Although failure to hold moneys in trust is punishable under sec. 943.20, we conclude that it does not mean that failure to pay moneys out of the trust fund is automatically subject to criminal action.
“We hold that there is a difference between criminal and civil theft by contractor. The difference is that the criminal statute requires wrongful intent and the civil statute does not. Therefore, it is incorrect to say that a violation of Wis. Stat. sec. 779.02(5) is ipso facto a violation of Wis. Stat. sec. 943.20. … We agree, therefore, with Schmidt to a certain extent. Violation of the contractor theft statute, standing alone, does not mean that treble damages are automatically available to the victim. …
“Applying these standards to the summary judgment record, we find sufficient facts to allege an action under Wis. Stat. sec. 943.20(1)(b). Schmidt is identified in the complaint as the person who owned the company that was the prime contractor. The complaint and the affidavit in support of the summary judgment detail the nature of the contract, the payment by The Frantz Group for installing the cables and the nonpayment by Schmidt, despite accepting the material without objection and despite numerous demands for payment. From this conduct, Tri-Tech has laid out a prima facie case that Schmidt knew his company had the money in trust for Tri-Tech, knew that he had a fiduciary duty to pay those funds to Tri-Tech and misappropriated those funds for his or another use.”
Recommended for publication in the official reports.
Dist II, Waukesha County, Davis, J., Brown, P.J.
For Appellant: Dayten Hanson, Milwaukee
For Respondent: Michael J. Widmann, Milwaukee; Robert Jacob Welcenbach, Milwaukee