COURT OF APPEALS

DECISION

DATED AND FILED

February 27, 2024

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2022AP514 Cir. Ct. No. 2020CV162

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

TJ PROP, LLC,

 PLAINTIFF-APPELLANT,

 V.

TIM MUELLER MASON CONTRACTOR, LLC, CRIVITZ LUMBER, LLC,

ESTATE OF JEFFRY ZAHORIK D/B/A JEFFRY Z CONSTRUCTION AND 

INTEGRITY INSURANCE,

 DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Marinette County: 

JANE M. SEQUIN, Judge. Affirmed. 

Before Stark, P.J., Hruz and Gill, JJ.

¶1 GILL, J. TJ Prop, LLC, entered into separate contracts with various 

entities for the construction of a custom-built house. Ultimately, TJ Prop sued all 

but one of those entities, claiming, among other things, that they did not use the 
No. 2022AP514

2

correct house wrap as required by the contracts and that this failure caused water 

to seep into the house and behind the walls over a period of several years. 

Specifically, TJ Prop alleged negligence claims against Tim Mueller Mason 

Contractor, LLC (Mueller), Crivitz Lumber, LLC (Crivitz), and the Estate of 

Jeffry Zahorik (d/b/a Jeffry Z Construction) (Jeffry Z)1; breach of contract and 

warranty claims against Mueller and Jeffry Z; and misrepresentation and fraud 

claims against Crivitz. 

¶2 Jeffry Z and Crivitz filed separate motions to dismiss, arguing that 

TJ Prop’s tort claims were barred by the economic loss doctrine. They also 

asserted that TJ Prop’s contract claims were time barred under the applicable 

statute of limitations. Alternatively, they argued that the statute of repose barred 

all of TJ Prop’s claims. Similarly, Mueller filed a motion for summary judgment, 

raising the same legal arguments as Jeffry Z and Crivitz. The circuit court granted 

all three motions against TJ Prop, concluding that the economic loss doctrine 

barred the tort claims and that the remaining contract claims were untimely filed.

2

 

1

 Jeffry Zahorik was the sole proprietor of Jeffry Z, and he passed away in 2009. 

Therefore, TJ Prop filed this action against his estate. 

According to the amended complaint, Integrity Insurance insured Jeffry Z at the time of 

the house’s construction. On appeal, Integrity states that it also insured Crivitz and that Integrity 

adopts the arguments raised by Jeffry Z and Crivitz. 

2

 TJ Prop does not challenge that portion of the circuit court’s order determining that 

TJ Prop’s contract claims (breach of contract and warranty) against Mueller and Jeffry Z are time 

barred. Similarly, TJ Prop does not challenge that portion of the court’s order dismissing its tort 

claims (negligence, misrepresentation, and fraud) against Crivitz. Therefore, we affirm the 

court’s order with respect to the unchallenged decisions on these claims. See Techworks, LLC v. 

Wille, 2009 WI App 101, ¶25, 318 Wis. 2d 488, 770 N.W.2d 727 (“On appeal, issues raised but 

not briefed or argued are deemed abandoned.” (citation omitted)). 
No. 2022AP514

3

¶3 On appeal, TJ Prop argues that the economic loss doctrine does not 

bar its negligence claims against Mueller and Jeffry Z because TJ Prop was not a 

general contractor, and we should therefore consider its contracts with Mueller and 

Jeffry Z in isolation. In doing so, TJ Prop asserts that it is clear the contracts with 

Mueller and Jeffry Z were either primarily or exclusively for the provision of 

services, not for the provision of a product. As such, TJ Prop contends that the 

economic loss doctrine does not apply to bar its negligence claims. See Insurance 

Co. of N. Am. v. Cease Elec., Inc., 2004 WI 139, ¶52, 276 Wis. 2d 361, 688 

N.W.2d 462 (“[T]he economic loss doctrine is inapplicable to claims for the 

negligent provision of services.”). We conclude that TJ Prop hired the entities to 

construct a house, thus making TJ Prop a de facto general contractor with the 

ultimate purpose of building a house. As such, although both contracts with the 

two entities involved some services, they were entered into for the purpose of

completing part of what would become a finished product, a house. Therefore, we 

conclude that the economic loss doctrine bars TJ Prop’s negligence claims against 

Mueller and Jeffry Z. 

¶4 In addition, TJ Prop contends that Crivitz should be equitably 

estopped from asserting a statute of limitations defense to TJ Prop’s “breach of 

contract” claim against Crivitz. TJ Prop did not allege a contract claim against 

Crivitz and, therefore, the issue of whether any such claim against Crivitz was 

time barred is not before us on appeal. Regardless, even if TJ Prop had alleged a 

breach of contract claim against Crivitz, TJ Prop forfeited an equitable estoppel 

argument by not raising it in the circuit court. In all, we affirm the court’s order 

granting Jeffry Z’s and Crivitz’s respective motions to dismiss and Mueller’s 

motion for summary judgment. 
No. 2022AP514

4

BACKGROUND

¶5 In 2007 and 2008, TJ Prop sought to build a house. To do so, it 

entered into four contracts, one each with: (1) Crivitz for the materials; 

(2) Jeffry Z for carpentry services; (3) Mueller for masonry services; and 

(4) James Marriott & Associates for architectural plans. In 2020, TJ Prop sued 

Crivitz, Jeffry Z, and Mueller based on alleged deficiencies in the house’s 

construction. 

¶6 According to an amended complaint, TJ Prop’s contract with Crivitz 

required that “Tyvek brand house wrap be used in the construction” of the house

in accordance with the architectural plans. TJ Prop alleged that Crivitz “failed to 

provide Tyvek house wrap and instead substituted its own branded house wrap.” 

¶7 Furthermore, TJ Prop alleged that its contract with Jeffry Z required 

Jeffry Z to follow the architectural plans, which specified that Tyvek brand house 

wrap and “30# Felt behind all stone/masonry” would be used in the construction 

of the house. According to TJ Prop, Jeffry Z knew or should have known that the 

house wrap Crivitz ultimately provided was not Tyvek. TJ Prop alleged, among 

other deficiencies, that Jeffry Z installed the Crivitz branded house wrap and did 

not install the specified “30# Felt.” 

¶8 TJ Prop alleged that its contract with Mueller required Mueller to 

follow the architectural plans in a “substantial workmanlike manner.” TJ Prop 

also alleged, among other deficiencies, that Mueller failed to follow the proper 

building codes or used the Tyvek house wrap. 

¶9 According to TJ Prop, the deficiencies by all three entities “caused 

water to seep into the house and behind the walls over a period of several years,” 
No. 2022AP514

5

leading to “[e]xtensive mold and water damage,” discovered in 2019, and totaling 

more than $250,000 in damages. TJ Prop alleged that a forensic examination of 

the house concluded that “water had penetrated the house wrap and might have 

been a contributing factor to the damage.” 

¶10 Jeffry Z and Crivitz filed separate motions to dismiss TJ Prop’s 

complaint for failure to state a claim upon which relief could be granted. They 

argued that the economic loss doctrine barred TJ Prop from succeeding on its 

negligence claims; that the contract claims were time barred by WIS. STAT.

§ 893.43(1) (2021-22)3; and, alternatively, that the construction statute of repose, 

see WIS. STAT. § 893.89(2), barred all of TJ Prop’s claims against it. Similarly, 

Mueller filed a motion for summary judgment, raising the same legal arguments as 

Jeffry Z and Crivitz. 

¶11 Following a motion hearing, the circuit court granted all three 

defendants’ motions. The court determined that the economic loss doctrine barred 

all of TJ Prop’s tort claims and that WIS. STAT. § 893.43(1) barred the remaining 

contract claims. The court further concluded that WIS. STAT. § 893.89 did not 

extend the time limit for the contract claims to be filed. TJ Prop now appeals. 

DISCUSSION

¶12 On appeal, TJ Prop first challenges the circuit court’s decision that 

the economic loss doctrine barred its negligence claims against Mueller and 

 

3

 All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise 

noted. 
No. 2022AP514

6

Jeffry Z. Second, TJ Prop argues that Crivitz should be equitably estopped from 

asserting a statute of limitations defense. 

¶13 Our review of the circuit court’s order granting the motions to 

dismiss and motion for summary judgment implicates two separate but similar 

legal standards. A motion to dismiss pursuant to WIS. STAT. § 802.06(2)(a)6. 

should be granted if the complaint fails to “plead facts, which, if true, would 

entitle the plaintiff to relief.” Data Key Partners v. Permira Advisers LLC, 2014 

WI 86, ¶21, 356 Wis. 2d 665, 849 N.W.2d 693. “When we review a motion to 

dismiss, factual allegations in the complaint are accepted as true for purposes of 

our review. However, legal conclusions asserted in a complaint are not accepted, 

and legal conclusions are insufficient to withstand a motion to dismiss.” Id., ¶18 

(citation omitted). 

¶14 Similarly, summary judgment is appropriate if the “pleadings, 

depositions, answers to interrogatories, and admissions on file, together with the 

affidavits, if any, show that there is no genuine issue as to any material fact and 

that the moving party is entitled to a judgment as a matter of law.” WIS. STAT.

§ 802.08(2). “We construe all facts and reasonable inferences in the nonmoving 

party’s favor.” Johnson v. Mt. Morris Mut. Ins. Co., 2012 WI App 3, ¶8, 338 

Wis. 2d 327, 809 N.W.2d 53 (2011). We review a circuit court’s ruling on both 

motions de novo.4 See Data Key Partners, 356 Wis. 2d 665, ¶17 (motion to 

 

4

 TJ Prop argues on appeal that the circuit court “failed to apply the correct standard of 

review” when addressing the motions to dismiss and the motion for summary judgment. 

However, because we review these motions de novo, we need not address whether the court 

applied the correct standard. 
No. 2022AP514

7

dismiss); AKG Real Est., LLC v. Kosterman, 2006 WI 106, ¶14, 296 Wis. 2d 1, 

717 N.W.2d 835 (motion for summary judgment). 

I. The economic loss doctrine bars TJ Prop’s negligence claims against 

Mueller and Jeffry Z.

¶15 The economic loss doctrine states that a “purchaser of a product 

cannot recover from a manufacturer on a tort theory for damages that are solely 

economic.” Bay Breeze Condo. Ass’n, Inc. v. Norco Windows, Inc., 2002 WI 

App 205, ¶9, 257 Wis. 2d 511, 651 N.W.2d 738. “Therefore, when contractual 

expectations are frustrated because of a defect in the subject matter of the contract 

and the only damages are economic losses, the exclusive remedy lies in contract.” 

Id. “Economic loss is the loss in a product’s value which occurs because the 

product ‘is inferior in quality and does not work for the general purposes for which 

it was manufactured and sold.’” Wausau Tile, Inc. v. County Concrete Corp., 

226 Wis. 2d 235, 246, 593 N.W.2d 445 (1999) (citation omitted). 

¶16 The doctrine “applies to only contracts for products, not to contracts 

for services.” Trinity Lutheran Church v. Dorschner Excavating, Inc., 2006 WI 

App 22, ¶22, 289 Wis. 2d 252, 710 N.W.2d 680. Furthermore, the “doctrine does 

not preclude a product purchaser’s claims of ... damage to property other than the 

product itself.” Wausau Tile, 226 Wis. 2d at 247. 
No. 2022AP514

8

¶17 TJ Prop does not allege damage to “other property.”5 Rather, TJ 

Prop argues that its contracts with Mueller and Jeffry Z were either primarily or 

exclusively for the provision of services, not for the provision of a product. 

Conversely, Mueller and Jeffry Z assert that their respective contracts were for 

predominately a product, not for services. In a situation where there is a dispute 

over whether a contract is primarily for services or primarily for product, we apply 

the “predominant purpose test” to determine whether the contract is 

“predominantly a sale of a product and therefore subject to the economic loss 

doctrine, or predominantly a contract for services and therefore not subject to the 

economic loss doctrine.” Linden v. Cascade Stone Co., 2005 WI 113, ¶8, 283 

Wis. 2d 606, 699 N.W.2d 189 (citations omitted). We consider the totality of the 

circumstances when applying the test. Kalahari Dev., LLC v. Iconica, Inc., 2012 

WI App 34, ¶25, 340 Wis. 2d 454, 811 N.W.2d 825. 

¶18 In Linden, our supreme court analyzed whether the economic loss 

doctrine applied to a situation where property owners entered into a contract with 

a general contractor to build a new house. Linden, 283 Wis. 2d 606, ¶2. The

contractor, Groveland Craftsman, Inc., “retained various subcontractors to assist in 

the house’s construction,” including Cascade Stone Company, Inc., and Allied 

Construction. Id. Cascade was hired to apply exterior stucco to the house, and 

Allied was hired to shingle the house’s roof. Id. Ultimately, the property owners 

 

5

Jeffry Z argues on appeal that the economic loss doctrine applies under the integrated 

systems limitation to prevent TJ Prop’s claims. Under the integrated systems limitation, 

“[d]amage by a defective component of an integrated system to either the system as a whole or 

other system components is not damage to ‘other property’ [that would preclude] the application 

of the economic loss doctrine.” Wausau Tile, Inc. v. County Concrete Corp., 226 Wis. 2d 235, 

246, 249, 593 N.W.2d 445 (1999) (citation omitted). TJ Prop is not arguing that damages 

occurred to “other property,” and, therefore, we need not address the integrated systems 

limitation. 
No. 2022AP514

9

sued Groveland, Cascade, and Allied, alleging that all three entities negligently 

performed their services, which defects led to water infiltration. Id., ¶3. The 

circuit court granted Cascade and Allied’s motions for summary judgment, 

holding that the economic loss doctrine barred the tort claims against the 

subcontractors. Id., ¶4. 

¶19 On appeal, our supreme court determined that the economic loss 

doctrine prevented the property owners from pursuing their tort claims against 

Cascade and Allied because “the predominant purpose of the contract was for a 

product, a new house, rather than one for services.” Id., ¶25. In doing so, the 

court outlined relevant objective and subjective factors to consider when

determining whether a contract is predominantly for goods or for services. Id., 

¶¶21-22. Those factors include the quantitative costs of services versus materials, 

the language of the contract, the nature of the business of the supplier, the 

circumstances of the parties, and the primary objective the parties hoped to 

achieve by entering into the contract. Id., ¶¶21-23. 

¶20 Regarding the quantitative cost of services versus materials, the 

supreme court determined that it was “impossible to separate the cost of the 

materials from the cost of the services” because the contract used language that 

“mixe[d] materials and services.” Id., ¶23. 

¶21 The supreme court then turned to the subjective language of the 

contract, which it characterized as including “a mixture of service and product 

words.” Id., ¶¶24-25. The contract began by outlining the specifications of the 

project, stating, “Construct a new two[-]story home.” Id., ¶25. Further, the 

contract stated that the project’s cost was billed using a “fixed price contract,” and 

the cost would only change if there were changes to the project’s specifications, 
No. 2022AP514

10

not “based on the hours worked.” Id. According to the court, the fixed price and 

changed price provision demonstrated that “the parties bargained for costs based 

on the specifications of the house, not the amount of work put into completion of 

the project.” Id. The court also concluded that “the primary reason the [plaintiffs] 

entered into the contract was to have a house custom built.” Id. In all, the court 

determined that the predominant purpose of the contract was for a product, a new 

house, rather than for services. Id. 

¶22 Conversely, in Cease, our supreme court applied the predominant 

purpose test and determined that a contract to upgrade a ventilation system inside 

of an existing barn was a contract for services, not for a product. Cease, 276

Wis. 2d 361, ¶¶2-3. Specifically, Cold Spring Egg Farm, Inc., which operated a 

poultry farm, hired Cease Electric, Inc., to replace the barn’s manual ventilation 

system with an automatic ventilation system. Id., ¶¶3, 5. The “‘brains’ of the new 

ventilation system was the main fan control unit” that Cold Spring purchased from 

another company. Id., ¶6. The main fan control unit came with a wiring 

schematic, and, based on that diagram, Cold Spring asked Cease to “wire the 

ventilation system’s component parts, including the primary fan control and [a] 

backup thermostat.” Id., ¶7. Later, the system failed, and Cold Spring sued 

Cease, alleging that it negligently installed the system. Id., ¶10. 

¶23 The supreme court concluded that the contract between Cold Spring 

and Cease was one for services. Id., ¶18. As the court explained, the other 

company was the entity that created the ventilation system in the barn, not Cease. 

“All Cease was required to do was to follow the one-page wiring schematic to 

ensure that the controller was properly wired to ventilation fans and a power 

source.” Id. Similarly, the court reasoned that Cease did not “manufacture[]” 
No. 2022AP514

11

Cold Spring’s ventilation system—it was a “sophisticated” unit that Cease, as one 

employee testified, “simpl[y]” wired to the barn. Id., ¶20. 

¶24 Further, the supreme court established that Cold Spring did not pay

Cease a “one-time fee for the price of a ‘system.’ Rather, the electricians who did 

the work for [Cease] kept time sheets and billed their time out on an hourly basis.” 

Id., ¶19. Lastly, the court stated that “although [Cease] claims to have furnished 

additional component parts for Cold Spring’s system, there is no evidence in the 

record to support this contention.” Id., ¶21. The only evidence of any “product” 

provided by Cease came from an exhibit, which “reference[d] merely conduit and 

wiring.” Id. Accordingly, the court concluded that the contract in question was 

for services and determined that Cold Spring’s negligence claim against Cease 

was not precluded under the economic loss doctrine. Id., ¶53. 

¶25 Applying the predominant purpose test, we conclude that TJ Prop’s 

negligence claims against Mueller and Jeffry Z are barred by the economic loss 

doctrine. The contract between TJ Prop and Mueller provided:

[Mueller] hereby proposes to furnish the materials (listed 

below) and perform the labor necessary for the completion 

of stone on house, garage, and fireplace interior and 

exterior. [Mueller is] supplying wall ties, screws and 

mason sand along with labor for approximately 2,700 to 

3,000 square ft. of stone. [Mueller is] to be reimbursed for 

any materials [it] buy[s] that are not listed above. Labor 

includes washing of stone. 

All material is guaranteed to be as specified. The above 

work is to be performed in accordance with the 

specifications submitted for the above work. The work is 

to be completed in a substantial workmanlike manner for 

the amount of $30,000.00. 

 ....

Any alterations or deviations from above specifications 

involving extra costs will be executed only upon written 
No. 2022AP514

12

order and will become an extra charge over and above the 

original estimate.... 

The “specifications” were a “set of architectural plans” for the house provided by 

James Marriott & Associates to TJ Prop. An affidavit submitted by TJ Prop with 

its brief in opposition to Mueller’s motion for summary judgment stated that 

Mueller paid for “[l]ess than $200 worth of material,” including “wall ties, screws, 

and mason sand.” 

¶26 With respect to the contract between TJ Prop and Jeffry Z, the 

relevant allegations in the amended complaint6stated:

10. [Jeffry Z] presented a proposal for carpentry services for 

the construction of the Project.... [A] revised proposal was 

accepted by ... Jeffry Z .... At no time was Jeffry Z a 

general contractor for the Project. 

11. The [contract] was based on the Plans provided by 

[TJ Prop], [and] specified that Jeffry Z would follow the 

Plans, which Plans specified that Tyvek brand house wrap 

would be used for the construction of the Project along with 

30# Felt behind all stone/masonry. 

12. The [contract] specified four specific projects, with an 

optional fifth. The [contract] included the parenthetical 

(Labor only) after each of the listed projects: (i) frame 

house according to plans (Labor only); (ii) install windows 

and doors (Labor only); (iii) install aluminum soffit and 

facia (Labor only); (iv) install siding (Labor only); and 

(optional) (v) install deck (Labor only) and install screen 

 

6

 Both TJ Prop and Jeffry Z direct us to the actual contract submitted to the circuit court 

via affidavit with Jeffry Z’s motion to dismiss. When a “defendant attaches affidavits or other 

matters outside the pleadings to its motion to dismiss and the court, in its discretion, considers 

these outside matters, the court must convert the defendant’s motion into one for summary 

judgment.” Alliance Laundry Sys. LLC v. Stroh Die Casting Co., 2008 WI App 180, ¶14, 315 

Wis. 2d 143, 763 N.W.2d 167. There is no evidence before us demonstrating that the court 

considered the contract or converted Jeffry Z’s motion to dismiss into a motion for summary 

judgment. As such, we will not consider the affidavit, and we confine our review to the amended 

complaint. See Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶21, 356 Wis. 2d 665, 

849 N.W.2d 693. 
No. 2022AP514

13

porch (Labor only). Any and all extras, revisions, additions 

were billed on an hourly basis for labor only. TJ Prop paid 

for all the materials directly. 

13. Crivitz made multiple deliveries of materials, all as directed 

by Jeffry Z. TJ Prop contracted with Crivitz for purchase 

of the materials, but Jeffry Z contacted Crivitz directly to 

instruct which materials would be delivered to the Project 

site and when. There was no general contractor for the 

Project. 

¶27 TJ Prop argues that neither of the contracts with Mueller and 

Jeffry Z “promised a final product” or “had [as] its primary object the purchase of 

any sort of tangible product or goods.” With regard to the contract with Jeffry Z, 

TJ Prop contends that the contract involved “entirely services.” Similarly, with 

regard to the contract with Mueller, TJ Prop asserts that the contract involved 

“predominantly services.” 

¶28 The contracts in question here differ slightly from the contracts in 

Linden and Cease. Here, it appears that neither contract provided for a substantial 

amount of materials, if any, to be supplied by the subcontractors, making the 

contracts more similar to that in Cease. Although the Mueller contract stated that 

Mueller would furnish materials, including mason sand, Mueller purportedly spent 

only $200 on materials. The Jeffry Z contract did not state that Jeffry Z would 

supply any materials and, in fact, stated that the contract was for labor only. 

¶29 Yet, both contracts with TJ Prop were entered into for the purposes 

of completing part of what would become a finished house, making this situation 

more like Linden than Cease. That is, the “primary reason [TJ Prop] entered into 

the contract[s] was to have a house custom built.” See Linden, 283 Wis. 2d 606, 

¶25. Both contracts provided that Mueller and Jeffry Z were provided the 

architectural plans for the house and that all work would be completed in 
No. 2022AP514

14

accordance with those plans. In this case, Mueller installed stone in certain areas,

and Jeffry Z provided carpentry services. 

¶30 Furthermore, and importantly, both contracts were for a fixed price 

that was not broken down into services and materials. The contracts used 

language that “mixe[d] materials and services.” See id., ¶23. Hence, like in 

Linden, the subcontractors here were providing labor for a fixed price, which 

demonstrates that the parties “bargained for costs based on the specifications of 

the house, not the amount of work put into completion of the project.” See id., 

¶25. The contracts thus differ from the contract in Cease, which was for labor 

only at an ongoing price determined by the hours worked. Therefore, despite the 

fact that both contracts provided for some services, those services were related 

specifically to the construction of the house—a product—and were contractually 

priced that way.

7

 

 

7

 TJ Prop asks this court to apply the holding in Trinity Lutheran Church v. Dorschner 

Excavating, Inc., 2006 WI App 22, 289 Wis. 2d 252, 710 N.W.2d 680. Trinity Lutheran

Church is inapposite to this case, however, because the construction company in that case, 

Oudenhoven Construction, Inc. (OCI), did not introduce its contract into the record even after a 

jury trial. Id., ¶25. We held that 

[b]ecause the economic loss doctrine is in the nature of an 

affirmative defense against a claim based in tort, we conclude 

that it was OCI’s burden to introduce its contract with Trinity 

and to demonstrate that its predominant purpose was to supply 

Trinity with a product, not with services. OCI has not met this 

burden on the present record, and thus, we cannot conclude that 

the Trinity-OCI contract was predominantly one for other than 

construction coordination services, as the [circuit] court 

concluded. 

Id. Because we never reached the application of the predominant purpose test in Trinity 

Lutheran Church, we do not find any assistance from the analysis of that case here. 
No. 2022AP514

15

¶31 TJ Prop asserts that we should not consider the house as a final 

product because TJ Prop “never entered into any contract for a completed home.” 

In other words, TJ Prop argues that, unlike in Linden, there was no general 

contractor in this case, and we should consider the contracts in isolation of one 

another—not as an entire project. 

¶32 Prior to applying the predominant purpose test, the court in Linden

contemplated what contract it would consider—the contract between the property 

owners and the general contractor or the contracts between the general contractor 

and the subcontractors. Linden, 283 Wis. 2d 606, ¶12. The court determined that 

the contract in question was the contract between the property owners and the 

general contractor. Id., ¶17. The court reasoned, “[A]t its core, the 

[property owners’] complaint is that the house they received is not the house for 

which they contracted.” Id. “Allowing [them] to maintain a tort claim against the 

subcontractors for services rendered to the general contractor would undermine the 

distinction between contract law and tort law that the economic loss doctrine seeks 

to preserve.” Id. 

¶33 Here, TJ Prop itself essentially worked as the “general contractor”

for the house and hired various “subcontractors” to complete the house. In that 

sense, there was no “vertical privity” between all of the parties. See Trinity 

Lutheran Church, 289 Wis. 2d 252, ¶19. Instead, the parties’ position “with 

respect to each other is better analogized to that of successive spokes in a wheel, 

with [TJ Prop] at the hub. The contractual obligations of each ran exclusively to 

[TJ Prop], not to one another.” See id. 

¶34 Nevertheless, the lack of “vertical privity” under the facts of this 

case does not change our application of the predominant purpose test outlined 
No. 2022AP514

16

above. Although the economic loss doctrine does not bar all tort claims arising 

out of contracts entered into with a home builder as a general contractor, here, all 

of the contracts were entered into to complete the final product for TJ Prop. The 

“purchaser ... is in the best position to bargain for coverage of the risk of faulty 

workmanship in any part of the house.” Linden, 283 Wis. 2d 606, ¶17. “[A]t its 

core, [TJ Prop’s] complaint is that the house [it] received is not the house for 

which [it] contracted.” See id. 

¶35 Under the facts of this case, allowing TJ Prop to maintain negligence

claims against the “subcontractors” for services rendered to produce a house 

“would undermine the distinction between contract law and tort law that the 

economic loss doctrine seeks to preserve.” See id. It would essentially permit 

TJ Prop to evade the economic loss doctrine by hiring several subcontractors

regardless of the legal conclusion that the predominant purpose of those contracts 

was for the construction of a product. See id., ¶7 (explaining that the economic 

loss doctrine “seeks to avoid drowning contract law in ‘a sea of tort’” (citation 

omitted)). 

¶36 For all of the foregoing reasons, we affirm the circuit court’s 

decision granting Mueller’s motion for summary judgment and Jeffry Z’s motion 

to dismiss. 

II. TJ Prop forfeited its argument that the circuit court erred by dismissing 

its “breach of contract” claim against Crivitz on statute of limitations 

grounds.

¶37 Lastly, TJ Prop argues that the circuit court erred by concluding that 

its “breach of contract” claim against Crivitz was time barred pursuant to WIS.

STAT. § 893.43(1). TJ Prop claims that principles of equitable estoppel must 
No. 2022AP514

17

apply to prevent Crivitz from asserting a statute of limitations defense. This 

argument fails for two reasons. 

¶38 First, TJ Prop did not allege a “breach of contract” claim against 

Crivitz. The only contract claims alleged were those against Mueller and Jeffry Z. 

We note, however, that Crivitz litigated the matter in the circuit court as if TJ Prop 

had alleged a breach of contract claim against it. Namely, Crivitz argued that the 

breach of contract claim against it was time barred under either WIS. STAT.

§§ 893.43 or 893.89. On appeal, Crivitz attempts to correct this error and argues 

that no such claim was filed against it. TJ Prop does not respond to this argument. 

We therefore deem TJ Prop to have conceded that it did not assert a breach of 

contract claim against Crivitz. See Charolais Breeding Ranches, Ltd. v. FPC 

Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (unrefuted 

arguments may be deemed conceded). 

¶39 Second, even if TJ Prop did plead a breach of contract claim against 

Crivitz, TJ Prop failed to raise an equitable estoppel argument in the circuit court,

and, therefore, we deem the issue forfeited and, accordingly, unable to be raised

on appeal. See Thompson v. Ouellette, 2023 WI App 7, ¶13, 406 Wis. 2d 99, 986 

N.W.2d 338 (“The rule against forfeiture gives the parties and the [circuit] court 

notice and a fair opportunity to address issues and arguments, enabling courts to 

avoid or correct any errors with minimal disruption of the judicial process.”). 

Consequently, we will not consider TJ Prop’s equitable estoppel argument on 

appeal, and we affirm the court’s grant of Crivitz’s motion to dismiss for failure to 

state a claim. 

By the Court.—Order affirmed.

Not recommended for publication in the official reports.