Do you have a customer who refuses to pay you for the repairs you made to her car? Or maybe the roofer you hired didn't finish the work? These are just a couple of examples of the types of claims or disputes that are resolved by the Wisconsin small claims courts.
And, now that you're ready to file a small claims lawsuit, you need to know the mechanics of what to do and how to do it. In general, you have to have to know exactly who you're suing, have the right paperwork, and file the suit in the right court.
Where to File
You (you're called the "plaintiff") file a small claims case with the clerk of the appropriate circuit court. Generally, you need to file your lawsuit in the circuit court for the county where the defendant (the person you're suing) lives. However, you may file in the county where:
- The property is located, if you're suing to recover specific personal property, or if you're suing a tenant for unpaid rent or to evict him from the rental property
- Your claim "arose." For example, if you're suing to recover money for personal injuries you suffered in a car accident, you may sue in the county where the accident happened
- Where the customer lives, if your case involves a "consumer credit transaction," which is when personal property, like a household appliances or family car, is bought and sold under a lease or on a credit from the seller
If you're suing a corporation, it "lives" or resides in any county where it does business or has its main office. Also, if there's a written contract involved in the suit, like a lease or a sales agreement, it may tell you exactly where exactly any suit must be filed.
If you don't file the lawsuit in the right court, the defendant can ask the court to move the case to the proper county, or even that the case be dismissed, or "thrown out" of court. This can slow things down for you. So, if you're unsure about where to file your suit, contact the clerk's office for your area for some help.
Summons and Complaint
Lawsuits begin when the plaintiff files a "complaint." In the Wisconsin small claims courts, there's a special form called a "Summons and Complaint." The form is fairly straightforward, and some instructions are included. If you need additional help, the clerk can give you some assistance, but don't expect legal advice about your suit.
Basically, the Complaint tells the court and the defendant why you're filing suit; the Summons part tells the defendant when and where to show up or "appear" and "answer" or respond to your claim. A trial date will be scheduled after the defendant answers your complaint.
When filling out the form, you need to give information about your case in a clear and simple way. Print neatly and just give the facts about your claim. Specifically, you'll need to give:
- Your name, address and a telephone number where you can be contacted during the day
- The defendant's name and address
- The amount of money you want the defendant to pay, or a description of the specific property you want returned
- Reasons why the defendant owes you money or why the property you're suing for rightfully belongs to you
It's very important that you have the proper name and address of the party you're suing. If you're suing:
- A business that's not a corporation, like a sole proprietorship or "dba" (meaning "doing business as"), you should check the local telephone directory, or contact the office or agency that issues business or occupational licenses in the city or county where business is located. The business may be registered with Wisconsin's Department of Financial Institutions (DFI) or with the local Better Business Bureau (BBB). By checking these sources, you should be able to find the legal names and addresses for the business and its owner
- A corporation, you can get its exact name and address from the DFI. You'll also find the name of the company's "registered agent," which is the person who accepts important documents for the corporation
- A partnership, you should list the name of the partnership as well as the individual partners as defendants. Again, check with the business license agency, DFI and BBB to get their names and addresses
Get the right form! The Wisconsin small claims courts use different forms for:
- Consumer replevin actions. These are suits seeking the return or recovery of personal property that was leased from or sold on credit given by the seller, and which is used for personal, family or household purposes. A family car or a major appliance, like a refrigerator or washing machine, are good examples
- All other small claims actions, such as evictions and suits to recover money damages for injuries suffered in a car accident
When you file, you may request or "demand" a jury trial. However, the case will be taken out of the small claims court and moved to the regular circuit court, where it will be a much more expensive and complicated matter for both parties. Also, you have to pay an additional fee for a jury trial. The court clerk can tell you the current fee amount.
At the time you file your forms, you will need to pay a fee. In Wisconsin, the fee to file the Complaint and Summons is $22, but there are other costs, too. In total, you should expect to pay $85 to start your small claims case. These fees can change at any time, so be sure to ask the district court clerk about the fee.
Generally, if you win your case, the small claims court will order the defendant to pay your filing fee (called "court costs"). This will be in addition to any other money or "damages" the court awards you on your claim.
Service of Process
"Service of process" is when one party gives the other party notice that he's being sued. Generally, this is done by making sure that the defendant gets a copy of the Summons and Complaint you filed. You're responsible for making sure that the defendant is served. When you file your papers, the clerk will give you detailed instructions on how to do this. Generally, you may pay the clerk to have the papers mailed to the defendant. In eviction cases, though, you have to serve the defendant, which usually is done for fee by a process server or the local sheriff.
Make sure you have the right name and address! If the defendant isn't served properly your case can't go forward, and it may be dismissed, or "thrown out" of court, and you'll then have to start all over again. If you're suing a corporation, you need to serve its "registered agent." She's the person named by the corporation who's responsible for accepting important documents and papers on behalf of or for the corporation. If you're suing a sole proprietorship, you need to serve the business's owner or its registered agent, if it has one. If you're suing a partnership, try to serve all of the partners, but at the very least you need to serve the general or managing partner.
Once you've filed suit, the defendant can do any number of things, such as :
- Settle the claim, that is, simply agree with you and pay what he owes or turn over the property you sued for. If you settle before the trial, you should contact the clerk immediately so that the case can be removed from the court's schedule or "docket"
- Answer the suit. Depending on the local rules for the small claims where the case was filed, the defendant has to file a written statement explaining why you shouldn't win the case; or appear in court and explain it in person to the commissioner; or he must do both. If he files an answer, he must send a copy to you
- Default. If the defendant doesn't answer your complaint, or if he doesn't show up for trial at the time and place scheduled by the clerk, then he "defaults." This means you win automatically, so long as you can show the commissioner that he was properly served with your Summons and Complaint and that your claim against him is valid
- Counterclaim , or file a claim against you. The defendant has to pay a fee for filing it, it has to be filed with the small claims court and you have to be given a copy of it. If the counterclaim is for more than $5,000, the case will be taken out of the small claims court and moved to the regular circuit court
- Demand a jury trial
Questions for Your Attorney
- I filed a small claims suit against a dog owner, who lives on the next street over from me, because her dog bit me. She says that she never received "notice," but I know the complaint was mailed to the right address. What can I do now?
- How much will you charge to represent me in small claims court?
- The defendant I sued in small claims court said that I filed suit in the wrong district and the case was moved to another court. Do I have to file another Statement of Claim and Notice and pay another filing fee?