779.07 History
History: 1979 c. 32 s.
57; Stats. 1979 s. 779.07;
1993 a. 486;
1995 a. 224.
779.08
779.08
Release of lien; undertaking. 779.08(1)
(1) The person against whom a lien is claimed or any other interested party may file with the clerk of court in whose office the claim for lien is filed an undertaking executed by 2 or more sufficient sureties to the effect that the person against whom the lien is claimed shall pay the amount of the claim and all costs and damages which may be awarded against that person on account of the lien or in lieu thereof deposit with the clerk of the court a sum of money, certified check or negotiable government bonds in par value equal to 125% of the claim for lien. The court in which any action to foreclose the lien may be brought shall determine any question of sufficiency of the sureties if exception is taken thereto by the lien claimant within 10 days after notice of the filing of such undertaking or deposit of other security and may upon notice and upon motion of any party, order any sum of money deposited to be invested. The depositor shall be entitled to any income from the investments, certified check or negotiable U.S. government bonds deposited and the clerk shall pay the income to the depositor without order when received or, in the case of coupons, as the income becomes due.
779.08(2)
(2) If an undertaking is furnished, it shall be accompanied by the affidavits of the sureties in which each states that the surety is worth, over and above all debts and liabilities in property within this state not exempt from execution, an amount in the aggregate equal to 125% or more of the amount of the claim for lien.
779.08(3)
(3) The person against whom the lien is claimed or other interested party depositing the security shall cause to be served upon the lien claimant a notice of the filing of the undertaking or deposit of other security and, if an undertaking, a copy thereof, which notice shall state where and when the undertaking was filed or the security was deposited.
779.08(4)
(4) Any action brought after the furnishing of security or pending at the time of the furnishing thereof in accordance with this section shall proceed as if no security had been furnished, except that after the time within which exceptions may be taken to the security, or pursuant to order of the court upon any exception so taken, the clerk shall satisfy the claim for lien of record and discharge any lis pendens filed, and except that the lien thereupon shall attach to the security and the amount adjudged due in the proceeding for foreclosure thereof shall be satisfied out of the security, and the property described in the lien claim shall thenceforth be entirely free of the lien and shall in no way be involved in subsequent proceedings.
779.08(5)
(5) If no action to foreclose the lien is brought within the time specified by
s. 779.06 (1), the clerk of circuit court in whose office the undertaking or other security was filed or deposited shall on request, and without notice, return the undertaking or security to the party filing or depositing it.
779.08 History
History: 1979 c. 32 ss.
57,
92 (9);
1979 c. 176; Stats. 1979 s. 779.08.
779.09
779.09
Foreclosure of lien; procedure; parties. In the foreclosure of liens mentioned in
s. 779.01,
ch. 846 shall control as far as applicable unless otherwise provided in this subchapter. All persons having filed claims for liens under
s. 779.01 may join as plaintiffs, and if any do not join they may be made defendants. All persons having liens subsequent to such lien may be joined as defendants. If any person who is a proper party is not a party to the action the person may, at any time before judgment, be made a defendant, and any person who after the commencement of the action obtains a lien or becomes a purchaser may, at any time before judgment, be made a defendant.
779.09 History
History: 1973 c. 189 s.
20; Sup. Ct. Order, 67 W (2d) 585, 775 (1975);
1975 c. 218;
1979 c. 32 ss.
57,
92 (9); Stats. 1979 s. 779.09.
779.10
779.10
Judgment. The judgment shall adjudge the amount due to each claimant who is a party to the action. It shall direct that the interest of the owner in the premises at the commencement of the work or furnishing the materials for which liens are given and which the owner has since acquired, or so much thereof as is necessary, be sold to satisfy the judgment, and that the proceeds be brought into court with the report of sale to abide the order of the court. If the premises can be sold in parcels without injury to the parties, the court may adjudge that the sale be so made. If the plaintiff fails to establish a lien upon the premises but does establish a right to recover for labor or materials, the plaintiff may have a judgment against the party liable.
779.10 History
History: 1979 c. 32 s.
57;
1979 c. 176; Stats. 1979 s. 779.10.
779.11
779.11
Distribution of proceeds of sale. The several claimants whose liens were established in the action shall be paid without priority among themselves. If the sum realized at the sale under
s. 779.10 is insufficient after paying the costs of the action and the costs of making the sale to pay the liens in full they shall be paid proportionally.
779.11 History
History: 1979 c. 32 ss.
57,
92 (9);
1979 c. 110 s.
60 (12); Stats. 1979 s. 779.11.
779.12
779.12
Sale; notice and report; deficiency judgment; writ of assistance. 779.12(1)(1) All sales under judgments in accordance with
s. 779.10 shall be noticed, conducted and reported in the manner provided for the sale of real estate upon execution and shall be absolute and without redemption. In case such sale is confirmed, the deed given thereon shall be effectual to pass to the purchaser all that interest in the premises which is directed to be sold.
779.12(2)
(2) If any deficiency arises upon the sale in the payment of the sums adjudged to be due to any lien claimant, the court, upon confirming the sale, may render judgment for the deficiency if demanded in the pleadings against the defendant legally liable to pay the deficiency. The judgment may be entered in the judgment and lien docket and enforced in the same manner that ordinary judgments are. The purchasers at the sale shall be entitled to a writ of assistance under
s. 815.63 to obtain possession of the premises sold.
779.12 History
History: Sup. Ct. Order, 67 W (2d) 585, 775 (1975);
1979 c. 32 ss.
57,
92 (9); Stats. 1979 s. 779.12;
1995 a. 224.
779.13
779.13
Satisfaction of judgment or lien; correction of errors. 779.13(1)(1) Every lien claimant, or the attorney who executed and filed a claim for lien on the claimant's behalf, who has received satisfaction or tender of the claim with the costs of any action brought on the claim shall, at the request of any person interested in the premises affected and on payment of the costs of satisfying the same, execute and deliver the necessary satisfaction to the interested person. On filing the satisfaction with the clerk of circuit court, the clerk of circuit court shall enter satisfaction of the claim on the judgment and lien docket. Failure to execute and deliver the satisfaction or to satisfy the lien on the judgment and lien docket shall render the person so refusing liable to pay to the person requiring the satisfaction a sum equal to one-half of the sum claimed in the claim for lien.
779.13(2)
(2) Every lien claimant, or the attorney who executed and filed a claim for lien on the claimant's behalf, who has received from any person interested in the premises described in the claim a written statement that the premises described in the claim are not in fact the premises on which the claimant furnished the work or materials to which the claim relates together with a written demand that the claim be satisfied of record shall, if in fact the statement of such person about the mistaken description is true, promptly satisfy the lien claim of record at the lien claimant's expense. Failure to satisfy the lien claim of record within a reasonable time, if in fact the statement asserting the mistaken description is true, shall render the person so failing liable to pay to the person demanding the satisfaction a sum equal to one-half of the sum claimed in the claim for lien.
779.13 History
History: 1979 c. 32 s.
57;
1979 c. 176; Stats. 1979 s. 779.13;
1995 a. 224.
779.135
779.135
Construction contracts, form of contract. The following provisions in contracts for the improvement of land in this state are void:
779.135(1)
(1) Provisions requiring a contractor, subcontractor or material supplier to waive his or her right to a construction lien or to a claim against a payment bond before he or she has been paid for the labor or materials or both that he or she furnished.
779.135(2)
(2) Provisions making the contract subject to the laws of another state or requiring that any litigation, arbitration or other dispute resolution process on the contract occur in another state.
779.135(3)
(3) Provisions making a payment to a general contractor from any person who does not have a contractual agreement with the subcontractor or supplier a condition precedent to a general contractor's payment to a subcontractor or a supplier. This subsection does not prohibit contract provisions that may delay a payment to a subcontractor until the contractor receives payment from any person who does not have a contractual agreement with the subcontractor or supplier.
779.135 History
History: 1993 a. 213 ss.
164,
165; Stats. 1993 s. 779.135.
779.14
779.14
Public works, form of contract, bond, remedy. 779.14(1)(1) In this section, "subcontractor or supplier" means the following:
779.14(1)(a)
(a) Any person who has a direct contractual relationship, expressed or implied, with the prime contractor or with any subcontractor of the prime contractor to perform labor or furnish materials, except as provided in
par. (b).
779.14(1)(b)
(b) With respect to contracts entered into under
s. 84.06 (2) for highway improvements, any person who has a direct contractual relationship, expressed or implied, with the prime contractor to perform labor or furnish materials.
779.14(1m)(a)(a) All contracts with the state involving $2,500 or more and all other contracts involving $500 or more for the performance of labor or furnishing materials when the same pertains to any public improvement or public work shall contain a provision for the payment by the prime contractor of all claims for labor performed and materials furnished, used or consumed in making the public improvement or performing the public work, including, without limitation because of enumeration, fuel, lumber, building materials, machinery, vehicles, tractors, equipment, fixtures, apparatus, tools, appliances, supplies, electric energy, gasoline, motor oil, lubricating oil, greases, state imposed taxes, premiums for worker's compensation insurance and contributions for unemployment compensation.
779.14(1m)(b)1.1. A contract under
par. (a) shall not be made unless the prime contractor gives a bond issued by a surety company licensed to do business in this state and unless the prime contractor agrees, to the extent practicable, to maintain a list of all subcontractors and suppliers performing labor or furnishing materials under the contract.
779.14(1m)(b)2.
2. The bond shall carry a penalty of not less than the contract price, and shall be conditioned for all of the following:
779.14(1m)(b)2.b.
b. The payment to every person, including every subcontractor or supplier, of all claims that are entitled to payment for labor performed and materials furnished for the purpose of making the public improvement or performing the public work as provided in the contract and this subsection.
779.14(1m)(b)3.
3. The bond shall be approved for the state by the state official authorized to enter the contract, for a county by its corporation counsel, for a city by its mayor, for a village by its president, for a town by its chairperson, for a school district by its president and for any other public board or body by the presiding officer thereof.
779.14(1m)(b)4.
4. No assignment, modification or change of the contract, change in the work covered thereby or extension of time for the completion of the contract may release the sureties on the bond.
779.14(1m)(b)5.
5. Neither the invitation for bids nor the person having power to approve the prime contractor's bond may require that the bond be furnished by a specified surety company or through a specified agent or broker.
779.14(2)(a)(a) Except as provided in
par. (am), no later than one year after the completion of work under the contract, any party in interest, including any subcontractor or supplier, may maintain an action in that party's name against the prime contractor and the sureties upon the bond for the recovery of any damages sustained by reason of any of the following:
779.14(2)(a)1.
1. Failure of the prime contractor to comply with the contract.
779.14(2)(a)2.
2. Except as provided in
subd. 3., failure of the prime contractor or a subcontractor of the prime contractor to comply with a contract, whether express or implied, with a subcontractor or supplier for the performance of labor or furnishing of materials for the purpose of making the public improvement or performing the public work that is the subject of the contract under
sub. (1m).
779.14(2)(a)3.
3. With respect to contracts entered into under
s. 84.06 (2) for highway improvements, failure of the prime contractor to comply with a contract, whether express or implied, with a subcontractor or supplier of the prime contractor for the performance of labor or furnishing of materials for the purpose of making the highway improvement that is the subject of the contract under
sub. (1m).
779.14(2)(am)1.1. Except as provided in
subd. 2., a subcontractor or supplier may maintain an action under
par. (a) only if the subcontractor or supplier has notified the prime contractor in writing that the subcontractor or supplier has provided or will provide labor or materials to the public work or improvement. The notice must be provided no later than 60 days after the date on which the subcontractor or supplier first provided the labor or materials.
779.14(2)(am)2.
2. A notice under
subd. 1. is not required if any of the following applies:
779.14(2)(am)2.a.
a. The contract for the provision of the labor or materials does not exceed $5,000.
779.14(2)(am)2.b.
b. The action is brought by an employe of the prime contractor, the subcontractor or the supplier.
779.14(2)(am)2.c.
c. The subcontractor or supplier is listed in the list required to be maintained under
sub. (1m) (b) 1. or in a written contract, or in a document appended to a written contract, between a subcontractor or supplier and the prime contractor.
779.14(2)(b)
(b) If the amount realized on the bond is insufficient to satisfy all claims of the parties in full, it shall be distributed among the parties proportionally.
779.14(3)
(3) In an action by a county upon the bond all persons for whose protection it was given and who make claim thereunder may be joined in the action. The county highway commissioner may take assignments of all demands and claims for labor or material and enforce the same in the action for the benefit of the assignors, and the judgment may provide the manner in which the assignors shall be paid.
779.14 Annotation
A subcontractor can maintain an action against the prime contractor and his surety if it is brought within one year after completion of work on the principal contract. Honeywell, Inc. v. Aetna Casualty & Surety Co. 52 W (2d) 425, 190 NW (2d) 499.
779.14 Annotation
See note to 779.01, citing Jas. W. Thomas Const. Co., Inc. v. Madison, 79 W (2d) 345, 255 NW (2d) 551.
779.14 Annotation
Liability of prime contractor for damages to employes of a subcontractor under s. 779.14 (2) did not include wage penalties under s. 66.293 (3); consent to be a named party under s. 66.293 (3) may occur after one year where the action is for damages under s. 66.293 in the name of the plaintiffs and other similarly situated employes and was filed within the one year time period. Strong v. C.I.R., Inc. 184 W (2d) 619, 516 NW 719 (2d) (1994).
779.14 Annotation
A prime contractor is responsible for and must provide a bond in the amount of its own contract, not in the amount of the total of all prime contractors together. Golden Valley Supply Company v. American Insurance Company, 195 W (2d) 866, 537 NW (2d) 58 (Ct. App. 1995).
779.15
779.15
Public improvements; lien on contractor; duty of officials. 779.15(1)(1) Any person furnishing labor or materials to be used or consumed in making public improvements or performing public work, including fuel, lumber, machinery, vehicles, tractors, equipment, fixtures, apparatus, tools, appliances, supplies, electrical energy, gasoline, motor oil, lubricating oil, greases, state imposed taxes, premiums for worker's compensation insurance and contributions for unemployment compensation, to any prime contractor, except in cities of the 1st class, shall have a lien on the money or bonds or warrants due or to become due the prime contractor therefor, if the lienor, before payment is made to the prime contractor, gives written notice to the debtor state, county, town or municipality of the claim. The debtor shall withhold a sufficient amount to pay the claim and, when it is admitted by the prime contractor or established under
sub. (3), shall pay the claim and charge it to the prime contractor. Any officer violating the duty hereby imposed shall be liable on his or her official bond to the claimant for the damages resulting from the violation. There shall be no preference between the lienors serving the notices.
779.15(2)
(2) Service of the notice under
sub. (1) shall be made by registered mail upon the clerk of the municipality or in the clerk's absence upon the treasurer. If any of the money due the prime contractor is payable by the state, service of the notice under
sub. (1) shall be served by registered mail upon the state department, board or commission having jurisdiction over the work. A copy of the notice shall be served concurrently by registered mail upon the prime contractor.
779.15(3)
(3) If a valid lien exists under
sub. (1) and the prime contractor does not dispute the claim within 30 days after service on the prime contractor of the notice provided in
sub. (2), by written notice to the debtor state, county, town or municipality, the amount claimed shall be paid over to the claimant on demand and charged to the prime contractor pursuant to
sub. (1). If the prime contractor disputes the claim, the right to a lien and to the moneys in question shall be determined in an action brought by the claimant or the prime contractor. If the action is not brought within 3 months from the time the notice required by
sub. (1) is served, and notice of bringing the action filed with the officer with whom the claim is filed, the lien rights are barred.
779.15(4)(a)(a) When the total of the lien claims exceeds the sum due the prime contractor and where the prime contractor has not disputed the amounts of the claims filed, the debtor state, county, town or municipality, through the officer, board, department or commission with whom the claims are filed, shall determine who is entitled to the money and shall notify all claimants and the prime contractor in writing of the determination. Unless an action is commenced by a claimant or by the prime contractor within 20 days after the mailing of the notice, the money shall be paid out in accordance with the determination and the liability of the state, county, town or municipality to any lien claimant shall cease.
779.15(4)(b)
(b) If an action is commenced, all claimants shall be made parties and the action shall be commenced within 3 months after acceptance of the work by the proper public authority except as otherwise herein provided.
779.15(4)(c)
(c) Within 10 days after the filing of a certified copy of judgment in any such action with the officers with whom the notice authorized by
sub. (1) is filed, the money due the prime contractor shall be paid to the clerk of court to be distributed in accordance with the judgment.
779.15 History
History: 1975 c. 147 s.
54;
1975 c. 199,
224,
422;
1979 c. 32 s.
57;
1979 c. 176; Stats. 1979 s. 779.15.
779.15 Annotation
Public improvement lien under this section is subject to the waiver provision of s. 289.05 (1), 1977 stats. [now s. 779.05 (1)]. Since waiver of public improvement lien disposes of lien itself, refiling of claim for lien after waiver was nullity and fact that claim was not disputed following such refiling did not revive lien. Druml Co., Inc. v. New Berlin, 78 W (2d) 305, 254 NW (2d) 265.
779.15 Annotation
See note to 779.01, citing Jas. W. Thomas Const. Co., Inc. v. Madison, 79 W (2d) 345, 255 NW (2d) 551.
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 contractor, the owner of a judgment against the 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 contractors on public works, the proper officers of the state or municipality shall pay the judgment out of moneys due the contractor or which become due the 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 contractors. When the state or a municipality is indebted to a 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 contractor in excess of unpaid lienable claims having priority under
s. 779.15.
779.155(5)(a)(a) For the purpose of administering this section, sworn statements of the contractor setting forth the unpaid lien claims filed or filable 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 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 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 contractor after the commencement of the action in which the judgment was obtained.
779.155 History
History: 1971 c. 154; Sup. Ct. Order, 67 W (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.
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 and shall not be a trust fund in the hands of any other person. The use of the moneys by the prime contractor or subcontractor for any purpose other than the payment of claims on such public improvement, before the claims have been satisfied, constitutes theft by the prime contractor or subcontractor and is punishable under
s. 943.20. 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.
779.16 Annotation
Fiduciary relationship exists between prime contractor and subcontractor when prime contractor has received payment for public improvement. Loehrke v. Wanta Builders, 151 W (2d) 695, 445 NW (2d) 717 (Ct. App. 1989).
779.16 Annotation
Misappropriation of funds under this section was debt nondischargeable in bankruptcy. Matter of 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 contractor shall be entitled to the release of any moneys due the 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 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.
OTHER LIENS
