Waiving the excess in TX to keep case in Small Claims Court?

[mark1210]

Hello,

I need some advice with TX Small Claims court. I filed suit on February 18th regarding a poor repair on my vehicle that was in an automobile accident. At the time of filing the case I specficed I was suing for $3000.00. This was determined by the appriasal I had performed on my car. Now, in March I had another appraisal done (the more evidence the better I thought) and they found $5100. After submitting both appraisals as evidence to the other party they are filing a motion to move this case to another venue as it is over $5,000. Can this be done? I am not seeking $5,000. I wasn't even aware of the $5,000 until after I filed suit for $3000. Can I waive the excess to allow the case to remain in small claims? Do you know what statute or code allows this?
This is in Texas.

Thanks!,

 

[JETX]

There is no statute prohibiting an 'adjustment' to allow small claims filing, but most JP's frown on it and see it as a potential problem in the suit.
The problem is that the appropriate jurisdictional statute (Tex Gov Code) reads:
"§ 28.003. Jurisdiction
(a) The small claims court has concurrent jurisdiction with the justice court in actions by any person for the recovery of money in which the amount involved, exclusive of costs, does not exceed $5,000."

As you can see, if the 'amount involved' exceeds $5,000, an argument could be made that it exceeds the limit of the court. I would suggest you take a look at the estimate to see what you might REASONABLY deduct or exclude... then return to the repair shop for another 'corrected' estimate. Or, go out and get another estimate or two and make sure that they are 'reasonable'.

Finally, depending on the wording of your suit, you may be limited by the amount stated in it... unless you filed a motion to amend.

After re-reading your post, it appears that the question will be, "what are you suing for??". The fact that you sent both estimates to the defendant is irrelevant... unless you are claiming the full $5100.00 in your complaint. Simply get an appraisal within the allowance and file a Motion to Amend your suit to that allowed.

 

[mark1210]

More questions =o)

Halket,

Thanks for the advice. I would like to leave my suit at $3,000 which $2501 is based from the first apprisal and the rest if from loss of use on the vehicle. Any suggestions on how to word my reponse to motion to transfer venue? This is what I have come up with but you may have better wording:

Thanks for any advice, I prefer to keep it in small claims but I am worried the judge will honor the defendant's request although I am not suing in excess of $5,000. Remember though, since I provided both estimates one at $2501 and one at $5100 their arguement is that it exceeds small claims limits based on the two appraisals even though I am not suing over the excess. Is it more likely a judge would honor their request because of this?
-----------

Plaintiff, files this response to motion to transfer venue and shows the Court as follows:

Venue for this action is proper in Precinct 3, Place 1, XXXX County, Texas because:

At the time of filing suit Plaintiff was only made aware of
$2501.00 in diminished value per the Direct Appraisal report.
The Ewing appraisal which found $5100.00 in diminished value
was performed in late March after suit was already filed.
Due to the given range in the amount of diminshed value
Plaintiff elects to waive the excess and seek the amount of damages as previously filed.

WHEREFORE, Plantiff requests that the Motion to Transfer Venue filed by the Defendant to be overruled.

 

[JETX]

I can't reply as to the specific wording of your response, since I don't have all the facts, but simply state:

1) The Defendants motion to dismiss is not based on the petition made a basis of the lawsuit.
2) The Plaintiffs original complaint is clearly within the jurisdictional limits of this court.
3) The Defendants motion is based on the higher of two estimates offered to the defendant in an attempt to resolve the dispute and not presented to the court.
4) The Defendant is attempting to confuse the court by introducing claims not presented.
5) The Plaintiff respectfully requests that the issues stated in the Plaintiffs complaint are clearly legal in nature, within the jurisdictional authority of the court, sufficient to support a case before the court and pray that the court deny the Defendants motion for change of venue.
6) And, if Plaintiff's motion for denial of this motion is not granted, that a hearing be scheduled to hear the facts.

Keep it simple, don't elaborate on any other reasons or excuses, state your case for denying the motion and hope that it is either denied outright or that a hearing is scheduled on the motion.

 

[mark1210]

Halket,

Wow, well said! Being 22 and having to go to court and sue someone for the first time was mindboggling. Your verbiage sounds a lot better and to the point than mine. Thanks again for the help!

 

[JETX]

One more suggestion....
Go out RIGHT NOW to your local large bookstore (or library) and get "How to Win in Small Claims court in Texas". It will answer a LOT of your questions, properly prepare your 'mindset' for this case. Remember, don't be intimidated, state your case clearly and concisely. Oh, and MOST important... sit down BEFORE the case and create a chronological fact file of what happened, when it happened and how it happened. This will go a LONG way to refreshing your memory to the facts and help to put your issues in order.

Let us know how you do....

 

[mark1210]

They changed their mind! Grrrr

Halket,

One last thing, looks like their attorney changed their mind. They are instead filing a motion to dismiss the case as:

They indicate that my damage is $5199. Of course, I am not suing for that, I am suing $3000. Would your advice still work? In other words, can I still write a response to their motion to dismiss? I take it just because they ask doesn't mean they will get it right?

Thanks so much!

 

[JETX]

Q1) "Would your advice still work? In other words, can I still write a response to their motion to dismiss?"
A1) The principal is the same.

Q2) "I take it just because they ask doesn't mean they will get it right?"
A2) Correct. Ask for a full hearing.