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This is for Ely: I was suing my previous attorney for filing

This is for Ely: I was...
This is for Ely:
I was suing my previous attorney for filing a Rule 11 Agreement without my consent.
The first trial in SC Court I entered in the wrong amount.
Judge dismissed the case without prejudice.
I refiled the same matter in SC Court again, this time with the correct amount.
The judge dismissed that case with prejudice.
In the second trial the counter claim was for the attorney's fees, $500.00.
The question:
How do I file in County Court?
I believe the Judge in SC Court was in error, how do I get the matter remanded back to SC Court or can I?
If I do not pay the $500.00 for the attorney's fees, if he sues me can I counter claim and bring the reasons, the Rule 11 Agreement without consent, as to why I did not pay the $500.00?
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Answered in 29 minutes by:
10/13/2016
Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 102,694
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Hello and thank you for requesting me. I am currently offline, so I will opt out and open this up for other experts. All the best.
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Maverick
Maverick, Attorney
Category: Legal
Satisfied Customers: 6,425
Experience: 20 years experience as a civil trial and appellate lawyer
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Welcome to Just Answer! My name is Maverick. Please give me a few minutes to review, analyze and/or research your inquiry and I will be back. Thank you for your patience.

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There are some facts that need to be flushed out here. I would suggest a phone call option for which the cost is $59.00. Please see my offer.

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Customer reply replied 1 year ago
What facts do you need?
CalAttorney2
CalAttorney2, Attorney
Category: Legal
Satisfied Customers: 10,244
Experience: Civil litigation attorney for individuals and businesses.
Verified

Dear Customer,

Thank you for using the forum. My name is ***** ***** I hope to assist you today. (Your prior expert opted out).

I am sorry to learn of this situation. If I understand the situation correctly, below would be the answers to your questions:

  • (1) A "dismissal with prejudice" means the case cannot be refiled (in any court).
  • (2) Your recourse would be to file an appeal of the judge's entry of the dismissal with prejudice order - this must be done within 30 days (Ct of Common Pleas); 10 days (Circuit Ct) - see SC Rule of Court 203: http://www.judicial.state.sc.us/courtReg/displayRule.cfm?ruleID=203&subRuleID=&ruleType=APP
  • (3) I am a little unclear from your post as to whether or not the court has already awarded attorney's fees, or if the motion for fees is pending (Usually this is in the form of a post-judgment motion for fees, it is not a separate lawsuit).
    • (a) If the order for fees is pending, you can contest the basis of the award (i.e. are the attorney's fees authorized by statute or contract - if they are not, then the attorney's fees cannot be awarded); you can contest the amount (only "reasonable" attorney's fees can be awarded - although $500.00 is usually deemed "reasonable", you can contest the work and amount).
    • (b) If the order for fees was already issued, you are going to have to pay the fees - if you do not the other party will be entitled to pursue you for collections - this will increase the amount that you owe (You will owe not only the attorney's fees, but also the cost of collecting those attorney's fees, your $500.00 attorney fee award will quickly mushroom into thousands).
    • (c) If this really is an entirely separate lawsuit, you have the same recourse as noted above - you can contest the basis for the fees (i.e. it must be authorized by statute or by contract, and the amount must be reasonable). But you cannot re-plead the underlying cause of action, and the judge's ruling in the underlying dispute is not at issue (so you cannot use the court's ruling or your arguments as to its fault or impropriety as a basis to contest the attorney's fees award).
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Customer reply replied 1 year ago
First this is Texas, so the SC Rule does not apply.
The judge entered the award via a counterclaim by the attorney for his fees.
There is no motion.
And, how many days after the appeal period has ended do I have to pay the attorney?

Dear Customer,

My apologies - I misunderstood the SC in your initial post as South Carolina.

The information I posted above is still applicable to your Texas claim - the entry of a "Dismissal with Prejudice" will bar you from bringing your action again in any form.

You have 20 days from the date of entry of judgment to appeal an adverse ruling in Justice of the Peace court in Texas - Texas Rule 143.

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Customer reply replied 1 year ago
Will the attorney send me a bill for his fees, $500.00.
I still do not understand one thing.... If a judge "dismisses the case without prejudice" where do you refile the case (Texas)?
According to this forum, and 2 other attorney's you file back to the "same" court. (Justice (SC)Court.)
However, the judge ruled, you cannot bring suit back to the same court.
Yet again, here and others have told me that is "not" the case.
Any case law (Texas) that depicts this?

Dear Customer,

You say that your case was dismissed with prejudice - you cannot refile the case (in any court).

See: http://www.houston-opinions.com/law-dismissal-with-prejudice-vs-without-prejudice.html for a discussion of the difference between a dismissal with prejudice and without.

If the court ordered payment of attorney's fees, you must pay the attorney. The attorney does not need to send you a bill. I do recommend sending the funds via a personal check or some other form of payment that you can track (a cancelled check from your bank proving payment). You can ask that the attorney send you a receipt for payment in a cover letter - the attorney should do so.

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Customer reply replied 1 year ago
Still do not have the correct scenario.
Once again.......
The matter was filed in Justice Court against my previous attorney for breach of contract.
I wrote in the wrong amount.
The judge "dismissed the case without prejudice"
This forum, along with other attorney's I spoke with said, "...you refile the matter to the same court correcting the issue with why the matter was dismissed without prejudice..."
I refiled the matter back to Justice Court.
The Judge hearing it was the same matter, "...dismissed the case with prejudice..."
I had 21 days to appeal to County Court.
However, after speaking with 13 different attorneys, no one would take the matter, and my 21 days to appeal have lapsed.
The question....
When a Judge dismisses a case without prejudice, where do your refile the case?
This forum and other attorney's stated you refile the matter back to Justice Court, the Judge, disagreed.
Any case law or rules that indicate where the case should be filed when, dismissed the case without prejudice?
Dear customer,
The court where you would have refiled your case after the dismissal without prejudice would be based on the merits of the underlying claim (it has nothing to do with the dismissal). The information from the other attorney sounds reasonable, but I have not reviewed your case and cannot provide you with a formal opinion.
Unfortunately, as the court has now both dismissed your claim with prejudice, and the period to file an appeal had passed, the claim is deemed adjudicated against you. You cannot refile in any court. I am sorry.
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Customer reply replied 1 year ago
How in the world would I have known that, "...based on the merits of the underlying claim..." So the Judge gets to make the decision. There is no rule or treatise which indicates what the procedure should be?
So I asked this forum and 2 other attorney's, both advised me to refile to the same court, and it was based on what the Judge thought based on the underlying claim? Since there is no procedure to follow, where would I have ever gotten that information, to file to a different court, when everyone told me to refile to the same court? Understand, too late now, but how the heck would I have known what to do when everyone was advising just the opposite?
Dear customer,
Unfortunately I do not have a good answer to your last post. This is not a simple or straight forward issue, and I cannot tell you without reviewing your case file (which is outside the scope of the forum) what exactly happened with your matter that led to this result. I cannot tell you if the information you received above was correct or not because I do not know if the dollar limit in your initial filling was the only issue the judge addressed, I can also not address the way in which your case was drafted (most suits against a clients former attorney are legal malpractice cases - regardless as to what cause of action is identified - and must be brought in general civil court.
A great deal of this comes from experience which is where the years of law school and practice make a difference, it is not something that is laid out step by step in a handbook or treatise.
CalAttorney2
CalAttorney2, Attorney
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