District Court Judge Michelle Comeau joins producer/host Coralie Chun Matayoshi to discuss what types of cases are heard in Small Claims Court, filing costs and procedures, notice to defendant, what happens if a party does not show up in court, benefits of mediation, whether the verdict can be appealed, how to collect on a judgement, and whether the judgement is public.
District Court Judge Michelle Comeau previously served as a per diem judge for 7 years, practiced law in the areas of civil rights, torts, property law, and regulatory law matters, and clerked for several federal judges. And I know Michelle because we started off as per diem judges together.
Q. Almost everyone has heard of Judge Judy, and when there are disputes that Hawaii parties cannot resolve, they often turn to Small Claims court. What types of cases are generally heard in Small Claims Court and is there a limit to the amount in dispute?
Claims for the award of money damages are heard in Small Claims Court. Here are some examples of typical small claims matters – claims involving loan repayment, car repair claims, car accident damage claims, residential security deposit claims against a landlord, landlord claims for damages to the unit and back rent. Small claims court can also hear claims to recover leased or rented property worth less than $5,000. The amount in dispute cannot exceed $5,000, except in claims by a tenant for the return of a residential security deposit. If there is a counterclaim, the limitation on the counterclaim is $40,000. For claims greater than these amounts, you can file a “regular claim” in District Court, or a Circuit Court lawsuit.
Q. How much does it cost to file a claim and where do you file?
You must file a “Statement of Claim” with the Service Center or clerk of the court. Upon request, the Service Center or clerk will furnish the necessary forms to file a small claim, but the clerk CANNOT GIVE ANY LEGAL ADVICE. The current filing fee is $35, which may be waived by a judge if the plaintiff demonstrates financial hardship. The case must be filed:
- In the division of the circuit where the defendant resides.
- If the defendant does not reside in the judicial circuit, then in the division where the claim for relief arose. If the claim for relief arose outside of the judicial circuit, then in any division where the defendant can be found.
- If there are defendants residing in different divisions, then in the division where the claim for relief arose. If the claim for relief arose outside of the judicial circuit, then in any division where any defendant can be found.
- In security deposit disputes, in the division where the defendant resides, or where the property is located, if the defendant resides out of state.
Q. How is the defendant notified that a claim has been filed?
In most cases, the clerk will prepare a notice stating the date, time and place at which the defendant must appear in court to answer the claim. The plaintiff is responsible for notifying the defendant of the claim and the court date by serving a copy of the Statement of Claim and a copy of the notice upon the defendant at least 48 hours prior to the court date. This can be done in the following ways:
- By registered or certified mail, restricted delivery, with return receipt requested before the trial date. The plaintiff should file or be prepared to present to judge the receipt for registered or certified mail issued by the post office showing when the papers were mailed and the return receipt showing the date of delivery and the signature of the defendant (commonly called the “green card”). Without these, a plaintiff may not be able to prove to the satisfaction of the court that the papers were delivered to the defendant in order to obtain a judgment by default if the defendant does not appear in court.
- A civil process server can be hired to serve the papers on the defendant. The plaintiff must pay the process server a fee for serving the papers plus a mileage fee, which will vary according to the distance the process server must travel. The plaintiff must file a return of service prior to the trial date signed by the person who served the papers, verifying that the defendant was served the documents.
- Any person who is not a party and at least 18 years old may serve the papers on the defendant. The plaintiff must file a return of service prior to the trial date signed by the person who served the papers, verifying that the defendant was served the documents.
- The plaintiff may personally serve the statement of claim and notice upon the defendant if the plaintiff obtains the defendant’s signature acknowledging service, or a witness not related to, employed by, or an agent of the plaintiff accompanies the plaintiff at the time the plaintiff serves the papers on the defendant. In that instance, the witness must appear at the small claims hearing or provide a notarized affidavit testifying that they witnessed the papers being served upon the defendant.
The plaintiff or defendant may want to refer to Hawaii Revised Statutes § 633-27 and 633-28, and the District Court Rules of Civil Procedure Rule 4.
Q. How soon after you file will the case be heard?
The case will be scheduled for a court date within 30 days.
Q. Must the Defendant answer the Statement of Claim in writing?
No. A defendant may verbally admit or deny the plaintiff’s claim at the court date.
Q. What happens if a plaintiff or a defendant doesn’t show up on the court date?
If no one appears for the plaintiff, the claim will be dismissed. If a defendant who is properly served with a Statement of Claim and Notice of the court date doesn’t show up, a default judgment will in most cases be entered against that defendant. The judge may require the plaintiff to present evidence to prove their claim at the court date.
Q. What if a party knows they cannot attend the trial date – can they do anything beforehand to avoid a dismissal or default judgement?
Forms to have your case continued may be obtained from the clerk. Type in the necessary information on the form. A request for continuance should be submitted well in advance of the court date. It is the requesting party’s responsibility to provide a copy of the request for continuance to the other party. If the request is approved by the judge, you must inform the other party of the new trial date before that date.
Q. Can cases go to mediation as part of the hearing?
Contested small claims cases may be ordered to mediation. On Oahu, mediation is currently free in small claims matters. If the matter is referred to mediation, the parties will contact the Mediation Center of the Pacific after court and schedule a mutually agreeable date and time for mediation. During mediation, a trained mediator will assist the parties in resolving the dispute themselves. If an agreement is reached by the parties through mediation, the claim is usually dismissed, the parties avoid a trial, and the plaintiff avoids incurring the costs of trying to collect on a judgment. If the parties are unable to reach an agreement through mediation, the parties will return to court for a trial before the judge.
Q. Can a party be represented by an attorney and can attorney fees be awarded depending on the verdict?
A party can be represented by an attorney in small claims court, but generally attorney’s fees cannot be awarded. Attorneys cannot appear for the landlord or the tenant in security deposit disputes, unless the attorney is the landlord or the tenant and is representing themselves.
Q. If the case goes to trial, what types of evidence need to be presented to the judge to prove a case?
At trial, the plaintiff and defendant are required to present the facts in their own words or though documents submitted to the court. The plaintiff should present proof of defendant’s liability and of the amounts claimed in damages. Bring to court any documents or papers that relate to the case (for example, any written contracts, rental agreements, promissory notes, receipts, agreements to repair property; relevant texts, emails or letters that might have passed between you and the other party; bills, paid or unpaid, and canceled checks having to do with the case; repair bills or written estimates of repair prepared by qualified persons; photographs of any damaged property). Parties should bring copies of documents for the opposing party and the judge to review at trial and not include them with the complaint. The court will return all documents to the parties when the trial is over.
If there are witnesses that support your position, bring them to court (for example, people who witnessed the event, repaired the damaged property, or otherwise have first-hand knowledge of the case). If a witness will not come to court voluntarily or cannot get permission to leave work to come to court, the court can be asked to issue an order to compel the witness to appear at the trial. A subpoena is used for this purpose. The party asking for the subpoena must pay witness fees and mileage. The subpoena must be submitted to the Small Claims division for approval of the judge before the trial date. The judge may include the amount paid as witness fees and mileage as part of the judgment entered against the losing party. Be aware that the court cannot play or display videos on court equipment. If you have videos and plan to ask the judge to review those, be prepared to play the videos using your own equipment.
Q. If either party doesn’t like the verdict, can it be appealed?
The judge will decide the case in court at the end of the trial. There is no right to appeal a small claims court decision. However, the losing party may ask the court to alter or set aside the judgment within 10 days after filing of the judgment. For example, the losing party may seek to correct a mistake made in computing the amount of the judgment or present new evidence discovered after the time of the trial which could not have been presented at the time of trial.
Q. If the plaintiff wins, how does the plaintiff collect the judgment?
If the plaintiff wins, the judgment must be prepared in written form and filed with the court. Assistance can be requested from the Service Center or clerk of the court. Methods to collect judgments are governed by state and federal laws. The court cannot act as a collection agency; however, the plaintiff, with the help of standardized court forms for collection proceedings, can garnish a defendant’s wages and/or bank accounts to collect the judgment.
Q. Will court costs, such as filing fee, be added to the amount of the judgment?
Yes, the judgment will include the principal amount, interest if applicable, the filing fee, service costs, and any out-of-pocket costs that are awarded by the judge.
Q. Will the case go on an individual’s record and, if so, will it be visible online for someone doing a background check on that individual?
A civil judgment does not create a “record” like a criminal conviction. However, small claims judgments are public and can be found on on the Judiciary’s website by going to https://www.courts.state.hi.us/legal_references/records/jims_system_availability and clicking on “eCourt Kokua.” There are search options that include entering a case number or a party’s name. A judgment against a party can adversely affect their credit rating.
To learn more about this subject, tune into this video podcast.
Disclaimer: this material is intended for informational purposes only and does not constitute legal advice. The law varies by jurisdiction and is constantly changing. For legal advice, you should consult a lawyer that can apply the appropriate law to the facts in your case.
