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

2021 WI APP 23

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2019AP2095

Complete Title of Case:

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.

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

JUDGES: Graham, Dugan and Donald, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS: On behalf of the plaintiff-appellant, the cause was submitted on the
briefs of John E. Machulak of Machulak, Robertson & Sodos, S.C.,
Milwaukee.

Respondent
ATTORNEYS: 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.

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2021 WI App 23

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 30, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2019AP2095 Cir. Ct. No. 2019CV2945

STATE OF WISCONSIN IN COURT OF APPEALS

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 from orders of the circuit court for Milwaukee County:
WILLIAM S. POCAN, Judge. Affirmed.
No. 2019AP2095

Before Dugan, Graham and Donald, JJ.

¶1 DONALD, J. 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 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.

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2019AP2095

¶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:

¶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

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No. 2019AP2095

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

¶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 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

2
AMCON did not file a notice of appearance and answer until after the summary judgment
order at issue in this appeal was entered.
3
Later, Great Lakes filed a second amended summons and complaint adding two more
causes of action—a fourth cause of action against Riverworks Development Corporation, the parent
corporation of Riverworks, for vicarious liability in its control of Riverworks, and a fifth cause of
action for theft by contractor.

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No. 2019AP2095

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 foreclosure cause of action.

¶12 At the hearing, Great Lakes did not raise, and the circuit court did not
address, Great Lakes’ equitable estoppel argument. Additionally, the unjust
enrichment cause of action in the amended summons and complaint was not
addressed.

¶13 Great Lakes then petitioned this court requesting interlocutory review,
which we denied.

¶14 After the petition was denied, Great Lakes stipulated with Dollar Tree
for the entry of a final order dismissing Dollar Tree from this case, which the circuit
court granted. Great Lakes now appeals this order and the order granting partial
summary judgment on Great Lakes’ lien foreclosure cause of action.4 All other
causes of action, including the unjust enrichment claim, remain pending in the
circuit court.

4
Riverworks moved to intervene in this appeal, which we granted. Dollar Tree supported
Riverworks’ request and declined to file a response brief on the basis that its interests would be
adequately represented by Riverworks. AMCON has not participated in this appeal.

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No. 2019AP2095

DISCUSSION

¶15 We review a grant of summary judgment de novo, applying the same
methodology as the circuit court. Palisades Collection LLC v. Kalal, 2010 WI App
38, ¶9, 324 Wis. 2d 180, 781 N.W.2d 503. Summary judgment should be granted
only “if the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.”
WIS. STAT. § 802.08(2).

¶16 In this case, whether summary judgment was appropriate turns on a
question of statutory interpretation, which we also review de novo. Town of Wilson
v. City of Sheboygan, 2020 WI 16, ¶12, 390 Wis. 2d 266, 938 N.W.2d 493.

¶17 When interpreting a statute, we start with the language of the statute.
State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633,
681 N.W.2d 110. If the meaning of the words of a statute are plain, we stop our
inquiry and apply the words chosen by the legislature. Id. “Statutory language is
given its common, ordinary, and accepted meaning, except that technical or
specially-defined words or phrases are given their technical or special definitional
meaning.” Id.

¶18 Lien waivers are governed by WIS. STAT. § 779.05. Subsection (1)
provides that a lien waiver document “shall be deemed to waive all lien rights of the
signer” unless “the document specifically and expressly limits the waiver to apply
to a particular portion of such labor, services, materials, plans, or specifications.”
Additionally, subsection (1) states that “[a]ny ambiguity … shall be construed
against the person signing it.”

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No. 2019AP2095

¶19 Great Lakes argues that the circuit court erred by finding that Great
Lakes waived its construction lien in full. Great Lakes argues that by crossing out
the phrase “to Date” and inserting the word “Partial,” the parties intended that the
waiver would not be a full waiver of the lien claim. In addition, Great Lakes asserts
that the reference to “$33,448 Dollars” in the lien waiver document defined a
“particular portion” of the work completed.

¶20 We disagree with Great Lakes. For the purposes of this opinion, we
assume that the parties intended to limit the waiver to a portion of the work.
However, to accomplish this purpose, Great Lakes was required to comply with the
plain language of WIS. STAT. § 779.05(1), which it failed to do.

¶21 As noted above, under the plain language of the statute, in order to
limit a lien waiver, a document must “specifically and expressly limit[] the waiver
to apply to a particular portion of such labor, services, materials, plans, or
specifications.” Simply crossing off “to Date” and writing in “Partial” in the title
of the document did not specifically and expressly limit the waiver to a particular
portion of the work.

¶22 Moreover, the reference to “$33,488 Dollars” in the lien waiver
document fails to expressly limit the waiver. The lien waiver does not state that the
“$33,488 Dollars” relates to a particular portion of the work, such as the labor in the
original contract, which totaled $37,165. On the contrary, the lien waiver broadly
states that “[t]he undersigned, for and in consideration of $33,488 Dollars … does
hereby waive and release any and all lien … on account of labor, services, material,
fixtures, apparatus or machinery furnished to this date” by Great Lakes for the
Riverworks property.

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No. 2019AP2095

¶23 Thus, we conclude that the lien waiver document here constituted a
full waiver of Great Lakes’ lien rights. Great Lakes failed to properly limit its lien
pursuant to WIS. STAT. § 779.05(1). Although lien law is generally construed
liberally, we will not disregard a statute that is clear on its face. See
Torke/Wirth/Pujara, Ltd. v. Lakeshore Towers of Racine, 192 Wis. 2d 481, 494,
531 N.W.2d 419 (Ct. App. 1995) (analyzing the notice requirement in WIS. STAT.
§ 779.06(2)).5

¶24 Lastly, Great Lakes argues that Riverworks should be equitably
estopped from arguing that the document Great Lakes signed is a full waiver of its
lien. Great Lakes, however, first raised its estoppel argument in a three-paragraph
response to Riverworks’ summary judgment motion. Riverworks responded to this
argument in its reply brief. Subsequently, at the hearing on Riverworks’ summary
judgment motion, Great Lakes did not raise the issue of estoppel or request the
circuit court issue a ruling on estoppel.

¶25 Based on the record, we conclude that Great Lakes’ estoppel argument
was not fully developed in its response brief or adequately argued before the circuit
court. Therefore, we decline to address this argument. See State v. Pettit, 171 Wis.
2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).

By the Court.—Orders affirmed.

5
Great Lakes cites to Bayland Bldgs., Inc. v. Spirit Master Funding VIII, LLC, 2017 WI
App 42, 377 Wis. 2d 149, 900 N.W.2d 94, for the proposition that we must consider extrinsic
evidence. In Bayland, however, we did not specifically address whether the lien waivers at issue
met the requirements of WIS. STAT. § 779.05(1). See Bayland, 377 Wis. 2d 149, ¶¶14-15.

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