895.05 Annotation
In general, the destruction of notes allows an inference that the notes would have provided evidence of actual malice. However, this rule is not absolute. in this case, because the plaintiff had not shown any way the destroyed notes might show actual malice, the destruction of the notes did not create a material factual dispute preventing summary judgment. Biskupic v. Cicero, 2008 WI App 117, ___ Wis. 2d ___, ___ N.W.2d ___,
07-2314.
895.05 Annotation
Publishers' privileges and liabilities regarding libel are discussed. Gertz v. Robert Welch, Inc.
418 U.S. 323.
895.05 Annotation
A public figure who sues media companies for libel may inquire into the editorial processes of those responsible when proof of "actual malice" is required for recovery. Herbert v. Lando,
441 U.S. 153 (1979).
895.05 Annotation
The "public figure" principle in libel cases is discussed. Wolston v. Reader's Digest Assn., Inc.
443 U.S. 157 (1979).
895.05 Annotation
If wire service accounts of a judge's remarks are substantially accurate, a defamation suit by the judge is barred under sub. (1). Simonson v. United Press Intern., Inc.
500 F. Supp 1261 (1980).
895.05 Annotation
A Misplaced Focus: Libel Law and Wisconsin's Distinction Between Media and Nonmedia Defendants. Maguire. 2004 WLR 191.
895.05 Annotation
Defamation law of Wisconsin. Brody, 65 MLR 505 (1982).
895.05 Annotation
The "public interest or concern" test: Have we resurrected a standard that should have remained in the graveyard? 70 MLR 647 (1987).
895.052
895.052
Defamation by radio and television. The owner, licensee or operator of a visual or sound radio broadcasting station or network of stations, and the agents or employees of any such owner, licensee or operator, shall not be liable in damages for any defamatory statement published or uttered in, or as a part of, a visual or sound broadcast by a candidate for political office in those instances in which, under the acts of congress or the rules and regulations of the federal communications commission, the broadcasting station or network is prohibited from censoring the script of the broadcast.
895.055
895.055
Gaming contracts void. 895.055(1)
(1) All promises, agreements, notes, bills, bonds, or other contracts, mortgages, conveyances or other securities, where the whole or any part of the consideration of the promise, agreement, note, bill, bond, mortgage, conveyance or other security shall be for money or other valuable thing whatsoever won or lost, laid or staked, or betted at or upon any game of any kind or under any name whatsoever, or by any means, or upon any race, fight, sport or pastime, or any wager, or for the repayment of money or other thing of value, lent or advanced at the time and for the purpose, of any game, play, bet or wager, or of being laid, staked, betted or wagered thereon shall be void.
895.055(2)
(2) This section does not apply to contracts of insurance made in good faith for the security or indemnity of the party insured.
895.055(3)
(3) This section does not apply to any promise, agreement, note, bill, bond, mortgage, conveyance or other security that is permitted under
chs. 562 to
569 or under state or federal laws relating to the conduct of gaming on Indian lands.
895.055 Annotation
A Puerto Rican judgment based on a gambling debt was entitled to full faith and credit in Wisconsin. Conquistador Hotel Corp. v. Fortino,
99 Wis. 2d 16,
298 N.W.2d 236 (Ct. App. 1980).
895.056
895.056
Recovery of money wagered. 895.056(1)(a)
(a) "Property" means any money, property or thing in action.
895.056(1)(b)
(b) "Wagerer" means any person who, by playing at any game or by betting or wagering on any game, election, horse or other race, ball playing, cock fighting, fight, sport or pastime or on the issue or event thereof, or on any future contingent or unknown occurrence or result in respect to anything whatever, shall have put up, staked or deposited any property with any stakeholder or 3rd person, or shall have lost and delivered any property to any winner thereof.
895.056(2)(a)(a) A wagerer may, within 3 months after putting up, staking or depositing property with a stakeholder or 3rd person, sue for and recover the property from the stakeholder or 3rd person whether the property has been lost or won or whether it has been delivered over by the stakeholder or 3rd person to the winner.
895.056(2)(b)
(b) A wagerer may, within 6 months after any delivery by the wagerer or the stakeholder of the property put up, staked or deposited, sue for and recover the property from the winner thereof if the property has been delivered over to the winner.
895.056(3)
(3) If the wagerer does not sue for and recover the property, which was put up, staked or deposited, within the time specified under
sub. (1), any other person may, in the person's behalf and the person's name, sue for and recover the property for the use and benefit of the wagerer's family or heirs, in case of the wagerer's death. The suit may be brought against and property recovered from any of the following:
895.056(3)(a)
(a) The stakeholder or a 3rd person if the property is still held by the stakeholder or 3rd person, within 6 months after the putting up, staking or depositing of the property.
895.056(3)(b)
(b) The winner of the property, within one year from the delivery of the property to the winner.
895.056(4)
(4) This section does not apply to any property that is permitted to be played, bet or wagered under
chs. 562 to
569 or under state or federal laws relating to the conduct of gaming on Indian lands.
895.057
895.057
Action against judicial officer for loss caused by misconduct. Any judicial officer who causes to be brought in a court over which the judicial officer presides any action or proceeding upon a claim placed in the judicial officer's hands as agent or attorney for collection shall be liable in a civil action to the person against whom such action or proceeding was brought for the full amount of damages and costs recovered on such claim.
895.057 History
History: 1993 a. 486.
895.06
895.06
Recovery of divisible personalty. When personal property is divisible and owned by tenants in common and one tenant in common shall claim and hold possession of more than the tenant's share or proportion thereof his or her cotenant, after making a demand in writing, may sue for and recover the cotenant's share or the value thereof. The court may direct the jury, if necessary, in any such action to find what specific articles or what share or interest belongs to the respective parties, and the court shall enter up judgment in form for one or both of the parties against the other, according to the verdict.
895.06 History
History: 1993 a. 486.
895.07
895.07
Claims against contractors and suppliers. 895.07(1)(a)
(a) "Action" means a civil action or an arbitration under
ch. 788.
895.07(1)(b)
(b) "Association" means a homeowner's association, condominium association under
s. 703.02 (1m), unit owner's association, or a nonprofit corporation created to own and operate portions of a planned community that may assess unit owners for the costs incurred in the performance of the association's obligations.
895.07(1)(c)
(c) "Claim" means a request or demand to remedy a construction defect caused by a contractor or supplier related to the construction or remodeling of a dwelling.
895.07(1)(d)
(d) "Claimant" means the owner, tenant, or lessee of a dwelling, or an association, who has standing to sue a contractor or supplier regarding a construction defect.
895.07(1)(e)
(e) "Construction defect," in those cases when the contractor or supplier has provided a warranty to a consumer, means the definition of "defect" in the warranty. In all other cases, "construction defect" means a deficiency in the construction or remodeling of a dwelling that results from any of the following:
895.07(1)(e)3.
3. Failure to follow accepted trade standards for workmanlike construction.
895.07(1)(f)
(f) "Consumer" means a person who enters into a written or oral contract with a contractor to construct or remodel a dwelling.
895.07(1)(g)
(g) "Contractor" means a person that enters into a written or oral contract with a consumer to construct or remodel a dwelling.
895.07(1)(h)
(h) "Dwelling" means any premises or portion of a premises that is used as a home or a place of residence and that part of the lot or site on which the dwelling is situated that is devoted to residential use. "Dwelling" includes other existing structures on the immediate residential premises such as driveways, sidewalks, swimming pools, terraces, patios, fences, porches, garages, and basements.
895.07(1)(i)
(i) "Remodel" means to alter or reconstruct a dwelling. "Remodel" does not include maintenance or repair work.
895.07(1)(j)
(j) "Serve" or "service" means personal service or delivery by certified mail, return receipt requested, to the last-known address of the addressee.
895.07(1)(k)
(k) "Supplier" means a person that manufactures or provides windows or doors for a dwelling.
895.07(2)
(2) Notice and opportunity to repair. 895.07(2)(a)(a) Before commencing an action against a contractor or supplier regarding a construction defect, a claimant shall do all of the following:
895.07(2)(a)1.
1. No later than 90 working days before commencing the action, deliver written notice to the contractor containing a description of the claim in sufficient detail to explain the nature of the alleged defect and a description of the evidence that the claimant knows or possesses, including expert reports, that substantiates the nature and cause of the alleged construction defect.
895.07(2)(a)2.
2. Provide the contractor or supplier with the opportunity to repair or to remedy the alleged construction defect.
895.07(2)(b)
(b) Within 15 working days after the claimant serves notice of claim under
par. (a), or within 25 working days if the contractor makes a claim for contribution from a supplier under
sub. (7) (a), each contractor that has received the notice of claim shall serve on the claimant any of the following:
895.07(2)(b)1.
1. A written offer to repair or remedy the construction defect at no cost to the claimant. The offer shall include a description of any additional construction necessary to remedy the construction defect and a timetable for the completion of the construction.
895.07(2)(b)2.
2. A written offer to settle the claim by monetary payment.
895.07(2)(b)3.
3. A written offer including a combination of repairs and monetary payment.
895.07(2)(b)4.
4. A written statement that the contractor rejects the claim. The contractor shall state in the written response to the claim the reason for rejecting the claim and include a comprehensive description of all evidence the contractor knows or possesses, including expert reports, that substantiates the reason for rejecting the claim. The contractor shall also include in the written response to the claim any settlement offer received from a supplier.
895.07(2)(c)
(c) If a proposal for inspection is made under
par. (b), the claimant shall, within 15 working days of receiving the contractor's proposal, provide the contractor and any supplier on whom a contribution claim has been made and its agents, experts, and consultants reasonable access to the dwelling to inspect the dwelling, document any alleged construction defects, and perform any testing required to evaluate fully the nature, extent, and cause of the claimed construction defects and the nature and extent of any repairs or replacements that may be necessary to remedy them. If destructive testing is required, the contractor shall deliver the claimant and all persons on whom a notice of claim or contribution claim has been served advance notice of the testing at least 5 working days before commencement of the testing and shall, after completion of the testing, return the dwelling to its pre-testing condition within a reasonable time after completion of the testing, at the contractor's expense. If any inspection or testing reveals a condition that requires additional testing to allow the contractor to evaluate fully the nature, cause, and extent of the construction defect, the contractor shall deliver notice to the claimant and all persons on whom a notice of claim or contribution claim has been served of the need for the additional testing and the claimant shall provide reasonable access to the dwelling. If a claim is asserted on behalf of the owners of multiple dwellings, then the contractor shall be entitled to inspect each of the dwellings subject to the claim. The claimant shall either provide a specific day for the inspection upon reasonable notice for an inspection or require the contractor to request in writing a date for the inspection, at least 3 working days before the inspection.
895.07(2)(d)
(d) Within 10 working days following completion of the inspection and testing under
par. (c), the contractor shall serve on the claimant a notice that includes any of the offers or statements under
par. (b) 1. to
4.
895.07(2)(e)
(e) If the claimant rejects a settlement offer made by the contractor, the claimant shall, within 15 working days after receiving the offer, serve written notice of that rejection to the contractor. The notice shall include the reasons for the claimant's rejection of the contractor's offer. If the claimant believes that the settlement offer omits reference to any portion of the claim, or was unreasonable, the claimant's written notice shall include those items that the claimant believes were omitted and set forth the reasons why the claimant believes the settlement offer is unreasonable. The contractor shall deliver the claimant's response to a supplier upon whom a contribution claim has been made.
895.07(2)(f)
(f) Upon receipt of a claimant's rejection and the reasons for the rejection, the contractor shall, within 5 working days after receiving the rejection, serve the claimant a written supplemental offer to repair or to remedy the construction defect or serve on the claimant written notice that no additional offer will be made.
895.07(2)(g)
(g) If the claimant rejects the supplemental offer made by the contractor under
par. (f) to remedy the construction defect or to settle the claim by monetary payment or a combination of each, the claimant shall serve written notice of the claimant's rejection on the contractor within 15 working days after receipt of the supplemental offer. The notice shall include the reasons for the claimant's rejection of the contractor's supplemental settlement offer. If the claimant believes the contractor's supplemental settlement offer is unreasonable, the claimant shall set forth the reasons why the claimant believes the supplemental settlement offer is unreasonable. If the contractor declines to make a supplemental offer, or if the claimant rejects the supplemental offer, the claimant may bring an action against the contractor for the claim described in the notice of claim without further notice.
895.07(2)(h)
(h) If a claimant accepts any offer made under this subsection, and the contractor or supplier does not proceed to repair or remedy the construction defect under the terms of the offer or within the agreed upon timetable, the claimant may bring an action against the contractor or supplier for the claim described in the notice of claim without further notice.
895.07(2)(i)
(i) If a claimant accepts a contractor's offer to repair a construction defect described in a notice of claim, the claimant shall provide the contractor and its agents, experts, and consultants reasonable access to the dwelling to perform and complete the construction by the timetable stated in the settlement offer.
895.07(2)(j)
(j) If a claimant receives a written statement that the contractor rejects the claim, or if the contractor does not respond to the claimant's notice, the claimant may bring an action against the contractor for the claim described in the notice of claim without further notice.
895.07(2)(k)
(k) If a claimant commences an action against a supplier and the supplier has not been provided notice of the claim by the contractor and an opportunity to repair or remedy the construction defect described in the claim as provided under to
sub. (7), the court or arbitrator shall dismiss without prejudice or stay the action until the claimant serves the supplier with a copy of the notice of claim and provides the supplier an opportunity to repair or remedy the construction defect in the same manner as provided a contractor under this section.
895.07(3)
(3) Action; dismissal without prejudice. If the claimant commences an action but fails to comply with the requirements of
sub. (2) (a) and the contractor or supplier establishes that the claimant was provided the notice and brochure under
s. 101.148 (2), the circuit court or arbitrator shall dismiss the action without prejudice. If the claimant commences an action but fails to comply with the requirements of
sub. (2) (a) and the contractor or supplier cannot establish that the notice and brochure was delivered to the claimant under
s. 101.148 (2), the circuit court or arbitrator shall stay the action and order the parties to comply with the requirements of
sub. (2) (a) and
s. 101.148 (2). Before commencing an action against a supplier seeking contribution for a claim that a claimant has served on a contractor, the contractor shall serve the supplier with a notice of contribution claim under
sub. (7). If the contractor commences an action against a supplier but fails to serve the notice of contribution claim, the circuit court or arbitrator shall stay the action until the contractor has complied with the requirements of this subsection and
sub. (7).
895.07(4)
(4) Warranty terms. The claimant and contractor or supplier are bound by any contractor or supplier warranty terms pertaining to products or services supplied for the dwelling.
895.07(5)
(5) Additional construction defects and notice and opportunity to repair. A construction defect that is discovered after an initial claim or contribution claim notice has been provided may not be alleged in an action until the claimant or contractor has served the contractor or supplier written notice of the new claim or contribution claim regarding the alleged new construction defect. The contractor or supplier shall have an opportunity to resolve the notice of the new claim or contribution claim in the manner provided in
subs. (2) and
(7).
895.07(6)
(6) Action of contractor or supplier. In any action initiated by a contractor or supplier in which a claimant raises an affirmative defense or counterclaim alleging a construction defect, the claimant is not required to comply with this section.
895.07(7)(a)(a) Before commencing an action seeking contribution from a supplier for a claim that a claimant makes against the contractor, the contractor shall serve the supplier with a written notice of the claimant's claim and a contribution claim within 5 working days after the contractor's receipt of the claim, except that a contractor may make a contribution claim later than 5 days after the contractor's receipt of the initial claim if the contractor has not done any of the following:
895.07(7)(a)3.
3. Authorized the claimant to take any action to repair the defect.
895.07(7)(a)4.
4. Interfered materially with or altered the property that is the subject of the claim.
895.07(7)(a)5.
5. Materially precluded a supplier's ability to offer to remedy the defect by making repairs.
895.07(7)(b)
(b) Before commencing an action against a supplier, a contractor shall provide the supplier with the opportunity to respond to the contribution claim and repair the alleged construction defect under this section. The notice of contribution claim shall state that the contractor asserts a construction defect claim. The notice of contribution claim shall describe the contribution claim in sufficient detail to explain the nature of the alleged construction defect and shall offer the opportunity to correct the construction defect. The contractor shall include in the notice of claim a description of the alleged construction defect and include a comprehensive description of all evidence that the contractor knows or possesses, including expert reports, that substantiates the nature and cause of the alleged construction defect.
895.07(7)(c)
(c) Within 15 working days after a supplier has received notice that a contractor is seeking contribution under
par. (a), the supplier shall serve the contractor with any of the following:
895.07(7)(c)1.
1. A written offer to remedy fully or partially the construction defect at no cost to the claimant. The offer shall include a description of any additional construction necessary to remedy the construction defect and a timetable for the completion of the construction.
895.07(7)(c)2.
2. A written offer to settle the claim by monetary payment.
895.07(7)(c)3.
3. A written offer including a combination of repairs and monetary payment.
895.07(7)(c)4.
4. A written statement that the supplier rejects the claim. The supplier shall state in the written response to the claim the reason for rejecting the claim and include a comprehensive description of all evidence the supplier knows or possesses, including expert reports, that substantiates the reason for rejecting the claim.
895.07(7)(c)5.
5. A proposal for the inspection of the dwelling, following the procedures under
par. (e).
895.07(7)(d)
(d) The contractor shall forward the supplier's response to the claimant. The supplier and contractor shall use their best efforts to coordinate their responses to claims and contribution claims.
895.07(7)(e)
(e) If a supplier proposes to inspect the dwelling that is the subject of the contribution claim, the contractor and claimant shall, within 15 working days after receiving the supplier's proposal, provide the supplier and its agents, experts, and consultants reasonable access to the dwelling to inspect the dwelling, document any alleged construction defects, and perform any testing required to evaluate fully the nature, extent, and cause of the claimed construction defects and the nature and extent of any repairs or replacements that may be necessary to remedy them. If destructive testing is required, the supplier shall give the contractor and claimant and all persons on whom a notice of claim or contribution claim has been served advance notice of the testing at least 5 working days before commencement of the testing and shall, after completion of the testing, return the dwelling to its pre-testing condition within a reasonable time after completion of the testing, at the supplier's expense. If any inspection or testing reveals a condition that requires additional testing to allow the supplier to evaluate fully the nature, cause, and extent of the construction defect, the supplier shall provide notice to the contractor and claimant and all persons on whom a notice of claim or contribution claim has been served of the need for the additional testing and the contractor and claimant shall provide reasonable access to the dwelling. If a claim is asserted on behalf of the contractor of multiple dwellings, then the supplier shall be entitled to inspect each of the dwellings. The contractor and claimant shall provide a specific day for the inspection upon reasonable notice for an inspection or require the supplier to request in writing a date for the inspection, at least 3 working days before the inspection.
895.07(7)(f)
(f) Within 10 working days following completion of the inspection and testing under
par. (e), the supplier shall serve on the contractor a notice that includes any of the offers or statements under
par. (c) 1. to
4.
895.07(7)(g)
(g) If the contractor rejects a settlement offer made by the supplier, the contractor shall, within 15 working days after receiving the offer, send written notice of that rejection to the supplier. The notice shall include the reasons for the contractor's rejection of the supplier's offer. If the contractor believes that the settlement offer omits reference to any portion of the claim, or was unreasonable, the contractor's written notice shall include those items that the contractor believes were omitted and set forth the reasons why the contractor believes the settlement offer is unreasonable.
