Bayland Buildings, Inc. v. Spirit Master Funding VIII, LLC, Appeal No. 2016AP1807

• Court: Court of Appeals of Wisconsin
• Writing for the Court: REILLY, P.J.
• Citation: 377 Wis.2d 149,900 N.W.2d 94,2017 WI App 42
• Parties: BAYLAND BUILDINGS, INC., Plaintiff-Appellant, v. SPIRIT MASTER FUNDING VIII, LLC, Defendant-Respondent, Citibank, NA, Defendant.
• Decision Date: 07 June 2017
• Docket Number: Appeal No. 2016AP1807

377 Wis.2d 149
900 N.W.2d 94
2017 WI App 42

BAYLAND BUILDINGS, INC., Plaintiff-Appellant,
v.
SPIRIT MASTER FUNDING VIII, LLC, Defendant-Respondent,

Citibank, NA, Defendant.

Appeal No. 2016AP1807

Court of Appeals of Wisconsin.

Submitted on Briefs: April 12, 2017
Opinion Filed: June 7, 2017

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Alex R. Ackerman of Gerbers Law, S.C., Green Bay.

On behalf of the defendant-respondent, the cause was submitted on the brief of Timothy H. Posnanski of Husch Blackwell LLP, Milwaukee.

Before Reilly, P.J., Gundrum and Hagedorn, JJ.

REILLY, P.J.

377 Wis.2d 152

¶1 This appeal addresses "constructive notice" under Wisconsin's construction lien law. Bayland Buildings, Inc. (Bayland) appeals the circuit court's conclusion that Bayland had constructive notice that Siren Saukville, LLC (Siren) sold its entire interest in the property to Spirit Master Funding VIII, LLC (Spirit Master) after construction began. Given the remedial nature of Wisconsin's construction lien law, we conclude as a matter of law that Siren's notice to Bayland that it was bringing in an "investor" did not constitute constructive notice that Siren no longer had any ownership interest in the property. We reverse the circuit court's grant of summary judgment and remand for further proceedings consistent with this decision.

Wisconsin's Construction Lien Law

¶2 Wisconsin's lien laws "are remedial in character and are to be liberally construed to give effect to the legislative intent of protecting the claims of tradesmen, laborers and materialmen for work and materials supplied."

377 Wis.2d 153

Wes Podany Constr. Co. v. Nowicki , 120 Wis.2d 319, 324, 354 N.W.2d 755 (Ct. App. 1984). Wisconsin's lien law provides that "[a]ny person who performs, furnishes, or procures any work, labor, service, materials, plans, or specifications, used or consumed for the improvement of land" may file a lien against the real estate if he or she does not receive payment. WIS. STAT . § 779.01(3) (2015-16).¹ Construction liens are statutory creatures, and if a lien is properly perfected, it becomes an encumbrance against the real estate in the same manner as a mortgage

900 N.W.2d 97

or a judgment lien.² See Goebel v. National Exchangors, Inc. , 88 Wis.2d 596, 606, 277 N.W.2d 755 (1979) ; see also Wes Podany , 120 Wis.2d at 324, 354 N.W.2d 755 ; STEVEN W. MARTIN & BRIDGET M. HUBING, WISCONSIN CONSTRUCTION LIEN LAW HANDBOOK § 1.29 (4th ed. 2014).

¶3 In order to comply with the statutory requirements under WIS. STAT . ch. 779, a lien claimant must give written notice to the owner of the property prior to filing a lien claim. WIS. STAT . § 779.06(1), (2). "Owner" is defined in the statute as "the owner of any interest in land who, personally or through an agent, enters into a contract , express or implied, for the improvement of the land." WIS. STAT . § 779.01(2)(c) (emphasis added). A lien claimant is under no continuing duty to review the records of the property to confirm the ownership status as "the critical date, insofar as the lien claimant's duty to check the records

377 Wis.2d 154

in the office of the register of deeds is concerned, is the first date on which he furnishes labor or materials because the right to a lien of a supplier of labor or materials arises on that date." Duitman v. Liebelt , 17 Wis. 2d 543, 548-49, 117 N.W.2d 672 (1962). "[A] contractor does not lose his lien rights if, after he commences work, the owner with whom he contracted conveys the property to another, provided the contractor has no actual or constructive notice of the conveyance, and further provided that he complies" with the notice provisions of § 779.06(2). Wes Podany , 120 Wis.2d at 326, 354 N.W.2d 755.

¶4 While Spirit Master acknowledges that Bayland was not given actual notice that Siren no longer had any ownership interest in the property, it argues that constructive notice imputes such knowledge upon Bayland. Bayland counters that while it knew that Spirit Master was coming into the project as an "investor," it did not know that Siren was no longer an owner.

Standard of Review

¶5 The standard of review for determining whether a contractor received constructive notice under Wisconsin's lien law is one of first impression. "Constructive notice" is a policy determination which "under certain circumstances" treats a person or entity as if it had actual notice. Thompson v. Dairyland Mut. Ins. Co. , 30 Wis.2d 187, 192, 140 N.W.2d 200 (1966). Constructive notice exists when a person without knowledge of a fact is subjected on grounds of public policy to knowledge of that fact, as well as the liabilities associated with that knowledge.

377 Wis.2d 155

Bump v. Dahl , 26 Wis.2d 607, 613, 133 N.W.2d 295 (1965). The law assumes that if the person had exercised a reasonable degree of care he would have acquired the knowledge.³ Id. ; 58 AM. JUR. 2 D Notice § 6 (2012) ("A person is chargeable with constructive notice of any fact that would have been disclosed by a reasonably diligent inquiry if circumstances are such as to indicate to a person

900 N.W.2d 98

of reasonable prudence and caution the necessity of making inquiry to ascertain the true facts, and he or she avoids such inquiry.").

¶6 Our supreme court has found that the standard of review for constructive notice of an "unsafe condition" under the safe-place law is a question of law if the facts are not in dispute. Megal v. Green Bay Area Visitor & Convention Bureau, Inc. , 2004 WI 98, ¶ 20 n.2, 274 Wis. 2d 162, 682 N.W.2d 857. In Megal , our supreme court agreed with this court's conclusion that constructive notice is a question of law:

The distinction between propositions of fact and conclusions of law is this: Propositions of fact are descriptive; conclusions of law are dispositive. Propositions of fact state history; conclusions of law assign legal significance to that history. When there is but one account of what happened [however the account is determined], and the application of acceptable rules of

377 Wis.2d 156

law to that account is problematical, a question of law results. A conclusion of law results when legal

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