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October 26, 1983


Appeal from a judgment and an order of the Circuit Court for Ozaukee County: Warren A. Grady, Judge.

Petition to Review Pending. This Petition was not Decided at the Time the Volume Went to Press. Its Disposition will be Reported in a Later Volume.

Scott, C.j., Voss, P.j., and Brown, J.

The opinion of the court was delivered by: Brown

A roofing subcontractor, Rob Troutman, appeals from several rulings of the trial court which effectively dismissed FMC Corporation, the owner of the building in question, as a party to the action. At the base of this action is an attempt by Troutman to recover the contract price of $37,200 for work done on FMC's roof by lien foreclosure. Although Troutman's notice to FMC was defective, no determination was made by the trial court, pursuant to sec. 779.02(2) (e), Stats., as to whether the insufficiency of the notice misled or deceived FMC. Therefore, we reverse the trial court's decision and remand the case for a hearing on this issue.

During 1981, FMC Corporation decided that its roof was in need of patchwork and repair. Charles Harp, the plant engineer for the manufacturing department, was put in charge of obtaining bids from area contractors for this job. Harp ultimately recommended a general contractor, TRC Co., operated by Richard Kreckel. Kreckel, in turn, hired the Troutman Roofing Company to do the roofing work. Troutman supplied all of the materials and labor for the job.

Apparently, the relationship between Harp and Kreckel was a spurious one. Without FMC's or Troutman's knowledge, Harp and Kreckel had agreed that Harp would recommend Kreckel's company, and the two of them would split the profits.

Work on the roof was completed on or about November 9, 1981. FMC did pay TRC Co. for the work performed, but TRC Co. never paid Troutman the amount owed of $37,200. On December 1, Troutman met with another FMC employee (Harp was fired in October) to discuss payment. Troutman handed the employee a single copy of a "Notice of Intention to File Claim for Lien." Another notice was received approximately one week later by registered mail.

Troutman instituted an action against Kreckel, Harp and FMC. Judgment was granted against Kreckel and Harp. With respect to the claims against FMC, *fn1 the trial court dismissed the mechanic's lien foreclosure claim holding: (1) the notice Troutman had provided did not meet the requirements of sec. 779.02(2) (b), Stats., and (2) Troutman was not exempt from the notice requirement to preserve his lien rights. On charges that FMC was legally responsible for the fraudulent acts of Harp, the court granted summary judgment in favor of FMC. Finally, the court denied the plaintiff's request to amend his pleadings to include a cause of action for the negligent hiring and retention of an employee by FMC.

The major thrust of Troutman's appeal centers on the validity of his mechanic's lien on FMC's property. Our first inquiry is whether the notice Troutman gave FMC was sufficient under sec. 779.02(2) (b), Stats. We agree with the trial court that it was not.

Section 779.02(2) (b), Stats., states that two signed copies of the notice shall be given within sixty days after first furnishing labor or materials. The notice must contain: (1) the date on which labor or materials were first furnished, and (2) the legal description, street address or other clear description of the real estate. Id. Troutman's notice failed to give the date on which labor or materials were first furnished and is, therefore, defective.

Troutman is correct in his assertion that the form of the notice does not have to conform with the suggested statutory language. However, his notice failed to comply with a substantive requirement.

FMC argues that this failure to follow the requirements of sec. 779.02(2) (b), Stats., is fatal. This assertion is not entirely correct, however, Section 779.02(2) (e) explains the procedure to be followed where there is a deficiency in the notice. It states: "f the owner . . . complains of any insufficiency of any notice, the burden of proof is upon the owner . . . to show that he or she has been misled or deceived by the insufficiency." It is clear from the record that the trial court did not consider whether the failure to give the date on which the labor or materials were first furnished in any way deceived or misled FMC. Therefore, we remand the case back to the trial court for a hearing on the effect of the insufficiency of the notice. *fn2

If FMC does show the defective notice is prejudicial, *fn3 Troutman strongly asserts that the roofing work performed constitutes an "improvement" as defined in sec. 779.01(2) (c), Stats., and, therefore, is exempt from the notice requirement under sec. 779.02(1) (c).

In ascertaining the limits of the scope of the word "improvement," we must first look to the statutory definition ...

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