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Hi my name is ***** ***** I am an attorney licensed since 2003. Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only. .I see you have a question about filing a motion to dismiss in small claims court. Is that correct?
I have handled matters like this in the past and believe I can help you understand your rights. In the event I believe you should seek a local attorney, I will advise you of that as well.
Can you provide me some additional information. Are you the Plaintiff (one who filed suit) or defendant? You mention judges decision so I am unsure, but it appears the Judge has already ruled on your case or did I miss something? What is the maximum amount in controversy that the judge can rule on based on the jurisdiction where you filed the case? What was the amount awarded and to who? Is there a basis for appeal or is it automatic as in many locations that you can appeal small claims if you simply file the appeal.
I understand as to needing an attorney it is sad that there is so little help for people in between.
I spent the first year or two of legal practice taking on many pro bono cases for local legal aid and saw this first hand. It felt like for every 100 request received they only had 1 or 2 attorneys.
In case I need to look up some information what is the County and State of the Superior Court where this action is pending?
Give me a few minutes to review some details. I will be back with you shortly.
I notice the date of filing 9/2014, but when was the actual case heard by the Judge? Did the Judge or Court officer call the name of the case multiple times and then go forward with the hearing? Did the defendant file the notice of appeal within 60 days of that court hearing?
I wanted to get some background, but your actual question relates to completing a Motion to Dismiss. I will assume with the small claims court. Since you filed the action you would be the plaintiff. Are you just filing the motion to be done with the issue as it is about to get drawn out or did the Defendant indicate that you could either dismiss or he would appeal to higher court? Do note that a dismissal with prejudice prevents you from ever legally filing suit again regarding the same matter. I know that when I represented the defendant's in cases like these I would usually appeal to higher Court because then all of the rules of the Court apply and as an attorney I had an advantage. I would dismiss a case with prejudice after settlement usually as part of settlement if I was Plaintiff and Defendant made agreeable settlement.
Sorry I understand and was typing that he may get in trouble with Court for removing file, but if he timely filed the appeal it will likely move forward. Based on your comment you are stating that he missed the window so his appeal is not valid if I understand you correctly. I believe if that is the case you will get a little leeway from the Superior Court Judge being pro se (without attorney). You should file motion to dismiss and in the motion state all the relevant dates, fact that attorney was present when small claims set it for trial and didnt show. Then that he missed appeal by being x number of days late, as the rules required him to file an appeal within 60 days. Don't use word with prejudice just in case as again that dismisses the case and prevents any refiling. I think you would seek to dismiss the appeal based on the stated facts and then go back to small claims court and talk to them about ways to seek to collect on the judgment awarded. Just make sure you have all the dates correct and accurately set it out in your motion.
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I thought when you indicated you were leaving the office you would be gone longer. Again if you need me to further clarify my answer just reply back.
I am out of the office all day tomorrow until tomorrow evening, but I will occasionally glance at my phone to see if you respond this evening and I would be happy to reply. If I miss you tonight I will be happy to reply when I get back from an appt I have that will take most of the day tomorrow.
I checked in again just in case I missed you. I am signing off for the night and as mentioned will be out most of the day, but feel free to follow up if you need me to clarify anything or if I missed the mark.
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