MOTION TO VACATE JUDGEMENT AND COUNTER CLAIMS

[LEVZOO]

In Washington State. small claims court.
feb. 2001 we bought a horse for $700.00. horse had a limp at the time which we were worried about. owners assured us
it was a simple pulled tendon. we made a verbal agreement that we would purchase the horse only if we could return him and get our money back (in full) if it turned out to be some thing more serious than a pulled tendon. i did not want to buy a horse that would be lame, in pain, and be unable to ride unless they agreed we could return the horse and get a refund of purchase price. i had five adult witness's who heard the owners agree to this. i stayed in touch with the people we bought the horse from via e-mails,
keeping them informed on the horse (how he was doing regarding the injured leg). one month later, there was
no improvement. horse was limping worse. i paid for a vet to come out and examine the horse. vet said ankle on horse
was fused in place from an old injury, not a pulled tendon,
and we would never be able to ride him. vet suggested returning the horse. when i e-mailed her telling her what the vet said and we would have to return the horse, they suddenly said no such agreement had ever been made and broke off all contact with us. i filled suit in small claims court and won by default because they did not show in court and i had the horse transported back to the original owners home.
now they have filed 1)motion to vacate judgment: stating
they were never notified to appear and that they are not responsible for the 'bill' (judgment against them). they state also that they were not served because we wrote down
an incorrect address for them (we wrote 234th st, and correct is 237th). they live in the country, and i wrote specific directions out for the person serving them. server
also had a witness with him when they were served.
2) they also filed a counter claim, crossed out 'trial/
mediation date and time' and wrote in "motion to vacate" then the date to appear in court. they wrote, 'deny that they owe the plaintiff any amount whatsoever'; 'plaintiff
owes them the sum of $1200.00, for the following reasons:
"Lost wages and care of the horse since 4/27 when the horse
was abandoned at our house". From the time i told them i had the horse examined and we would have to return him (our verbal agreement). they would not allow me to return the horse to them. i incurred over $2000.00 in cost, care and maintanance etc. (I only asked for $1500.00, cost of horse
and care, bording cost from the date i told them i had to return him until the court date) after i won the judgment via default, i asked the judge when i could return the horse, and he said "anytime or not at all. it's your horse
you can do what you want." A few days later, i paid for the horse to be transported back to original owners. i felt they deserved to have the horse back since i won the judgment. on the day the horse was taken back to them
the company who transported the horse called the original owners before they took him back and informed them the horse was on it's way back. i followed the transport and
took the horse out when we arrived at thier home. i walked
him to the coral (which she had chained and pad locked).
she was looking out her window watching us. her daughter
(who's horse it was) had just arrived home from school.
i knocked at her door, she did not answer, so knowing they
were home, i tied the horse on the top of the fence to the coral with my lead rope and left.
the question: what can i do to file, to deny thier claims? do i need to file a petition to respond? what is the best action i can take so that my judgment is not vacated, and so i dont get counter sued for the $1200.00
they claim i owe them?
would appreciate any advice i can get on this.
THANK YOU, LORRIE ([email protected])

 

[JETX]

Sounds like this one is going to be a pile of errors and screw-ups:

Yours:
1) Wrong address on service. If they were not properly served, they have a good chance of getting a 'set-aside' of the default judgment. It is incumbent on YOU to make sure that the complaint is properly addressed and your error if not.
2) Returned horse. You should never have just returned the horse without a prior agreement. What if you had just tied the horse up and they were out of town?? The horse could have suffered for your actions. The 'fact' that they were actually home or not is irrelevant. YOU should have arranged for delivery or at least proper notice that you intended to deliver (Certified letter, etc.).
3) Verbal agreement. Since you had a lot of witnesses and obviously had concerns about the horses condition, why did you NOT insist on a written agreement??? Just doesn't make any sense for you not to have documented your concerns.

Now, due to the above, you are facing the strong possibility of having your case re-heard and very likely will have offsetting judgments. Based on your post, here is how I would rule this one... You will recover the original purchase price, they will (probably) recover their claim.

Your ONLY protection is in looking at the original service return. Did the process server (or sheriff) serve the defendant PERSONALLY or did he do a 'drop and run' (where he just leaves the summons at the listed address). If a 'drop and run', it sounds like you will have some problems. Next question, did the Defendant file an answer to your summons?? If so, then any claim that they make of 'non-notice' would be negated and you are back in the game.

Summary:
1) Look at the Service return. If not served personally, you will have problems with the wrong address.
2) Did the Defendant file a response? If no, then you still have problems.
3) In anticipation of a re-trial, contact the court and see if you can amend your complaint to include the 'additional' costs you incurred over the purchase price (transportation, feeding, etc.). If you can, do it.
4) Show up on the agreed court date and be prepared to re-argue your case. Have all your evidence.