General Comment

The only change in this article is to clarify the use of the judgment form and the appearance by attorneys.  No substantive changes have been made to the present law.

The Small Claims Procedure Act was amended by Chapter 145 (S.B. 97), 1999 Session Laws.  The provisions of the amendment were not included in this Article because it was originally drated before the amendments.  This discrepancy should probably be reconciled.

1.  Citation of Act.  This act shall be known and may be cited as, the small claims procedure act. 

Comment

This is the same as K.S.A. 61-2701.

2.  Application of Act; Correlation with Code of Civil Procedure for Limited Actions.  This act shall apply to and be an alternative procedure for the processing of small claims pursuant to the code of civil procedure for limited actions, and the provisions of this act shall be part of and supplemental to the code of civil procedure for limited actions, and any acts amendatory thereof or supplemental thereto.  Except as otherwise specifically provided or where a different or contrary provision is included in this act, the code of civil procedure for limited actions shall be applicable to the processing of small claims and judgments under this act.

Comment

This is the same as K.S.A. 61-2702.

3.  Definitions.  As used in this act:
(a)  "Small Claim" means a claim for the recovery of money or personal property, where the amount or the value of the property sought does not exceed $1800.00, exclusive of interest, costs and any damages awarded pursuant to K.S.A. 60-2610 and amendments thereto.  In actions of replevin, the petition fixing the value of the property shall be determinative of the value of the property for jurisdictional purposes.  A small claim shall not include:
(1) An assigned claim; 
(2) A claim based on an obligation or indebtedness allegedly owed to a person other than the plaintiff, where the plaintiff is not a full-time, salaried employee of the person to whom the obligation or indebtedness is allegedly owed; or 
(3) A claim obtained through subrogation.

(b) "Person" means an individual, partnership, corporation, fiduciary, joint venture, society, organization or other associations of persons.

Comment

This is the same as K.S.A. 61-2703.

4.  Commencement of Action; Fees and Costs; Limit on Number of Claims. 
(a) An action seeking the recovery of a small claim shall be considered to have been commenced at the time a statement of claim is filed with the clerk of the court if, within 90 days after the statement of claim is filed, service of process is obtained or the first publication is made for service by publication.  Otherwise, the action is deemed commenced at the time of service of process or first publication.  An entry of appearance shall have the same effect as service.
(b) Upon the filing of a plaintiff's small claim, the clerk of the court shall require from the plaintiff a docket fee of $19.50 if the claim does not exceed $500.00; or $39.50 if the claim exceeds $500.00; unless for good cause shown the judge waives the fee.  The docket fee shall be the only costs required in an action seeking recovery of a small claim.  No person may file more than 10 small claims under this act in the same court during any calendar year. 

Comment

This is the same as K.S.A. 61-2704.

5.  Pleadings.  It is the purpose of this act to provide and maintain simplicity of pleading, and the court shall supply the forms prescribed by this act to assist the party in preparing their pleading.  The only pleading required in an action commenced under this act shall be the statement of plaintiff's claim, which shall be denominated a petition, except a defendant who has a claim against the plaintiff, which arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim shall file a statement of the defendant's dispute and counterclaim if the claim does not exceed the amount specified in subsection (a) of section 3 of this article, and amendments thereto.  If the defendant's claim exceeds the amount specified in subsection (a) of section 3 of this article, and amendments thereto, the defendant may file a statement of the defendant's claim on the form prescribed by this act.  The court shall not have any jurisdiction under this act to hear or determine any claim by a defendant which does not arise out of the transaction or occurrence which is the subject matter of the plaintiff's claim.

Comment

This is essentially the same as K.S.A. 61-2705.

6.  Claims Exceeding Small Claims Jurisdiction.
(a) Whenever a plaintiff demands judgment beyond the scope of the small claims jurisdiction of the court, the court shall either:
(1) Dismiss the action without prejudice at the cost of the plaintiff;
(2) Allow the plaintiff to amend the plaintiff's pleading and service of process to bring the demand for judgment within the scope of the court's small claims jurisdiction and thereby waive the right to recover any excess, assessing the cost accrued to the plaintiff; or
(3) If the plaintiff's demand for judgment is within the scope of the court's general jurisdiction, allow the plaintiff to amend the plaintiff's pleading and service of process so as to commence an action in such court in compliance with article 2, section 2, and amendments thereto, assessing the costs accrued to the plaintiff.
(b) Whenever a defendant asserts a claim beyond the scope of the court's small claims jurisdiction, but within the scope of the court's general jurisdiction, the court may determine the validity of the defendant's entire claim.  If the court refuses to determine the entirety of any such claim, the court must allow the defendant to:
(1) Make no demand for judgment and reserve the right to pursue the defendant's entire claim in a court of competent jurisdiction;
(2) Make demands for judgment of the portion of the claim not exceeding $1800.00, plus interest, costs and any damages awarded pursuant to K.S.A. 60-2610 and amendments thereto and waive the right to recover any excess thereof; or
(3) Make demand for judgment of that portion of the claim not exceeding $1800.00, plus interest, costs and any damages awarded pursuant to K.S.A. 60-2610 and amendments thereto, and waive the right to recover any excess. 

Comment

This is the same as K.S.A. 61-2706.

7.  Trial of the Action; Exclusion of Attorneys; Enforcement of Judgment; Certain Judgments Null and Void. 
(a) The trial of all actions shall be by the court, and no party in any such action shall be represented by an attorney prior to judgment, except as provided in section 13.  Discovery methods or proceedings shall not be allowed nor shall the taking of depositions for any purpose be permitted.  No order of attachment of garnishment shall be issued in any action commenced under this act prior to judgment in such action. 
(b)(1) When entering judgment in the action, the judge shall include as part of the judgment form or order a requirement that, within 15 days of the date judgment is entered, unless judgment has been paid, the judgment creditor shall mail a copy of the judgment form or order to the judgment debtor together with a form for providing the information required to be submitted under this subsection, and that the judgment creditor shall file with the court proof of the mailing thereof. 
(2) The judgment form or order shall also include a requirement that unless the judgment has been paid, the judgment debtor shall submit to the clerk of the district court within 30 days after receipt of the form therefor, a verified statement describing the location and nature of property and assets which the person owns, including the person's place of employment, account numbers and names of financial institutions holding assets of such person and a description of all property owned by such person.  The office of judicial administration shall develop the form to be used in submitting information to the clerk under this subsection. 
(3) When the form containing the required information is submitted to the clerk as required by this subsection, the clerk shall note in the record of the proceedings that it was received and then shall mail the form to the judgment creditor.  No copy of such form shall be retained in the court records nor shall it be made available to other persons.  Upon motion of the judgment creditor, the court may punish for contempt any person failing to submit information as required by this subsection.
(c) In a judgment entered under this act on a claim which is not a small claim, as defined in section 3 of this article and amendments thereto, or which has been filed at the court in contravention of the limitation prescribed by section 4 of this article and amendments thereto on the number of claims which may be filed by any person, shall be void and unenforceable. 

Comment

The present law at K.S.A. 61-2707 on the use of the judgment form is not clearly written.  This section attempts to correct that.  Also current law (K.S.A. 61-2714) allows attorneys to represent parties in certain circumstances.  Section 13 below adopts this same provision.  The exception provided in Section 13 is noted in this section for clarity.

8.  Venue.  The venue of actions commenced under this act shall be as prescribed in article 7 of this chapter, except that the county in which the cause of action arose shall be proper venue only where it is affirmatively shown that the defendant was a resident of the county where the cause of action arose. 

Comment

This is essentially the same as K.S.A. 61-2709.

9.  Appeals.
(a) An appeal may be taken from any judgment under the small claims procedure act.  All appeals shall be by notice of appeal specifying the party or parties taking the appeal and the order, ruling, decision or judgment complaint of and shall be filed with the clerk of the district court within 10 days after entry of judgment.  All appeals shall be tried and determined de novo before a district judge, other than the judge from which the appeal is taken.  The provisions of K.S.A. 60-2001 and article 5, section 2 of this chapter, and amendments thereto, shall be applicable to actions appealed pursuant to this subsection.  The appealing party shall cause notice of the appeal to be served upon all other parties to the action in accordance with the provisions of K.S.A. 60-205 and amendments thereto.  An appeal shall be perfected upon the filing of the notice of appeal.  When the appeal is perfected, the clerk of the court or the judge from which the appeal is taken shall refer the case to the administrative judge for assignment in accordance with this section.  All proceedings for the enforcement of any judgment under the small claims procedure act shall be stayed during the time within which an appeal may be taken and during the pendency of an appeal, without the necessity of the appellant filing a supersedeas bond.  If the appellee is successful on an appeal pursuant to this subsection, the court shall award to the appellee, as part of the costs, reasonable attorney fees incurred by the appellee on appeal.
(b) Any order, ruling, decision or judgment rendered by a district judge on an appeal taken pursuant to subsection (a) may be appealed in the manner provided in Article 21 of Chapter 60 of the Kansas Statutes Annotated. 

Comment

This is the same as K.S.A. 61-2709.

10.  Costs, taxation.  The costs of any action commenced under this act shall be taxed against the parties as in other actions pursuant to the code of civil procedure for limited actions.

Comment

This is the same as K.S.A. 61-2710.

11.  Purpose of the Act; Powers of Court.  It is the purpose of this act to provide a forum to the speedy trial of small claims, and to this end, the court may make such orders or rulings, consistent with the provisions of this act, as are necessary to permit justice and fairly protect the parties. 

Comment

This is the same as K.S.A. 61-2712.

12.  Forms.  Forms shall be as set out in the Rules of Civil Procedure. 

Comment

Present law (K.S.A. 61-2713) sets forth the forms used in Small Claims.  This new section should probably be amended to make clear that the forms will be set forth in the supreme court rule to be adopted later.

13.  Use of Attorneys; Certification by Plaintiff of Compliance with the Act; Defense Related to Limit on Number of Claims. 
(a)  If any party in small claims litigation:
(1) Uses any person in a representative capacity or such person representing the party is an attorney or was formerly an attorney; or
(2) Is an attorney representing the attorney's self in a small claims action, 
then all other parties to such litigation shall be entitled to have an attorney appear on their behalf in such action.
(b) When appropriate, the court shall advise all parties of this right to hire counsel pursuant to this section and shall, if requested by any party, grant one reasonable continuance in such matter to afford a party an opportunity to secure representation of an attorney.
(c) The filing of a small claims action is a certification by the plaintiff that such plaintiff is complying with the provisions of the small claims procedures act, specifically with the provisions of section 4 of this article and amendments thereto, relating to the limited number of claims the person may file in the same court during any calendar year.
(d) Any defendant may raise as a defense to a small claims action the plaintiff has filed or caused to be filed more claims than allowed by the small claims act.  When such defense is raised, if the court finds the plaintiff to have filed more claims than allowed by law, the court shall dismiss the action with prejudice and such a finding shall be considered a violation of the unconscionable acts and practices section of the Kansas consumer protection act.  The defendant may file a collateral action under the Kansas consumer protection act. 
(e) As used in this section, "attorney" means persons licensed to practice law in Kansas or in any other state whether on active or inactive status, or persons otherwise qualified to take the Kansas bar examination and acting under the supervisory authority of a licensed attorney. 

Comment

This is the same as K.S.A. 61-2714.