AB378: Bill Text

AB378,174,13 779.01 (4) Priority of construction lien. The lien provided in sub. (3) shall be prior to any lien which originates subsequent to the visible commencement in place of the work of improvement, except as otherwise provided by ss. 144.77 (6) (d) 215.21 (4) (a), 292.31 (8) (i), 292.41 (6) (d), 292.81 and 706.11 (1). When new construction is the principal improvement involved, commencement is deemed considered to occur no earlier than the beginning of substantial excavation for the foundations, footings or base of the new construction, except where the new construction is to be added to a substantial existing structure, in which case the commencement is the time of the beginning of substantial excavation or the time of the beginning of substantial preparation of the existing structure to receive the added new construction, whichever is earlier. The lien also shall be prior to any unrecorded mortgage given prior to the commencement of the work of improvement, if the lien claimant has no actual notice of the mortgage before the commencement. Lien claimants who perform work or procure its performance or furnish any labor or materials or plans or specifications for an improvement prior to the visible commencement of the work of improvement shall have lien rights, but shall have only the priority accorded to other lien claimants.

Note: Section "144.77" was added by 1995 Wis. Act 225, but was rendered surplusage by the treatment of this provision by 1995 Wis. Act 227.

AB378, s. 486 Section 486. 779.40 (1) of the statutes, as affected by 1995 Wisconsin Acts 225 and 227, is amended to read:

AB378,175,5 779.40 (1) Any person who shall perform any labor for an employer not the owner of the real estate, engaged in quarrying, crushing, cutting or otherwise preparing stone for use or for manufacturing lime and any bona fide holder of any draft, time check or order for the payment of money due for any such labor issued by such employer, shall have a lien for wages owed and for the amount due on such draft, check or order upon the personal property connected with such industry owned by such employer, including interest in the product of such quarry or factory and machinery and other personal property used in the operation of such quarry or factory, and all interest in any lease of the real estate connected with such business, which lien shall take precedence of all other debts, judgments, decrees, liens or mortgages against such employer, except taxes, fines or penalties and mortgages or judgments recorded or entered before such labor is performed and except liens under ss. 292.31 (8) (i), 144.77 292.41 (6) (d) and 292.81.

Note: Section "144.77" was added by 1995 Wis. Act 225, but was rendered surplusage by the treatment of this provision by 1995 Wis. Act 227.

AB378, s. 487 Section 487. 779.41 (1m) of the statutes, as created by 1995 Wisconsin Act 331, is renumbered 779.41 (1s).

Note: 1995 Wis. Act 107 also created an s. 779.41 (1m).

AB378, s. 488 Section 488. 803.01 (2) of the statutes is amended to read:

AB378,175,16 803.01 (2) Representatives. A personal representative, executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in the party's own name without joining the person for whose benefit the action is brought. A partner asserting a partnership claim may sue in the partner's own name without joining the other members of the partnership, but the partner shall indicate in the pleading that the claim asserted belongs to the partnership.

Note: Corrects error in transcribing chapter 218, laws of 1975.

AB378, s. 489 Section 489. 803.03 (3) (intro.) of the statutes is amended to read:

AB378,176,4 803.03 (3) Determination by court whenever joinder not feasible. (intro.) If any such person has not been so joined, the judge to whom the case has been assigned shall order that the person be made a party. If the party person should join as a plaintiff but refuses to do so, the party person may be made a defendant, or, in a proper case, an involuntary plaintiff. If a person as described in subs. (1) and (2) cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include:

Note: Corrects error in transcribing chapter 218, laws of 1975.

AB378, s. 490 Section 490. 804.01 (2) (d) (intro.), 1. and 2. of the statutes are amended to read:

AB378,176,9 804.01 (2) (d) Trial preparation: experts. (intro.) Discovery of facts known and opinions held by experts, otherwise discoverable under par. (a) and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

AB378,176,16 1. A party may through written interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subd. 3. concerning fees and expenses as the court may deem considers appropriate.

AB378,176,22 2. A party may, through written interrogatories or by deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial only upon a motion showing of that exceptional circumstances exist under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

Note: Effectuates the treatment of this provision by Supreme Court Order 95-03 which was inadvertently not included in the 1995-96 Statutes.

AB378, s. 491 Section 491. 804.05 (2) (c) of the statutes is amended to read:

AB378,177,7 804.05 (2) (c) The court may upon motion order that the testimony at a deposition be recorded by other than stenographic means or videotape means as provided in ss. 885.40 to 885.47, in which event the order shall designate the manner of recording, preserving, and filing the deposition , and may include other provisions to assure that the recorded testimony will be accurate and trustworthy. If the order is made, a party may nevertheless arrange to have a stenographic transcription made at the party's own expense.

Note: Removes punctuation. Corrects error in transcribing chapter 218, laws of 1975; "own" was deleted by that chapter.

AB378, s. 492 Section 492. 808.03 (1) (intro.) of the statutes, as affected by 1995 Wisconsin Acts 139 and 224, is amended to read:

AB378,177,15 808.03 (1) Appeals as of right. (intro.) A final judgment or a final order of a circuit court may be appealed as a matter of right to the court of appeals unless otherwise expressly provided by law. A final judgment or final order is a judgment, order or disposition court record that disposes of the entire matter in litigation as to one or more of the parties, whether rendered in an action or special proceeding, and that is one of the following:

Note: The treatment of this provision by 1995 Wis. Act 139 rendered the insertion of "court record" by 1995 Wis. Act 224 surplusage.

AB378, s. 493 Section 493. 808.075 (4) (fn) 4. of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

AB378,177,18 808.075 (4) (fn) 4. Hearing for child juvenile held in custody under s. 938.21.

Note: Replaces "child" with "juvenile" for consistency of references with language of ch. 938.

AB378, s. 494 Section 494. The amendment of 809.11 (2) of the statutes by 1995 Wisconsin Act 201 is not repealed by 1995 Wisconsin Act 224. Both amendments stand.

Note: There is no conflict of substance.

AB378, s. 495 Section 495. 809.19 (8) (b) 3. b. of the statutes is amended to read:

AB378,178,4 809.19 (8) (b) 3. b. If a monospaced font is used: 10 characters per inch; double-spaced; a 1.5 inch margin on the left side and 1 inch margins a one-inch margin on the all other 3 sides.

Note: Corrects spelling.

AB378, s. 496 Section 496. 812.44 (4) (form) 2. of the statutes is amended to read:

AB378,178,11 812.44 (4) (form) 2. You receive aid to families with dependent children, relief funded by a relief block grant under ch. 49, relief provided by counties under section 59.07 (154) of the Wisconsin Statutes, medical assistance, supplemental security income, food stamps, or veterans benefits based on need under 38 USC 501 to 562 or section 45.351 (1) of the Wisconsin Statutes, or have received these benefits within the past 6 months.

Note: Inserts missing number.

AB378, s. 497 Section 497. 814.61 (12) (b) (intro.) of the statutes, as affected by 1995 Wisconsin Acts 201 and 279, is amended to read:

AB378,179,5 814.61 (12) (b) Maintenance payments and support. (intro.) Except in counties that have designated a county support collection designee under s. 59.07 (97m) 59.53 (5m), for receiving and disbursing money deposited as payment for maintenance payments, child support or family support payments, under interim or final orders in an action affecting the family, and for maintaining the records required under s. 59.40 (2) (h), an annual fee of up to $25 to be paid by each party ordered to make payments. Except in counties that have designated a county support collection designee under s. 59.07 (97m) 59.53 (5m), the court shall order each party ordered to make payments to pay the annual fee under this paragraph at the time of, and in addition to, the first payment to the clerk in each year for which payments are ordered. At the time of ordering the payment of an annual fee under this paragraph, the court shall notify each party ordered to make payments of the requirement to pay the annual fee and of the amount of the annual fee. If the annual fee under this paragraph is not paid when due, the clerk may not deduct the annual fee from the maintenance or support payment, but:

Note: Section 59.07 (97m) is renumbered s. 59.53 (5m) by this bill.

AB378, s. 498 Section 498. 814.612 (intro.) of the statutes, as created by 1995 Wisconsin Act 279, is amended to read:

AB378,179,22 814.612 Fees of designee for receiving and disbursing support. (intro.) In a county that has designated a county support collection designee under s. 59.07 (97m) 59.53 (5m), the support collection designee, for receiving and disbursing money deposited as payment for maintenance payments, child support or family support payments, under interim or final orders in an action affecting the family, and for maintaining the records required under s. 59.07 (97m) 59.53 (5m) (b) 1., shall collect an annual fee of up to $25 to be paid by each party ordered to make payments. In such a county, the court shall order each party ordered to make payments to pay the annual fee under this section at the time of, and in addition to, the first payment to the support collection designee in each year for which payments are ordered. At the time of ordering the payment of an annual fee under this section, the court shall notify each party ordered to make payments of the requirement to pay the annual fee and of the amount of the annual fee. If the annual fee under this section is not paid when due, the support collection designee may not deduct the annual fee from the maintenance or support payment, but:

Note: Section 59.07 (97m) is renumbered s. 59.53 (5m) by this bill.

AB378, s. 499 Section 499. 885.235 (1) of the statutes, as affected by 1995 Wisconsin Acts 436 and 448, is renumbered 885.235 (1g).

Note: Section 885.235 (5) is renumbered to s. 885.235 (1) by this bill.

AB378, s. 500 Section 500. The amendment of 885.235 (1) (a) 1. of the statutes by 1995 Wisconsin Act 436 is not repealed by 1995 Wisconsin Act 448. Both amendments stand.

Note: There is no conflict of substance. This provision is renumbered to s. 885.235 (1g) (a) 1. by this bill.

AB378, s. 501 Section 501. The amendment of 885.235 (1) (a) 2. of the statutes by 1995 Wisconsin Act 436 is not repealed by 1995 Wisconsin Act 448. Both amendments stand.

Note: There is no conflict of substance. This provision is renumbered to s. 885.235 (1g) (a) 2. by this bill.

AB378, s. 502 Section 502. 885.235 (5) of the statutes, as affected by 1995 Wisconsin Act 448, is renumbered 885.235 (1).

Note: Relocates definitions to the beginning of the section for conformity with current style.

AB378, s. 503 Section 503. 895.035 (2m) of the statutes, as affected by 1995 Wisconsin Acts 77 and 352, is amended to read:

AB378,181,12 895.035 (2m) (a) If a child juvenile fails to pay restitution under s. 938.245, 938.32, 938.34 (5), 938.343 (4) or 938.345 as ordered by a court assigned to exercise jurisdiction under chs. 48 and 938 or a municipal court or as agreed to in a deferred prosecution agreement or if it appears likely that the child juvenile will not pay restitution as ordered or agreed to, the victim, the victim's insurer, the representative of the public interest under s. 938.09 or the agency, as defined in s. 938.38 (1) (a), supervising the child juvenile may petition the court assigned to exercise jurisdiction under chs. 48 and 938 to order that the amount of restitution unpaid by the child juvenile be entered and docketed as a judgment against the child juvenile and the parent with custody of the child juvenile and in favor of the victim or the victim's insurer, or both. A petition under this paragraph may be filed after the expiration of the deferred prosecution agreement, consent decree, dispositional order or sentence under which the restitution is payable, but no later than one year after the expiration of the deferred prosecution agreement, consent decree, dispositional order or sentence or any extension of the consent decree, dispositional order or sentence. A judgment rendered under this paragraph does not bar the victim or the victim's insurer, or both, from commencing another action seeking compensation from the child or the parent, or both, if the amount of restitution ordered under this paragraph is less than the total amount of damages claimed by the victim or the victim's insurer.

AB378,181,25 (b) If a child juvenile fails to pay a forfeiture as ordered by a court assigned to exercise jurisdiction under chs. 48 and 938 or a municipal court or if it appears likely that the child juvenile will not pay the forfeiture as ordered, the representative of the public interest under s. 938.09, the agency, as defined in s. 938.38 (1) (a), supervising the child juvenile or the law enforcement agency that issued the citation to the child juvenile may petition the court assigned to exercise jurisdiction under chs. 48 and 938 to order that the amount of the forfeiture unpaid by the child juvenile be entered and docketed as a judgment against the child juvenile and the parent with custody of the child juvenile and in favor of the county or appropriate municipality. A petition under this paragraph may be filed after the expiration of the dispositional order or sentence under which the forfeiture is payable, but no later than one year after the expiration of the dispositional order or sentence or any extension of the dispositional order or sentence.

AB378,182,13 (bm) 1. Before issuing an order under par. (a) or (b), the court assigned to exercise jurisdiction under chs. 48 and 938 shall give the child juvenile and the parent notice of the intent to issue the order and an opportunity to be heard regarding the order. The court shall give the child juvenile and the parent an opportunity to present evidence as to the amount of the restitution or forfeiture unpaid, but not as to the amount of the restitution or forfeiture originally ordered. The court shall also give the child juvenile and the parent an opportunity to present evidence as to the reason for the failure to pay the restitution or forfeiture and the ability of the child juvenile or the parent to pay the restitution or forfeiture. In considering the ability of the child juvenile or the parent to pay the restitution or forfeiture, the court may consider the assets, as well as the income, of the child juvenile or the parent and may consider the future ability of the child juvenile or parent to pay the restitution or forfeiture within the time specified in s. 893.40.

AB378,182,18 2. In proceedings under this subsection, the court assigned to exercise jurisdiction under chs. 48 and 938 may take judicial notice of any deferred prosecution agreement, consent decree, dispositional order, sentence, extension of a consent decree, dispositional order or sentence or any other finding or order in the records of the child juvenile maintained by that court or the municipal court.

AB378,182,22 3. In proceedings under this subsection, the child juvenile and the parent may retain counsel of their own choosing at their own expense, but a child juvenile or a parent has no right to be represented by appointed counsel in a proceeding under this subsection.

AB378,183,14 (c) The court assigned to exercise jurisdiction under chs. 48 and 938 may order that the child juvenile perform community service work for a public agency or nonprofit charitable organization that is designated by the court in lieu of making restitution or paying the forfeiture. If the parent agrees to perform community service work in lieu of making restitution or paying the forfeiture, the court may order that the parent perform community service work for a public agency or a nonprofit charitable organization that is designated by the court. Community service work may be in lieu of restitution only if also agreed to by the public agency or nonprofit charitable organization and by the person to whom restitution is owed. The court may utilize any available resources, including any community service work program, in ordering the child juvenile or parent to perform community service work. The number of hours of community service work required may not exceed the number determined by dividing the amount owed on the restitution or forfeiture by the minimum wage established under ch. 104 for adults in nonagriculture, nontipped employment. The court shall ensure that the child juvenile or parent is provided with a written statement of the terms of the community service order and that the community service order is monitored.

Note: Replaces "child" with "juvenile" for consistency of references with language of ch. 938.

AB378, s. 504 Section 504. 895.035 (3) of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

AB378,183,22 895.035 (3) An adjudication under s. 938.31 that the child juvenile violated a civil law or ordinance, is delinquent or is in need of protection and services under s. 938.13 (12), based on proof that the child juvenile committed the act, subject to its admissibility under s. 904.10, shall, in an action under sub. (1), stop a child's juvenile's parent or parents from denying that the child juvenile committed the act that resulted in the injury, damage or loss.

Note: Replaces "child" with "juvenile" for consistency of references with language of ch. 938.

AB378, s. 505 Section 505. 895.035 (4) of the statutes, as affected by 1995 Wisconsin Act 262, is amended to read:

AB378,184,11 895.035 (4) Except for recovery for retail theft under s. 943.51, the maximum recovery from any parent or parents may not exceed the amount specified in s. 799.01 (1) (d) for damages resulting from any one act of a child juvenile in addition to taxable costs and disbursements and reasonable attorney fees, as determined by the court. If 2 or more children juveniles in the custody of the same parent or parents commit the same act the total recovery may not exceed the amount specified in s. 799.01 (1) (d), in addition to taxable costs and disbursements. The maximum recovery from any parent or parents for retail theft by their minor child is established under s. 943.51.

Note: Replaces "child" and "children" with "juvenile" and "juveniles", respectively, for consistency of references with language of ch. 938.

AB378, s. 506 Section 506. 895.056 (3) (intro.) of the statutes is amended to read:

AB378,184,18 895.056 (3) (intro.)  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 wager's wagerer's death. The suit may be brought against and property recovered from any of the following:

Note: Corrects spelling.

AB378, s. 507 Section 507. 895.056 (3) (a) of the statutes, as affected by 1995 Wisconsin Act 225, section 516, is amended to read:

AB378,184,23 895.056 (3) (a) The stakeholder or a 3rd person if the the property is still held by the stakeholder or 3rd person, within 6 months after the putting up, staking or depositing of the property.

Note: Deletes unnecessary "the".

AB378, s. 508 Section 508. 895.46 (6) of the statutes, as affected by 1995 Wisconsin Act 227, is amended to read:

AB378,185,16 895.46 (6) The protection afforded by this section applies to any criminal action under s. 144.74 291.97 (2) or 144.93 293.87 (2) or under 7 USC 136L (b), 15 USC 2616 (b), 33 USC 1319 (c), 42 USC 2284, 6928 (d) and (e), 6973 (b), 6992 (b) and (c), 7413 (c), 9603 (b), 9606 (b) and 11045 (b) or 49 USC appendix 1809 (b) that is commenced against a state officer or state employe who is proceeded against in his or her official capacity or as an individual because of acts committed in the storage, transportation, treatment or disposal of hazardous substances, as defined in s. 289.01 (11), if that officer or employe is found to be acting within the scope of his or her employment and if the attorney general determines that the state officer or state employe acted in good faith. Regardless of the determination made by the attorney general, the protection afforded by this section applies if the state officer or agent is not found guilty of the criminal action commenced under this subsection. This protection includes the payment of reasonable attorney fees in defending the action and costs or fines arising out of the action.

Note: Sections 144.74 and 144.93 were renumbered ss. 291.97 and 293.87 by 1995 Wis. Act 227.

AB378, s. 509 Section 509. 895.487 (1) (a) of the statutes, as created by 1995 Wisconsin Act 441, is amended to read:

AB378,185,20 895.487 (1) (a) "Employe" has the meaning given in s. 101.01 (2) (a) (3) and also includes a former employe.

Note: Inserts correct cross-reference. Section 101.01 (2) (a) was renumbered to s. 101.01 (3) by 1995 Wis. Act 27.

AB378, s. 510 Section 510. 895.487 (1) (b) of the statutes, as created by 1995 Wisconsin Act 441, is amended to read:

AB378,186,3 895.487 (1) (b) "Employer" has the meaning given in s. 101.01 (2) (b) (4).

Note: Inserts correct cross-reference. Section 101.01 (2) (b) was renumbered to s. 101.01 (4) by 1995 Wis. Act 27.

AB378, s. 511 Section 511. 895.55 (1) (i) of the statutes, as created by 1995 Wisconsin Act 192, is amended to read:

AB378,186,7 895.55 (1) (i) "State contingency plan" means the plan prepared and published under s. 144.76 292.11 (5).

Note: Inserts correct cross-reference. Section 144.76 was renumbered to s. 292.11 by 1995 Wis. Act 227.

AB378, s. 512 Section 512. 895.55 (2) (intro.) of the statutes, as created by 1995 Wisconsin Act 192, is amended to read:

AB378,186,16 895.55 (2) (intro.) Notwithstanding any provision of ch. 29, s. 299.11, 299.13, 299.31, 299.41, 299.43, 299.45, 299.51, 299.53 or 299.55, subchs. II and IV of ch. 30, subchs. II, IV, VI and VII of ch. 144, ch. 147 or 29, 166, 281, 283, 289, 291 or 292 or subch. II of ch. 295, or any other provision of this chapter, a person is immune from liability for damages resulting from the person's acts or omissions and for the removal costs resulting from the person's acts or omissions if all of the following conditions are met:

Note: Inserts correct cross-references. 1995 Wis. Act 192 did not take into account the renumbering of chs. 144 and 147 by 1995 Wis. Act 227.

AB378, s. 513 Section 513. 895.55 (3) (a) of the statutes, as created by 1995 Wisconsin Act 192, is amended to read:

AB378,187,2 895.55 (3) (a) Who is required to act under s. 144.76 292.11 (3) because the person possessed or controlled the oil that was initially discharged into the navigable waters of this state or caused the initial discharge or initial threat of discharge of the oil into the navigable waters of this state.

Note: Inserts correct cross-reference. Section 144.76 was renumbered to s. 292.11 by 1995 Wis. Act 227.

AB378, s. 514 Section 514. The amendment of 938.02 (15m) of the statutes by 1995 Wisconsin Act 216 is not repealed by 1995 Wisconsin Act 352. Both amendments stand.

Note: There is no conflict of substance.