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Lack is Due Notice for a Small Claims Court Continuance

So my client was sued by his former attorney in small claims ithacadude2307/11/17
In my state his only hope is a sympathetic judge. He asked f vohod07/11/17
Nobody will be able to answer your question without knowing thirdtierlaw07/11/17
There is nothing in the small claims rules about proper cont ithacadude2307/11/17
There is nothing about notice in the rules for civil procedu thirdtierlaw07/11/17
My jurisdiction this would likely be vacated. Especially gi jd4hire07/11/17
ithacadude23 (Jul 11, 2017 - 4:17 pm)

So my client was sued by his former attorney in small claims court for unpaid fees. A trial date in March was postponed to July based on mutual agreement of the parties in order to allow sufficient time to conduct mediation. Attorney-plaintiff sent a request for continuance and a list of acceptable dates to the court clerk. Court clerk picked one of the continuance dates and updated case status online in early March. Mediation fails. Attorney-plaintiff does not show up for trial in July and a judgment is entered for the defendant. One day later attorney-plaintiff comes back, says he did not have a proper notice of the continued trial date and files a motion to vacate judgment based on that. The court never sent anything to anyone about the new trial date, but updated the trial date in early March on its case information webpage. Any comments?

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vohod (Jul 11, 2017 - 4:23 pm)

In my state his only hope is a sympathetic judge. He asked for the continuance. Courts here are strict on plaintiffs with the rules and punctuality in these collections/creditor actions through the small claims process. But you can appeal a small claims judgment easily here.

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thirdtierlaw (Jul 11, 2017 - 4:31 pm)

Nobody will be able to answer your question without knowing the jurisdiction. Everywhere I practice sends out e-mail hearing notices to the attorneys when a hearing is set. If that never went out, there was not proper notice.

Not to be flippant, but it should be clear as day in the rules of procedure and court rules. Notice requirements can get a little fuzzy in more complex matters, but this seems like a pretty simple 'yes' or 'no'. When the court picked out a new date, was there an entry order from the judge listing the date? That'd likely suffice.

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ithacadude23 (Jul 11, 2017 - 4:38 pm)

There is nothing in the small claims rules about proper continuance notice. Here they just update the trial date on the case status online page (especially for small claims). That happened in March. The plaintiff is basically saying that they knew the old trial date passed but nobody shoved the new date in their face, so they came up with this motion to set aside judgment.

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thirdtierlaw (Jul 11, 2017 - 4:59 pm)

There is nothing about notice in the rules for civil procedure or court rules?

Edit: I reread what you wrote. Notice of a hearing shouldn't be any different if it came after any motion hearing. I can't think of any reason why a motion to continue would be treated differently.

Only three exceptions I can think of off the top of my head, 1)there was a hearing on the motion to continue and the court gave a new date on the record; 2) A 'date certain' was asked in the motion to continue and the court granted the motion for a 'date certain'. 3) The judge granted a motion to continue and on the order it listed the new date.

I really cannot imagine a court requiring an attorney to be constantly updating and checking a case's information page to determine when a case was reset for. Each jurisdiction is different, but that seems excessive. Courts are constantly moving hearing dates and times. I'd lose half my day each day just rechecking when things have set for.

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jd4hire (Jul 11, 2017 - 4:34 pm)

My jurisdiction this would likely be vacated. Especially given the quick response.

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