Suing Home Contractor for Construction Defects in Small Claims Court in Wisconsin

In a dispute with your home contractor that's worth $10,000 or less? Small claims court might be a good place to seek redress.

In home construction projects, it’s not uncommon to become embroiled in disputes with your contractor. These are often over relatively small amounts of money, perhaps a few thousand dollars; in which case hiring a lawyer may cost most than you expect to recover.  Wisconsin’s small claims courts  offer an efficient solution to this problem.

In small claims court, you can sue a contractor without an attorney, for money damages of $10,000 or less. This amount tends to cover a number of small-scale home repairs, such as bathroom remodeling, retiling, or painting work.

Should I Hire An Attorney for a Wisconsin Small Claims Case?

Unlike in some states, Wisconsin allows you to have an attorney represent you in small claims court. However, it is more common to represent yourself and indeed, the court is set up so that average citizens can fill out the forms without an attorney’s assistance. While disputes with home contractors can be extraordinarily frustrating, the dollar value is often too small to justify hiring an attorney for hundreds of dollars an hour.

That said, it might make sense to consult with an attorney briefly before appearing in court. The attorney might be able to give you a neutral assessment of your claim, and offer some pointers in drafting your lawsuit. This attorney need not be a construction law specialist. Also, the Wisconsin small claims court staff can provide general information, but will not provide you with legal advice.

Settling Before Court: Negotiation and Mediation

The mere fact that you  can  go to court doesn’t necessarily mean that you  should. Before you march off to see a judge, consider negotiation and mediation.

Negotiation simply means that you attempt to discuss the situation with your contractor. If you can come to a mutually acceptable arrangement without proceeding to court, you will both save time and money.

Remind the contractor what was promised, and inquire as to the problem – are materials more expensive than originally thought? Is the job more complex? What would the contractor need in order to complete the project as originally intended? Perhaps you can compromise.

Demand letters  are another effective strategy to jumpstart communication with your home contractor. Businesses often take letters more gravely than an oral complaint, particularly if you note that you are “reserving all legal rights should a resolution not be worked out.”

Letters serve another useful purpose: They can later be used as evidence that you did your best to avoid going to court, and gave your contractor a reasonable chance to fix the error, or refund your money, rather than burden the court system. (This will carry weight in court -- judges don't favor people who rush to litigation.) They also offer a useful way in which to summarize the facts and chronology of the dispute.

Finally, consider mediation. Wisconsin is a leader in  court-annexed mediation programs and alternative dispute resolution. By filing your lawsuit, the court will encourage you to use no-cost mediators. These are trained individuals, typically attorneys, who will sit down with you and your contractor to attempt to work out a settlement. These settlements can be more creative than the result from a trial, in the the judge is ordinarily limited to awarding (or not award) money to the plaintiff. In mediation, you could devise an agreement where, for example, your contractor agrees to provide certain additional materials and services.

Filing Procedure in Wisconsin Small Claims Court

If negotiation and mediation fail, you may need to proceed to litigation. One of the first factors to consider is the statute of limitations; these statutes limit the amount of time a plaintiff has to file a claim. The most common legal causes of action against a contractor are breach of contract (“He said he would put new pipes in my sink, and instead he removed all of the pipes!”) and property damage (“He caused a huge hole in the floor in my kitchen!”). Wisconsin has a six-year limit under  Wis. Stat. Ann. § 893.43  for breach of contract as well as a six-year limit underWis. Stat. Ann. § 893.52  for property damage.

Be mindful to file within this six-year parameter. Many homeowners make the mistake of waiting to sue until they need money; it might be too late by then.

After that consideration, you’ll need to go through the full filing procedure. The Wisconsin Court System’s website offers a  useful checklist. First, you must sue the defendant contractor either in the county court where its offices are located, or where the event that is the basis for the lawsuit occurred – in other words, your home, where the contractor was supposed to do the work. Most plaintiffs prefer to sue in their home county, since this is more convenient and provides a certain degree of “home court advantage.”

The county clerk will charge fees when you file your lawsuit. These are subject to change, but as of 2015 are generally about $140. You can view Wisconsin’s  fee schedule here. Note that you will need to pay additional fees if you want to subpoena witnesses, or sue additional defendants (such as subcontractors).

Next, you’ll file a  Summons and Complaint  with the clerk. You can fill out that form in person or download it and bring the completed version to court. (A typed version will look more professional and will be easier for the judge to read). You’ll need to provide names, addresses, and phone numbers for both yourself and the defendant contractor (or his business entity name). You’ll then need to describe your claim. Finally, you’ll indicate the amount of money you believe you are owed. Don’t exaggerate the amount of damage claimed, since judges will require you to prove the full extent of those damages.

Many plaintiffs make the mistake of filling their complaints with legalese and Internet research. This is a mistake. Rather, judges will be more convinced by the facts of your case. It is their role to know the details of the law.

Once this paperwork is filed, the clerk will send a copy to the contractor along with a notice to appear in court on a specified date. That will be the date when you each orally present your case to a judge. You must file with the courtan affidavit of service, proving that the defendant was served. He will also have an opportunity to send an  Answerto the court before the trial, which is similar to the Statement you wrote, except from the contractor's perspective. He will likely deny, or recharacterize, the story that you’ve written.

Preparing to Meet Your Wisconsin Judge

You should come to court knowing your case backwards and forwards – the date of every email, the amount of every invoice, and the day-to-day events that resulted in the breakdown of your relationship with your contractor.

Practice what you will say in your one to two minutes when speaking to the judge by rehearsing in front of a friend or family member. Keep it simple, like a story. Remember, judges have large caseloads and see dozens of litigants every single day. Avoid irrelevant facts or speculation about things like the contractor's motives.

You should also bring physical evidence to court. In home-improvement litigation with a contractor, the most important evidence normally includes: 1) Any written contracts between you and the contractor outlining the work he promised to perform, the timeline for performance, and the payment agreed upon; 2) Any proof of payments from you to the contractor, showing how much money you’ve already paid; 3) Any emails, letters, or other correspondence you’ve sent to the contractor outlining your dispute; 4) Photographs of your home before and after the construction work, especially photos that show shoddy or inadequate workmanship.

In some circumstances, you might also bring witnesses with you to court to describe elements of the story to the judge.

Enforcing a Wisconsin Small Claims Judgment

“Winning” for you could mean that the judge awards you 100% of the damages you asked for, or it could mean that he or she awards you a portion of those damages. Either way, you’ll receive a judgment, which is essentially an order that the defendant contractor pay what the judge determined you are owed.

Typically, business owners pay judgments in short order, partly because they fear negative relationships with banks and lenders, and bad press in the community. However, your contractor might not be so forthcoming.

If the contractor fails to pay you, you’ll need to return to court and fill out more paperwork, called a  Motion and Order for Hearing on Contempt. This will allow you to “attach” (i.e. collect upon) assets held by the contractor in bank accounts, to the extent that the contractor has any. Note that you will need to hire a private collection agency for this process. You will need to make a financial decision about whether the money is worth pursuing, if your court judgment is for a relatively low amount.

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