Great Lakes Excavating v. Dollar Tree Stores (Construction Lien Waiver)

In Great Lakes Excavating v. Dollar Tree Stores (2019AP2095), the District I Court of Appeals held that an improperly limited lien waiver that did not comply with Wis. Stat. § 779.05(1) constituted a full waiver of lien rights.

Facts

Riverworks City Center contracted with AMCON Design and Construction to build a commercial building and parking lot. Dollar Tree Stores agreed to lease a store at the site. AMCON subcontracted with Great Lakes Excavating for work relating to the parking lot. After the work was completed, Great Lakes invoiced AMCON for $222,238. When Great Lakes did not receive payment, AMCON stated that it could only pay $33,448 and provided Great Lakes a lien waiver document. The owner of Great Lakes agreed to a partial waiver of the lien and made handwritten modifications to the lien waiver document. AMCON provided Great Lakes with a check for $33,448.

Great Lakes then filed a Subcontractor Claim for Lien on Riverworks City Center for $188,790, the difference between Great Lakes’ original invoice to AMCON and the amount paid. Great Lakes subsequently filed a complaint naming AMCON, Riverworks, and Dollar Tree Stores, seeking a money judgement against AMCON and foreclosure of the lien against Riverworks. Riverworks filed a motion for partial summary judgement, joined by Dollar Tree, arguing that Great Lakes had waived all of its lien rights because it did not expressly limit the waiver in the manner required by Wis. Stat. § 779.05(1).

The circuit court granted the motion for partial summary judgement on Great Lakes’ lien foreclosure claim, agreeing with the defendants’ argument that Great Lakes had waived all of its lien rights. With other matters still pending, Great Lakes petitioned the appellate court for interlocutory review, which was denied. Then, Great Lakes stipulated with Dollar Tree to enter a final order dismissing Dollar Tree. Great Lakes appealed the order to dismiss Dollar Tree and the partial summary judgement on its foreclosure cause of action.

Discussion

The appellate court conducted a de novo review of the grant of summary judgement, finding that Great Lakes Excavating did not comply with the plain language of Wis. Stat. § 779.05(1), which provides that a lien waiver “shall be deemed to waive all lien rights of the signer” unless the document includes specific, express limits on the terms of the waiver. Therefore, the court concluded that the lien waiver document constituted a full waiver of Great Lakes Excavating’s lien rights, since the company failed to properly limit its lien. The court noted that “Although lien law is generally construed liberally, we will not disregard a statute that is clear on its face.”

This opinion was recommended for publication in the official reports.

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