Ask the Judge:(Steve Walker) Suing the appropriate party
When suing someone in a small claims court, one of the biggest mistakes a plaintiff makes is suing the wrong party.
It is a common but sometimes honest mistake that many plaintiffs commit because they are so incensed at a perceived wrong they aren’t sure who to blame. So they sue multiple people.
In their confusion, frustration or anger, they lash out at the closest individual who might remotely be involved in the situation.
When they are informed by the judge that they sued the wrong person and have to amend or re-file their complaint, their frustration and anger increases. This in turn sometimes cause them to “lose it” in court and put themselves in the situation to be cited for contempt for inappropriate behavior that could land them in jail for up to 72 hours.
Unlike other offenses that end in incarceration, there is no posting bail for contempt of court. You will serve the full 72 hours before being released.
One example of suing the wrong party is a situation where a tenant files a complaint against a landlord for breach of contract for turning off the electricity, putting the tenant’s children in harm’s way.
Instead of naming the landlord or owner of the property, they file the complaint against the house/apartment manager or real estate agent representing the landlord. You sue the owner, not the employees of the owner. That lawsuit against them will be dismissed or “non-suited” on those individuals.
A second example is when a disgruntled homeowner sues the attorney representing their Homeowner’s Association for again perceived grievances against the homeowner. You sue the Homeowner’s Association, not the Association’s legal representation.
Lastly, if you buy a defective product at say a Target or Wal-Mart, you sue the manufacturer of the product, not Target or Wal-Mart who carries the product in their store.
If you choose not to amend the law suit you must pay an additional filing fee and record a new complaint on the proper defendant.
Knowing who to sue will make the process go much quicker for a better result. However, remember that you still must prove your case for why someone owes you money. The burden of proof rests on the plaintiff.
Lastly as always, if you are due in court, be sure to show up to court on time. It is in everyone’s best interest.
Justice of the Peace, Pct. 2 Steve Walker is a Vietnam Veteran and a former Journalist. This is the 11th column in the series.
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