Great Lakes Excavating, Inc. v. Dollar Tree Stores, Inc., Appeal No. 2019AP2095

• Court: Court of Appeals of Wisconsin
• Writing for the Court: DONALD, J.
• Citation: 959 N.W.2d 351,2021 WI App 23,397 Wis.2d 210
• Docket Number: Appeal No. 2019AP2095
• Decision Date: 30 March 2021
• Parties: GREAT LAKES EXCAVATING, INC., Plaintiff-Appellant, v. DOLLAR TREE STORES, INC., Defendant-Respondent, AMCON Design and Construction Co., LLC, Riverworks Development Corporation and John H. Burkemper, Defendants, Riverworks City Center, LLC, Intervenor-Respondent.

397 Wis.2d 210
959 N.W.2d 351
2021 WI App 23

GREAT LAKES EXCAVATING, INC., Plaintiff-Appellant,
v.
DOLLAR TREE STORES, INC., Defendant-Respondent,

AMCON Design and Construction Co., LLC, Riverworks Development Corporation and John H. Burkemper, Defendants,

Riverworks City Center, LLC, Intervenor-Respondent.

Appeal No. 2019AP2095

Court of Appeals of Wisconsin.

Submitted on Briefs: November 19, 2020
Opinion Filed: March 30, 2021

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of John E. Machulak of Machulak, Robertson & Sodos, S.C., Milwaukee.

On behalf of the intervenor-respondent, the cause was submitted on the brief of Jessica Haskell and Paul W. Zimmer of O'Neil, Cannon, Hollman, DeJong & Laing S.C., Milwaukee.

Before Dugan, Graham and Donald, JJ.

DONALD, J.

959 N.W.2d 352

397 Wis.2d 212

¶1 Great Lakes Excavating, Inc. (Great Lakes) appeals an order granting partial summary judgment to Riverworks City Center, LLC (Riverworks) and Dollar Tree Stores, Inc. (Dollar Tree) and an order dismissing Dollar Tree. Great Lakes contends that the circuit court erred in finding that its construction lien was waived, pursuant to WIS. STAT. § 779.05(1) (2019-20).¹ We disagree and affirm.

BACKGROUND

¶2 According to Great Lakes, Riverworks contracted with AMCON Design and Construction Co., LLC, to build a commercial building with a parking lot. Before the start of construction, Dollar Tree agreed to lease a store at the site.

¶3 Great Lakes asserts that AMCON then subcontracted with Great Lakes for work relating to the parking lot. The total price of the original subcontract was $37,165. Soon after, Great Lakes discovered poor

397 Wis.2d 213

soil conditions, which required the removal of the bad soil, importation of stone, and installation of engineered fabric. AMCON signed a change order for Great Lakes to perform additional work for an undetermined price. As the work progressed, AMCON also asked Great Lakes to remove a concrete pad and furnish additional stone. Great Lakes provided two additional change orders for this work to AMCON, but did not receive signed copies back. After the work was completed, Great Lakes invoiced AMCON for a total of $222,238.

¶4 After failing to receive payment, the owner of Great Lakes, Duwayne L. Bruckner (Bruckner), went to AMCON's office. Great Lakes asserts that AMCON stated that all it could pay was $33,448, and provided Bruckner with a lien waiver document, titled "Waiver of Lien to Date." Great Lakes further asserts that Bruckner agreed to a partial waiver of the lien and crossed out the words "to date" and handwrote in the word "Partial." AMCON provided Great Lakes a check in the amount of $33,448.

¶5 The lien waiver appears in pertinent part as follows:

959 N.W.2d 353

397 Wis.2d 214

¶6 No additional payments were made and Great Lakes filed a Subcontractor Claim for Lien on Riverworks in the amount of $188,790, which represented the $222,238 bill minus the $33,448 paid.

¶7 Subsequently, Great Lakes filed a summons and complaint naming AMCON, Riverworks, and Dollar Tree as defendants. Great Lakes sought a money judgment for AMCON's breach of contract and to foreclose its lien against Riverworks. Both Riverworks and Dollar Tree filed an answer to the original complaint; AMCON did not appear or file an answer.²

¶8 Riverworks moved for partial summary judgment on the grounds that Great Lakes had waived all its lien rights because it did not expressly limit the waiver to a particular portion of work pursuant to the procedure set forth in WIS. STAT. § 779.05(1). Dollar Tree joined in Riverworks’ motion.

¶9 In response, Great Lakes argued that Riverworks’ argument "improperly render[ed] the handwritten word ‘[P]artial’ [on the lien waiver] as surplusage" and that the word "Partial" was not ambiguous. In addition, Great Lakes argued that Riverworks was equitably estopped from asserting that the lien waiver was a full waiver. Great Lakes also separately filed an amended summons and complaint to add a third cause of action, unjust enrichment.³

397 Wis.2d 215

¶10 In reply, Riverworks argued that the language in WIS. STAT. § 779.05(1) was dispositive and that estoppel was inapplicable as Riverworks was neither present nor involved with Great Lakes’ signing of the lien waiver.

¶11 A hearing was held on Riverworks’ summary judgment motion. The circuit court agreed with Riverworks and Dollar

959 N.W.2d 354

Tree that Great Lakes had not complied with the procedure set forth in WIS. STAT. § 779.05(1) for limiting the waiver to a particular portion of the work. The court stated that "[m]erely changing the title of the lien waiver, without additional explanation, does not specifically and expressly limit the waiver to apply to a particular portion of such labor, services, materials, plans, or specifications." Thus, the circuit court concluded that Great Lakes had waived its lien claim and granted the motion for partial summary judgment on Great Lakes’ lien...