judicial application bryan c shaw
TRANSCRIPT
BRYAN C. SHAW, ESQ. APPLICANT’S STATEMENT OF INTEREST FOR YAVAPAI COUNTY SUPERIOR COURT, DIVISION 4 _____________________________________________________________________________________________________ Office of the Governor, Doug Ducey Executive Tower 1700 W. Washington St. Phoenix AZ 85007 May 24, 2019 Governor, Doug Ducey: The first thing I discovered in law school is that I didn’t know anything. The second thing I discovered is that I can go find the answers myself. I graduated law school in December 2012, cum laude, passed the Arizona Bar my first try, and was admitted in May of 2013. After admission I didn’t apply to any law firms for employment because I’ve owned my own business in the past and understand the value and risk of working for myself. Six years later I have helped over three hundred and forty people. I understand the value that I bring to my clients. It’s my job to stand up for them, organize their conflict, identify their issues and most importantly, tell their story. I’m their advocate and my performance may change their lives. This performance measure holds true when I hear small claims and civil traffic hearings. I have been a small claims hearing officer for two years and a civil traffic hearing officer for one year. I understand the importance of listening to the parties, understanding their positions, their conflict, and their need to be heard. They need to tell their story, and I’ve learned to hear them. When I was a paralegal, I saw and appreciated how my attorney could help people, give them advice, and guide them forward. So, I became an attorney. Now, as an attorney, I see our judiciary, their nature, character, and their impact on the lives of thousands of good or struggling people. I would be humbled and privileged to be able to do the same. Thank you for your time and consideration of my application. Sincerely, _______/s/________ Bryan Shaw, Esq. Applicant
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WRITING SAMPLE #1 COURT OF APPEALS: ANSWERING BRIEF: BRYAN SHAW
May 2019 _____________________________________________________________________________
CAPTION REDACTED:
<<<<<<<<<<<<< SECTION REDACTED FOR LENGTH>>>>>>>>>>>>>>>>
ARGUMENT
I. Standard of Review
Appellee agrees with Appellant’s summarization of the Court of Appeal’s standard of
review.
II. Issue: Best Interests of a Child in a Termination Case
Burden of Proof: The Supreme Court of Arizona, en banc, in Kent K. v. Bobby M.,
210 Ariz. 279, 110 P.3d 1013 (Ariz., 2005) illustrates that A.R.S. § 8-533(B) requires clear and
convincing evidence of at least one of the statutory grounds together with a finding that
termination is in the best interest of the child. Id. at 1014. Kent clarifies that establishing the
best interests of the child requires only a preponderance of the evidence, not the higher burden
of clear and convincing. Id. at 1022.
Statutory Grounds Best Interests of the Child: The Supreme Court of Arizona, en
banc, in Appeal in Maricopa County Juvenile Action No. JS-500274, 804 P.2d 730, 167 Ariz. 1
(Ariz., 1990) illustrated how a Petitioner must prove best interests of the child. In Action No.
JS-500274 the Supreme Court reiterated that abandonment alone is insufficient and must
include, “a determination of the child's best interest … as to how the child would benefit from a
severance or be harmed by the continuation of the relationship.” Id. at 734. The court solidified
its statement by confirming that, “petitioner must prove an affirmative benefit to the child
resulting from termination.” Id. at 735. “For example, petitioner might prove that there is a
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current adoptive plan for the child or that the child will be freed from an abusive parent.” Id.
The Supreme Court of Arizona also stated that, “an adoption plan need not exist in order to
sever a parental relationship on the ground of abandonment,” but, “immediate availability of an
adoptive placement obviously weighs in favor of severance, while the improbability of
adoption, absent other factors, weighs against it.” Id. And finally, “[a]lthough a finding of
detriment to the child is not necessary, some benefit must be gained by the child from a
termination.” Id. at 736.
Appellee’s Application of the Law to the Facts of this Case:
Appellant argues that the court abused its discretion in determining that it is in the best
interests of the children to terminate Appellant’s parental rights, because Appellee did not prove
that her Husband was able to adopt; citing an alleged domestic violence incident which was
dropped and allegations for which the Department of Child Safety determined were
unsubstantiated.
Appellant argued that because he believed there was a question about Husband’s ability
to adopt, the children were not available for adoption. This is not the law and not the standard to
measure a benefit to the children via an adoption plan. Adoption is only an example of a benefit
to the children and case law does not require the adoption to be certain, provable, and perfect.
In Action No. JS-500274, the Supreme Court of Arizona stated that, “… petitioner might prove
that there is a current adoptive plan for the child or that the child will be freed from an abusive
parent.” Id. at 735 (Emphasis added).
A current adoptive plan is all that is required. The Court in Action No. JS-500274 does
not require that Appellee have an adoption social study performed first, before filing for
termination, to prove to the court that her spouse is able to adopt. That’s not the standard, only a
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current adoptive plan is required. That current adoptive plan was stated by both the Appellee
and her Husband at trial and the testimony was that the children were the catalyst for the
Termination, based on their desire for Husband to adopt.
Contrary to Action No. JS-500274, Appellant’s factors argument asks the Court of
Appeals to create new law and asks this Court to find that a current adoptive plan is not enough.
Id. at 735. Appellant alleges that the trial court could only find best interests based on a current
adoption plan, only if Appellee could prove that her Husband could obtain a favorable adoption
social study or approval for adoption, at the time of the termination hearing.
Appellant’s primary argument goes on to state a what-if-scenario of - what if the trial
court terminated Father’s rights and the adoption social study was unfavorable; the children
would be orphaned of one natural parent, and that’s not in their best interests. Appellant argues
that this what-if-scenario proves that, “… the court's findings of fact were clearly erroneous,
i.e., there is no reasonable evidence to support them," as the standard of review requires.
Maricopa County Juv. Action No. JV-132905, 186 Ariz. 607, 609, 925 P.2d 748, 750
(App.1996). If this is an appropriate argument on appeal, the trial court could rarely terminate a
parent’s rights on the basis of a current adoption plan. Any potential respondent in a termination
case could argue that a prospective adoptive parent could die or get divorced, right after the trial
court’s termination order, and before the subject children are adopted, potentially making them
orphans. If the Court follows Appellant’s logic, any potential respondent could prevail against a
best interest adoption plan because there is no way for a potential petitioner to prove that
children would be adopted. Some rational understanding of life’s risks is required, which is why
a current adoptive plan is enough, and not proof that adoption will occur.
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Appellant’s what-if argument is remote. It requires the Court of Appeals to agree that
any potential what-if scenario Appellant offers on appeal proves that the court's findings of fact
were clearly erroneous. This is not the law.
The trial judge reviewed the documented evidence/exhibits/testimony of severe physical
abuse by Appellant against Appellee, reviewed orders of protection and the multiple subsequent
violations of those orders by Appellant and heard detailed testimony about Appellant’s abuse
from the Appellee. The trial judge was able to observe the character of the Appellee and her
Husband regarding the validity of their testimony concerning alleged domestic violence
between them, and after that, still found that there is a current adoption plan and termination
was in the children’s best interest.
Finally, Appellant argued a factor that the children’s needs are not being met, citing to
the same domestic violence allegations between Appellee and Husband. The only evidence that
Appellant has concerning this factor is the inferences he is now making in his Opening Brief.
Appellant asks the court to assume that because Appellant thinks there was domestic violence
between Appellee and Husband – contrary to the evidence presented - that the court must have
concluded that the children’s needs are not being met. This conclusionary statement falls short
because Appellant failed to mention the additional testimony that the Husband and Wife have
been living together for at least five years, married for over a year and a half, and with no other
incidents, ever. (See Trial Transcript <<<REDACTED>>>). Appellant is asking the court to
reweigh the testimony and decide that Husband and Appellee were untruthful, in order to satisfy
his argument.
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CONCLUSION
An abuse of discretion is found when, “… the court's findings of fact were clearly
erroneous, i.e., there is no reasonable evidence to support them.” Maricopa County Juv. Action
No. JV-132905, 186 Ariz. 607, 609, 925 P.2d 748, 750 (App.1996).
The facts presented to the trial court regarding best interests were based on police
reports, orders of protection, violations of orders, and the credible testimony of Appellee and
her Husband, as well as the study by the social study provider. The trial judge was able to judge
each witness’s character and determine the validity of their testimony. There is a present benefit
to these children in the form of a current adoption plan.
Also, pursuant to Appeal in Maricopa County Juvenile Action No. JS-500274, 804 P.2d
730, 167 Ariz. 1 (Ariz., 1990) a Petitioner can show, “…that the child will be freed from an
abusive parent.” Id. at 734 (Emphasis added). This Court can affirm the trial court’s decision on
separate facts presented at trial, that Appellant severely abused Appellee over the span of years,
and that his prior abuse constitutes a detriment to the children; that of reintroducing the children
to a father who severely abused their mother, who may abuse the children again as he did to his
daughter when he kicked her1 and belted her2, and who hasn’t seen his children in seven years.
Appellee requests the Court of Appeals to affirm that the termination of Appellant’s
parental rights was in her children’s best interests.
<<<REDACTED FOR LENGTH>>>
1 (Trial Transcript <<<REDACTED>>>)
2 (Trial Transcript <<<REDACTED>>>)
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WRITING SAMPLE #2
MOTION TO DISMISS: BRYAN SHAW _____________________________________________________________________________ THE SHAW LAW GROUP, PLLC Bryan C. Shaw, Esq. (030228) P.O. Box 4413, Prescott, Arizona 86302 (928) 277-8172 [email protected] Attorneys for Petitioner
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF YAVAPAI
In the Matter of: <<<REDACTED>>>,
Petitioner,
Adv. <<<REDACTED>>>,
Respondent.
) ) ) ) ) ) ) ) ) ) ) ) )
Case No.: <<<REDACTED>>>, MOTION TO DISMISS: PETITION TO ENFORCE DECREE OF DISSOLUTION OF MARRIAGE
Petitioner, <<<REDACTED>>>, by and through undersigned counsel, hereby moves
the Court to dismiss Respondent’s Petition to Enforce Decree of Dissolution of Marriage, for
the following reasons:
1. DECREE: Petitioner requests to enforce the Parties’ Decree of Dissolution Entered
<<<REDACTED DATE>>>.
2. <<<REDACTED ADDRESS>>> HOME
a. Petitioner stated in his petition that he requests the enforcement because before
the entry of the Decree, the home awarded to him was encumbered in the amount
of $40,000. Respondent failed to mention in his Petition that the encumbrance is
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from a loan the Parties’ received from their daughter that was used as purchase
money for the home. Respondent was awarded the home, with the encumbrance
attached, and now asks the Court to enforce a term of the Decree that he gets a
home free of encumbrance.
b. This is not an available remedy for enforcement. If Respondent is requesting the
Court to modify a provision of the Decree (encumbered home versus non-
encumbered home) then the court is powerless to effect an enforcement, as the
encumbrance term in not in the Decree to enforce.
c. The terms of the Decree are specific that, “[t]he home located at
<<<REDACTED>>> shall be awarded to Respondent.”
d. Any transfer of property, or disclaimer of interest in the same by Petitioner,
necessarily attributes the lawful encumbrance of the same to Respondent; the
$40,000, as the encumbrance follows the asset, not the person.
e. The Court cannot “enforce” anything here. Enforcement requires the Court to
effect its lawful orders absent compliance. Petitioner complied with the term of
the Decree and transferred ownership to Respondent.
f. Respondent is requesting a Modification of the Decree, not enforcement but has
failed to plead such facts. Respondent’s Petition to Enforce is improper and must
be dismissed.
3. <<<<<REDACTED - Romanian>>>>> CONDOMINIUM
a. Again, Respondent is requesting enforcement of the Decree; however, there is no
mention of the Romanian condo in the divorce Decree such that the Court can
enforce a term.
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b. The Romanian condo was purchased with community funds, prior to divorce,
and as such is community property after the Decree.
c. Petitioner rightfully and properly sued Respondent in Romania under this theory
and was properly awarded an equal interest in the home. This is an after-resolved
matter about a community asset that was not in the Decree.
d. Enforcement requires the Court to effect its lawful orders absent compliance.
Petitioner complied with the term of the Decree because there was no provision
for a condo in Romania. This is an after-discovered community property item.
This issue is simply not in the Court’s order and therefore cannot be enforced.
e. Respondent is now attempting to overturn a Romanian Court’s lawful order with
an enforcement Petition in Arizona. This is improper. Respondent should have
appealed the matter or attempted a resolution in Romania but has failed to do so.
f. Respondent is again requesting a Modification of the Decree, not enforcement
but has failed to plead such facts. Respondent’s Petition to Enforce is improper
and must be dismissed.
4. RESPONSE TO COUNTERCLAIM:
a. In his Response to Petitioner’s Counterclaims, Respondent makes no efforts to
amend or reaffirm that he requires a modification of the Decree.
b. Respondent has continued to proceed under the theory of enforcement of the
Decree, and as stated above, the court is not able to enforce provisions for which
Petitioner has already complied or were not in the original Decree.
c. Respondent’s Petition to Enforce is improper and must be dismissed.
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5. STATEMENT OF THE LAW:
a. Arizona Rules of Family Law Procedure, Rule 91(A)(2) requires, “[a]ll petitions
to enforce or modify a prior order of the court shall set forth the pertinent portion
of the prior order, the date the order was entered, and the name and location of
the court that entered the order,” and Rule 91(H) requires, “[a]ny party seeking
any other post decree or post-judgment relief not specifically addressed in this
rule shall file a petition in compliance with paragraph A setting forth detailed
facts supporting the requested relief, together with the specific legal authority
that confers subject matter jurisdiction upon or authorizes the family court to
grant the relief requested.”
i. Regarding the Romanian Property, Respondent has failed to state the,
“the specific legal authority that confers subject matter jurisdiction upon
or authorizes the family court to grant the relief requested,” required by
Rule 91(H) and must be denied because the Romanian property is
situated in Romania, not Arizona, and Arizona has no authority to
overrule a prior Romanian Court Order.
ii. Regarding the encumbrance: Respondent has failed to allege how
Petitioner has failed to comply with the terms of the decree; he only
alleges that the Petitioner be responsible for an encumbrance that is not
part of the Court Order. Thus, Respondent has not, “set forth the pertinent
portion of the prior order,” that the court must enforce, and must be
denied.
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b. Respondent is looking for a modification of the prior court order, not
enforcement, and pursuant to Arizona Rules of Civil Procedure, Rule 12(B)(6),
Respondent failed to state a claim upon which relief can be granted.
NOTE: Regarding Petitioner’s Counterclaim: If the Court enters a dismissal of
Respondent’s Petition for Enforcement, Petitioner shall withdraw her Counterclaims.
WHEREFORE, Petitioner requests the Court to:
1. Dismiss Respondent’s Petition to Enforce Decree of Dissolution of Marriage;
2. Award Petitioner her Attorney’s fees and costs of court pursuant to A.R.S. § 25-324 as
the Petition was made in bad faith for non-compliance with the Arizona Rules of Family
Law Procedure, Rule 91; and
3. Make any further orders, as the Court deems appropriate.
RESPECTFULLY SUBMITTED this 4th day of October 2018. THE SHAW LAW GROUP, PLLC ___________________________ Bryan C. Shaw, Esq. Attorneys for Petitioner Copies of the foregoing mailed this 5th day of October 2018, to: <<<<<REDACTED>>>>> By _____________________
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WRITING SAMPLE #3 REPORT OF FAMILY COURT ADVISOR: BRYAN SHAW
_____________________________________________________________________________ CAPTION REDACTED:
Undersigned counsel, as Family Court Advisor, hereby submits the following Report of
Family Court Advisor to the Court and all parties.
RELEVANT CASE HISTORY:
The <<REDACTED>> filed a Petition for Paternity on March 31, 2017, to which
Respondent, <<REDACTED>> counterclaimed for the establishment of Legal Decision-
Making, Parenting Time, and Child Support resulting in the current case. On November 21,
2017, the Court appointed Undersigned Family Court Advisor (hereinafter, “FCA”) to make
recommendations to the Court regarding parenting time and legal decision-making for the
parties’ common child, <<REDACTED>>, born <<REDACTED>>. Therefore, this FCA
provides this Court Advisor Report for the Court’s consideration.
INTRODUCTORY ISSUES: <<REDACTED>>
INTERVIEWS: <<REDACTED>>
DOCUMENTS REVIEWED: <<REDACTED>>
SUMMARY OF INTERVIEWS: <<REDACTED>>
REVIEW OF RECORDS:
Incident Report <<REDACTED>> “<<REDACTED>>”: This document, though
compelling if it were founded on evidence more than the statement of Petitioner, holds little
weight when compared with the history and the statements of the parties. Essentially, because
there is no conviction for the same, and there is no current investigation of Respondent in any
state, this FCA cannot give it more weight than the confession of Respondent that it was a lie,
introduced to form a personal bond with Petitioner at the beginning of the relationship.
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However, due to the admission from Respondent that he lied about the incident, and the severity
of the context of the lie, as well as other facts regarding significant behavior by Respondent in
the past, this FCA makes recommendations regarding a psychological evaluation in the
Conclusion section below.
Orders of protection: This FCA views These Order of Protection filings with
skepticism. The most recent Order of protection was based on very old information, apparently
brought up for the purpose of lowering the chance of visitation, or casting the Respondent in a
more negative light, and not based on the reality of a present risk of harm to Petitioner or child.
The <<REDACTED>> Protection matter was also similarly based on threats from 2002 and
2007, and did not reflect a current risk of harm to the Petitioner or child.
Current case records: This FCA has reviewed all other case pleadings and all
disclosures from the parties and has incorporated the essence of the same where needed.
SUMMARY AND CONCLUSIONS/RECOMMENDATIONS
After much time spent on this case, it is the opinion of this FCA that the child
<<REDACTED>> is not at risk of harm from <<REDACTED>>. <<REDACTED>> has two
separate opinions of <<REDACTED>>; the first being her own; that <<REDACTED>>was nice,
didn’t’ yell, didn’t discipline, and was not unsafe, but <<REDACTED>> has also adopted
<<REDACTED>> opinion and facts about <<REDACTED>> as her own, i.e. that
<<REDACTED>> is a criminal, has threatened her mom, threatened to kill mom’s old
boyfriend, and is mentally disturbed and a risk to her. To this FCA <<REDACTED>> has taken
it upon herself to inform the child of her opinion of <<REDACTED>>, sparing no details. Also,
even though some facts may be true, others have never been proven but are discussed as
absolute truths to <<REDACTED>>, such as the statements in the “<<REDACTED>>.” This
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FCA believes these conversations are very inappropriate and may likely have been told to
<<REDACTED>> by <<REDACTED>> for the purpose of turning <<REDACTED>> against
<<REDACTED>> and have <<REDACTED>> give her opinion on <<REDACTED>> behalf.
By making these age-inappropriate statements, <<REDACTED>> has created an incorrect or
even false opinion for <<REDACTED>> of her father that needs to be addressed. (See
recommendations below).
<<REDACTED>> by no means is blameless in this matter. He had every opportunity to
reach out and grasp the connection he had to <<REDACTED>> by filing for parenting time and
legal decision-making years ago. This type of failure in other cases can lead to abandonment
findings of which a court may seriously entertain. <<REDACTED>> has failed to support
<<REDACTED>> even with the visitation pushback from Mother and <<REDACTED>>
quality of life is observably diminished; she sleeps on a makeshift bed in the living room of a
trailer where it’s cold because they need to save on propane. Though the home is appropriate,
it’s unacceptable from this FCA’s point of view where a normal child support payment would
be sufficient to assist with those costs, or a better home for <<REDACTED>>. Further,
<<REDACTED>> timing on his counterclaim and request for custody is suspect to this FCA.
Requesting more parenting time when faced with a new child support order is viewed with
suspicion, given this case history and where parenting days directly lowers child support.
<<REDACTED>> is correct that <<REDACTED>> failed to pay child support, but these are
not concerns fit for a 10-year old. <<REDACTED>> could use better judgment in telling
<<REDACTED>> non-age-appropriate facts of a legal nature; it is confusing for the child and
the child’s opinions become skewed, as it has here.
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<<REDACTED>> has done what she felt best to safeguard <<REDACTED>> from
what she would consider a random force in the world; <<REDACTED>>. Their history has been
difficult, scary and stressful and she has every right to have the opinion she does. However,
sharing an adult’s opinion with a child in not always in the child’s best interests, as they have no
emotional or logical base on which to verify or support an adult’s opinion, as has happened
here. <<REDACTED>> has taken her mother’s opinion and converted it to her own without
any other factual support or the ability to talk to her father about the same. This is simply
confusing to <<REDACTED>> as her actual opinion of her father is not scary, tumultuous or
fearful.
Therefore, this FCA recommends the following:
1. That <<REDACTED>> have sole legal-decision making over <<REDACTED>>.
2. That <<REDACTED>> have primary parenting time for <<REDACTED>>, with
<<REDACTED>> having therapeutic reunification visitation with <<REDACTED>>
ONLY at the recommendation of a family/child therapist. This therapeutic reunification
should continue until the therapist is satisfied that the child’s reunification is complete,
that unsupervised visitation is in the child’s best interests, and all reunification
benchmarks have been met. Then, the parties may attend mediation to determine a
permanent parenting plan or request the Court’s findings and orders for the same at a
future trial.
3. That prior to the reunification visitations, <<REDACTED>> partakes in a psychological
evaluation to determine if he suffers from any Post Traumatic Stress Disorder, or any
other military-related anxiety disorder, and be ordered to share the results with the
family/child therapist and to FOLLOW ALL RECOMMENDATIONS of the same.
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4. That prior to the family therapy and reunification visitation, <<REDACTED>> have no
parenting time or communication with <<REDACTED>>; the purpose being that the
therapist will gauge and direct the parties and the child as to the most appropriate time to
reintroduce the child to her father, after several sessions with parents and the child
separately.
5. That prior to any reunification visitation between <<REDACTED>> and
<<REDACTED>>, the Parties and <<REDACTED>> shall meet and participate in
counseling, separately, with the chosen therapist for as many visits as the therapist
deems necessary and appropriate prior to reintroducing <<REDACTED>> to her father.
6. That the Parties attend a high-conflict parenting course, separately, due to the various
Order of Protection cases.
7. That the parties consider and agree to the appointment of a Parenting Coordinator after
the therapeutic reunification occurs and the permanent parenting plan begins.
8. That the parties use the Our Family Wizard e-mail program for all future communication
about the child, parenting time and reunification efforts. The parties should not
communicate until after the therapist recommends the same.
9. That the parties should share the cost the reunification therapy as it was the actions of
both parties that have led to the confusion in the child’s life such that they both should
bear the cost of correcting the same.
>>>>>>SIGNATURE SECTION REMOVED FROM SAMPLE FOR LENGTH>>>>>>>
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WRITING SAMPLE #4 SMALL CLAIMS JUDGMENT: BRYAN SHAW
_____________________________________________________________________________
YAVAPAI COUNTY JUSTICE COURTS, STATE OF ARIZONA PRESCOTT JUSTICE COURT
120 S. Cortez, Prescott, AZ 86303 PLAINTIFF,
<<<REDACTED>>>, an individual, Case Number: <<<REDACTED>>> Vs. DEFENDANT,
<<<REDACTED>>>, an individual.
JUDGMENT
Plaintiff comes before the court requesting $2,496.47 from Defendant for failure to pay
for services rendered under a verbal breach of service contract claim. For a breach of contract,
the Plaintiff must show that Defendant owed Plaintiff a duty, that a defendant breached that
duty, and the breach was the direct and proximate cause of a Plaintiff's damages.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Testimony was presented that Plaintiff and Defendant were friends, and that Plaintiff
would, on a regular basis, repair Defendant's vehicles. There are two clear contracts in Plaintiffs
Complaint for which he requests money damages. The time for bringing these claims has not
expired as they were brought within the statute of limitations and this a Court has jurisdiction
to hear the matter.
//
//
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CONTRACT #1
Plaintiff alleges that Defendant owes him $1,996.46 for parts and labor for removing
several engines from several vehicles, inspecting some for worthiness, and transplanting into
other vehicles among other additional work. Plaintiff is requesting the costs of parts and labor
as damages.
Plaintiff argues that Defendant has breached his duty of paying for services rendered for
Contract #1, In any civil contract dispute the Party alleging that the other party breached their
duty must show by a preponderance of the evidence that the person did fail to perform their
part of the contract, that their failure was the cause of the damage, and must also prove the
amount of damages to a reasonable degree.
In Contract #1, the Parties agree that there was work for which they verbally contracted.
Plaintiff was required to perform automobile mechanical work for Defendant and Defendant
would pay Plaintiff. Evidence was heard from both Parities about the contract, the
consideration of payment and the activities performed. The burden was on Plaintiff to prove
that there was a contract, which he has, that the breach of that contract caused him damage,
which he has, and to prove his damages to a reasonable degree, which he did not. As stated to
the Parties at the hearing, this Court must use facts and evidence as a basis for awarding money
damages. In this case, Plaintiff undoubtedly has proven that he put time and effort into the
contract and was not paid, but the evidence of damages presented, which was a list and some
receipts and a recitation of labor costs he may have charged another person, was not sufficient
to prove an exact amount of harm for which this court can base an award.
3
For Contract #1, because this Court has determined that Plaintiff has not proven his
damages by a preponderance of the evidence, Plaintiffs Contract #1 claim for $1,996.46 is
denied and judgment is found in favor of Defendant.
CONTRACT #2
The parties testified and agreed that they entered into a verbal contract for Plaintiff to
preform automotive mechanical work on Defendant's Dodge Ram. Evidence was given that the
parties agreed that the amount was for $800.00 and that Defendant paid $300.00 and had not
paid the remaining $500.00. There was no evidence that the work was not completed and the
amount of the award so a specific amount that the parties agreed was due and owing.
For Contract #2, Judgment is awarded to Plaintiff in the amount of $500.00.
DEFENDANT'S COUNTERCLAIM
Defendant counterclaims that Plaintiff owes Defendant $3,500.00 stemming from the
costs of parts, expenses and other offsets having a direct relation to their verbal agreements for
automotive mechanical repairs and a personal loan. Evidence was presented at the hearing that
$2,000 of the $3,500.00 was from a loan that had been paid, that $1,987.40 was for parts
purchased by Defendant. Also, that Defendant would like to be refunded $300.00 for the failure
to properly diagnose a 2005 one-ton vehicle and $285.00 for a torque converter not returned.
It is Defendant's burden to prove by a preponderance of the evidence that Plaintiff
breached his obligation under a contract, that that breach caused Defendant damages, and the
reasonable sum of the damages incurred.
4
On the matter of the $2,000.00 loan, evidence was presented by Plaintiff that that loan
was paid in full and there was not enough evidence presented by Defendant that the loan was
still due and payable.
On the claim for $300.00, this Court has already determined that the Contract #2 above
was found in favor of Plaintiff and Defendant will not be refunded his $300.00 as there existed a
contract, full performance by Plaintiff, and a failure to preform by Defendant.
On Defendant's counter claim for both the $285 and the $1,987.40, though plaintiff did
show this Court evidence of the amounts paid to vendors in retail, the amounts are not fair
market value amounts and the Court cannot do outside research, like for the torque converter,
to make up a value for a judgment. Further, evidence was presented and not controverted, that
the other parts, whether in the proper vehicle or otherwise, were returned to Defendant and
thus Defendant retains the value for those items.
Therefore, because this Court cannot make up or assume values, and the Defendant did
not have sufficient evidence of fair market value upon which this Court could reasonably rely,
Judgment on Defendant's Counterclaim is awarded to Plaintiff.
Therefore, IT IS HEREBY ORDERED that judgment is granted in favor of Plaintiff.
Defendant is Ordered to pay Plaintiff $500.00 and $34.00 costs of Court, totaling $534.00.
SO ORDERED this 16th day of April, 2018
Small Claims Hearing Officer Bryan C. Shaw, Esq.