Incline Justice Court – Small Claims Court

INTRODUCTION

The Small Claims Court is an informal court for the purpose of dispensing fair, speedy justice on claims up to the jurisdictional limit. The jurisdictional limit is $10,000 as of October, 2015; this is subject to increase by the Nevada Legislature. No formal pleading other than the Affidavit (sworn statement) of the claimant and the Order setting the hearing are necessary. While small claims are official court cases, trials are designed to be quick and relaxed to provide people an inexpensive, swift method of settling minor uncomplicated money disputes. Claim splitting is not allowed. Any claims against a Defendant must be aggregated into one case with a maximum possible recovery of no greater than the jurisdictional limit of small claims.

WHO CAN USE THE SMALL CLAIMS COURT

Any person, corporation, partnership or other legally constituted organization can file an action in the Small Claims Court. No formal rules of evidence, pleading, discovery or examination of witnesses, etc., are followed in a small claims action. No attorney fees are allowed, although parties may be represented by counsel if they pay the legal fees. The use of juries is prohibited. No other person (not a real party to the transaction sued upon) can represent or bring a claim without (prior to trial) presenting an assignment, of the claim executed by the real party in interest and approved by the Court. A business may be represented by an officer, director, employee or attorney.

WHEN TO USE THE SMALL CLAIMS COURT

Small Claims Court is primarily used for "due and owing" money debts after demand for payment has been made and the party has refused to pay. Other minor personal injury claims, those involving property damages, claims for cancelling, avoiding or getting out of a contract, may be filed. Claims will be dismissed without prejudice to the claimant's right to refile in a higher court if the matter proves too complicated or inappropriate for small claims, or dismissed with prejudice if there is a blatant failure of proof. If your claim exceeds the jurisdictional limit you may still use the Small Claims Court, but your relief is limited to the jurisdictional limit and you lose the right to claim the excess.

Some examples of situations in which you may use the Small Claims Court are:

  1. When someone owes you money, you have demanded payment, and the party has refused to pay.
  2.  When someone owes you money for goods sold and delivered, for past due bills, services rendered, or on bad checks.
  3.  When your landlord refused to account for or return your security /cleaning deposit, or your tenant refuses to pay rent owed which has accrued and/or damages to the premises, (other than normal wear and tear).
  4.  When someone has damaged your property and won't pay for the repairs or replacement.
  5.  By local rule, actions arising out of ownership, maintenance, or use of motor vehicles may be submitted to arbitration through the Court. The Court has established an arbitration program for these cases, and extra fees are required.

Before filing a Small Claims Court action, try to contact the other party and solve the problem by coming to an agreeable settlement.

CASES THAT ARE INAPPROPRIATE FOR SMALL CLAIMS

Small Claims Court is intended for sums "due and owing," (or at least sums capable of relatively simple calculation not involving speculation or complex legal issues). The following types of cases have been determined to not lend themselves to resolution in small claims court:

  1. Punitive damages (will not be granted).
  2. Piercing the corporate veil.
  3. Real estate matters other than breach of contract issues.
  4. Defamation (slander and libel).
  5. Fraud/intentional misrepresentation/emotional distress.
  6. Cases where expert witnesses are needed to prove ultimate issues.
  7. Cases where a necessary party is beyond small claims jurisdiction.
  8. Other cases involving complex legal issues that should be briefed by an attorney or involving a need for civil discovery to properly present the case. Any plaintiff contemplating the filing of such a case may wish to consult an attorney before proceeding in small claims court. Experience indicates that most laypersons have great difficulty in satisfying their burden of proof on such cases. If the case is dismissed with prejudice, the plaintiff will be forever barred from reinstituting the case in any court.

REMEMBER, THE PLAINTIFF HAS THE BURDEN OF PROOF ON ALL ELEMENTS OF HIS/HER CASE.
ALL "TIES" MUST, BY LAW, GO TO THE DEFENDANT.

WHERE AND AGAINST WHOM A SMALL CLAIM ACTION MAY BE BROUGHT

The defendant must be a resident of, employed in, or doing business in Incline Township in order for the claim to be filed in this Small Claims Court. The plaintiff must supply the Court with the correct address of the defendant. Incline Township includes only Incline Village and Crystal Bay. The defendant must be served with a copy of the Affidavit of the claim, and the Order setting the hearing within a minimum of ten (10) days prior to the date of the hearing. The Court requires that a defendant in a small claims case must be personally served. In a case where the plaintiff’s only address for the defendant is a post office box, service may be attempted by Certified Mail, return receipt requested. The plaintiff will mail the Affidavit and Order certified mail, return receipt requested to the Justice Court, 865 Tahoe Blvd., Suite 301 Incline Village, Nevada 89451. Other procedures may be approved for defendants who attempt to avoid service.

The filing and service fees must be paid by the plaintiff to initiate the action, but may be recovered as part of the judgment if the plaintiff prevails at the trial.

To sue a business or a corporation in Small Claims Court, the proper party who represents the entity must be named on the Affidavit and Order. If it is a business, the Washoe County Business License Division can provide the name of the licensed owner(s). The claim must be filed against the licensee, doing business as: Business Name, as defendant.

If your claim is against a corporation, the Secretary of State in Carson City can provide the name and address of the "Registered Agent" who may be located in this Township. The claim must be filed against the Corporation, naming the Registered Agent as the party the papers should be personally served upon. If there is no Registered Agent for the corporation, personal service may be made on the president, secretary/treasurer or other responsible officer. Should the address of the Registered Agent be outside of Incline Township, you will have to provide for service of the affidavit where the Registered Agent is located unless the court approves local service on an officer.

It is important to list the business or corporate title exactly as it reads.

Before a claim may be filed against a City, the County of Washoe or any other political subdivision all administrative remedies must be exhausted. There are certain procedures which must be followed:

In the matter of any city or the State of Nevada

Present the claim to the appropriate city council or the State Board of Examiners. If denied, file in the Justice Court covering the city, of Carson Justice Court for the State of Nevada.

In the matter of Washoe County, Nevada

One must file a claim with the County Clerk of Washoe County. If the Clerk disallows the claim, you may resort to the Small Claims Court in Reno.

STARTING A SMALL CLAIM ACTION

The party filing a small claim is referred to as the Plaintiff. The party filed against is referred to as the Defendant. To initiate an action in Incline Small Claims Court, the defendant must be residing, doing business, or employed in Incline Township.

You must file a claim ("Affidavit and Order") with the civil court clerk, which states whom you are suing, the amount of money the plaintiff is suing for and for what reason(s) the plaintiff claims to be owed the money. Any sums claimed must be owed directly to the plaintiff and not anyone else. The plaintiff must know the full name and correct address of the party to sue and whether the party is an individual, sole proprietorship, partnership or corporation. If the plaintiff is filing one or two claims, he/she will be asked to fill out a short form with the necessary information. Upon request, the clerk will type up the Affidavit and Order. Those parties filing more than 2 claims will be given the forms and required to type in the necessary information. The Affidavit & Order must be signed (subscribed and sworn to) before a Notary Public, civil court clerk, or executed under penalty of perjury.

The plaintiff will be given two (2) service copies which must be taken immediately to the process server of his/her choice. Many plaintiffs enlist the Incline Constable to serve the papers for them, at a fee and mileage set by state statute. (Separate check required.)

WHAT DOES IT COST: FEES OF FILING AND SERVICE

Filing fees are based on the amount sought as damages, and at this time run between $66.00 and $146.00. This fee is due at the time of filing. Checks are to be made payable to “Incline Justice Court.” The fee for personal service depends upon the individual process server and/or location of service. The Small Claim Affidavit and Order should be served by a process server. A separate check should be made out for the service fee. Should the Defendant wish to make an out of court settlement after he/she has been served, the Plaintiff is also entitled to recover from the defendant the costs of filing the suit and having it served. Should both parties appear on the assigned hearing date and the Plaintiff be awarded judgment, the Plaintiff may also be entitled to his costs of suit in addition to the principal claim.

PREPARING FOR TRIAL

The time of hearing:

It is essential that you know your Court date and the time and place the hearing will be held. You must be in Court promptly at the scheduled time and ready to present your case when it is called or it will be dismissed (if you are the plaintiff). It is advisable to check with the process server prior to the hearing date to be sure the defendant has been properly served with your claim. PLEASE refer to your case number and Court date whenever inquiring about your claim.

Witnesses:

You may bring witnesses who have firsthand knowledge of your claim whom you feel can help you prove your case. A witness' compulsory attendance can be obtained by requesting the issuance of a subpoena at least three weeks prior to the hearing date. There is a $25.00 witness fee, plus mileage. Both of these charges are payable in advance by you to the subpoenaed witness. The process server will charge a fee to serve the subpoena. The fees of subpoenaing a witness may be awarded as a Court cost to the prevailing party.

Copies of Documents:

You should assemble any papers, documents, receipts or pictures which pertain to your case and bring them, with two (2) sets of copies, when you appear for your hearing. One set is for the Court file, the other set is for the other party (either plaintiff or defendant). If you do not have enough copies, the Court may disallow the introduction of those documents as evidence. If your claim is for damages resulting from an automobile accident, come to Court with three damage estimates and the police/accident report attached, if applicable, for review by the Judge.

If you should move, please notify the Court of your new address so you will be sure to receive any correspondence regarding your case.

What to do at the beginning:

For the Plaintiff:

The trial will be a simple, informal hearing before a Judge. There will probably be a number of other small claims cases on the agenda to be heard. Please patiently wait your turn until your case is called. All testimony will be taken under oath and a record made only if arrangements are made for a court reporter.

You, as the plaintiff, will testify first and have the burden of establishing your claim by a preponderance (51% Weight) of the evidence. When your case is called you should try to explain as simply and concisely as possible why the person you are suing owes you money. Try to answer any questions the Judge should ask you clearly and directly. Remember, there are usually a large number of small claim cases to be heard and you have a limited time to present your claim.

If the defendant does not appear, and has been properly served, you will be awarded your judgment by default. If the defendant does appear, the Judge will hold the hearing and may render a decision on the case at its conclusion or he/she may take the matter under submission and provide a decision at a later date. It is suggested that you sit in on a scheduled Small Claims Court calendar day to observe how the cases are presented and decided. Small Claims Court is open to the public every session. Please call the Court before coming to confirm that Small Claims cases are calendared for that particular day.

For the Defendant:

As the defendant you have the same applicable rights and responsibilities, as outlined above for the plaintiff, concerning your preparation for the trial. If you do not wish to contest the plaintiffs claim, you may make an Out of Court settlement with the plaintiff prior to the trial date. Settlement forms, referred to as a "Stipulation/Judgment," which state the arrangements agreed upon by both parties, are available on the Court's website (www.ivcbcourt.com) or from the Civil Court Clerk. Once you have been served with the claim, even if you settle, you are responsible for paying the Court costs (filing fee and service fee) unless otherwise agreed upon and stated on the "Stipulation/Judgment" form. After a settlement is approved by the Court, should the defendant break the written arrangements, the plaintiff will be authorized to immediately seek collection of the total outstanding balance.

A defendant has twenty (20) days after service to file a Counterclaim. If a defendant feels a Counterclaim is appropriate, he/she should consider consulting an attorney to determine if it is a compulsory or permissive Counterclaim, or if it is merely a set-off that need not be filed.

If the total claim is paid out of Court before the trial date, it is the responsibility of the plaintiff to notify the Court in writing, dismissing the action and no judgment will be entered against the defendant.

Should you, as defendant, not appear for the hearing, at the appointed time, a judgment by default plus Court costs will be entered for the plaintiff. Remember, you must appear before the Judge or there must be written arrangements that you have made filed with the Court prior to the hearing date or you will lose the case.

If the defendant should prevail at the trial, the plaintiff will be obligated to pay any Court costs the defendant has incurred. If the plaintiff should prevail, the defendant will be obligated to pay Court costs incurred by the plaintiff, in addition to the Judgment entered against him.

SHOULD THE OTHER PARTY NOT APPEAR

If the other party does not appear on the trial date after proper service, he/she will lose by default. In a Small Claim suit, a party is allowed by law a six (6) month period to prepare and file "Motion to Set Aside the Default" (see, www.ivcbcourt.com for sample forms) based upon legal cause, excusable neglect, etc. If the Motion to Set Aside the Default should be granted by the Judge, a new hearing may be scheduled. You will be notified of the new date. Any Execution (attachment) the Court had issued will be stayed pending the outcome of the new hearing. If the Motion is denied, the Judgment will stand as awarded by default. These Motions are often denied because a legally-acceptable excuse is not presented.

COLLECTING ON A JUDGMENT

A judgment in a Small Claims case is enforceable for a period of six (6) years from the last date of action entered on the court docket. The procedures for collecting a judgment are complicated. The civil court clerk cannot give you legal advice; therefore, you may wish to consult an attorney. If after a reasonable period of time you have not been paid, you can request that the Court issue an "Execution" for attachment. The fees for the issuance and service of an execution must be paid at the time the papers are submitted to the clerk, and will be added on to the judgment. The Plaintiff must be able to inform the clerk what and where he/she is attaching, for example: wages, a bank account (checking or savings) or an automobile. If the defendant owns a house or parcel of land, you may record a lien against either at the County Recorder's office. If your judgment is against a business or corporation it is possible to attach a cash box, cash register, or other business/corporate assets.

 

THE COURT CANNOT COLLECT THE JUDGMENT FOR YOU

Many times, collecting the judgment is more difficult than winning the case. The Court staff will do what it can to help, but the necessary "detective" work must be done by the plaintiff. Some defendants have no legally-attachable assets, plus most judgments can be discharged in bankruptcy. These frustrating, but real, factors must be considered before filing a case.

EXAMINATION OF THE DEBTOR

If the plaintiff is unaware of the defendant's assets, he/she may request a "Supplementary Proceeding" hearing be scheduled. A court order will then be served on the defendant ordering him or her to appear before the Judge and disclose his or her assets to you. There is no issuance fee charged by the Court for this order; however, the process server will charge a service fee that can be added on to the judgment.

A judgment is enforceable in another state if a defendant should leave the state of Nevada. You must comply with the laws governing the procedure of the particular state where you find the defendant is now residing.

APPEALING A SMALL CLAIM DECISION

A Plaintiff or Defendant who is dissatisfied with the judgment in his Small Claim case may appeal the case within five (5) judicial days from the date of entry of judgment. The date of the court hearing, weekends and holidays are excluded.

A formal Notice of Appeal must be filed with this Justice Court, along with all applicable fees in the form of cash or cashier's check. It may be expensive to appeal a small claim decision. Also, you will not be allowed to present any new evidence in the higher court. You are limited to a review of what you presented at the first hearing. To win an appeal, you must show that the Judge made an error and not just that you didn’t like his/her decision. For this reason, experience indicates that very few small claims are reversed on appeal.

The important lesson to note is to have your case completely ready for trial, as you will only get one chance to actually present evidence and witnesses. Try not to be one of those litigants who finds him/herself telling the judge about all the evidence that "could have" been brought in, but was not. No record of the case will be made unless fees are deposited to secure the court reporter. A case may still be appealed if there is no transcript, but the procedure becomes far more complicated and burdensome on the appealing party.