Great Lakes Excavating, Inc. v. Dollar Tree Stores, Inc., 2019AP2095

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtREBECCA GRASSL BRADLEY, J.
Citation402 Wis.2d 311,976 N.W.2d 506,2022 WI 44
Parties GREAT LAKES EXCAVATING, INC., Plaintiff-Appellant-Petitioner, 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.
Docket Number2019AP2095
Decision Date22 June 2022

402 Wis.2d 311
976 N.W.2d 506
2022 WI 44

GREAT LAKES EXCAVATING, INC., Plaintiff-Appellant-Petitioner,
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.

No. 2019AP2095

Supreme Court of Wisconsin.

Oral Argument: April 7, 2022
Opinion Filed: June 22, 2022


For the plaintiff-appellant-petitioner, there were briefs filed by John E. Machulak and Machulak, Robertson & Sodos, S.C., Milwaukee. There was an oral argument by John E. Machulak.

For the intervenor-respondent, there was a brief filed by Steven J. Slawinski, Jessica K. Haskell and O'Neil, Cannon, Hollman, DeJong & Laing S.C., Milwaukee. There was an oral argument by Steven J. Slawinski.

REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., ROGGENSACK, HAGEDORN, and KAROFSKY, JJ., joined. DALLET, J., filed a dissenting opinion, in which ANN WALSH BRADLEY, J., joined.

REBECCA GRASSL BRADLEY, J.

976 N.W.2d 508
402 Wis.2d 313

¶1 Great Lakes Excavating, Inc. (Great Lakes) seeks review of a

402 Wis.2d 314

court of appeals decision1 affirming an order of the circuit court,2 which granted partial summary judgment to Riverworks City Center, LLC (Riverworks) after finding Great Lakes fully waived its construction lien. Before signing a form lien waiver document titled "Waiver of Lien to Date," the owner of Great Lakes crossed off the words "to Date," replaced them with the handwritten word "Partial," and initialed next to the change. Great Lakes argues this change "specifically and expressly" limited the lien waiver to the amount received—$33,448—in accordance with the requirements of Wis. Stat. § 779.05(1), and asserts extrinsic evidence reveals all parties intended the waiver to be partial. Alternatively, Great Lakes contends equitable estoppel precludes Riverworks from asserting Great Lakes waived its lien in full. Riverworks maintains the form constituted a full waiver of Great Lakes’ lien rights because it failed to satisfy the statutory procedure to limit the waiver.

¶2 We hold the waiver document satisfied Wis. Stat. § 779.05(1) (2019–20)3 by "specifically and expressly" limiting the waiver to "a particular portion of ... labor, services, materials, plans, or specifications" in the amount of $33,448. Accordingly, we reverse the decision of the court of appeals.

I. BACKGROUND

¶3 In this construction lien waiver dispute, Riverworks contracted with AMCON Design and Construction

402 Wis.2d 315

Co. (AMCON) to construct a commercial building and parking lot in Milwaukee, Wisconsin, called the Riverworks City Center project (the Project).4 Dollar Tree Stores, Inc. (Dollar Tree) was slated as the anchor tenant. AMCON subcontracted with Great Lakes to perform excavating work for installation of the parking lot. The original contract amount for this work was $37,165, but once the installation started, Great Lakes encountered poor soil quality necessitating additional excavating work. As a result, and following a series of change orders, the amount AMCON owed Great Lakes ultimately totaled $222,238.

¶4 After completing its work on the Project, Great Lakes invoiced AMCON for $222,238 and, when no payment was received, served Riverworks and Dollar Tree with a notice of intent to file a claim for a construction lien. At that point, and upon AMCON's invitation, the owner of Great Lakes, Duwayne Bruckner (Bruckner), went to AMCON's office to collect payment. A representative from AMCON told Bruckner only $33,448 was available for payment, and presented to Bruckner a preprinted lien waiver form, titled "Waiver

976 N.W.2d 509

of Lien to Date" for his signature. The printed body of the document provided, in relevant part:

The undersigned, for and in consideration of $33,448.00 Dollars and other good and valuable consideration, the receipt whereof is hereby acknowledged, does hereby waive and release any and all lien or claim of, or right to, lien, under the statutes of the State of WI, relating to liens of mechanics, laborers
402 Wis.2d 316
and materialmen, with respect to and upon the foregoing described property, and the improvements thereon, and with respect to any statutory lien bond, and on the material, fixtures, apparatus or machinery furnished, and on the moneys, funds or other considerations due or to become due from the Company, on account of labor, services, material, fixtures, apparatus or machinery furnished to this date by the undersigned for the foregoing described property.

Prior to signing the waiver and accepting the $33,448 check, Bruckner crossed off "to Date" in the document title, replaced it with the handwritten word, "Partial," and initialed next to the modification. Bruckner made no other changes to the form.

¶5 Following unsuccessful efforts to receive payment for the outstanding amount due, Great Lakes filed a "Subcontractor Claim for Lien" pursuant to Wis. Stat. § 779.06 and sued for the balance of $188,790. Riverworks moved for partial summary judgment as to the claim for foreclosure of the lien, which Dollar Tree joined, on the grounds that Great Lakes did not comply with Wis. Stat. § 779.05(1) ’s procedure for limiting the waiver to a particular portion of the work, resulting in a full waiver of its lien rights. The circuit court agreed, granting Riverworks’ motion because "[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."5

402 Wis.2d 317

¶6 The court of appeals affirmed, concluding neither "crossing off ‘to Date’ and writing in ‘Partial’ in the title of the document" nor referencing "$33,448 Dollars" in the document "specifically and expressly limit the waiver to a particular portion of the work," "such as the labor in the original contract, which totaled $37,165." Great Lakes Excavating, Inc. v. Dollar Tree Stores, Inc., 2021 WI App 23, ¶¶21–22, 397 Wis. 2d 210, 959 N.W.2d 351. The court emphasized the waiver's "broad[ ]" statement that Great Lakes waived "any and all lien ... on account of labor, services, material, fixtures, apparatus or machinery furnished to this date[.]" Id., ¶22. Great Lakes moved for reconsideration, which the court of appeals denied. We granted Great Lakes’ petition for review.

II. STANDARD OF REVIEW

¶7 This court reviews a grant of summary judgment independently, "using the same methodology of the circuit court and the court of appeals." Kemper Indep. Ins. Co. v. Islami, 2021 WI 53, ¶13, 397 Wis. 2d 394, 959 N.W.2d 912 (quoting

976 N.W.2d 510

Talley v. Mustafa, 2018 WI 47, ¶12, 381 Wis. 2d 393, 911 N.W.2d 55 ). "Summary judgment is appropriate when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law." Id. (quoting Talley, 381 Wis. 2d 393, ¶12, 911 N.W.2d 55 ).

402 Wis.2d 318

¶8 This case also requires the interpretation of Wis. Stat. § 779.05(1). "Issues of statutory interpretation and application present questions of law." James v. Heinrich, 2021 WI 58, ¶15, 397 Wis. 2d 517, 960 N.W.2d 350 (citing Police Ass'n v. City of Milwaukee, 2018 WI 86, ¶17, 383 Wis. 2d 247, 914 N.W.2d 597 ).

III. DISCUSSION

A. Construction Lien Statutes

¶9 "A construction lien is a remedy created by statute to insure payment to contractors, subcontractors, tradesmen, laborers, and materialmen who have furnished labor or materials in good faith for improvement of another's property." Hoida, Inc. v. M & I Midstate Bank, 2004 WI App 191, ¶20, 276 Wis. 2d 705, 688 N.W.2d 691 (quotation marks omitted). Statutes governing construction liens were first enacted more than "150 years ago to encourage construction by protecting the contractors and subcontractors of building projects." Kraemer Bros., Inc. v. Pulaski St. Bank, 138 Wis. 2d 395, 399, 406 N.W.2d 379 (1987).

¶10 The lien laws of this state have consistently been described as "remedial in character," with the purpose of "protecting the claims of tradesmen, laborers and materialmen for work and materials supplied." Bayland Bldgs., Inc. v. Spirit Master Funding VIII, LLC, 2017 WI App 42, ¶2, 377 Wis. 2d 149, 900 N.W.2d 94 (quoting Wes Podany Constr. Co. v. Nowicki, 120 Wis. 2d 319, 324, 354 N.W.2d 755 (Ct. App. 1984) ); see also

402 Wis.2d 319

Goebel v. Nat'l Exchangors, Inc., 88 Wis. 2d 596, 606, 277 N.W.2d 755 (1979) ; Tri-State Mech., Inc. v. Northland Coll., 2004 WI App 100, ¶8, 273 Wis. 2d 471, 681 N.W.2d 302 ("[O]ne of the general purposes of construction lien laws is to protect subcontractors of building projects." ...

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1 practice notes
  • Backus v. Waukesha Cnty., 2020AP307
    • United States
    • United States State Supreme Court of Wisconsin
    • July 5, 2022
    ...comply with the constitutional command to justly compensate property owners whose interests in land are taken by the government, however 976 N.W.2d 506 temporarily. See 260 N. 12th St., LLC v. State of Wis. Dep't of Transp., 2011 WI 103, ¶44, 338 Wis. 2d 34, 808 N.W.2d 372 (" Wisconsin Stat......
1 cases
  • Backus v. Waukesha Cnty., 2020AP307
    • United States
    • United States State Supreme Court of Wisconsin
    • July 5, 2022
    ...comply with the constitutional command to justly compensate property owners whose interests in land are taken by the government, however 976 N.W.2d 506 temporarily. See 260 N. 12th St., LLC v. State of Wis. Dep't of Transp., 2011 WI 103, ¶44, 338 Wis. 2d 34, 808 N.W.2d 372 (" Wisconsin Stat......

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