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.
(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)
(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.
(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)
(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.
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:
Authorized the claimant to take any action to repair the defect.
Interfered materially with or altered the property that is the subject of the claim.
Materially precluded a supplier's ability to offer to remedy the defect by making repairs.
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.
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:
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.
A written offer to settle the claim by monetary payment.
A written offer including a combination of repairs and monetary payment.
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.
A proposal for the inspection of the dwelling, following the procedures under par. (e)
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.
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.
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.
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.
Upon receipt of a contractor's rejection and the reasons for the rejection, the supplier shall, within 5 working days of receiving the rejection, make a supplemental offer of repair or monetary payment to the contractor or serve on the contractor written notice that no additional offer will be made.
If the contractor rejects the supplemental offer made by the supplier to remedy the construction defect or to settle the claim by monetary payment or a combination of each, the contractor shall, within 15 working days after receiving the offer, serve written notice of the contractor's rejection on the supplier. The notice shall include the reasons for the contractor's rejection of the supplier's supplemental settlement offer. If the contractor believes the supplier's supplemental settlement offer is unreasonable, the contractor shall set forth the reasons why the contractor believes the supplemental settlement offer is unreasonable. If the supplier declines to make a supplemental offer, or if the contractor rejects the supplemental offer, the contractor may bring an action against the supplier for the claim described in the notice of claim without further notice.
If a contractor accepts any offer made under this subsection, and the supplier does not proceed to make the monetary payment or remedy the construction defect within the agreed upon timetable, the contractor may bring an action against the supplier for the claim described in the notice of claim without further notice. The contractor may also file the supplier's offer and contractor's acceptance in the circuit court action, and the offer and acceptance create a rebuttable presumption that a binding and valid settlement agreement has been created and should be enforced by the court.
If a contractor accepts a supplier's offer to repair a construction defect described in a notice of claim, the contractor, when appropriate, and the claimant shall provide the supplier 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.
If a contractor receives a written statement that the supplier rejects the claim, or if the supplier does not respond to the contractor's notice, the contractor may bring an action against the supplier for the claim described in the notice of claim without further notice.
A contractor who is seeking contribution from a supplier and who elects to inspect a dwelling under sub. (2) (b)
shall serve the supplier written notice of the inspection date and dwelling address, and whether destructive testing is contemplated, at least 5 working days before the inspection.
(8) Failure to respond to notice.
If a person fails to timely respond to any notice served in a manner required under this section, then any offer made in that notice is rejected.
(9) Limitation period.
If, during the pendency of the notice, inspection, offer, acceptance, or repair process, an applicable limitation period would otherwise expire, the limitation period is tolled pending completion of the notice of claim process described in this section. This subsection shall not be construed to revive a limitation period that has expired before the date on which a claimant's written notice of claim is served or extend any applicable statute of repose.
(10) Alteration of procedure.
After service of the initial notice of claim and initial contribution claim, a claimant, a contractor, and a supplier may, by written mutual agreement, alter the procedure for the notice of claim process described in this section.
(11) Application to others.
This section does not apply to a contractor's or supplier's right to seek contribution, indemnity, or recovery against any party other than a supplier for a claim made against a contractor or supplier.
(12) Homeowner repairs.
Without giving notice under this section, a homeowner may make immediate repairs to a dwelling to protect the health or safety of its occupants.
The department of safety and professional services shall prepare a brochure explaining the process under this section and shall provide that brochure to contractors.
Scrap metal or plastic bulk merchandise container theft; civil liability. 895.09(1)
Any owner of nonferrous scrap, a metal article, or a proprietary article, as those terms are defined in s. 134.405 (1)
, who incurs injury or loss as a result of a violation of s. 134.405
or s. 943.20
may bring a civil action against the person who committed the violation.
If the person who incurs the loss prevails against a person who committed the violation, the court shall grant the prevailing party all of the following:
Any lost profits that are attributable to the violation and that were not taken into account in determining the amount of actual damages under par. (a)
Notwithstanding the limitations under s. 799.25
, costs, disbursements, and reasonable attorney fees.
If the court finds that the violation was committed for the purpose of commercial advantage, the court may award punitive damages to the person who incurs the loss.
Any awards provided under sub. (2) (a)
shall be reduced by the amount of any restitution collected for the same act under s. 800.093
The person who incurs the loss has the burden of proving by the preponderance of the evidence that a violation of s. 134.405
History: 2007 a. 64
; 2011 a. 194
Tort actions in residential real estate transactions. 895.10(1)(1)
In this section, "residential real estate transaction" means a real estate transfer to which s. 709.01 (1)
In addition to any other remedies available under law, a transferee in a residential real estate transaction may maintain an action in tort against the real estate transferor for fraud committed, or an intentional misrepresentation made, by the transferor in the residential real estate transaction.
History: 2009 a. 4
Tenders of money and property. 895.14(1)
Tender may be pleaded.
The payment or tender of payment of the whole sum due on any contract for the payment of money, although made after the money has become due and payable, may be pleaded to an action subsequently brought in like manner and with the like effect as if such tender or payment had been made at the time prescribed in the contract.
(2) Tender after action commenced.
A tender may be made after an action is brought on the contract of the whole sum then due, plus legal costs of suit incurred up to the time, at any time before the action is called for trial. The tender may be made to the plaintiff or attorney, and if not accepted the defendant may plead the same by answer or supplemental answer, in like manner as if it had been made before the commencement of the action, bringing into court the money so tendered for costs as well as for debt or damages.
(3) Proceedings on acceptance of tender.
If the tender is accepted the plaintiff or attorney shall, at the request of the defendant, sign a stipulation of discontinuance of the action for that reason and shall deliver it to the defendant; and also a certificate or notice thereof to the officer who has any process against the defendant, if requested. If costs are incurred for any service made by the officer after the tender is accepted and before the officer receives notice of the acceptance, the defendant shall pay the costs to the officer or the tender is invalid.
(4) Involuntary trespass.
A tender may be made in all cases of involuntary trespass before action is commenced. When in the opinion of the court or jury a sufficient amount was tendered to the party injured, agent or attorney for the trespass complained of, judgment shall be entered against the plaintiff for costs if the defendant kept the tender good by paying the money into court at the trial for the use of the plaintiff.
(5) Payment into court of tender; record of deposits. 895.14(5)(a)(a)
When tender of payment in full is made and pleaded, the defendant shall pay the tender in full into court before the trial of the action is commenced and notify the opposite party in writing, or be deprived of all benefit of the tender. When the sum tendered and paid into court is sufficient, the defendant shall recover the taxable costs of the action, if the tender was prior to the commencement of the action. The defendant shall recover taxable costs from the time of the tender, if the tender was after suit commenced.
When any party, pursuant to an order or to law, deposits any money or property with the clerk of court, the clerk shall record the deposit in the minute record describing the money or property and stating the date of the deposit, by whom made, under what order or for what purpose and shall deliver a certificate of these facts to the depositor, with the volume and page of the record endorsed on the certificate.
History: 1981 c. 67
; 1983 a. 192
; 1983 a. 302
; Stats. 1983 s. 895.14.
Remedies not merged.
When the violation of a right admits of both a civil and criminal remedy the right to prosecute the one is not merged in the other.
Limitation of surety's liability.
Any person may limit the amount of liability as a surety upon any bond or other obligation required by law or ordered by any court, judge, municipal judge or public official for any purpose. The amount of the limited liability may be recited in the body of the bond or stated in the justification of the surety. In an action brought upon the bond, no judgment may be recovered against the surety for a sum larger than the amount of the liability stated, together with the proportional share of the costs of the action. In an action brought on the bond, a surety may deposit in court the amount of the liability, whereupon the surety shall be discharged and released from any further liability under the bond.
History: 1979 c. 110
s. 60 (11)
; 1985 a. 332
Renewal of sureties upon becoming insufficient and effects thereof.
If any bail bond, recognizance, undertaking or other bond or undertaking given in any civil or criminal action or proceeding, becomes at any time insufficient, the court or judge thereof, municipal judge or any magistrate before whom such action or proceeding is pending, may, upon notice, require the plaintiff or defendant to give a new bond, recognizance or undertaking. Every person becoming surety on any such new bond, recognizance or undertaking is liable from the time the original was given, the same as if he or she had been the original surety. If any person fails to comply with the order made in the case the adverse party is entitled to any order, judgment, remedy or process to which he or she would have been entitled had no bond, recognizance or undertaking been given at any time.
History: 1977 c. 305
A precondition for this section to apply is that the bond must at one time have been sufficient. Bruer v. Town of Addison, 194 Wis. 2d 617
, 534 N.W.2d 634
(Ct. App. 1995).
Justification of individual sureties. 895.345(1)
This section shall apply to any bond or undertaking in an amount of more than $1,000 whereon individuals are offered as sureties, which is authorized or required by any provision of the statutes to be given or furnished in or in connection with any civil action or proceeding in any court of record in this state, in connection with which bond or undertaking real property is offered as security.
Before any such bond or undertaking shall be approved, there shall be attached thereto and made a part of such bond or undertaking a statement under oath in duplicate by the surety that the surety is the sole owner of the property offered by the surety as security and containing the following additional information:
An accurate description by lot and block number, if part of a recorded and filed plat, or by metes and bounds of the real estate offered as security.
A statement that none of the properties offered constitute the homestead of the surety.
A statement of the total amount of the liens, unpaid taxes and other encumbrances against each property offered.
A statement as to the assessed value of each property offered, its market value and the value of the equity over and above all encumbrances, liens and unpaid taxes.
That the equity of the real property is equal to twice the penalty of the bond or undertaking.
This sworn statement shall be in addition to and notwithstanding other affidavits or statements of justification required or provided for elsewhere in the statutes in connection with such bonds and undertakings.
History: 1993 a. 486
; 1999 a. 96
This section does not apply to bonds of personal representatives. See s. 856.25
Bail, deposit in lieu of bond.
When any bond or undertaking is authorized in any civil or criminal action or proceeding, the would-be obligor may, in lieu thereof and with like legal effect, deposit with the proper court or officer cash or certified bank checks or U.S. bonds or bank certificates of deposit in an amount at least equal to the required security; and the receiver thereof shall give a receipt therefor and shall notify the payor bank of any deposits of bank certificates of deposit. Section 808.07
shall govern the procedure so far as applicable.
Sup. Ct. Order, 67 Wis. 2d 585, 784 (1975); 1977 c. 187
Expenses in actions against municipal and other officers. 895.35(1)(1)
Whenever in any city, town, village, school district, technical college district or county charges of any kind are filed or an action is brought against any officer thereof in the officer's official capacity, or to subject any such officer, whether or not the officer is being compensated on a salary basis, to a personal liability growing out of the performance of official duties, and such charges or such action is discontinued or dismissed or such matter is determined favorably to such officer, or such officer is reinstated, or in case such officer, without fault on the officer's part, is subjected to a personal liability as aforesaid, such city, town, village, school district, technical college district or county may pay all reasonable expenses which such officer necessarily expended by reason thereof. Such expenses may likewise be paid, even though decided adversely to such officer, where it appears from the certificate of the trial judge that the action involved the constitutionality of a statute, not theretofore construed, relating to the performance of the official duties of said officer.
"Protective services officer" means an emergency medical technician, as defined in s. 256.01 (5)
, first responder, as defined in s. 256.01 (9)
, a fire fighter, or a law enforcement or correctional officer.
Notwithstanding sub. (1)
, the city, town, village, school district, technical college district, or county shall reimburse a protective services officer for reasonable attorney fees incurred by the officer in connection with a criminal proceeding arising from the officer's conduct in the performance of official duties unless, in relation to that conduct, any of the following applies: