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Ask D. WINOGO ESQ. Your Own Question

D. WINOGO ESQ., Attorney
Category: Legal
Satisfied Customers: 4714
Experience:  10+years of experience in all matters of civil litigation and Hearing Officer/Arbitrator
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3/2009 our boat was stolen-2 wks later recovered by a neighbor.

Customer Question

3/2009 our boat was stolen-2 wks later recovered by a neighbor. Neighbor also gave verbal permission that we cd keep our boat on his property as long as we wanted, no charge-he said he has plenty of land, wdnt be a problem.
4/2009 neighbor called police and accused us of stealing his power washer. Investigators interviewed our family and believed we did not hv anything to do with the missing power washer. We called him to get our boat off his land at the advice of the investigator and neighbor told us if we tried to step foot on his property he wd get his gun. Talked to investigator and decided to let him cool down and wait for him to leave his property with the boat to recover off his land, away from guns. 6 mnths ago he took the boat off his land and was trying to sell it on side of highway. We showed title to officer, took boat home and then neighbor said we owed him storage fees. He filed small claims for storage fees and cost he put into boat to fix it up.

what is best advice to represent ourselves on a he said she said matter and be heard?
Submitted: 3 years ago.
Category: Legal
Expert:  D. WINOGO ESQ. replied 3 years ago.
Without any agreement with you regarding storage fees, and having never transmitted anything in writing to you regarding such fees, your neighbor faces an uphill battle.

As such, you can serve your neighbor with a discovery demand (entitled a Notice for Production of Documents or Notice for Discovery and Inspection) where you can demand that the plaintiff (your neighbor) produce all documents and evidence of of agreements regarding storage fees. Then, if he cannot produce anything, you can file a motion for summary judgment to dismiss the case. You can also call the investigator who came to the house in 4/09 and see if he will voluntarily appear and testify for you. However, it is not necessary as your neighbor has the burden of proof, not you.
Customer: replied 3 years ago.
The detective said I hv to supena him and all officers. The county police who were present in conversation of no cost did not place that in their reports. 2 officers were there, however they are also personally close with this neighbor according to a detective. The detective advised me I have the burden of proof that there was no agreement on storage fees, that I have to work harder to prove our innocence than he has to prove his case. I am concerned about this.

I like the discovery idea-however cautious only because he can write up anything he wants and present to court.... How do I defend against that without an attorney. Im concerned a judge will not listen. What common mistakes are made I need to know about?
Expert:  D. WINOGO ESQ. replied 3 years ago.
The police officer is incorrect. The neighbor has the burden of proof, not you, to prove that you and he had an agreement regarding the storage fees and/or that you received something in writing concerning such fees. If he cannot prove either, then you can move for dismissal.

That being said, typically in Florida Small Claims, the court will have you come in for a pretrial conference. You should check your summons to see when you have to appear. When you show up, you can ask the the court to subpoena the witnesses you need for the trial.
Customer: replied 3 years ago.
Im in NC. I hv never heard of pretrial conference.

I was served with actual court date and it cd take 3 weeks to serve witnesses........confused. Clerks office wasnt helpful and said attorneys normally handle subpeanos.

Can I move for a dismissal AND counter sue him for the stress and depreciation value of the boat he left outside in the elements for the 2 years he had the boat on his property? We cd only sell the boat for $900 a few mnths ago but at the time he had it in 2009 it was valued at $2000 by our insurance company.
Expert:  D. WINOGO ESQ. replied 3 years ago.
Yes, you could absolutely file a counterclaim against him for depreciation of fair market value. However, the danger of filing such a counterclaim would mean that you are imposing a burden on your neighbor to take care of your boat and thus give him a better claim that he can charge you for storage. Thus, I would hold off on filing the counterclaim at this point.

I apologize for the confusion. I mistakenly thought you were in Florida. My mistake. You can complete the subpoena form yourself, and then give the clerk the prepared form to deliver to the witnesses. I suspect this is what the clerk meant when you were told that attorneys generally handle subpoenas. You will have to pay a fee for the sheriff to deliver the subpoenas to each witness.

At this point, you should prepare an answer to the complaint stating that you deny the allegations in the complaint and that you do not owe any money for storage fees. Then you can consider serving the neighbor at the same time with your discovery demands noted previously.

Then when you appear in court, you can file a verbal application to the judge to dismiss the case.

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