Dustin Hunt Appellant And: Gary Faulkner First Respondent And: Cynthia Faulkner Second Respondent, 2023 NLSC 159

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Hunt v. Faulkner , 2023 NLSC 159 Date : December 13, 2023 Docket : 202101G3127 Between: Dustin Hunt Appellant And: Gary Faulkner First Respondent And: Cynthia Faulkner Second Respondent Before: Justice Garrett A. Handrigan Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: December 8, 2023

Summary: Dustin Hunt sued Gary Faulkner and Cynthia Faulkner in the Small Claims Court in damages for wrongfully receiving and withholding from him an F-350 truck and snow-plow. The Faulkner’s counterclaimed for damages they say that Mr. Hunt caused to another vehicle belonging to them, as well as a house at which their vehicle was parked. The Small Claims Court dismissed Mr. Hunt’s claim and allowed the Faulkner’s counterclaim and ordered Mr. Hunt to pay the Faulkner’s $1,840 in damages. Mr. Hunt appealed the decision of the Small Claims Court to this Court.

As to Mr. Hunt’s appeal, this Court found that the trial judge breached Mr. Hunt’s right to a fair trial when he failed to ensure that Mr. Hunt, who represented himself, understood that he could call a witness whom Mr. Hunt said was available on the day of trial and from whom Mr. Hunt wanted to hear. The Court ordered a new trial in the Small Claims Court on Mr. Hunt’s claim. As to the counterclaim, this Court confirmed the trial judge’s finding that Mr. Hunt was responsible for the damages to the Faulkners’ motor vehicle, based on Mr. Hunt’s acknowledgment that he did it.

The Court set aside the trial judge’s finding that Mr. Hunt was liable for the damages to the house because there was no evidence to support the trial judge’s conclusion on a balance of probabilities; so that the trial judge committed palpable and overriding error when he made that finding. The Court also declared that its finding as to damages to the house was res judicata and it will not be before the Small Claims Court at the new trial.

Appearances: Dustin Hunt Appearing on his own behalf Gary Faulkner Appearing on his own behalf Cynthia Faulkner Appearing on her own behalf Authorities Cited: CASES CONSIDERED: Aylward v. Terra Nova Motors Limited , 2023 NLSC 72 ; Giles v. Adams , 2015 NLTD(G) 149; Watterson v. Canadian EMU Co-Operative Inc. , 2016 ONSC 6744 ; Pintea v. Johns , 2017 SCC 23 REASONS FOR JUDGMENT Handrigan, J. : INTRODUCTION [ 1 ] In 2021, Dustin Hunt sued Gary Faulkner and Cynthia Faulkner in the Provincial Court of Newfoundland and Labrador, Small Claims Division. Mr.

Hunt said the Faulkners wrongfully acquired an F-350 XLT pickup truck from him, with a V-snow-plow attached to it. Mr. Hunt said the truck and plow are worth $18,112.00 and he asked for an order directing the Faulkners to pay that as damages. [ 2 ] The Faulkners denied that they owed Mr. Hunt anything for the truck and the plow. They said they paid him $6,500 cash for it and that he signed the vehicle over to them when they paid him the cash. As well, the Faulkners counterclaimed against Mr. Hunt for $1,840 in damages they say that Mr.

Hunt caused to a vehicle they owned and a house where the vehicle was parked at the time. [ 3 ] A Provincial Court Judge heard the claim and counterclaim in the Small Claims Court on May 3, 2021. He dismissed Mr. Hunt’s claim, he allowed the Faulkners’ counterclaim and then he ordered Mr. Hunt to pay the Faulkners for the damages to their vehicle and the house. Mr. Hunt appealed to this Court, claiming that the trial judge erred in his decision. THE ISSUES 1. What is the standard of review on this appeal? 2. Did the Small Claims Court err?

THE LAW Standard of Review [4] Khaladkar, J., of this Court, considered the standard of review for appeals from small claims judgments, recently in Aylward v.Terra Nova Motors Limited, 2023 NLSC 72, at paragraph 14: The appropriate standard of review was expressed in Housen v. Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235. In that case theSupreme Court of Canada instructed that a court of appeal should not interfere with a trial judge’s reasons unless there is palpable andoverriding error.

In other words, if there was some evidence upon which the trial judge could have come to a particular conclusion, theappellate court is enjoined from interfering with it. [5] Orsborn, J., then of this Court, also considered the standard for appellate review of small claims judgments in Giles v.

Adams,2015 NLTD(G) 149, in which he recommended that appellate judges should adapt the standard somewhat because of operationalconstraints within small claims courts: [25] Disposition of the appeal requires consideration of the extent to which, if any, appellate consideration of a decision in a civilmatter should vary with the level of the trial court.

In other words, should the standard of appellate review of a decision from SmallClaims Court differ from that of appellate review of a superior court decision? [26] My view is that, in some respects, the standard of appellate review must be modified to reflect the reality of the Small ClaimsCourt environment and the rules under which the proceedings are conducted. For example, the reception of evidence may be effectedmore informally; also, a greater amount of participation by the trial judge may be countenanced in order to ensure that the ‘story’ is told.

A more relaxed manner of proceeding is to be anticipated and indeed is reflected in the extract from the Small Claims Rules referred toearlier. [27] However, even though the procedural aspects of a small claims trial may tend to be informal, it is my view that such informalityand relaxation does not extend to the reasoning and decision-making processes of the trial judge. [28] A civil litigant in any level of court is entitled to expect that the judge will make a decision in accordance with law and legalprinciple. There are not separate levels or tiers of justice depending on the level of court.

To suggest otherwise would risk diminishingrespect for the Small Claims Court and its judiciary. [6] I agree with the learned justices that palpable and overriding error is the standard of review for errors of mixed fact and lawand I will apply that standard to those issues in this appeal; so that I will not interfere with the trial judge’s decision if I find evidence tosupport it.

I acknowledge some latitude for the trial judge in this matter because of the milieu from which the decision issues, but I willbe vigilant and attend to the details when reviewing his “reasoning and decision-making processes”. [7] However, Mr. Hunt, as will appear shortly, is also claiming that the trial judge denied him procedural fairness. That sameclaim was before the Ontario Divisional Court in Watterson v. Canadian EMU Co-Operative Inc., 2016 ONSC 6744.

There, Price, J., theappellate judge, noted that the Divisional Court held the Ontario Human Rights Tribunal “…to the standard of correctness on the issueof procedural fairness” (para.51). Thus, I will apply correctness to my review of the issues that Mr. Hunt say involve procedural fairness. [8] I turn now to analyze those issues, starting with the background to them. ANALYSIS Background [9] Mr. Hunt issued his statement of claim from the Small Claims Court on September 3, 2020. He claimed that he and Mr.Faulkner agreed to swap pickup trucks. He had an F-350 2010 truck in St.

John’s with a V-plow attached to it, and Mr. Faulkner had aKing Ranch F-250 truck in Little Catalina. This is how Mr. Hunt described their agreement in his statement of claim: “…Mr. Faulknercame to my residense (sic) and got my truck and plow and the agreement was that I would travell (sic) with him the next day to LittleCatalina to get the King Ranch truck Mr. Faulkner had out there for me to complete the trade”. [10] But Mr. Hunt said that Mr. Faulkner did not take him to Little Catalina the next day to pick up the truck as they had agreed on,but left St. John’s with Mr.

Hunt’s F-350 and the snow-plow, without him. Mr. Hunt says further that Mr. Faulkner dodged him for daysafter that by making excuses as to why he would not be able to transfer the F-250 truck to him. Eventually, Mr. Hunt says Mr. Faulknertold him that he was not giving the F-350 truck back to him and that Mr. Hunt could “call the police” about it if he wanted to.Apparently, Mr. Hunt did call the police but they declined to get involved, telling him after they spoke with Mr. Faulkner that “…it’s acourt matter”. [11] Mr.

Hunt said in his statement of claim that this all took place in May 2020 and he sued Mr. and Ms. Faulkner for $18,000 pluscourt costs, which he assigned between the truck and the plow, valuing the truck at $8,000 and the plow at $10,000. [12] Mr. and Ms. Faulkner denied Mr. Hunt’s claim. They simply disagree that they ever arranged with Mr. Hunt to swap truckswith him, and say they only ever agreed to buy Mr. Hunt’s truck and plow for $6,500. Furthermore, the Faulkner’s say they paid Mr.

Hunt $6,500 cash for the truck and he signed the registration for the F-350 on April 8, 2020, transferring ownership of the truck and plow to them and that ended the transaction. [ 13 ] In their Reply to Mr. Hunt’s statement of claim, the Faulkner’s said as much and then added a counterclaim against Mr. Hunt for $1,840. The Faulkner’s based their counterclaim on property damage they say Mr. Hunt caused to a house where they were staying on Mundy Pond Road in St. John’s and a vehicle they owned that was parked in the driveway of that property when Mr.

Hunt came there. [ 14 ] This is from the Faulkner’s Reply in support of their counterclaim: May 3, 2020, he [Mr. Hunt] came to my residence at Mundy Pd. Rd. in a mad rage, wants his truck back. I told him to call the cops if he wants, I wasn’t letting him take the truck that I bought for $6,500. He left and came back finding my buddy Jim working underneath his truck, then Dustin started hitting him with a plank with nails in it, until Jim crawled out on the other side. Then Dustin grabbed the cord of the grinder & was swinging it at Jim around the truck.

Dustin struck my buddy Jim, with the plank with nails, sticking out. Then beat the two mirrors off my Dodge Journey. That night we heard a loud bang. I jumped to see & seen a car takeoff up Mundy Pd. Rd. towards Columbus Drive.

I didn’t see anything until early the next morning, the bedroom window had a rock thrown through, putting a hole through my custom blind & then hitting the bathroom door, putting a hole in it. [ 15 ] The Faulkner’s provided estimates of the damages to the house and vehicle totaling $1,845, assigned between the house and vehicle for $1,500 and $345 respectively. [ 16 ] A Provincial Court Judge heard Mr. Hunt’s claim in Small Claims Court at the St. John’s Court Centre on May 3, 2021. He dismissed Mr.

Hunt’s claim and allowed the Faulkner’s counterclaim for $1,840, slightly less than the damages the Faulkner’s asked for despite the estimates they submitted totaling $1,845. This is the ratio of the trial judge’s decision: I accept the testimony of Mr. and Mrs. Faulkner. I don’t accept the testimony of Mr. Hunt, the plaintiff, about the sequence of things that took place. I believe that because of the bill of sale is powerful evidence to me, it’s written proof… That the money changed hands and that Mr. Hunt’s truck was indeed sold to the Faulkner’s for $6,500.

It hasn’t been established to the legal – the necessary legal requirements that there was any kind of arrangement to – so that the Faulkner’s truck would be exchanged for Mr. Hunt’s truck and plow. I find no evidence of that sufficient to meet the legal requirement. As regards to the counterclaim, I accept the testimony of the Faulkner’s that the damage was done to the Dodge Journey and…to the house – I’m going to dismiss the plaintiff’s claim and allow the defendants’ counterclaim in the amount of $1,840, plus costs. [ 17 ] Mr. Hunt filed his Notice of Appeal in this Court 10 days later, on May 13, 2021.

Aside from questioning the merits of the trial judge’s decision he also claimed that “…Judge did not give me a fair trial”. He elaborated: The trial judge did not let me present my full evidence, which if he had would have proven I Dustin Hunt gifted my common law parter (sic) Sandra Tremblett a ford f350 2010 back in July 1, 2019 and would have known that the vehicle’s registration that the defendants claim that I sold them this vehicle for $6,5000 on April 8, 2020 was false.

The Judge would not let witnesses in the court room to testify, which one of these witnesses was my common law parter (sic), the owner of this vehicle in question. [emphasis added] [ 18 ] Mr. Hunt also said that the Judge decided the Faulkner’s counterclaim “…without any Evidence/witnesses of the false accusations. Just took their word of mouth…didn’t even question me as to where my where abouts was the night the defendants claim I thrown (sic) a rock through their window. The Judge granted them their counter claim, for me to pay them $1,840 for damages for something I didn’t even do”. DISCUSSION [ 19 ] Mr.

Hunt says that the Small Claims Judge erred on two accounts: 1. He refused to allow Mr. Hunt to call a witness to testify about the ownership of the truck he was going trade to the Faulkner’s in exchange for their truck; and 2. He decided the counterclaim without evidence that Mr. Hunt damaged the Faulkner’s vehicle and the house where it was parked. Calling Witnesses [ 20 ] These segments from the transcript of the trial pertain: The Court: So, do you have any witnesses apart from yourself?

Mr. Hunt: I got a lot of witnesses, Your Honour. They’re out there by the door there now. (Page 1, lines 15-19) … The Court: Okay. Well, just go back to your seat there now. Now, you said that you had other people there. Mr. Hunt: Yes, Your Honour. I have all those people. The Court: What are they going to tell me? Mr. Hunt: They’re going to tell you…boy, I don’t know what they’re going to tell you. I never even talked to them. I didn’t want to say nothing to them. They’re doing it on the…on the fly. The Court: Okay. Well, have a seat back there. Mr. Hunt: But they’re going to tell the truth.

And they have witnesses – they witnessed everything, too. The Court: Okay. So, I’ll give…the plaintiff’s case is concluded. (Pages 12-13, lines 7-24, 1) [ 21 ] Neither Mr. Hunt nor the trial judge referred to the witnesses further in the trial. [ 22 ] In Watterson , supra , Price, J. of the Ontario Divisional Court heard an appeal from a decision in Small Claims Court.

He set out this background to the appeal in his judgment: At the trial, the plaintiff, Canadian EMU Co-Operative Inc., (“EMU”), was permitted to call witnesses without giving the defendants advance notice of its intention to do so, as was required by the Rules of Small Claims Court , O. Reg. 258/98 . The defendants, not having been notified before trial of EMU’s intention to call witnesses, had not summonsed witnesses of their own, or prepared to testify themselves, and did not object to the calling of the witnesses by EMU.

The trial judge did not inform the defendants of their right to object to EMU’s calling witnesses without delivering a witness list in advance or ask them if they required an adjournment for the purpose of preparing to cross-examine the witnesses.

At the conclusion of EMU’s evidence, the trial judge gave the defendants the opportunity to testify or call witnesses, but did not inform them of their right, in the circumstances, to request an adjournment for the purpose of preparing to testify or of calling witnesses in response. (Paragraphs 1 & 2) [ 23 ] The defendants, the Watterson’s, who represented themselves at trial, appealed to the Divisional Court asking for “procedural fairness” generally, but specifically as follows: They argue that the trial judge erred in law by failing to advise them of their right to object to EMU’s witnesses, and of their right to request an adjournment for the purpose of calling witnesses, or of preparing to testify themselves, in response to EMU’s witnesses.

Additionally, they argue that the trial judge erred in drawing an adverse inference from their failure to testify. (Paragraph 3) [ 24 ] Price, J. accepted their argument, noting that the appellants were denied “procedural fairness”. He allowed the appeal and then remitted the matter to the Small Claims Court for a new trial: The trial judge’s failure to assist Mr.

Watterson to overcome his obvious ignorance of the rules of evidence, by advising him that his Statement of Defence was not evidence, and to ask him whether, having regard to that advice, he wished to testify or call witnesses, resulted in procedural unfairness amounting to a substantial wrong and caused a miscarriage of justice. (Paragraph 55) [ 25 ] There are obvious differences between this case and the Watterson matter, but the overriding principle in both is the same: Parties in court have the right to a fair trial and trial judges must ensure that the proceedings are fair, particularly when the parties represent themselves. [ 26 ] In Pintea v.

Johns , 2017 SCC 23 , the Supreme Court of Canada noted that “…we endorse the Statement of Principles on Self- represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council” (para. 4). Under Heading “B. Promoting Equal Justice” of that publication, this Statement appears on the Council’s website, followed by the Principles that flow from it:

B. PROMOTING EQUAL JUSTICE STATEMENT: Judges, the courts and other participants in the justice system have a responsibility to promote access to the justice system for all persons on an equal basis, regardless of representation. PRINCIPLES: 1. Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons. 2. Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case. 3.

Where appropriate, a judge should consider engaging in such case management activities as are required to protect the rights and interests of self-represented persons. Such case management should begin as early in the court process as possible. 4. When one or both parties are proceeding without representation, non-prejudicial and engaged case and courtroom management may be needed to protect the litigants’ equal right to be heard. Depending on the circumstances and nature of the case, the presiding judge may: (

a) explain the process; (

b) inquire whether both parties understand the process and the procedure; (

c) make referrals to agencies able to assist the litigant in the preparation of the case; (

d) provide information about the law and evidentiary requirements; (

e) modify the traditional order of taking evidence; and (

f) question witnesses. [ 27 ] It would appear that all participants in the court system, including judges, have a responsibility to those who avail of it, to ensure, as far as possible, that they are treated fairly. [ 28 ] In this case, Mr. Hunt represented himself, as did Mr. and Ms. Faulkner. It is apparent from the pleadings that the parties filed and the transcript that Mr. Hunt provided to support his appeal, that none of them was particularly familiar with the process. Mr.

Hunt claims that the Faulkner’s wrongfully obtained his truck, and they refuse to give it up; and the Faulkner’s claim that they honoured their deal with Mr. Hunt, paid him the $6500 they agreed on as a price for it, he signed the vehicle over to them and that concluded the transaction. [ 29 ] Each side put its position as forcefully before the trial judge as possible. For Mr. Hunt that included his testimony and apparently, he intended to call a witness or witnesses who had attended court and were waiting outside the courtroom to be called. He said so to the trial judge (“I got a lot of witnesses, Your Honour.

They’re out there by the door there now.) early during his testimony when the judge inquired if he did (“So, do you have any witnesses apart from yourself?). [ 30 ] Mr. Hunt confirmed his intention to call witnesses towards the end of his testimony (“Yes, Your Honour. I have all those people.”) when the trial judge revisited the matter (“Now, you said that you had other people there.”). Something happened then and it is not apparent what, but shortly after that the trial judge said that Mr. Hunt had closed his case (“…the plaintiff’s case is concluded.). [ 31 ] Before the trial judge noted that Mr.

Hunt’s case was “concluded” he had an exchange with Mr. Hunt in which he questioned Mr. Hunt about “What are they [the witnesses] going to tell me?”. Mr. Hunt replied to the trial judge’s inquiry with some uncertainty, noting that he had not spoken to them but assured the trial judge “… they’re going to tell the truth.”. [ 32 ] Two possible explanations present for the trial judge declaring that Mr. Hunt had closed his case: the trial judge misunderstood Mr.

Hunt’s intention to call the witnesses, because he had not spoken to them and did not know what they would be saying; or the trial judge simply concluded what the witnesses might say would not help him decide the issues between the parties.

[ 33 ] Regardless of the reason why the trial judge declared Mr. Hunt to have closed his case, it is far from apparent to me that Mr. Hunt intended to close his case at that point. Twice he advised the trial judge that he wished to call witnesses and insisted that they were present and to use Mr. Hunt’s words “they witnessed everything, too”. [ 34 ] The trial judge should have gone farther and followed up with Mr. Hunt about calling his witnesses. When the trial judge did not do that, he failed to provide Mr. Hunt with the procedural fairness to which he was entitled in those circumstances.

That is an error that I may review on the standard of correctness, which I do. In the circumstances, the only appropriate remedy is to order a new trial in the Small Claims Court on Mr. Hunt’s claim, to be heard by another judge. Proof of Counterclaim [ 35 ] Cynthia Faulkner testified at trial. The trial judge asked her about the counterclaim in this exchange between them: The Court: Why are you claiming $1,840? Ms. Faulkner: Well, the 1840 is for the damages for the van. He beat two mirrors off. I got pictures there. The Court: Yes. Mr. Hunt: That three – three something was for the van.

The Court: Just a second now. Just a second. Mr. Hunt: Yeah. Ms. Faulkner: And the window in our rental house at Mundy Pond Road, that evening at – well, I’m not quite sure of the time, but what it was, my husband and his friend heard a bang. That was, like, in the evening after supper, in the night. And my husband heard a bang and when they got up and looked they seen Mr. Hunt’s car or his wife’s car, girlfriend’s car. I’m not sure whose car the name was in (sic). They seen her storming back up Mundy Pond Road towards Columbus Drive. So the next – he didn’t even bother to look until the next morning.

When they got up and went out through the door they noticed a rock was gone right through the front bedroom window. I got pictures in there of that. The rock went through the window, through the custom-made blind, in and struck a bathroom door that’s on the opposite side of the room from the window. Put a dent in the window and then bounced back onto the floor. So the other – rest of the money, the 1500 for the window. Five-and-a-half by four-and-a half window, custom blind inside the bathroom door and the installation. The van, we had her repaired.

The two mirrors put on, which were powered mirrors, we had put on for $340. The Court: So, you got receipts for all that? Ms. Faulkner: Yes, I do. Now, as to the custom blind – as of the window – the window is still not repaired. We are still – The Court: Okay. But that’s how much – that’s how much it would be. Ms. Faulkner: But we went and got – yes. The Court: The estimate, yeah. Ms. Faulkner: Yes. The Court: is there anything else you wanted to say about this? Ms. Faulkner: No, the only thing I can say is the guy who owns the house, the rental, he was outside waiting to see if he could come in as a witness .

And – The Court: What’s he going to say? Ms. Faulkner: Well, I don’t know but he’s just the owner of the house . The Court: He saw the damage; is that it? Ms. Faulkner: Yes, he did. Yes. Yeah. The Court: Okay. So, Mr. Hunt, now any questions for Ms. Faulkner about any of this – [emphasis added] [ 36 ] Gary Faulkner testified after his wife. The trial judge asked him about the damages to his vehicle and the house and this exchange followed: The Court: What about this incident with the rock through the window and the damage to the Dodge Journey? Mr.

Faulkner: He chased a buddy of mine around because he was looking at his truck to see what was wrong. Come up with a big plank, three nails in it and struck him (inaudible) side. Chased him around the swing and (inaudible). We got videos of that. And – The Court: This is your Dodge Journey, is it?

Mr. Faulkner: Yeah. The Court: That’s the – and then to replace the mirrors was $340. Mr. Faulkner: Yeah. The Court: What about the 1500 for the window, custom blind, inside bathroom door installation? Mr. Faulkner: That’s – well, we got estimate on that there now. That’s not done yet. The Court: Which is what your wife said. Mr. Faulkner: Yeah. [ 37 ] In the trial judge’s oral decision, he said this about the Faulkner’s counterclaim: The Court: As regards to the counterclaim, I accept the testimony of the Faulkner’s that the damage was done to the Dodge Journey and to – [ 38 ] Mr.

Hunt interrupted the trial judge with this comment: Mr. Hunt: I did that to the mirrors to the Dodge, Your Honour . [emphasis added] [ 39 ] The trial judge continued, with this further exchange with Mr. Hunt: The Court: - to the house, So – Mr. Hunt: Not to the house, though . The Court: - I’m going to dismiss the plaintiff’s claim and allow the defendant’s (sic) counterclaim in the amount of $1,840, plus costs. Thank you both. Thank you all very much for coming to court today. [emphasis added] [ 40 ] These exchanges between the trial judge, Ms. Faulkner, Mr. Faulkner and Mr.

Hunt, who were the only witnesses who testified at trial, are the only references to the damage to the Dodge Journey motor vehicle and to the house on Mundy Pond Road. As to the vehicle, Mr. Hunt acknowledged, in the comment I noted above, that he caused them. Therefore, the trial judge’s finding that he is liable for that damage is sustainable and that portion of the defendants’ counterclaim is supported by the evidence. [ 41 ] However, there was no admissible evidence before the trial judge on which he could find on a balance of probabilities that Mr. Hunt caused the damage to the house. Ms.

Faulkner was the only witness who addressed them directly and it is clear from her testimony that she had no personal knowledge of what she was saying and it was hearsay, whether she derived it from her husband or whoever her husband’s “friend” was. [ 42 ] Additionally, Ms. Faulkner made it clear that she was speaking from what she was told and not from what she saw, or of her own knowledge: “And my husband heard a bang and when they got up and looked they seen Mr. Hunt’s car or his wife’s car, girlfriend’s car. I’m not sure whose car the name was in (sic).

They seen her storming back up Mundy Pond Road towards Columbus Drive”. [ 43 ] Neither the trial judge nor Mr. Hunt questioned Mr. Faulkner about the damage to the house. In fact, it seems likely that the Faulkner’s do not even own the house but were just renting it. This exchange that Ms. Faulkner had with the trial judge pertains: Ms. Faulkner: No, the only thing I can say is the guy who owns the house, the rental, he was outside waiting to see if he could come in as a witness. And – The Court: What’s he going to say? Ms.

Faulkner: Well, I don’t know but he’s just the owner of the house. [emphasis added] [ 44 ] Of course, that witness, (“…he’s just the owner of the house”), who appears to have been available to testify, did not give evidence, either again in error or just from another oversight, much like the witness that Mr. Hunt had available, who also did not testify. [ 45 ] The most that the trial judge could say about the house is that it was damaged and Mr. Hunt may have done it; but it is, on the evidence that he heard during this trial, neither probable nor likely that Mr. Hunt damaged the house. He had only Ms.

Faulkner’s hearsay evidence as to who caused the damage to the house and even that testimony is ambivalent and unpersuasive. [ 46 ] I find on the evidence presented to him about the damage to the house that the trial judge committed palpable and overriding error when he found that Mr. Hunt caused it and I set aside his finding of mixed fact and law on that account. However, I affirm his finding that Mr. Hunt caused the damage to the Dodge Journey motor vehicle and find in favor of the defendants on their counterclaim for the damages Mr. Hunt caused to their vehicle for $340.

I also note that my finding as to the damages to the house is res judicata that issue and is not to be retried when the new trial I ordered for Mr. Hunt’s claim proceeds.

CONCLUSION [ 47 ] Dustin Hunt sued Gary Faulkner and Cynthia Faulkner in the Small Claims Court in damages for wrongfully receiving and withholding from him an F-350 truck and snow-plow. The Faulkner’s counterclaimed for damages they say that Mr. Hunt caused to another vehicle belonging to them, as well as a house at which their vehicle was parked. The Small Claims Court dismissed Mr. Hunt’s claim and allowed the Faulkner’s counterclaim and ordered Mr. Hunt to pay the Faulkner’s $1,840 in damages. Mr. Hunt appealed the decision of the Small Claims Court to this Court. [ 48 ] As to Mr.

Hunt’s appeal, this Court found that the trial judge breached Mr. Hunt’s right to a fair trial when he failed to ensure that Mr. Hunt, who represented himself, understood that he could call a witness whom Mr. Hunt said was available on the day of trial and from whom Mr. Hunt wanted to hear. The Court ordered a new trial in the Small Claims Court on Mr. Hunt’s claim. [ 49 ] As to the counterclaim, this Court confirmed the trial judge’s finding that Mr. Hunt was responsible for the damages to the Faulkner’s motor vehicle, based on Mr. Hunt’s acknowledgment that he did it.

The Court set aside the trial judge’s finding that Mr. Hunt was liable for the damages to the house because there was no evidence to support the trial judge’s conclusion on a balance of probabilities; so that the trial judge committed palpable and overriding error when he made that finding. The Court also declared that its finding as to damages to the house was res judicata and it will not be before the Small Claims Court at the new trial. [ 50 ] The parties, all of whom represented themselves, will bear their own costs. ORDER [ 51 ] In the result, I order that: 1. The judgment on Mr.

Hunt’s claim is set aside and the matter is remitted to the Small Claims Court for a new trial before a different judge. 2. The award for damages to the Dodge Journey motor vehicle from the counterclaim in the amount of $340 is affirmed. 3. The award for damages to the house from the counterclaim in the amount of $1,500 is set aside and that issue is res judicata so that it will not be part of the new trial in the Small Claims Court. 4. All parties will bear their own costs. _____________________________ Garrett A. Handrigan Justice