Chapter 779

779.15 Annotation In a complaint seeking to foreclose a construction lien on a municipal arena, an allegation that the lessee of the arena was acting as the city’s agent in contracting for improvements to the arena was sufficient to withstand a demurrer. James W. Thomas Construction Co. v. City of Madison, 79 Wis. 2d 345, 255 N.W.2d 551 (1977).

779.155 779.155 Judgment creditors, attachment of funds due to public contractors.

779.155(1) (1) Limitations. This section does not apply to cases covered by s. 812.42. Demands covered by s. 779.15 have priority over judgments filed under this section. The remedies afforded by s. 779.15 and by this section are complementary.

779.155(2) (2) Certified copies of judgments filed. In this section, “municipality” includes city, village, county, town, school district, technical college district and any quasi municipal corporation. When the state or any municipality is indebted to any prime contractor, the owner of a judgment against the prime contractor may attach the debt by filing a certified copy of his or her judgment in the manner and subject to the conditions and limitations of this section. If the debt is owed by the state upon a contract for public improvements, the certified copy shall be filed with the officer, board, department or commission having jurisdiction over the work. Otherwise, the copy shall be filed with the department of administration. If the debt is owed by a municipality, the copy shall be filed with the municipal clerk or corresponding officer. The judgment creditor shall promptly notify the judgment debtor of the filing, within the time and as provided by s. 812.07 for service upon the defendant.

779.155(3) (3) Payment to judgment creditor; exception. Except as to prime contractors on public works, the proper officers of the state or municipality shall pay the judgment out of moneys due the prime contractor or which become due the prime contractor, but no payment shall be made until 30 days after the creditor has filed with such officers proof that the contractor had been notified of the filing of a copy of the judgment against the contractor.

779.155(4) (4) Same; funds due public prime contractors. When the state or a municipality is indebted to a prime contractor for public improvements, payment shall not be made to the judgment creditor until 3 months after final completion and acceptance of the public work and then only out of moneys due the prime contractor in excess of unpaid lienable claims having priority under s. 779.15.

779.155(5) (5) Adjustment of lien claims.

779.155(5)(a) (a) For the purpose of administering this section, sworn statements of the prime contractor setting forth the unpaid lien claims that have been or may be filed under s. 779.15 may be accepted by the proper officer, board, department, or commission, unless the judgment creditor or other interested person gives written notice that an action is pending to determine whether specified lien claims were incurred in performing the public work and the amount thereof, or to determine priorities in which event payments shall await the result of the action.

779.155(5)(b) (b) Within 10 days after filing the certified copy of the judgment under sub. (2), the prime contractor shall file the sworn statement in duplicate, with the proper officer, board, department or commission, who shall immediately furnish the judgment creditor with one of the statements. The judgment creditor shall have 10 days from the receipt thereof in which to serve the notice of pendency of the court action.

779.155(6) (6) Payments to judgment creditor. After the expiration of the 3-month period, the moneys due the prime contractor in excess of unpaid lienable expenses and claims incurred in performing the public work shall be paid to the judgment creditor, but not exceeding the amount due on the judgment.

779.155(7) (7) Priority of judgments over assignments. Any judgment filed under this section has priority over an assignment made by the prime contractor after the commencement of the action in which the judgment was obtained.

779.155 History History: 1971 c. 154; Sup. Ct. Order, 67 Wis. 2d 585, 775 (1975); 1975 c. 218; 1979 c. 32 ss. 57, 92 (9); 1979 c. 176; Stats. 1979 s. 779.155; 1993 a. 80, 399, 486; 1999 a. 185; 2001 a. 38; 2005 a. 204.

779.16 779.16 Theft by contractors. All moneys, bonds or warrants paid or to become due to any prime contractor or subcontractor for public improvements are a trust fund only in the hands of the prime contractor or subcontractor to the amount of all claims due or to become due or owing from the prime contractor or subcontractor for labor, services, materials, plans, and specifications performed, furnished, or procured for the improvements, until all the claims have been paid, and shall not be a trust fund in the hands of any other person. The use of any such moneys by any prime contractor or subcontractor for any other purpose until all claims, except those which are the subject of a bona fide dispute and then only to the extent of the amount actually in dispute, have been paid in full or proportionally in cases of a deficiency, is theft by the prime contractor or subcontractor of moneys so misappropriated and is punishable under s. 943.20. If the prime contractor or subcontractor is a corporation, limited liability company, or other legal entity other than a sole proprietorship, such misappropriation also shall be deemed theft by any officers, directors, members, partners, or agents responsible for the misappropriation. Any of such misappropriated moneys which have been received as salary, dividend, loan repayment, capital distribution or otherwise by any shareholder, member, or partner not responsible for the misappropriation shall be a civil liability of that person and may be recovered and restored to the trust fund specified in this subsection by action brought by any interested party for that purpose. Except as provided in this subsection, this section shall not create a civil cause of action against any person other than the prime contractor or subcontractor to whom such moneys are paid or become due. Until all claims are paid in full, have matured by notice and filing or have expired, such money, bonds and warrants shall not be subject to garnishment, execution, levy or attachment.

779.16 History History: 1973 c. 231; 1975 c. 409; 1979 c. 32 s. 57; Stats. 1979 s. 779.16; 2005 a. 204.

779.16 Annotation A fiduciary relationship exists between a prime contractor and subcontractor when the prime contractor has received payment for a public improvement. Loehrke v. Wanta Builders, Inc., 151 Wis. 2d 695, 445 N.W.2d 717 (Ct. App. 1989).

779.16 Annotation In this case, the court’s determination that the subcontractor did not prove its theft-by-contractor claim because the prime contractor was “solvent and always able to pay” was incorrect as a matter of law when the evidence unquestionably showed that the prime contractor retained and used the money it owed to the subcontractor to support the prime contractor’s general account for payment of its own business obligations. The fact that the prime contractor, almost a year after it refused the subcontractor’s first demand for payment and after the subcontractor’s second demand, placed the entire contract amount into the trust account of the prime contractor’s attorney amounted to little more than a continued refusal to pay the amount owed. Century Fence Co. v. American Sewer Services, Inc., 2021 WI App 75, 399 Wis. 2d 742, 967 N.W.2d 32, 19-2432.

779.16 Annotation In this case, when the subcontractor undisputedly completed the job as the contract required, a question about how much work was necessary to complete the job was irrelevant to the question of what was owed to the subcontractor under the contract. The prime contractor had no legitimate ground for withholding payment simply because it, after-the-fact, may have regretted not negotiating the contract differently. There was no “bona fide” dispute. Century Fence Co. v. American Sewer Services, Inc., 2021 WI App 75, 399 Wis. 2d 742, 967 N.W.2d 32, 19-2432.

779.16 Annotation A prime contractor cannot cure its theft once the crime is completed. Century Fence Co. v. American Sewer Services, Inc., 2021 WI App 75, 399 Wis. 2d 742, 967 N.W.2d 32, 19-2432.

779.16 Annotation Misappropriation of funds under this section was a nondischargeable debt in bankruptcy. In re Thomas, 729 F.2d 502 (1984).

779.17 779.17 Release of funds on filing bond. At any time after the service of a notice of lien claim or filing of judgment or pending the determination of any action commenced thereunder, the prime contractor shall be entitled to the release of any moneys due the prime contractor under the contract upon filing a bond, executed by a surety company duly authorized to transact business in this state, with the public authority having jurisdiction over the work, guaranteeing that the prime contractor will pay any judgment of the court rendered in favor of the lien claimant and all judgments filed. Such bond shall be in an amount sufficient to insure payment of the lien claims and judgments, and shall be approved as to form and amount by the public authority.

779.17 History History: 1979 c. 32 s. 57; 1979 c. 176; Stats. 1979 s. 779.17; 2005 a. 204.

subch. II of ch. 779 SUBCHAPTER II

OTHER LIENS

779.18 779.18 Log liens; priority.

779.18(1) (1) Any person who, personally or by a beast or machine or vehicle, performs any services in cutting, hauling, running, felling, piling, driving, rafting, booming, cribbing, towing, sawing, peeling, kiln drying or manufacturing logs, timber, stave bolts, heading staves, pulp wood, cordwood, firewood, railroad ties, piling, telegraph poles, telephone poles, fence posts, paving timber, tan or other barks or in preparing wood for or manufacturing charcoal shall have a lien upon the material for the amount owing for the services, which shall take precedence of all other claims, liens or encumbrances thereon or sales thereof.

779.18(2) (2) The right of lien given by this section survives any change in the property through manufacture and the lienor has a lien upon the manufactured product as though the services had been performed directly thereon.

779.18 History History: 1979 c. 32 s. 57; 1979 c. 176; Stats. 1979 s. 779.18; 1981 c. 370.

779.19 779.19 Petition for log lien; filing same. No demand for the services may become a lien unless a petition therefor is signed and verified by the claimant or by someone in the claimant’s behalf setting forth the nature of the demand, the amount claimed, a description of the property upon which the lien is claimed and that the petitioner claims a lien thereon. The petition shall be filed in the office of the clerk of the circuit court of the county in which the services or some part thereof were performed within 3 months after the last day of performing continuous services, and the services shall be deemed continuous notwithstanding a change of ownership in the property on which the lien is claimed. The clerk shall receive the fee prescribed in s. 814.61 (5) for filing the petition.

779.19 History History: 1979 c. 32 s. 57; 1979 c. 176; Stats. 1979 s. 779.19; 1981 c. 317.

779.20 779.20 Action to enforce log lien; parties; costs; change of venue.

779.20(1) (1) An action to enforce any lien under s. 779.18 may be brought in the circuit court of the county where the petition is filed. This claim shall cease to be a lien unless an action to foreclose it is commenced within 4 months after filing the petition. If the claim is not due at the time of filing the petition the time when the claim will become due shall be stated in the petition, and in this case the claim shall not cease to be a lien until 30 days after the claim has become due and until 4 months after the filing of the petition.

779.20(2) (2) Where the property subject to such lien has been taken from the county where such work was done the lienor may bring an action to foreclose the lien in any county where said property may be found. In all foreclosure actions the person liable for such claim shall be made defendant and any other person claiming to own or have any interest in such property may be made a defendant, but shall not be liable for costs unless defending the action. In actions appealed from municipal court no change of venue shall be allowed except for prejudice of the judge or of the people.

779.20 History History: 1977 c. 449; 1979 c. 32 ss. 57, 92 (9); 1979 c. 176; Stats. 1979 s. 779.20.

779.21 779.21 Attachment, affidavit for; undertaking; service of writ.

779.21(1) (1) The plaintiff in this action may have remedy by attachment of the property upon which the lien is claimed as in personal actions; this attachment may be issued, served and returned and like proceedings had thereon including the release of any attached property as in personal actions. The affidavit for the attachment must state that the defendant who is personally liable is indebted to the plaintiff in the sum named, above all setoffs, for services which entitle the plaintiff to a lien, describe the property on which it is claimed that the services were performed and that the plaintiff has filed the petition for a lien pursuant to law. No other fact need be stated. No order may be made by any court or any judge thereof requiring an undertaking or security for costs except upon 10 days’ notice to the plaintiff.

779.21(2) (2) The writ of attachment shall direct the officer to attach the property described or so much thereof as shall be necessary to satisfy the sum claimed to be due and to hold the same subject to further proceedings in the action. The officer shall make return but it shall not be necessary for the officer to make an inventory or appraisal of the property attached; the officer shall pay any charges that may be due for booming or driving the property attached, and the amount paid shall be taxed as costs. Where personal service of the summons and writ of attachment cannot be made service shall be made as provided for service of summons on nonresidents or persons who cannot be found as in other actions.

779.21 History History: 1977 c. 449; 1979 c. 32 s. 57; 1979 c. 176; Stats. 1979 s. 779.21.

779.24 779.24 Lien for camp supplies. All persons furnishing supplies necessary for the performing of the labor and services upon any property mentioned in s. 779.18, at the request of the person engaging such labor or services, shall have the right of lien therefor and may enforce the same by action as herein provided for the enforcement of liens upon logs and timber.

779.24 History History: 1979 c. 32 ss. 57, 92 (9); Stats. 1979 s. 779.24.

779.25 779.25 Lien for joint log driving. When logs or timber of different owners are so intermixed that they cannot be conveniently separated for driving and either owner neglects to make the necessary provision for driving them any other owner may drive all such logs or timber to the destination and shall receive reasonable compensation for driving the logs of the owner so neglecting and shall have a lien for such compensation and may enforce the same as provided for the enforcement of liens upon logs or timber.

779.25 History History: 1979 c. 32 s. 57; Stats. 1979 s. 779.25.

779.26 779.26 Lien of improvement companies. Every company whose charter authorizes it to collect tolls on logs, lumber or timber shall have a lien thereon, with the remedies herein given to enforce liens for labor and services in respect to logs or timber.

779.26 History History: 1979 c. 32 s. 57; Stats. 1979 s. 779.26.

779.28 779.28 Execution. In actions to enforce liens on property mentioned in s. 779.18 the execution, in addition to the directions of ordinary executions upon judgments for money, shall direct that the property upon which a lien is found to exist or so much thereof as may be necessary for such purpose be sold to satisfy the judgment.

779.28 History History: 1979 c. 32 ss. 57, 92 (9); Stats. 1979 s. 779.28.

779.29 779.29 Intervention. In an action for the enforcement of a lien upon property under s. 779.18 a person not a party may, at any time before sale of the property upon which a lien is claimed, become a party defendant by filing with the clerk of the court where the action is pending an affidavit made in behalf of or by the person that the person is the owner of or of some interest in the property upon which a lien is claimed and believes that the claim for lien is invalid. Upon filing this affidavit the person may defend this action so far as a claim for a lien is concerned. If judgment has been previously rendered for a lien, the person may move the court for relief from the judgment within 20 days after the filing of the affidavit. The right to file an affidavit shall not extend beyond one year from the rendition of the judgment.

779.29 History History: 1979 c. 32 ss. 57, 92 (9); 1979 c. 176; Stats. 1979 s. 779.29; 1983 a. 219.

779.29 Note Judicial Council Note, 1983: This section is amended by repealing an appeal procedure and substituting the right to move the trial court for relief from its judgment. [Bill 151-S]

779.30 779.30 Undertaking by intervenor; procedure. The filing of an affidavit under s. 779.29 shall not stay execution unless the intervenor files an undertaking, with 2 or more sureties, who shall each justify in a sum equal to double the amount of the judgment, conditioned that if the plaintiff establishes the right to a lien on the property they will pay the amount of judgment in the plaintiff’s favor with costs; the undertaking shall be approved by the judge of the court; and upon filing it all proceedings upon the judgment shall be stayed during the pendency of the proceedings. If execution has been previously issued the same shall, upon presenting to the officer in whose custody it may be a certified copy of the affidavit and undertaking, be returned, and all property in which the intervenor claims an interest that may have been levied upon shall be released from the levy. If upon the trial the plaintiff recovers judgment of lien upon this property the judgment may be entered against the intervenor and sureties; but if the plaintiff does not establish the right to a lien the intervenor shall recover judgment for costs.

779.30 History History: 1979 c. 32 ss. 57, 92 (9); 1979 c. 176; Stats. 1979 s. 779.30; 1983 a. 219.

779.31 779.31 Cook’s lien. The person who prepares or serves the food for persons while they are performing lienable services upon any property mentioned in s. 779.18, at the request of their employer shall have the right of lien therefor the same as those persons.

779.31 History History: 1975 c. 94 s. 91 (9); 1979 c. 32 ss. 57, 92 (9); Stats. 1979 s. 779.31.

779.32 779.32 Commission liens.

779.32(1) (1) Definitions. In this section:

779.32(1)(a) (a) “Broker” means a real estate broker licensed under ch. 452.

779.32(1)(b) (b) “Commercial real estate” means any real property other than any of the following:

779.32(1)(b)1. 1. Real property containing 8 or fewer dwelling units.

779.32(1)(b)2. 2. Real property that is zoned for residential purposes and that does not contain any buildings or structures.

779.32(1)(b)3. 3. Real property that is zoned for agricultural purposes.

779.32(1)(c) (c) “Financial institution” has the meaning given in s. 214.01 (1) (jn).

779.32(1)(d) (d) “Tenant representation agreement” means an agency agreement between a broker and a person that grants the broker the right to represent the person in the lease of commercial real estate.

779.32(2) (2) Lien. If a broker complies with the notice requirements under sub. (3) and perfects the lien under sub. (4), all of the following apply:

779.32(2)(a) (a) If the broker has earned a commission under a written commercial real estate listing contract, the broker has a lien for the unpaid amount of the commission against the commercial real estate, or the interest in commercial real estate, that is listed with the broker under the contract.

779.32(2)(b) (b) If the broker has earned a commission under a written commercial real estate buyer agency agreement or tenant representation agreement, the broker has a lien for the unpaid amount of the commission against the commercial real estate, or the interest in commercial real estate, that is acquired as a result of the agreement.

779.32(2)(c) (c) If the broker has earned compensation from the owner or landlord under a written agreement for the lease or management of commercial real estate or under a tenant representation agreement, the broker has a lien for the unpaid amount of the compensation against the commercial real estate for which the leasing or management services were provided under the agreement.

779.32(2m) (2m) Notice of lien rights.

779.32(2m)(a) (a) To claim a lien under sub. (2), the broker shall notify the person who owes the commission or compensation described in sub. (2) (a), (b), or (c) in writing of the right to claim a lien under this section. A broker shall include the notice required under this subsection in the commercial real estate listing contract, commercial real estate buyer agreement, tenant representation agreement, or written agreement for the lease or management of commercial real estate.

779.32(2m)(b) (b) The notice required under this subsection shall be in substantially the following form:

NOTICE: A broker has the authority under section 779.32 of the Wisconsin Statutes to file a broker lien for commissions or compensation earned but not paid when due against the commercial real estate, or the interest in the commercial real estate, that is the subject of this agreement.

779.32(3) (3) Notice of interest. In addition to the requirements of sub. (2m), to claim a lien under sub. (2) (a) or (b), the broker shall record a written notice of interest under this section at the office of the register of deeds for the county in which the commercial real estate is located. A notice required under this subsection shall contain the name of each party to the agreement under which the interest is claimed, the date that the agreement was entered into and a description of the commercial real estate that is subject to the lien rights. A notice required under this subsection shall be provided within the following time periods:

779.32(3)(a) (a) In the case of a lien under sub. (2) (a), at least 30 days before the conveyance of the commercial real estate subject to the listing contract.

779.32(3)(b) (b) In the case of a lien under sub. (2) (b), at least 30 days before the conveyance of the commercial real estate subject to the buyer agency agreement.

779.32(4) (4) Perfection of lien.

779.32(4)(a) (a) A lien under this section is perfected when a broker records a lien in the office of the register of deeds for the county in which the commercial real estate is located. The lien must be perfected no later than the following:

779.32(4)(a)1. 1. In the case of a lien under sub. (2) (a) or (b), 30 days after the date that the conveyance documents are recorded with the register of deeds in the county where the real property, that is the subject of the listing contract or buyer agency agreement, is located.

779.32(4)(a)2. 2. In the case of a lien under sub. (2) (c), 90 days after the later of the following:

779.32(4)(a)2.a. a. The date that the broker earns a commission or compensation that gives rise to a lien under this section. For purposes of this subd. 2. a., a commission or compensation is considered earned on the date that payment of it is due under the lease, tenant representation agreement, or management agreement.

779.32(4)(a)2.b. b. The date that the broker receives notice that he or she has earned a commission or compensation that gives rise to a lien under this section. For purposes of this subd. 2. b., a commission or compensation is considered earned on the date that the payment of it is due under the lease, tenant representation agreement, or management agreement.

779.32(4)(b) (b) The lien shall be signed by the broker and shall include all of the following information:

779.32(4)(b)1. 1. The name and license number of the broker.

779.32(4)(b)2. 2. The name of the owner or acquirer of the commercial real estate that is subject to the lien.

779.32(4)(b)3. 3. The legal description of the commercial real estate that is subject to the lien.

779.32(4)(b)4. 4. The amount of the lien at the time the lien is recorded.

779.32(4)(c) (c) A broker shall mail a copy of the lien to the owner or acquirer of the commercial real estate that is subject to the lien within 72 hours after the recording of the lien under par. (a). A lien under this section is effective only from the date that it is perfected under this subsection.

779.32(4)(d) (d) A lien that is perfected under this subsection by a broker secures all unpaid commissions or compensation that is due that broker with respect to the commercial real estate subject to that lien, regardless of whether the commission or compensation was earned at the time the lien was recorded.

779.32(4m) (4m) Duty of register of deeds. If a lien meets the requirements under sub. (4), the register of deeds shall accept the lien for recording. The register of deeds shall index the lien under the name of the owner or acquirer of the commercial real estate who is subject to the lien. If the register of deeds maintains a tract index, the register of deeds shall also index the lien under the legal description of the real estate against which a lien is claimed.

779.32(5) (5) Priority. A lien under this section shall have priority over all other liens on the commercial real estate, except tax and special assessment liens, liens created under subch. I of ch. 779, purchase money mortgages, liens that are filed or recorded before the lien under this section is perfected and any other lien given priority under the law.

779.32(8) (8) Satisfaction of the lien.

779.32(8)(a) (a) Upon the request of any person interested in the real estate that is the subject of a lien under this section, the broker shall execute and deliver a satisfaction of lien to the interest party, if one of the following conditions is met: