United States Fire Protection, Wisconsin, Inc. v. St. Michael's Hospital of Franciscan Sisters, Milwaukee, Inc.

FINE, J.

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 care purposes. St. Michael's Hospital paid the general contractor, Iglinski Brothers, Inc., for its work, but Iglinski Brothers failed to pay United States Fire. United States Fire filed a claim for a lien against the hospital. United States Fire did not, however, serve St. Michael's Hospital with a sixty-day notice-of-lien-rights pursuant to § 779.02(2)(b), STATS.

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 building, and-work that is equally essential to use of already existing space, even though the work does not add to the actual square footage. See id., 195 Wis. 2d at 828, 536 N.W.2d at 724-725. We agreed, holding that providing concrete for construction of utility laterals "provided or added" residential family units within the meaning of § 779.02(l)(c), STATS., and that there is no requirement that the "improvement alone must provide or add the dwellings." Id., 195 Wis. 2d at 832-833, 536 N.W.2d at 726.

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.