COURT OF APPEALS DECISION DATED AND RELEASED July 26, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule
809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-1974
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
WM. R. HUBBELL STEEL
CORPORATION,
Plaintiff-Respondent,
v.
WISCONSIN POWER AND
LIGHT COMPANY,
WISCONSIN PUBLIC POWER
INCORPORATED SYSTEM
and
C.D. SMITH
CONSTRUCTION
COMPANY,
Defendants-Appellants,
FIRSTAR TRUST COMPANY,
f/k/a
FIRST WISCONSIN TRUST
COMPANY,
Defendant.
APPEAL from a judgment
and an order of the circuit court for Fond du Lac County: PETER L. GRIMM, Judge. Affirmed.
Before Brown, Nettesheim
and Snyder, JJ.
NETTESHEIM, J. This
is a construction lien foreclosure case.
Wisconsin Power and Light Company (WP&L), Wisconsin Public Power
Incorporated System (WPPI) and C.D. Smith Construction Company appeal from a
summary judgment awarding money damages and foreclosure in favor of Wm. R.
Hubbell Steel Corporation which had supplied materials to a subcontractor for a
construction project.
The appellants argue
that the construction project is a public works project pursuant to §§ 779.14
and 779.15, Stats. Since those statutes do not recognize a lien
against the lands of the owner, but rather only a lien against the bond
furnished by a prime contractor, the appellants contend that the trial court
erred in granting Hubbell a foreclosure judgment. We hold that the summary judgment record does not support the
appellants' claim that the construction project was a public works
project. We agree with the trial court
that Hubbell was entitled to pursue its foreclosure action as a private
construction lien under § 779.01(3), Stats.
The appellants also
contend that a material issue of fact exists as to whether Hubbell's materials
were actually delivered to and incorporated into the project. We conclude that the appellants have not rebutted
Hubbell's prima facie showing that the materials it provided were delivered to
and incorporated into the project. We
affirm the summary judgment.
Facts
WP&L is the owner
and lessor of the property in question.
WPPI is the lessee. WP&L and
WPPI contracted with C.D. Smith for improvements on the property. Part of the project required C.D. Smith to
provide a preengineered steel building with components. C.D. Smith contracted with Inland Buildings
as a subcontractor for this phase of the work. Inland, in turn, contracted with Hubbell to provide certain steel
coils which were to be incorporated in the steel building.
Hubbell supplied Inland
with the steel coils. However, before
Inland completed its subcontract with C.D. Smith, it became insolvent and filed
a voluntary bankruptcy petition. When
Hubbell was not paid for its materials by Inland or the bankruptcy estate, it
sought payment, to no avail, from C.D. Smith and WP&L.[1]
On December 16, 1992,
Hubbell served WP&L, the owner of the property, with a notice of its intent
to file a claim for lien pursuant to § 779.06, Stats. On January 19,
1993, Hubbell filed the lien claim in the Fond du Lac County Circuit
Court. See id. Hubbell then commenced this action on April
21, 1993, seeking money damages and foreclosure. Hubbell named as defendants the general contractor C.D. Smith,
the owner WP&L and the lessee WPPI.[2] The defendants filed a single collective
answer denying Hubbell's allegations.
Hubbell moved for
summary judgment. The trial court
granted Hubbell's motion, awarding money damages and foreclosure of Hubbell's
lien.[3] In so ruling, the court rejected the
defendants' claim that the project was a public works project pursuant to §
779.15, Stats. Instead, the court held that Hubbell's
construction lien was a private lien governed by § 779.01(3), Stats.
WP&L, C.D. Smith and WPPI appeal.
Discussion
We review a summary
judgment using the same methodology as the trial court. See Sievert v. American Family
Mut. Ins. Co., 190 Wis.2d 623, 626, 528 N.W.2d 413, 414 (1995). Our review is de novo. Nagel Hart, Inc. v. United Pac. Ins.
Co., 141 Wis.2d 858, 860, 417 N.W.2d 36, 37 (Ct. App. 1987). Summary judgment is properly granted when
there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.
Section 802.08(2), Stats.
Wisconsin's lien laws are remedial in
character and should be liberally construed to give effect to the legislative
intent of protecting the claims of suppliers of work and materials. See Wes Podany Constr. Co. v.
Nowicki, 120 Wis.2d 319, 324, 354 N.W.2d 755, 758 (Ct. App. 1984). In the case of a private construction
contract, a party who performs work or provides labor, materials, plans or
specification for the improvement is entitled to a lien against the owner's
property. See § 779.01(3), Stats.; see also H.L.
Munch Co. v. Anderson, 111 Wis.2d 194, 199, 330 N.W.2d 768, 771 (1983).
However, Wisconsin law
does not permit a lien in favor of subcontractors and suppliers against
property owned by a public entity. H.L.
Munch, 111 Wis.2d at 199, 330 N.W.2d at 771; Nagel Hart,
141 Wis.2d at 861, 417 N.W.2d at 37.
Instead, the law accords a different remedy, a lien against a bond
provided by the prime contractor to one who provides labor or materials to a
prime contractor or a subcontractor in a public works project. See §§ 779.14 and 779.15, Stats.; Nagel Hart, 141 Wis.2d at 861-62, 417 N.W.2d at
37. The statutory phrases “public work”
and “public improvement” have been construed to mean “any improvement or work
undertaken by a unit of government or a public agency or board.” Blaser v. Don Ganser & Assocs.,
19 Wis.2d 403, 409, 120 N.W.2d 629, 632-33 (1962) (construing § 289.16, Stats., 1961, a predecessor to §
779.15).[4]
From the very outset,
Hubbell viewed its lien as a private lien recognized by § 779.01(3), Stats.
To that end, Hubbell served its notice of intent to file a lien and
filed its lien pursuant to § 779.06, Stats.,
governing such liens. Operating on that
same premise, Hubbell then commenced this action seeking foreclosure of its
private lien. See § 779.10, Stats.
Hubbell's summary
judgment proofs supported this claim.
These proofs do not in the slightest suggest that this was a public
works project. Thus, we conclude that
Hubbell clearly established a prima facie case for foreclosure relief. See Grams v. Boss, 97
Wis.2d 332, 338, 294 N.W.2d 473, 476-77 (1980). We do not read the appellants' arguments to say otherwise.
Having made out a prima
facie case for summary judgment relief, we next look to the appellants' summary
judgment proofs to determine whether a material issue of fact exists or whether
reasonable alternative inferences may be drawn from undisputed facts. Id. at 338, 294 N.W.2d at
477. As noted, the appellants claim
that the construction contract represents a public works project. They base this contention on two underlying
assumptions: (1) that the lessee, WPPI,
is a municipal electric company pursuant to § 66.073, Stats.; and (2) that WPPI was a party to the construction
contract.
The summary judgment
record does not support either of these assumptions. While it might well be the case, nothing in the appellate record
demonstrates that WPPI is a municipal electric company pursuant to § 66.073, Stats., or that the project under
scrutiny in this case was a public works project. The appellants hinge their argument on the construction contract
to which C.D. Smith, WP&L and WPPI were parties. That contract identifies WPPI as a “Wisconsin municipal electric
company.” However, this contract,
crucial to the appellants' argument, was never made a part of the trial court
record and, as a consequence, it is not part of the appellate record. An appellate court can only review matters
of record in the trial court and cannot consider new matter attached to an
appellate brief outside that record. South
Carolina Equip., Inc. v. Sheedy, 120 Wis.2d 119, 125-26, 353 N.W.2d 63,
66 (Ct. App. 1984); see also Nelson v. Schreiner, 161
Wis.2d 798, 804, 469 N.W.2d 214, 217 (Ct. App. 1991). On this threshold basis, we reject the appellants' argument that
this project was a public works project.
Moreover, even if we
consider the contract, we reject the appellants' argument. The contract does not recite that the
undertaking is a public works project.
Nor does the contract describe the role or interest of WPPI in the
project. We are not prepared to
conclude that simply because a public entity is a party to a multi-party
contract, the undertaking necessarily is a public works project within
the meaning of § 779.15, Stats. Such would be rank speculation on our
part. As against Hubbell's prima facie
case showing that its claim is one for foreclosure of a private lien, the
appellants' summary judgment proofs fail to raise any material issue of fact on
this question.
The appellants further
argue that even if the project was not a public works project, there remains a
material issue whether all of the materials Hubbell produced for the project
were actually delivered to or incorporated into the project. If there are disputed issues of material
fact, a grant of summary judgment is inappropriate and must be reversed so that
the disputes can be resolved by the fact finder. Clay v. Horton Mfg. Co., 172 Wis.2d 349, 353-54,
493 N.W.2d 379, 381 (Ct. App. 1992).
The alleged factual dispute must concern a fact that affects the
resolution of the controversy, and the evidence must be such that a reasonable
jury could return a verdict for the nonmoving party. Id. at 354, 493 N.W.2d at 381.
The appellants rest
their argument on two items of evidence contained in the summary judgment
record. First, the appellants note that
the job number assigned to the WP&L project (N2679-01) by Inland's order
entry department is different from that assigned by Inland in its
communications with Hubbell (267904).
This, according to the appellants, suggests that some of Hubbell's
materials went to a different job.
Second, the appellants note that an internal Inland memo listing the
materials provided to the project carries the notation “approx. 1900#
left.” This, according to the
appellants, suggests that the amount of material provided by Hubbell to Inland
was not actually delivered to the project by Inland.
We disagree with the
appellants that these isolated excerpts from the substantial summary judgment
record documenting this transaction raise a material issue of fact as to
whether all the Hubbell materials were actually delivered to or incorporated
into the project. In support of its
motion, Hubbell provided an affidavit of its own representative and that of an
Inland representative. Attached to both
of these affidavits were the relevant business records of Hubbell and Inland
regarding the entire transaction. Each
affidavit explained the attached exhibits, tracing the progression of the
Hubbell materials from Hubbell to Inland to C.D. Smith. Each affiant stated that the materials
referenced in the exhibits represented the materials produced by Hubbell,
shipped to Inland and then further delivered by Inland to C.D. Smith.
We think it significant,
as did the trial court, that against this evidence the appellants never averred
that the materials produced by Hubbell were not delivered to or incorporated
into the project. We fairly infer that
the appellants, as recipients of the materials, and particularly C.D. Smith as
the general contractor, were in a position to make such a definitive denial. They did not. Instead, all they mustered were the two isolated record entries
which we conclude do not detract from Hubbell's summary judgment proofs.
A request for summary
judgment is not defeated by the mere presence of conflicting facts. Rather, in order to defeat a request for
summary judgment, the conflict must be determinative of the question, Dahlke
v. Dahlke, 25 Wis.2d 559, 568A, 131 N.W.2d 362, 122 N.W.2d 584, 584
(1964) (per curiam on motion for rehearing), and must be material to the
question of law presented, DeBonville v. Travelers Ins. Co., 7
Wis.2d 255, 260, 96 N.W.2d 509, 512 (1959).
In light of Hubbell's prima facie showing that its materials were
delivered to and incorporated into the project, and in further light of the
appellants' failure to rebut that claim, we conclude the two isolated bits of
evidence cited by the appellants fall short of raising any material issue of
fact on this question.
Finally, the appellants
argue that because Inland failed to complete the project, Hubbell “can only
recover for products which were actually incorporated into the project.” We disagree. Our supreme court has specifically rejected that body of lien law
which holds that the materials provided must actually be used in the building
or improvement in order to sustain a lien.
See Builder's Lumber Co. v. Stuart, 6 Wis.2d 356,
362-64, 94 N.W.2d 630, 633-34 (1959).
In Wisconsin, the delivery of materials to a property owner or agent for
use upon a particular project is sufficient to sustain a construction lien. Id. (construing § 289.01, Stats., 1953, renumbered by Laws of
1979, ch. 32, § 57, § 92 to the current § 779.01, Stats.); see also Amoco Oil Co. v. Capitol
Indem. Corp., 95 Wis.2d 530, 538-40, 291 N.W.2d 883, 888-89 (Ct. App.
1980) (holding that the principle that the delivery of goods is sufficient to
sustain a construction lien as stated in Builder's Lumber affords
coextensive protection for public works projects under the bonding
statutes).
As we have already
noted, the summary judgment record supports Hubbell's claim that all of the
materials it invoiced to Inland were delivered to or incorporated into the
project at WP&L's River Road property.
At no time did C.D. Smith or WP&L reject or return any of the
materials. Although Inland did not
ultimately complete the WP&L project, the record establishes that Hubbell's
steel coils were incorporated into the materials that Inland actually delivered
to the project.
By the Court.—Judgment
and order affirmed.
Not recommended for
publication in the official reports.
[1] C.D. Smith had previously paid Inland for its work although Inland failed to complete the subcontract. C.D. Smith therefore had to hire another subcontractor to complete the work.