Wes Podany Const. Co., Inc. v. Nowicki, Nos. 83-1657

• Court: Court of Appeals of Wisconsin
• Writing for the Court: MOSER
• Citation: 120 Wis.2d 319,354 N.W.2d 755
• Parties: WES PODANY CONSTRUCTION CO., INC., a Wisconsin corporation, Plaintiff- Appellant, v. Walter A. NOWICKI, and Parnell Woods Association, a condominium association, Defendants, Thomas Bauman and Barbara Bauman, his wife, Defendants-Respondents. WES PODANY CONSTRUCTION CO., INC., a Wisconsin corporation, Plaintiff- Appellant, v. Walter A. NOWICKI, and Parnell Woods Association, a condominium association, Defendants, Raymond W. Quandt and Ruth Quandt, his wife, Defendants-Respondents.
• Decision Date: 24 July 1984
• Docket Number: Nos. 83-1657,83-2083

Page 755

354 N.W.2d 755 120 Wis.2d 319 WES PODANY CONSTRUCTION CO., INC., a Wisconsin corporation,
Plaintiff- Appellant,
v.
Walter A. NOWICKI, and Parnell Woods Association, a
condominium association, Defendants,
Thomas Bauman and Barbara Bauman, his wife, Defendants-Respondents.
WES PODANY CONSTRUCTION CO., INC., a Wisconsin corporation,
Plaintiff- Appellant,
v.
Walter A. NOWICKI, and Parnell Woods Association, a
condominium association, Defendants,
Raymond W. Quandt and Ruth Quandt, his wife, Defendants-Respondents. Nos. 83-1657, 83-2083. Court of Appeals of Wisconsin. Submitted on Briefs June 13, 1984.
Opinion Released July 24, 1984.
Opinion Filed July 24, 1984.
Review Denied.

Page 756

[120 Wis.2d 320] Jerome E. Randall, Milwaukee, for plaintiff-appellant.

[120 Wis.2d 321] Piette, Knoll & Nelson, S.C., Milwaukee, for defendants-respondents Thomas and Barbara Bauman and Raymond and Ruth Quandt; Thomas H. Knoll, Milwaukee, of counsel.

Before DECKER and MOSER, JJ., and MICHAEL T. SULLIVAN, Reserve Judge.

MOSER, Judge.

This is an appeal from separate summary judgments dismissing Wes Podany Construction Co., Inc.'s (Podany) lien foreclosure actions against two condominium properties in the Parnell Woods Condominiums, one owned by Thomas and Barbara Bauman (Baumans) and the other by Raymond W. Quandt and Ruth Quandt (Quandts). Podany appeals.

On January 1, 1979, Podany entered into a contract with Walter A. Nowicki (Nowicki) to provide masonry work and materials for the condominium project. During the time Podany supplied his materials and accomplished his masonry work, Nowicki sold Unit 1 in Building 16 to the Baumans. The Baumans' deed was recorded in the register of deeds office on October 15, 1979. Nowicki sold Unit 1 in Building 11 to the Quandts and the deed was recorded on December 10, 1979. Podany completed the work on or about December 14, 1979. On February 20, 1980, he gave Nowicki a notice of intent to file a lien claim against the condominium properties in Buildings 11 and 16 as required under sec. 779.06(2), Stats. On May 12, 1980, Podany filed his lien pursuant to sec. 779.06(1) and (3), Stats., ¹ for the separate amounts of [120 Wis.2d 322] $2,151

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and $2,577.44 against the Quandts' and the Baumans' units respectively.

On September 26, 1983, and on November 16, 1983, Podany filed his summonses and complaints for foreclosure against the Baumans' and the Quandts' condominium units. ² The record does not disclose whether the Baumans answered the complaint, but the Quandts did answer. Both the Baumans and the Quandts moved for summary judgment on the basis that they, as owners, received no notice of intent to file a lien claim under sec. 779.06(2), Stats. Both trial courts granted summary judgment.

[120 Wis.2d 323] There is no question that at the time Podany contracted for and commenced the mason work on Units 11 and 16 Nowicki was the owner of the premises. It is less clear from the record when Podany did the last work on these premises, but there is no question as to whether Podany's last work was completed within five months prior to the notice of intent to file lien sent to Nowicki. It is undisputed that the lien was filed within thirty days after the notice of intent was served upon Nowicki or within six months after the last work was completed on the units as required by law. Likewise, it is undisputed that separate foreclosure complaints against the unit owners were filed within two years after the last work on the subject property.

The sole issue on this appeal is whether the notice of intent to file a lien under sec. 779.06(2), Stats., served on Nowicki was effective to allow a lien foreclosure against the Baumans' and the Quandts' condominium units.

Both trial courts held that because no notice of intent to file a lien was provided to the Baumans and the Quandts as required under sec. 779.06(2), Stats., and because they were the owners on the day the notice of intent to file a lien was served on Nowicki, no lien foreclosure could be brought against the Baumans and Quandts. Therefore, they dismissed the complaints via summary judgment.

Podany argues that the notice of intent to file a lien under sec. 779.06(2), Stats., must be served on the owner of the premises who was owner at the time the prime contractor first furnished work or materials on the premises. This party remains the owner, he argues, regardless of any transfer of ownership between the date of the first furnishing of work or materials and the date of the service of the notice of intent to file a claim for lien, unless the material and labor contractor had actual or constructive notice of any conveyance within that period. [120 Wis.2d 324] He cites as authority the supreme court decision in Duitman v. Liebelt. ³ The Baumans and Quandts argue that Duitman is not authority for the instant case because the statute on which that decision was based is no longer the Wisconsin law. ⁴

Construction liens for work and materials are purely statutory and cannot be maintained beyond the extent of the

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legislative grant conferred. ⁵ One pursuing rights under the Wisconsin construction lien law must follow the statute or lien rights fail. ⁶ Nevertheless, our lien laws are remedial in character and are to be liberally construed to give effect to the legislative intent of protecting the claims of...