1 Small Claim Cases

1. SMALL CLAIM CASES

1.01 CHECKLIST - Handling a Small Claim

1. Have the parties been encouraged to settle (see 1.45)?

2. Does court have proper jurisdiction of:

a. Subject-matter? (see 1.11)

b. Person? (see 1.12)

3. Is venue proper? (see 1.13)

4. Is action prosecuted by real party in interest? (see 1.22)

5. Are parties competent? (see 1.21)

6. Have appropriate parties been joined or permitted to intervene? (see 1.23, 1.24)

7. Was an answer timely filed (see 1.35)? Is there a proper counterclaim (see 1.36) or supplemental pleading (see 1.37) and, if so, do you need to grant a continuance to the opposing party (see 1.43)?

8. If default or challenge raised - Is service of process proper and is there proper proof of service in the record (see 1.34)?

9. Have all motions been decided (see 1.4)?

10. Should the action be consolidated or severed for trial?

11. Has Plaintiff (or Defendant in support of counterclaim) shown a breach of legal duty to him/her by a preponderance of the evidence at trial?

12. Has Plaintiff proven actual damages to a reasonable degree of certainty by a preponderance of the evidence?

13. If Plaintiff has not shown the amount of damages by competent legal evidence but has shown actual loss, should you award nominal damages, and if so, in what amount?

See generally the application of the Georgia Civil Practice Act (‘CPA’) to Magistrate Courts in Target Nat’l Bank v. Luffman, A13A1523, 750 S.E. 2d 750, fn. 4 (2013) (The Civil Practice Act is inapplicable to magistrate courts. Proceedings in the magistrate court shall not be subject to Chapter 11 of Title 9, the ‘Georgia Civil Practice Act. The magistrate courts of Georgia are not courts of record, and this can raise procedural issues that the parties may wish to avoid. Luffman, supra. It is true that the magistrate courts may follow the provisions of the Civil Practice Act “where to do so would ‘administer justice’ under OCGA § 15–10–44.” Howe v. Roberts, 259 Ga. 617, 619(1), 385 S.E.2d 276 (1989). But OCGA § 15–10–44 by its express terms applies to the trial of a case, not pretrial proceedings. Id at fn. 4 (Emphasis added).

1.1 JURISDICTION AND VENUE

1.11 Subject Matter Jurisdiction

NOTE - Remedy is Transfer - Pursuant to URMC § 36, when the magistrate court lacks jurisdiction, it is the court's duty to determine whether another Georgia court would have jurisdiction to hear the case and transfer it to that court if there is such a court. If transfer is possible, a motion to dismiss for lack of jurisdiction should be treated by the court as a motion for transfer. (See 1.41)

A. General Civil Test - The magistrate court has jurisdiction in all civil cases where:

1. The amount demanded or the value of property claimed is $15,000.00 or less [OCGA 15-10-2(5)]

AND

2. The superior court is not given exclusive jurisdiction of such cases [OCGA 15-10-2(5)].

OCGA § 15-10-2; See WPD Center, LLC et al. v. Watershed, Inc. et al., 330 Ga. App. 289 765 S.E.2d 531 (2014) ("[A]lthough the magistrate court had jurisdiction over [WPD's] dispossessory action, it did not have jurisdiction to render a binding judgment on [Watershed's] counterclaims . . . which sought money damages that exceeded the $15,000 jurisdictional limit of the magistrate court." Id.

OCGA § 15-10-2.1 (a) (2014) provides: “ Subject to the provisions of subsection (b) of this Code section, in addition to any other jurisdiction vested in the magistrate courts, such courts shall have the right and power to conduct trials, receive pleas of guilty, and impose sentence upon defendants for violating any provision of Part 2, Part 3, or Part 3A of Article 2 of Chapter 7 of Title 16 or Code Section 32-6-51 or 40-6-248.1 that is punishable for its violation as a misdemeanor. Such jurisdiction shall be concurrent with other courts having jurisdiction over such violations.

Subject matter jurisdiction can never be waived or overlooked. See Davis v. State, A14A1546 (Ga. Ct. App., Dec. Feb. 17, 2015) (Under Georgia law, "parties cannot confer subject matter jurisdiction by consent," even for the sake of judicial economy and justice. It is not a “right, power or privilege” that can be waived or conferred on a court by agreement of any party in a suit. See also Olde Towne Tyrone, LLC et al. v . Multibank 2009–1 CRE Venture, LLC., 326 Ga. App. 322, 756 S.E.2d 558 (2014).

See also Singh v. Sterling United, Inc., 326 Ga. App. 504, 756 S.E.2d 728 (Ga. App., 2014) (After defendant answered and counterclaimed for specific performance, the magistrate court determined that it lacked jurisdiction over the dispossessory case and transferred to the superior court)

B. Dispossessory and Distress Warrants - OCGA 15-10-2(6) also gives magistrate courts authority to handle dispossessory and distress warrants without including any limitation as to the amount at issue [see 237 Ga.App. 415, 514 2d 216 (1999); OCGA 15-10-50]

C. Cases heard only by Superior Court:

1. Divorce cases [GA. CONST., Art. 6, §4,

NOTE - Related matters arising later (such as conversion of property awarded to party in divorce) may be heard by magistrate court [177 Ga.App. 539, 339 SE2d 662 (1986)].

2. Respecting title to land [GA. CONST. Art. 6, §4, ¶1; 130 Ga. 391, 60 S.E. 1049 (1908); 247 Ga. 155, 274 SE2d 560 (1981)], such as action in ejectment [241 Ga.App. 379, 527 SE2d 212 (1999)].

3. Issuing extraordinary remedies [GA. CONST. Art. 6, §4, ¶ 1] such as:

a. Injunction;

b. Prohibition;

c. Mandamus;

d. Quo Warranto;

e. Specific performance

4. Equity cases:

a. Court may never order the party to perform or abstain from conduct but of court as that would be ordering injunction or specific performance.

b. Defendant may use "equitable defenses" to defend against liability [223 Ga. 707, 157 SE2d 735 (1967); 156 Ga.App. 513, 274 SE2d 850 (1980); 270 Ga.App. 93, 606 SE2d 112 (2004) (equitable defenses to dispossessory)].

c. Seeking a money judgment or possession of property generally OK.

d. Rescission of a contract may be legal action (OK) or equitable action (beyond jurisdiction) - magistrate court may not reform contract (change its terms) or order conduct but may award money judgment relief [238 Ga. 622, 234 SE2d 787 (1977); see 284 Ga.App. 531, 644 SE2d 337 (2007) (Magistrate could hear fraud in inducement claim)].

e. Enforcement of consent repair order in dispossessory OK and not equitable despite affirmative acts demanded [264 Ga.App. 273 , 5 90 SE2d 250 (2003)].

5. Declaratory judgments [OCGA 9-4-2; 178 Ga.App. 197, 342 SE2d 380 (1983)].

6. Other miscellaneous statutory provisions (not complete):

a. Appointment of receiver [OCGA 9-8-1];

b. Matters involving arbitration unless arbitration arose from litigation in magistrate court [OCGA Chapter 9-9];

c. Election cases;

d. Dissolution of corporations [OCGA 14-2-284 and 14-3-218] and rights of dissenting shareholders [OCGA 14-2-251];

e. Against State Employees Assurance Department [OCGA 47-19-8];

f. Adoptions [OCGA 19-8-1].

D. Other Forbidden Cases:

1. Pre-judgment attachment [OCGA 15-10-2(5)];

2. Cases required to be heard by court of record (e.g., pre-judgment garnishment) [1984 Op. Atty. Gen. U84-28].

E. No Waiver - subject matter jurisdiction cannot be conferred by consent or waiver, and judgment rendered without subject-matter jurisdiction is absolutely void [OCGA 15-1-2; 155 Ga.App. 134, 270 SE2d 272 (1980); 124 Ga.App. 586, 184 SE2d 694 (1971)].

F. Court's Duty to Inquire - it is the court's duty to inquire into jurisdiction, and if it is found lacking at any stage, the case shall be transferred or dismissed [OCGA 15-1-2].

G. Citations: STATUTES

OCGA 4-11-9.3 gives magistrate court specific jurisdiction over foreclosing liens arising from treatment or care of impounded animals.

After a de novo appeal there is no monetary limit on a claim that originated in magistrate court [OCGA 5-3-30].

Citations: CASES

Change in Jurisdictional Amount - When jurisdictional amount is altered, this is a remedial procedural change so that the court applies the jurisdictional limit at the time of entering judgment, not the limit at the time the complaint was filed. A litigant may amend to seek the greater jurisdictional amount [191 Ga.App. 196, 381 SE2d 142 (1989)].

Compel arbitration - Court's inherent power to stay action gives magistrate court jurisdiction to hear motion to compel arbitration [298 Ga.App. 204, 679 SE2d 785 (2009)].

Determining Jurisdictional Amount - Where the complaint seeks unliquidated damages, the magistrate court may enter judgment so long as the amount claimed and the judgment entered are within the court's jurisdiction even though the evidence may authorize more damages (whether same true for liquidated claims unclear). [191 Ga.App. 196, 381 SE2d 142 (1989); 223 Ga.App. 19, 447 SE2d 141 (1996)]. On appeal, jurisdiction would now have no monetary limit [OCGA 5-330].

On the other hand, the court may instead transfer the case to another court if it feels the damages proved exceed the jurisdictional amount regardless of the amount claimed [191 Ga.App. 30, 380 SE2d 747 (1989)].

No private cause of action is created by any statute after 7/1/2010 unless that act specifically states that it does [OCGA § 9-2-8].

Rescission at law - remedy - A party may rescind a contract in an action at law, tendering any proceeds. A limited jurisdiction court may condition the award of money damages upon the return of personal property [194 Ga.App. 441, 390 SE2d 659 (1990)].

Res judicata - Where plaintiff chooses magistrate court, s/he is barred from asserting claims beyond court's jurisdiction based on same set of facts. Where judgment is entered beyond jurisdiction against defendant, defendant may reassert counterclaims beyond court's jurisdiction where transfer of case was denied [Compare 256 Ga.App. 260, 568 SE2d 130 (2002) and 279 Ga.App. 567, 631 SE2d 769 (2006) with Setlock v. Setlock 286 Ga. 384, 688 SE2d 346 (2010)].

Res judicata - when analyzing effect of prior dismissal, cannot assumr magistrate court applied...