as we ended up feeling rather discouraged by the whole process when we sued). I'm not sure if one of the businesses is still operating or not--I found a business by that name, but the address is different and I can't find a listing of key Corporate officers, etc. to help verify that it is the same company. Anyway, I've put this on the back burner, but should I come across the info, I will seek your excellent advice.

Thanks!

 

[dcatz]

Would a letter from the PO verifying that the original CCRRR notice was refused, then . . . lost in transit, be sufficient?

If I have to start over again with another notice, would there be any benefit to also sending the notice via regular mail?

With due respect to you, do you know that this letter is a required pre-condition? I’ve read your SC statute and Rule of Civil Procedure looking for this requirement and cannot find it. I’ve found reference to it being a “recommended” practice (understandable) but not required. The Texas Young Lawyers Association at 1-800-204-2222 publishes instructional pamphlets. You might call and ask. Beyond that, if you can get the PO letter, fine; if not, I assume that you have your portion of the certified mail receipt. I see no reason why that, together with a sworn affidavit that you mailed, would not suffice in lieu of the return receipt, if the requirement really exists.

Would it be permissible to include my travel/lodging costs resulting from having to travel to Houston in the final judgment?

They are not a permissible part of the damages and costs that you are entitled to recover. A judge may scrutinize your legitimate claim more closely, when it includes non-compensable expenses (travel, parking, copying, time off from work etc. etc.). That said, you can ask, but you won’t get them.

The other matter was just an offer of assistance, if there was something there. Commercial public record sites can give you the information that you need and are often a cheap and prudent resource before spending any money on enforcement particularly of aged judgments.

 

[michelletx]

Thanks, dcatz. Interesting point about whether or not the CCRRR is required...the courthouse has always told me that we MUST provide that notice, and it is also referenced in the small claims info packet the courthouse gave me, and whenever I've filed SC, they ask to see the CCRRR. The info packet is at my office; I'll look at it tomorrow and see how it is worded...I may also follow up with a call to the Lawyers' Association.

I didn't figure I could any travel expense covered, but you never know unless you ask. Houston is a 5-6 hour trek from me, so if he does request that the case be moved, I'd have at least one night in a hotel, maybe two, depending upon the time of day of the court date.

And I do appreciate your generous offer of help on our previous cases...I didn't want you to think I was just blowing that off.

Thanks again...I hope everyone has a lovely Sunday.

 

[dcatz]

If the court says “Thou shalt”, it’s a good idea to treat that as mandatory. As mentioned, the closest that I could come was “recommended”, but there seems to be a good deal of discretion permitted, when you get to Local Rules of Practice at the district and justice court level. I looked at several counties.

This is a link to the pamphlet produced by the Young Lawyers Assoc. The person who wrote it has a site of his own for broader consumer matters, and it is re-published there as well:
http://www.tyla.org/pdfs/HowToSueInSmallClaims.pdf

A sample Notice appears as an Appendix, but it’s referenced in context as an alternative to resolve matters without Small Claims:

“6. If the store manager or person in charge is
unresponsive, or if you are unable to reach
him or her by telephone, then write a letter
explaining your complaint. Send the letter by
certified mail, return receipt requested.
Remember to keep a copy of the letter. Be sure
you mail the letter to the correct address. Try
to be as clear and concise as you can. There is
no need for long-winded discussions or fancy
legal language. A sample letter is included at
the end of this pamphlet.
7. If a letter is unsuccessful in resolving the dispute,
and you have tried everything else within
reason, you should seriously consider filing suit.”

Your Small Claims Statute is another Appendix. It makes no reference to a Notice as pre-condition but, if the court demands it, go with the court.

 

[michelletx]

Thanks again, dcatz...I will check into this more tomorrow when I'm in my office, but I bet you're right...our little local courthouse (where it all starts) has always been pretty adamant about the CCRRR route, so it may not be a good idea for me to get into an argument with them from the get-go, even if they're asking for something that isn't strictly demanded in the statute.

I had hoped that the client would accept the CCRRR, be angry and take it to his attorney, which would result, no doubt, in his attorney calling us. I have no doubt (well, I'm 99.9% sure) that once we outlined our evidence to the attorney, the attorney would tell the client to settle, which would certainly save us some trouble and expense. Ah, well.

Thanks again!

 

[michelletx]

dcatz...I looked over the packet from my courthouse about small claims suits. There is a disclaimer on the cover page, of course, that states their instructions are a broad interpretation of Laws, etc., etc.

On the first page, under "Filing a Small Claims Suit," the first section is "Requisites" and says "Direct a letter, certified mail, return receipt requested, to the defendant, giving notice of the suit. State the amount of money to be sued for, and if the money is not received within 10 days from the date of the receipt of the letter, suit may be filed."

So, I am taking that as a very definite "thou shalt" from our courthouse RE the CCRRR.

Our PO still hasn't returned the unclaimed CCRRR, so I'm going to call them and obtain a letter from the local Postmaster detailing the letter's journey and hope that that, plus my CCRRR receipt, will be sufficient to the courthouse...otherewise, I guess I'll have to start again. *sigh*

 

[dcatz]

So, I am taking that as a very definite "thou shalt" from our courthouse RE the CCRRR.

I'm sorry to say that I would as well.

Call the P.O. for a letter, but also call the court. If necessary, try to talk to the civil supervisor. Explain what happened, that you want to move on your claim while there is a defendant to be served and assets to reach (ok - a little dramatic - you explained your real hope), that you are waiting for the P.O. and don't even know if that will be adequate and ask if a Declaration plus your receipt will suffice. Otherwise, you may as well start again as wait. If you get some help and the answer is yes, get a name and file to that person's attention.

Judges will indulge courteous disagreement, but don't fly in the face of the clerks - they have more power - to help or hinder.

 

[michelletx]

Judges will indulge courteous disagreement, but don't fly in the face of the clerks - they have more power - to help or hinder.

I agree--clerks have the power (as, actually, do many admin positions)--it pays to treat them courteously and respectfully.

I also was thinking that I would call the courthouse this afternoon just to make sure my receipt and letter from the PO will suffice--as I have to drive into one town to the PO and another town for the courthouse, if nothing else, the phone call could save me some $$ on gas, as well as transportation time.

Geez, living in a rural area sure can be fun sometimes.

 

[michelletx]

I just spoke with the Court Clerk, whose name I carefully annotated in my file, explained the situation, and she said my CCRRR PO receipt and letter from the PO (with their documentation) would be sufficient. *whew*

At least now I can move on to the next step.

 

[michelletx]

Okay, after having the PO waylay delivery, the defendant avoid service to the point that alternate service had to be requested, and other headaches, defendant has finally been served.

Today, I received a response from his attorney, sent certified mail/return receipt, filed on 07-Jan-08 (which was the deadline for them to respond). It includes "Defendant's General Denial and Request for Disclosure" and "Defendant's Motion for Transfer of Venue."

Now, I assume we don't have much, if any chance, in having the request for transfer of venue denied, so I've not been focusing on it.

The "Request for Disclosure" cites Texas Rules of Civil Procedure Rule 92 to "assert a general denial" and also requests disclosure pursuant to Rule 194 and Rule 194.2(f) due as per Rule 195.2 and signed as per Rule 191.3.

I've looked up the rules in the above paragraphs, and my understanding is that we are, essentially, to provide our evidence to the attorney in question within 30 days of 07-Jan-08, signed and certified as per 191.3.

I just wanted to double-check with you fine people and make sure our understanding is correct.

Thanks! Hope everyone had a great holiday.

 

[dcatz]

You’re understanding appears to be “essentially” correct although, unless you found a more current publication of the Rules than I did, both Rule 194.2(f) and 195.2 only pertain to expert witnesses and 195.2 appears to offer three alternative dates:

195.2 Schedule for Designating Experts. Unless otherwise ordered by the court, a party must designate experts ¬ that is, furnish information requested under Rule 194.2(f) - by the later of the following two dates: 30 days after the request is served, or ¬
(a) with regard to all experts testifying for a party seeking affirmative relief, 90 days before the end of the discovery period;
(b) with regard to all other experts, 60 days before the end of the discovery period.

I suppose, in reality, they could amount to the same date, depending on when the request was served. Your interpretation appears to be the safest, if it presents no logistical or tactical problems for you.

 

[michelletx]

dcatz, as always, thanks...and I noted that part about "expert witness" and puzzled over it, but as I have brought the lawsuit and was the main point of contact for this client, would I not essentially be the "expert witness" for this case in that I am the one with all the pertinent details?

Responding within 30 days' time is absolutely not a problem, as we have most of the pertinent data already gathered and together.

I will check with the courthouse tomorrow, but will I also need to--or should I--provide a copy of my response to the courthouse?

Also, in our response to the attorney, should we include the affidavit from the process server that resulted in our having to request alternate service (which shows Mr. Twerp, the client we're suing, trying to evade service) as well as proof of Mr. Twerp's refusal to accept the original certified letter we sent to him?

 

[dcatz]

Would I not essentially be the "expert witness" for this case in that I am the one with all the pertinent details?

You’re the plaintiff and, presumably, a percipient witness able to testify from your direct knowledge to all acts and omissions underlying the claim. It’s assumed that you will testify. If you would qualify as an expert in someone else’s litigation is not relevant to this disclosure request. You might qualify for someone else; in this whole thread, we don’t know what the litigation is really about (and we don’t need to). But no, you are not the “expert witness” at whom this disclosure request is aimed. Seeing what the disclosure was directed to confused me. If you’re not bringing in a third-party expert witness to testify that – eg. your work was done in accordance with industry standards or contract requirements or whatever – then the response to the disclosure request would presumably be “none”. Only you know the details of what’s going on.

should we include the affidavit from the process server that resulted in our having to request alternate service (which shows Mr. Twerp, the client we're suing, trying to evade service) as well as proof of Mr. Twerp's refusal to accept the original certified letter we sent to him?

No. Not needed, not requested and not responsive to the request. They shouldn’t care anyway, but don’t disclose anything other than or more than you’re required to disclose. (I would say that there are tactical exceptions to that rule, but they don’t include problems with service.) Serve the responses on the attorney as provided by the Rules and keep a copy of the Proof of service for yourself. You don’t file it with the court.

 

[michelletx]

Would I not essentially be the "expert witness" for this case in that I am the one with all the pertinent details?

You’re the plaintiff and, presumably, a percipient witness able to testify from your direct knowledge to all acts and omissions underlying the claim. It’s assumed that you will testify. If you would qualify as an expert in someone else’s litigation is not relevant to this disclosure request. You might qualify for someone else; in this whole thread, we don’t know what the litigation is really about (and we don’t need to). But no, you are not the “expert witness” at whom this disclosure request is aimed. Seeing what the disclosure was directed to confused me. If you’re not bringing in a third-party expert witness to testify that – eg. your work was done in accordance with industry standards or contract requirements or whatever – then the response to the disclosure request would presumably be “none”. Only you know the details of what’s going on.

Hmmm...so you're saying that since we don't have an expert witness, technically the disclosure would essentially be "There is no expert witness, therefore none of the items required at Rule 194.2(f) are provided"?

Should I contact the attorney's office and ask about the reference to an expert witness?

If I have no objection to explaining my side of the case to the attorney and providing him copies of the documentation (our hope is that the attorney will realize the validity of our case and tell the client he should go ahead and pay us), should I go ahead and provide it even though I'm not an "expert witness"?

I don't know if it makes any difference or not, but here is the exact wording in regard to the disclosure:

"Pursuant to Rule 194 of the Texas Rules of Civil Procedure, you are requested to disclose, within 30 days of service of this request. A response to a request under Rule 194.2(f) is due according to Rule 195.2 of the Texas Rules of Civil Procedures.

The disclosures must be signed in accordance with Texas Rules of Civil Procedure, Rule 191.3, and delivered to the undersigned attorney. If you fail to comply with the requirements above, the Court may order sanctions against you in accordance with the Texas Rules of Civil Procedure."

Thanks!