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Legal Notes Blog > August 2017

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 By: Attorney Jennifer Anderson

After a hearing in small claims court before a court commissioner, either party has an absolute right to appeal the case to the presiding judge.  Section 799.20, Wis. Stats., entitled Proceedings Before Circuit Court Commissioner, sets forth the procedure required for a party who wishes to file a Demand for Trial following a small claims hearing before a court commissioner:

(2) The circuit court commissioner's decision shall become a judgment 11 days after rendering, if oral, and 16 days after mailing, if written, except that:
      (a) Default judgments will have immediate effect.
      (b) Either party may file a demand for trial within 10 days from the date of an oral decision or 15 days from the date of mailing of a written decision to prevent the entry of the judgment.

(3) (a) There is an absolute right to have the matter heard before the court if the requirements of this section are complied with.  
    (b) The circuit court commissioner shall give each of the parties a form and instructions which shall be used for giving notice of an election to have the matter heard by the court.  
    (c) The demand for trial must be filed with the court and mailed to the other parties within 10 days from the date of an oral decision or 15 days from the date of mailing of a written decision. Mailing of the notice and proof of such mailing is the responsibility of the party seeking review.  
    (d) Notice of a demand for trial may also be given in writing and filed by either of the parties at the time of an oral decision.

(4) Following the timely filing of a demand for trial, the court shall mail a trial date to all of the parties.

(5) A timely filing of a demand for trial shall result in a new trial before the court on all issues between the parties.

The statute specifically requires the Demand for Trial to be filed within 10 days from the date of the court commissioner’s oral decision or 15 days from the date of a written decision and the instructions on the forms provided by the court very clearly indicate this fact.  Failure to strictly comply with the statutory requirements will waive a party’s right to a trial before the judge.  The statute does not provide for judicial discretion or permit enlarging the time period before judgment is entered if the proper documents are not filed with the court and sent to the opposing party within the required time period.  

In a recent case handled by our office, the defendant filed a Demand for Jury form within 10 days of the date of the court commissioner’s oral decision, but failed to file a Demand for Trial within the required time period.  Because the defendant did not comply with the statutory requirements that would entitle her to a trial before the judge, our office filed a Motion to Enter Judgment on the commissioner’s ruling.  The judge agreed that the ruling the commissioner made at the hearing must stand.  The court determined that the filing of the Demand for Jury alone is insufficient without the Demand for Trial and did not meet the statutory requirements to permit the defendant an opportunity for a de novo review.  

In another case, our office was successful in obtaining a judgment against a company 11 days after the commissioner-level hearing.  Thereafter, the company’s attorney filed a motion arguing, essentially, that the time to file a request for de novo review should be extended under Wis. Stat. §806.07(1)(a) based upon excusable neglect.  However, pursuant to Wis. Stat. §799.01, Wis. Stat. §806.07 does not apply, as the procedure set forth in Chapter 799 is the exclusive procedure to be used in small claims matters (with limited exceptions not applicable for purposes of this article) and, therefore, an “excusable neglect” analysis does not apply.  The demand “must” be filed within 10 days if the decision is oral or 15 days if the decision is written and, if not, the court’s decision “shall” become a judgment.  Wis. Stat. §799.207(3) and (2).  Therefore, the company’s motion was denied and the judgment was upheld.

After a small claims hearing, either party has an absolute right to a de novo review.  However, if the statutory requirements are not strictly complied with, this right will be lost and, once the time for filing has expired, it is gone forever.
Posted: 8/8/2017 3:03:32 PM by Tom Connor | with 0 comments