[WSBARP] very off-topic question of civil procedure

Jennifer L White jen at appletreelaw.com
Wed Dec 13 11:25:29 PST 2023


I got sucked into one of these vortexes a while back and ditto what Craig said. What is supposed to be the easy and quick legal option turns into a procedural nightmare. My clients were sued in small claims court and had counterclaims. There is no such allowance for that, so they had to file their own small claims action with a separate cause #. You don’t get to prepare real pleadings, but can only use the pre-printed form and hand write it. They have mandatory ‘mediation’ with non-attorney mediators, which was of course a total waste of time, 2x. The other side’s case goes to trial first. No attorneys were present at this stage. I had prepped the clients and ghost wrote their pleadings, exhibits and an outline of the legal issues for them to read. I told them to advise the Judge that there was a counter case in the pipeline. He then turns to them and asks if they want their lawyer to represent them. AND THAT’S how I got sucked into doing a small claims trial. He set both matters over to be heard the same day, but there was not a consolidation order ever entered (everything is informal). When it was finally heard, both sides had counsel and it was literally trial by ambush – just like my early days in the early 1990’s. No discovery; you don’t know who is coming to testify or what they are going to say; you have not seen the exhibits before they are presented in court; and everything comes in (rules of evidence are not a thing in that court). It’s the wild west baby! In the end it came out great for my clients, but it was the some of the hardest work I have done for and regarding such little money…I’m too old for this! I encourage anyone having to go there to read through the statutes RCW 12.40 and 12.36. And, as Craig said, you can end up having a matter going in both small claims and Superior Court at the same time, though that is not what I experienced.


Jennifer L. White, Esq.
[cid:image001.jpg at 01DA2DB6.376080A0]

jen at appletreelaw.com<mailto:jen at appletreelaw.com>
2200 S 76th Ave
Yakima, WA 98903
509.225.9813

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Craig Gourley
Sent: Wednesday, December 13, 2023 2:17 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] very off-topic question of civil procedure

We had a similar situation. Party A brings a Small Claims action against B. B was advised by the court and we confirmed that no counterclaim was allowed and it would need to be brought as a separate action and would not be consolidated.  Also FYI no discovery is allowed under Small Claims.  We brought a Superior Court claim against A, immediately did a deposition then settled.  B then used the deposition transcript to defeat the Small Claims case by A. Small Claims effort at simplicity by having no rules or structure actually makes it cumbersome and confusing.

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From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> on behalf of Carmen Rowe <carmen at gryphonlawgroup.com<mailto:carmen at gryphonlawgroup.com>>
Sent: Tuesday, December 12, 2023 2:23:02 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] very off-topic question of civil procedure

I don't see why it wouldn't be res judicata/claim preclusion.

I am curious how the court is going to deal with a scenario someone came to me with. Unfortunately I could not take her case due to bandwidth, but her association was suing her for fines etc. for non-compliance with something; but meanwhile, she had a claim in small claims, also about money.

I'm hoping she gets back to me about what the court did with the fact the association "could" have brought its claims as counterclaims in the small claims action, thus arguably should be precluded from running a second lawsuit. I'm curious how that shook out.

Which did raise the question, which I don't know the answer to - if a defendant has counter- or cross-claims that take it out of small claims, can/do they move to remove the issue to superior court? Seems unfair to the original plaintiff to put into a system they were trying to avoid; but then again, seems you need to deal with all the issues in one place, and if the other claims fall outside the jurisdiction of the small claims court ... I'm sure there is a process for that and I'd be curious the answer if anyone is familiar with it.


Carmen Rowe

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Today's Topics:

   1. Re: very off-topic question of civil procedure (Carl Gay)
   2. Re: very off-topic question of civil procedure (Jennifer L White)


----------------------------------------------------------------------

Message: 1
Date: Thu, 7 Dec 2023 08:17:11 -0800
From: Carl Gay <carl at greenawaylawfirm.com<mailto:carl at greenawaylawfirm.com>>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] very off-topic question of civil procedure
Message-ID: <65567d0609b0594325d78b5338b4d9e1 at mail.gmail.com<mailto:65567d0609b0594325d78b5338b4d9e1 at mail.gmail.com>>
Content-Type: text/plain; charset="utf-8"

Many thanks, Rod.



CARL LLOYD GAY



    Non nobis solum nati sumus

      ?Not unto ourselves alone are we born?

                   ~the motto of Willamette University~



                          *Law Offices*

      GREENAWAY & GAY

     *Attorneys and Counselors at Law *

                     (*Established 1985)*



734 East First Street       Suite A

Port Angeles, Washington   98362

Email                      carl at greenawaylawfirm.com<mailto:carl at greenawaylawfirm.com>

Telephone                (360) 452-3323

Facsimile                  (360) 452-3724



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*From:* wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>>
*On Behalf Of *Rod Harmon
*Sent:* Wednesday, December 6, 2023 6:24 PM
*To:* WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
*Subject:* Re: [WSBARP] very off-topic question of civil procedure



Carl:

I think your instincts are correct.  The problem is demonstrating what the
first case was about since there is usually not much of a record in small
claims court.



Rod Harmon



*RODNEY T. HARMON*

*       Attorney at Law*

         P.O. Box 1066

      Bothell, WA   98041

     Tel:   (425) 402-7800

     Fax:  (425) 458-9096

    www.rodharmon.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.rodharmon.com&d=DwMGaQ&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=kDcM-fraYQNOZ1rCslLoMSSRXJQXmQVvRJbE6ymQGho&m=Fwd0E0oQkKxenSEry0GYRNuO95ZmIanPugESHtcypPcQfCgSP01zEy_ghseiUE2K&s=4WchFdk0UBntkTrH_EucuucKud3mb_CTOEicYjJlpyo&e=>

   rodharmon at msn.com<mailto:rodharmon at msn.com>



*From:* wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>>
*On Behalf Of *Carl Gay
*Sent:* Wednesday, December 6, 2023 5:29 PM
*To:* WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
*Subject:* [WSBARP] very off-topic question of civil procedure



Dear Colleagues,



Can any of you litigators out there tell me if a contract dispute between
the same parties goes to trial in small claims court and the $5,000
judgment in plaintiff?s favor is affirmed in district court, is the losing
district court defendant precluded from later suing the plaintiff over the
identical dispute in superior court?

Sure seems like res judicata/collateral estoppel to me, but Civil Procedure
101 was in the late 1970?s for me.



Best regards,

Carl Gay

Port Angeles



CARL LLOYD GAY



    Non nobis solum nati sumus

      ?Not unto ourselves alone are we born?

                   ~the motto of Willamette University~



                          *Law Offices*

      GREENAWAY & GAY

     *Attorneys and Counselors at Law *

                     (*Established 1985)*



734 East First Street       Suite A

Port Angeles, Washington   98362

Email                      carl at greenawaylawfirm.com<mailto:carl at greenawaylawfirm.com>

Telephone                (360) 452-3323

Facsimile                  (360) 452-3724



THIS EMAIL TRANSMISSION IS INTENDED FOR THE EXCLUSIVE USE OF THE INDIVIDUAL
OR ENTITY TO WHOM IT IS ADDRESSED, AND MAY CONTAIN PRIVILEGED AND
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PRIVACY ACT (18 USC ?? 2510-2521). IF YOU ARE NOT THE INTENDED RECIPIENT OR
AGENT RESPONSIBLE TO DELIVER THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE
HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION, OR COPYING OF THIS
COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS
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------------------------------

Message: 2
Date: Thu, 7 Dec 2023 16:26:49 +0000
From: Jennifer L White <jen at appletreelaw.com<mailto:jen at appletreelaw.com>>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] very off-topic question of civil procedure
Message-ID:
        <MW4PR14MB4604E80E0716A4999F26182AC08BA at MW4PR14MB4604.namprd14.prod.outlook.com<mailto:MW4PR14MB4604E80E0716A4999F26182AC08BA at MW4PR14MB4604.namprd14.prod.outlook.com>>

Content-Type: text/plain; charset="utf-8"

Carl,
Not too long ago, I had to deal with one of these odd ball small claims court situations. You may want to take a gander through the WA Statutes RCW 12.40. It?s not necessarily as straight forward as you would think?(i.e. see RCW 12.40.027):
RCW 12.40.027 Removal to superior court?Restrictions? Simultaneous maintenance of claims?Joinder of claims on appeal. RCW 4.14.010 regarding removal of actions to superior court shall not apply to cases originally filed in small claims court, or transferred to the small claims court pursuant to RCW 12.40.025. No defendant or third party defendant may remove a small claims case from small claims court as a matter of right by merely filing a claim or counterclaim or other request for relief that is beyond the jurisdiction of the small claims court. Claims, counterclaims, or other requests for relief filed by a defendant or third party defendant in excess of the jurisdiction of small claims court may be maintained simultaneously in superior court as a separate action brought by such defendant or third party defendant. Such a superior court action does not affect the jurisdiction of the small claims court to hear the original small claims case. The decision of the small claims c!
 ourt shall have no preclusive effect on a superior court action brought pursuant to this section. If the small claims case is appealed, it shall be automatically joined with any superior court case filed pursuant to this section, and the procedures set forth in RCW 12.36.055 shall not apply. Nothing in this section may be construed to limit the small claims court from transferring a small claims case to district court or superior court after notice and hearing. [1997 c 352 ? 5.]

Good Luck!

Jennifer L. White, Esq.
[cid:image001.jpg at 01DA28E7.1E62D180]

jen at appletreelaw.com<mailto:jen at appletreelaw.com><mailto:jen at appletreelaw.com<mailto:jen at appletreelaw.com>>
2200 S 76th Ave
Yakima, WA 98903
509.225.9813

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Carl Gay
Sent: Thursday, December 7, 2023 8:17 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] very off-topic question of civil procedure

Many thanks, Rod.

CARL LLOYD GAY

    Non nobis solum nati sumus
      ?Not unto ourselves alone are we born?
                   ~the motto of Willamette University~

                          Law Offices
      GREENAWAY & GAY
     Attorneys and Counselors at Law
                     (Established 1985)

734 East First Street       Suite A
Port Angeles, Washington   98362
Email                      carl at greenawaylawfirm.com<mailto:carl at greenawaylawfirm.com><mailto:carl at greenawaylawfirm.com<mailto:carl at greenawaylawfirm.com>>
Telephone                (360) 452-3323
Facsimile                  (360) 452-3724

THIS EMAIL TRANSMISSION IS INTENDED FOR THE EXCLUSIVE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED, AND MAY CONTAIN PRIVILEGED AND CONFIDENTIAL INFORMATION THAT IS COVERED BY THE ELECTRONIC COMMUNICATIONS PRIVACY ACT (18 USC ?? 2510-2521). IF YOU ARE NOT THE INTENDED RECIPIENT OR AGENT RESPONSIBLE TO DELIVER THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION, OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR; PLEASE NOTIFY US IMMEDIATELY BY TELEPHONE AND/OR EMAIL AND DELETE THE ORIGINAL MESSAGE. THANK YOU


From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com><mailto:wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com><mailto:wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>>> On Behalf Of Rod Harmon
Sent: Wednesday, December 6, 2023 6:24 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com><mailto:wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>>
Subject: Re: [WSBARP] very off-topic question of civil procedure

Carl:
I think your instincts are correct.  The problem is demonstrating what the first case was about since there is usually not much of a record in small claims court.

Rod Harmon

RODNEY T. HARMON
       Attorney at Law
         P.O. Box 1066
      Bothell, WA   98041
     Tel:   (425) 402-7800
     Fax:  (425) 458-9096
    www.rodharmon.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.rodharmon.com&d=DwMGaQ&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=kDcM-fraYQNOZ1rCslLoMSSRXJQXmQVvRJbE6ymQGho&m=Fwd0E0oQkKxenSEry0GYRNuO95ZmIanPugESHtcypPcQfCgSP01zEy_ghseiUE2K&s=4WchFdk0UBntkTrH_EucuucKud3mb_CTOEicYjJlpyo&e=><https://urldefense.proofpoint.com/v2/url?u=http-3A__www.rodharmon.com_&d=DwMFaQ&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=kDcM-fraYQNOZ1rCslLoMSSRXJQXmQVvRJbE6ymQGho&m=5ZPE7cqL4TIIHGxAG_WgpwntCPM9Q3_y76AZUapY7pPquPoUO-MGIEOqFpa3z115&s=UvOGldRuYMjy1xOyFb3mnJh9quo8vwZXKSLyxIUjMkw&e=>
   rodharmon at msn.com<mailto:rodharmon at msn.com><mailto:rodharmon at msn.com<mailto:rodharmon at msn.com>>

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com><mailto:wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com><mailto:wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>>> On Behalf Of Carl Gay
Sent: Wednesday, December 6, 2023 5:29 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com><mailto:wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>>
Subject: [WSBARP] very off-topic question of civil procedure

Dear Colleagues,

Can any of you litigators out there tell me if a contract dispute between the same parties goes to trial in small claims court and the $5,000 judgment in plaintiff?s favor is affirmed in district court, is the losing district court defendant precluded from later suing the plaintiff over the identical dispute in superior court?
Sure seems like res judicata/collateral estoppel to me, but Civil Procedure 101 was in the late 1970?s for me.

Best regards,
Carl Gay
Port Angeles

CARL LLOYD GAY

    Non nobis solum nati sumus
      ?Not unto ourselves alone are we born?
                   ~the motto of Willamette University~

                          Law Offices
      GREENAWAY & GAY
     Attorneys and Counselors at Law
                     (Established 1985)

734 East First Street       Suite A
Port Angeles, Washington   98362
Email                      carl at greenawaylawfirm.com<mailto:carl at greenawaylawfirm.com><mailto:carl at greenawaylawfirm.com<mailto:carl at greenawaylawfirm.com>>
Telephone                (360) 452-3323
Facsimile                  (360) 452-3724

THIS EMAIL TRANSMISSION IS INTENDED FOR THE EXCLUSIVE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED, AND MAY CONTAIN PRIVILEGED AND CONFIDENTIAL INFORMATION THAT IS COVERED BY THE ELECTRONIC COMMUNICATIONS PRIVACY ACT (18 USC ?? 2510-2521). IF YOU ARE NOT THE INTENDED RECIPIENT OR AGENT RESPONSIBLE TO DELIVER THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION, OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR; PLEASE NOTIFY US IMMEDIATELY BY TELEPHONE AND/OR EMAIL AND DELETE THE ORIGINAL MESSAGE. THANK YOU


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