United States Fire Protection, Wisconsin, Inc. v. St. Michael's Hospital of Franciscan Sisters, Milwaukee, Inc.
United States Fire Protection, Wisconsin, Inc. v. St. Michael's Hospital of Franciscan Sisters, Milwaukee, Inc.
Opinion of the Court
United States Fire Protection appeals from the trial court's judgment in favor of St. Michael's Hospital. The issue is whether a construction lien filed by United States Fire against property owned by St. Michael's Hospital is valid. The trial court concluded that the lien was invalid because United States Fire did not comply with the sixty-day lien notice requirement of § 779.02(2)(b), Stats. We conclude that United States Fire was exempt from the sixty-day notice requirement by virtue of § 779.02(l)(c), STATS. Accordingly, we reverse.
The facts are undisputed. United States Fire installed a sprinkling system that permitted St. Michael's Hospital to convert an area of its facility devoted to chemical dependency into a sub-acute care unit, similar to a nursing home. Without the sprinkler system, St. Michael's Hospital could not have used the area, which exceeds 10,000 square feet, for sub-acute
Sections 779.02(2)(b) and (3), STATS., require lien claimants to give notice to property owners as a condition precedent to enforcing a lien. This notice need not be given, however, where the labor and materials were furnished "for an improvement . . . where more than 10,000 total usable square feet of floor space is to be provided or added by such work of improvement, if the improvement is partly or wholly nonresidential in character." Section 779.02(l)(c), Stats. Whether United States Fire was exempt from the notice requirement is a question of law that we review independently of the trial court's determination. See Riverwood Park, Inc. v. Central Ready-Mixed Concrete, Inc., 195 Wis. 2d 821, 826, 536 N.W.2d 722, 724 (Ct. App. 1995). We construe "[statutes providing lien remedies to laborers and materialmen . . . liberally ... in favor of the lien claimants." McQuay-Perfex, Inc. v. Wisconsin Tel. Co., 128 Wis. 2d 231, 234, 381 N.W.2d 586, 588 (Ct. App. 1985).
Relying on Riverwood Park, 195 Wis. 2d at 832-833, 536 N.W.2d at 726, United States Fire argues that its work "provided or added" 10,000 feet of space because the hospital could not use the area for its intended purpose, sub-acute care, unless the sprinkler system was installed. In Riverwood Park, a subcontractor argued that there should be no distinction between work that adds square feet of space to an existing build
St. Michael's Hospital, on the other hand, argues that 10,000 square feet of floor space was not provided or added by the improvement because the floor space was usable as a chemical-dependency area before the work was performed, and relies on McQuay-Perfex, 128 Wis. 2d at 235, 381 N.W.2d at 589, which held that work done by the lien claimants altering a building's internal heat and cooling system did not provide or add 10,000 square feet of floor space within the meaning of the lien statute. In McQuay-Perfex, unlike here, the space was usable for its intended purpose irrespective of whether the heating and air conditioning were remodeled. Here, however, St. Michael's Hospital could not use the space for its intended purpose, sub-acute care, unless the sprinkler system was installed. United States Fire's work "provided" 10,000 square feet of sub-acute care space to the facility within the meaning of § 779.02(l)(c). Accordingly, it fell within the exemption of the lien statute.
By the Court. — Judgment reversed.
Dissenting Opinion
(dissenting). United States Fire Protection installed a sprinkler system in a section of St.
As the Majority notes, §§ 779.02(2)(b) and (3), Stats., require lien claimants to give notice to property owners as a condition precedent to enforcing a lien, unless the lien claimant has furnished labor and materials "for an improvement . . . where more than 10,000 total usable square feet of floor space is to be provided or added by such work of improvement, if the improvement is partly or wholly nonresidential in character." Section 779.02(l)(c), STATS. In McQuay-Perfex, Inc. v. Wisconsin Telephone Company, 128 Wis. 2d 231, 381 N.W.2d 586 (Ct. App. 1985), the court concluded that heating and air conditioning renovations of an existing property do not fall within the exemption:
Wisconsin Telephone contracted with a general plumbing and heating contractor to substantially replace, renovate and improve the heating and air conditioning system in its Janesville building. . . . The building had more than 10,000 feet of usable floor space, and none of the work done by Johnson [(a plaintiff)] and McQuay resulted in any structural alterations or additions.
McQuay, a manufacturer of air conditioning and heating equipment, supplied a substantial amount of "elaborate" cooling equipment for the project and performed certain "start-up" work when all systems were in place. Johnson, a designer and*415 installer of temperature control systems, provided and installed a variety of automatic air and water handling controls and made certain modifications to the electrical wiring and other components of the building's heating and air conditioning system.
Id. at 233, 381 N.W.2d at 588.
Although the court of appeals held that "the statutory term 'improvement' may be read to include alterations or remodeling," it also held, in reversing the trial court's decision to exempt Johnson and McQuay from the lien notice requirements of § 779.02(2)(b), Stats., that:
We do not agree, however, that the work done by Johnson and McQuay, however much it may have altered or remodeled the building's internal heating and cooling system, "provided or added" 10,000 feet of floor space within the meaning of sec. 779.02(l)(c), Stats. To so conclude would do violence to the plain language of the statute. To "provide" is to equip, furnish or supply for use; and to "add" is to "bring about an increase (as in number [or] size)," to enlarge or make an addition. Webster's Third New International Dictionary 2817, 24 (1976). Johnson and McQuay were not exempt from the lien notice requirements of sec. 779.02(2)(b), Stats.
McQuay-Perfex, 128 Wis. 2d at 235-36, 381 N.W.2d at 589 (alteration in original).
The Majority distinguishes McQuay-Perfex on the grounds that, in McQuay-Perfex, "the space was usable for its intended purpose irrespective of whether the heating and air conditioning were remodeled," whereas, in this case, "St. Michael's Hospital could not use the space for its intended purpose, sub-acute care, unless the sprinkler system was installed." See Majority at 413. First, the Majority provides no citation for
In any event, even assuming that the square footage in McQuay-Perfex was usable for its intended purpose irrespective of whether the heating and air conditioning system were remodeled, the result in this case should be the same as that in McQuay-Perfex. Before remodeling, both buildings had at least 10,000 square feet of usable space. After remodeling, both buildings apparently had the same number of square feet of usable space. Therefore, in both situations, the company performing the remodeling work did not add or provide any additional space within the normal meaning of those terms. The only difference between the two situations, assuming the Majority's assumptions are correct, is that in McQuay-Perfex, after remodeling, the space was usable for only one purpose, whereas in this case, after remodeling, the space is
Case-law data current through December 31, 2025. Source: CourtListener bulk data.