2022 WI 44

SUPREME COURT OF WISCONSIN

CASE NO.: 2019AP2095

COMPLETE TITLE: Great Lakes Excavating, Inc.,

 Plaintiff-Appellant-Petitioner,

 v.

Dollar Tree Stores, Inc.,

 Defendant-Respondent,

AMCON Design and Construction Co., LLC, 

Riverworks Development Corporation and John H. 

Burkemper,

 Defendants,

Riverworks City Center, LLC,

 Intervenor-Respondent.

REVIEW OF DECISION OF THE COURT OF APPEALS 

Reported at 397 Wis. 2d 10, 959 N.W.2d 351

PDC No: 2021 WI App23 - Published 

OPINION FILED: June 22, 2022 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: April 7, 2022 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Milwaukee 

JUDGE: William S. Pocan 

JUSTICES:

REBECCA GRASSL BRADLEY, J., delivered the majority opinion of 

the Court, in which ZIEGLER, C.J., ROGGENSACK, HAGEDORN, and 

KAROFSKY, JJ., joined. DALLET, J., filed a dissenting opinion, 

in which ANN WALSH BRADLEY, J., joined.

NOT PARTICIPATING:

 

ATTORNEYS:

For the plaintiff-appellant-petitioner, there were briefs 

filed by John E. Machulak and Machulak, Robertson & Sodos, S.C., 

Milwaukee. There was an oral argument by John E. Machulak.

For the intervenor-respondent, there was a brief filed by 

Steven J. Slawinski, Jessica K. Haskell and O’Neil, Cannon, 
2

Hollman, DeJong & Laing S.C., Milwaukee. There was an oral 

argument by Steven J. Slawinski. 
2022 WI 44

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2019AP2095

(L.C. No. 2019CV2945)

STATE OF WISCONSIN : IN SUPREME COURT

Great Lakes Excavating, Inc.,

 Plaintiff-Appellant-Petitioner,

 v.

Dollar Tree Stores, Inc.,

 Defendant-Respondent,

AMCON Design and Construction Co., LLC, 

Riverworks Development Corporation and John H. 

Burkemper,

 Defendants,

Riverworks City Center, LLC,

 Intervenor-Respondent.

FILED

JUN 22, 2022

Sheila T. Reiff

Clerk of Supreme Court

REBECCA GRASSL BRADLEY, J., delivered the majority opinion of 

the Court, in which ZIEGLER, C.J., ROGGENSACK, HAGEDORN, and 

KAROFSKY, JJ., joined. DALLET, J., filed a dissenting opinion, 

in which ANN WALSH BRADLEY, J., joined.

REVIEW of a decision of the Court of Appeals. Reversed and 

cause remanded. 
No. 2019AP2095 

2

¶1 REBECCA GRASSL BRADLEY, J. Great Lakes Excavating, 

Inc. (Great Lakes) seeks review of a court of appeals decision1

affirming an order of the circuit court,2 which granted partial 

summary judgment to Riverworks City Center, LLC (Riverworks) 

after finding Great Lakes fully waived its construction lien. 

Before signing a form lien waiver document titled "Waiver of 

Lien to Date," the owner of Great Lakes crossed off the words 

"to Date," replaced them with the handwritten word "Partial," 

and initialed next to the change. Great Lakes argues this 

change "specifically and expressly" limited the lien waiver to 

the amount received——$33,448——in accordance with the 

requirements of Wis. Stat. § 779.05(1), and asserts extrinsic 

evidence reveals all parties intended the waiver to be partial. 

Alternatively, Great Lakes contends equitable estoppel precludes 

Riverworks from asserting Great Lakes waived its lien in full. 

Riverworks maintains the form constituted a full waiver of Great 

Lakes' lien rights because it failed to satisfy the statutory 

procedure to limit the waiver. 

¶2 We hold the waiver document satisfied Wis. Stat. 

§ 779.05(1) (2019–20)3 by "specifically and expressly" limiting 

the waiver to "a particular portion of . . . labor, services, 

 

1 Great Lakes Excavating, Inc. v. Dollar Tree Stores, Inc., 

2021 WI App 23, 397 Wis. 2d 210, 959 N.W.2d 351.

2 The Honorable William S. Pocan, Milwaukee County Circuit 

Court, presided.

3 All subsequent references to the Wisconsin Statutes are to 

the 2019-20 version unless otherwise indicated.
No. 2019AP2095 

3

materials, plans, or specifications" in the amount of $33,448. 

Accordingly, we reverse the decision of the court of appeals.

I. BACKGROUND

¶3 In this construction lien waiver dispute, Riverworks 

contracted with AMCON Design and Construction Co. (AMCON) to 

construct a commercial building and parking lot in Milwaukee, 

Wisconsin, called the Riverworks City Center project (the 

Project).4 Dollar Tree Stores, Inc. (Dollar Tree) was slated as 

the anchor tenant. AMCON subcontracted with Great Lakes to 

perform excavating work for installation of the parking lot. 

The original contract amount for this work was $37,165, but once 

the installation started, Great Lakes encountered poor soil 

quality necessitating additional excavating work. As a result, 

and following a series of change orders, the amount AMCON owed 

Great Lakes ultimately totaled $222,238. 

¶4 After completing its work on the Project, Great Lakes 

invoiced AMCON for $222,238 and, when no payment was received, 

served Riverworks and Dollar Tree with a notice of intent to 

file a claim for a construction lien. At that point, and upon 

AMCON's invitation, the owner of Great Lakes, Duwayne Bruckner 

(Bruckner), went to AMCON's office to collect payment. A 

representative from AMCON told Bruckner only $33,448 was 

available for payment, and presented to Bruckner a preprinted 

lien waiver form, titled "Waiver of Lien to Date" for his 

 

4 This case comes to us on review of a partial grant of 

summary judgment. The facts as stated are undisputed by the 

parties.
No. 2019AP2095 

4

signature. The printed body of the document provided, in 

relevant part:

The undersigned, for and in consideration of 

$33,448.00 Dollars and other good and valuable 

consideration, the receipt whereof is hereby 

acknowledged, does hereby waive and release any and 

all lien or claim of, or right to, lien, under the 

statutes of the State of WI, relating to liens of 

mechanics, laborers and materialmen, with respect to 

and upon the foregoing described property, and the 

improvements thereon, and with respect to any 

statutory lien bond, and on the material, fixtures, 

apparatus or machinery furnished, and on the moneys, 

funds or other considerations due or to become due 

from the Company, on account of labor, services, 

material, fixtures, apparatus or machinery furnished 

to this date by the undersigned for the foregoing 

described property.

Prior to signing the waiver and accepting the $33,448 check, 

Bruckner crossed off "to Date" in the document title, replaced 

it with the handwritten word, "Partial," and initialed next to 

the modification. Bruckner made no other changes to the form.

¶5 Following unsuccessful efforts to receive payment for 

the outstanding amount due, Great Lakes filed a "Subcontractor 

Claim for Lien" pursuant to Wis. Stat. § 779.06 and sued for the 

balance of $188,790. Riverworks moved for partial summary 

judgment as to the claim for foreclosure of the lien, which 

Dollar Tree joined, on the grounds that Great Lakes did not 

comply with Wis. Stat. § 779.05(1)'s procedure for limiting the 

waiver to a particular portion of the work, resulting in a full 

waiver of its lien rights. The circuit court agreed, granting 

Riverworks' motion because "[m]erely changing the title of the 

lien waiver, without additional explanation, does not 
No. 2019AP2095 

5

specifically and expressly limit the waiver to apply to a 

particular portion of such labor, services, materials, plans, or 

specifications."5 

¶6 The court of appeals affirmed, concluding neither 

"crossing off 'to Date' and writing in 'Partial' in the title of 

the document" nor referencing "$33,448 Dollars" in the document 

"specifically and expressly limit the waiver to a particular 

portion of the work," "such as the labor in the original 

contract, which totaled $37,165." Great Lakes Excavating, Inc. 

v. Dollar Tree Stores, Inc., 2021 WI App 23, ¶¶21–22, 397 

Wis. 2d 210, 959 N.W.2d 351. The court emphasized the waiver's 

"broad[]" statement that Great Lakes waived "any and all 

lien . . . on account of labor, services, material, fixtures, 

apparatus or machinery furnished to this date[.]" Id., ¶22. 

Great Lakes moved for reconsideration, which the court of 

appeals denied. We granted Great Lakes' petition for review.

II. STANDARD OF REVIEW

¶7 This court reviews a grant of summary judgment 

independently, "using the same methodology of the circuit court 

 

5 Because Dollar Tree's involvement in the case was based 

solely on Great Lakes' claim for foreclosure against Riverworks, 

the circuit court's July 31, 2019 order dismissing the 

foreclosure claim had the effect of disposing of all claims 

between Great Lakes and Dollar Tree. The order did not 

explicitly dismiss Dollar Tree, so Great Lakes and Dollar Tree 

stipulated to Dollar Tree's dismissal from the case, 

acknowledging in the stipulation that Great Lakes would appeal 

the dismissal. Great Lakes appealed the orders dismissing 

Dollar Tree and granting partial summary judgment to Riverworks, 

and Riverworks intervened. Great Lakes maintains additional 

claims against Riverworks not at issue in this appeal.
No. 2019AP2095 

6

and the court of appeals." Kemper Indep. Ins. Co. v. Islami, 

2021 WI 53, ¶13, 397 Wis. 2d 394, 959 N.W.2d 912 (quoting Talley 

v. Mustafa, 2018 WI 47, ¶12, 381 Wis. 2d 393, 911 N.W.2d 55). 

"Summary judgment is appropriate when there is no genuine 

dispute of material fact and the moving party is entitled to 

judgment as a matter of law." Id. (quoting Talley, 381 

Wis. 2d 393, ¶12).

¶8 This case also requires the interpretation of Wis.

Stat. § 779.05(1). "Issues of statutory interpretation and 

application present questions of law." James v. Heinrich, 2021 

WI 58, ¶15, 397 Wis. 2d 517, 960 N.W.2d 350 (citing Police Ass'n 

v. City of Milwaukee, 2018 WI 86, ¶17, 383 Wis. 2d 247, 914 

N.W.2d 597).

III. DISCUSSION

A. Construction Lien Statutes

¶9 "A construction lien is a remedy created by statute to 

insure payment to contractors, subcontractors, tradesmen, 

laborers, and materialmen who have furnished labor or materials 

in good faith for improvement of another's property." Hoida, 

Inc. v. M & I Midstate Bank, 2004 WI App 191, ¶20, 276 

Wis. 2d 705, 688 N.W.2d 691 (quotation marks omitted). Statutes 

governing construction liens were first enacted more than "150 

years ago to encourage construction by protecting the 

contractors and subcontractors of building projects." Kraemer 

Bros., Inc. v. Pulaski St. Bank, 138 Wis. 2d 395, 399, 406 

N.W.2d 379 (1987). 
No. 2019AP2095 

7

¶10 The lien laws of this state have consistently been 

described as "remedial in character," with the purpose of 

"protecting the claims of tradesmen, laborers and materialmen 

for work and materials supplied." Bayland Bldgs., Inc. v. 

Spirit Master Funding VIII, LLC, 2017 WI App 42, ¶2, 377 

Wis. 2d 149, 900 N.W.2d 94 (quoting Wes Podany Constr. Co. v. 

Nowicki, 120 Wis. 2d 319, 324, 354 N.W.2d 755 (Ct. App. 1984)); 

see also Goebel v. Nat'l Exchangors, Inc., 88 Wis. 2d 596, 606, 

277 N.W.2d 755 (1979); Tri-State Mech., Inc. v. Northland Coll., 

2004 WI App 100, ¶8, 273 Wis. 2d 471, 681 N.W.2d 302 ("[O]ne of 

the general purposes of construction lien laws is to protect 

subcontractors of building projects." (citing Kraemer Bros., 138 

Wis. 2d at 399)). Because construction liens are "purely 

statutory," "[o]ne pursuing rights under the Wisconsin 

construction lien law must follow the statute or lien rights 

fail." Wes Podany Constr. Co., 120 Wis. 2d at 324. 

¶11 Construction liens can be waived under Wis. Stat. 

§ 779.05(1). That statute provides in relevant part:

Any waiver document shall be deemed to waive all lien 

rights of the signer for all labor, services, 

materials, plans, or specifications performed, 

furnished, or procured, or to be performed, furnished, 

or procured, by the claimant at any time for the 

improvement to which the waiver relates, except to the 

extent that the document specifically and expressly 

limits the waiver to apply to a particular portion of 

such labor, services, materials, plans, or 

specifications.

The statute further directs that "[a]ny ambiguity in such 

document shall be construed against the person signing it." 
No. 2019AP2095 

8

§ 779.05(1). The lien waiver statute, created in 1968 as Wis. 

Stat. § 289.05(1) and renumbered in 1979, was "primarily a 

codification of what was common practice in the construction 

industry." Druml Co., Inc. v. City of New Berlin, 78 

Wis. 2d 305, 310, 254 N.W.2d 265 (1977) (citing Walter B. 

Raushenbush, Wisconsin Construction Lien Law 1974 (1975)); see 

also § 3, ch. 351, Laws of 1967; Wis. Stat. § 289.05(1) (1967–

68); § 57, ch. 32, Laws of 1979. 

B. The Lien Waiver Document

¶12 Resolution of this dispute revolves around whether 

Great Lakes "follow[ed] the statute" in limiting its lien waiver 

to the $33,448 received in consideration for the waiver, by 

replacing "to Date" with "Partial" in the document title. See

Wes Podany Constr. Co., 120 Wis. 2d at 324; Wis. Stat. 

§ 779.05(1). Riverworks asserts this handwritten modification

creates an ambiguity because the printed body of the waiver 

document otherwise constitutes a full waiver under which Great 

Lakes "waive[s] and release[s] any and all lien or claim of, or 

right to, lien, . . . on account of labor, services, material, 

fixtures, apparatus or machinery furnished to this date," and as 

of that date, all of the work had been completed. Under 

§ 779.05(1), Riverworks argues the resulting ambiguity must be 

"construed against the person signing it." Great Lakes 

disagrees, arguing the waiver is unambiguously a partial waiver 

because there is no competing interpretation of the document. 

We agree with Great Lakes that the waiver document is not 

ambiguous and satisfies § 779.05(1) as a partial waiver of the 
No. 2019AP2095 

9

lien with respect to only the $33,448 paid.6 The handwritten 

term "Partial," in conjunction with the specific amount of 

consideration, indicates the lien was waived only to the extent

of that portion of the total amount owed.

1. The Waiver is Unambiguously Partial

¶13 In construing the lien waiver document, we first 

address the inconsistency between the printed terms and the 

handwritten language. Read in isolation, the printed text of 

the waiver document, waiving all lien rights to date, 

constitutes a full lien waiver; it is undisputed that all of the 

work on the Project had been completed at the time Bruckner 

signed the waiver form. The handwritten addition of "Partial" 

in the document title, replacing the printed words "to Date," 

conflicts with the preprinted language in the body of the 

document indicating Great Lakes "does hereby waive and release 

any and all lien . . . on account of labor, services, material, 

fixtures, apparatus or machinery furnished to this date" with 

respect to the Riverworks property. 

 

6 Riverworks argued in its briefing, "The lien waiver 

contains no language relating the $33,448 to a particular 

portion of the work performed by Great Lakes." The court of 

appeals invalidated the waiver on this same basis. See Great 

Lakes Excavating, 397 Wis. 2d 210, ¶¶21–22. Riverworks later 

conceded at oral argument that a reference to a monetary value 

can satisfy the statutory requirement to limit the waiver to a 

"particular portion" of the work. As we explain further in 

Section III.B.2, we agree that limiting the lien waiver in this 

case to a specific dollar amount satisfies Wis. Stat. 

§ 779.05(1) irrespective of Riverworks' concession. 
No. 2019AP2095 

10

¶14 Because a lien waiver document is a release, we apply 

contract principles to resolve this conflict. See Druml Co., 78 

Wis. 2d at 311 (holding that a claimant's letter constituted a 

waiver under the lien waiver statute because it was "clear in 

its intent to release the lien claim"); Marx v. Morris, 2019 WI 

34, ¶63, 386 Wis. 2d 122, 925 N.W.2d 112 ("A release is to be 

treated as a contract." (quoting Gielow v. Napiorkowski, 2003 WI 

App 249, ¶14, 268 Wis. 2d 673, 673 N.W.2d 351)). Riverworks 

contends a construction lien waiver is not a contract because 

Wis. Stat. § 779.05(1) does not "require" "an offer, acceptance, 

and consideration." While the statute does not require these 

elements, nothing in the statutory text strips the release in 

this case of its contractual nature. The lien waiver satisfies 

each element of a contract; accordingly, contract principles 

apply to its interpretation.

¶15 "[I]n accord with the general rule that all parts of a 

contract are to be given effect, the courts must seek to 

reconcile inconsistencies between the changed or added terms and 

the printed matter. When, however, the printed contract 

provisions irreconcilably conflict with the provisions added by 

the parties, the added provisions will control." 11 Williston 

on Contracts § 32:13 (4th ed.). The handwritten and printed 

terms in the waiver document are irreconcilable: the document 

is either a partial lien waiver or a full lien waiver, but it 

cannot be both. "Where written provisions are inconsistent with 

printed provisions (of a contract), an interpretation is 

preferred which gives effect to the written provisions." 
No. 2019AP2095 

11

Tollefson v. Green Bay Packers, 256 Wis. 318, 322, 41 N.W.2d 201 

(1950) (quoting Restatement, Contracts § 236(e)); see also Hicks 

Pub. Co. v. Wis. Cent. Ry. Co., 138 Wis. 584, 120 N.W. 512, 514 

(1909) ("It is a canon of construction that where a contract 'is 

written in part and printed in part, as where it has been filled 

in upon a printed form, the parties usually pay much more 

attention to the written parts than to the printed parts. 

Accordingly, if the written provisions cannot be reconciled with 

the printed, the written provisions control.'"). In accordance 

with black letter contracts law, we reconcile this inconsistency 

by giving effect to the handwritten terms.7

 

7 Remarkably, the dissent claims contract principles should 

not be applied to a contract. Dissent, ¶32. Legislative 

enactments concerning contracts do not displace the entire body 

of legal principles governing them. "To accomplish a change in 

the common law, the language of the statute must be clear, 

unambiguous, and peremptory." Fuchsgruber v. Custom 

Accessories, Inc., 2001 WI 81, ¶25, 244 Wis. 2d 758, 628 

N.W.2d 833. "[L]egislation in derogation of the common law 

should be strictly construed so as to have minimal effect on the 

common law rule." Augsburger v. Homestead Mut. Ins. Co., 2014 

WI 133, ¶40, 359 Wis. 2d 385, 856 N.W.2d 874 (citing 

Fuchsgruber, 244 Wis. 2d 758, ¶25; NBZ, Inc. v. Pilarski, 185 

Wis. 2d 827, 836, 520 N.W.2d 93 (Ct. App. 1994)). Wisconsin 

Stat. § 779.05(1) directs our treatment of ambiguity in lien 

waivers, but it does not abrogate the entire suite of common law 

contract principles. Because the legislature removed a tool, 

the dissent abandons the whole toolbox. This is not the law. 

In NBZ, the court of appeals determined covenants not to 

compete under Wis. Stat. § 103.465 are "subject to common law 

contract principles as well as [statutory] requirements." NBZ, 

185 Wis. 2d at 836. Section 103.465 "sets forth the 

requirements for a[] . . . covenant in an employment contract 

but does not address on its face the question of whether a 

restrictive covenant must be supported by consideration." Id.

at 835. The court concluded such a covenant requires 

consideration because the statute did not "abandon the 
No. 2019AP2095 

12

¶16 The existence of an inconsistency between preprinted 

and handwritten contract terms is distinct from contractual 

ambiguity; the latter exists if a document is "reasonably or 

fairly susceptible of more than one construction." Borchardt v. 

Wilk, 156 Wis. 2d 420, 427, 456 N.W.2d 653 (Ct. App. 1990). By 

contrast, the presence of an inconsistency or conflict between 

terms precludes a reasonable interpretation of the document; 

read together, the terms are irreconcilable. See, e.g., Ketay 

v. Gorenstein, 261 Wis. 332, 334, 53 N.W.2d. 6 (1952) 

(explaining the court cannot "reject certain portions of the 

contract" "unless it presents an irreconcilable inconsistency"). 

The lien waiver in this case cannot be construed as a full 

waiver because the handwritten word "Partial" must be given 

 

principles by which a contract is formed in the first instance." 

Id. at 837. 

So too here. The lien waiver we construe in this case is a

contract, "subject to common law contract principles as well as 

[statutory] requirements" under Wis. Stat. § 779.05(1). See

id. at 836. The rule giving controlling effect to handwritten 

terms over preprinted contract provisions is neither expressly 

abrogated by § 779.05(1) nor in conflict with it, and the 

policies underlying the principle are not "irrelevant to the 

legislature's choice" to recognize lien waivers as a statutory 

matter. See Hinrichs v. DOW Chem. Co., 2020 WI 2, ¶55, 389 

Wis. 2d 669, 937 N.W.2d 37 (declining to apply common law 

principles because "the policies underlying the economic loss 

doctrine——the allocation of risk and the distinction between 

tort and contract law——are irrelevant to the legislature's 

choice to provide a purely statutory cause of action and remedy 

by way of § 100.18"). That "the common law contract 

rule . . . is irrelevant" to a non-contractual waiver does not 

negate its application to a contractual waiver. See dissent, 

¶32. 
No. 2019AP2095 

13

effect. Because the word "Partial" is handwritten, it governs

over the preprinted language waiving all lien rights to date. 

¶17 This principle that handwritten terms control over 

preprinted provisions "is based on the inference that the 

language inserted by handwriting . . . is a more recent and more 

reliable expression of [the parties'] intentions than is the 

language of a printed form." Edwin W. Patterson, The 

Interpretation and Construction of Contracts, 64 Colum. L. Rev. 

833, 855 (1964) (citing Restatement, Contracts § 236(e) (1932)). 

"Since the parties actually chose to add to or modify the 

printed contract, the written terms presumably better reflect 

their intention than those contained in a printed contract 

intended for general use." 11 Williston on Contracts § 32:13 

(4th ed.). 

¶18 Consistent with the principle that handwritten terms 

control over the form's printed provisions, the term "Partial" 

prevails over the language in the printed body of the document 

waiving all lien rights to date. Resolving this conflict leaves 

no ambiguity as to whether the document is a full or partial 

waiver. Because it can be only one or the other, there is no 

reasonable alternative construction of the document other than 

as a partial waiver. 

2. The Waiver is "Specifically and Expressly" Limited to 

$33,448

¶19 Concluding that the document is a partial waiver does 

not alone resolve the case; ambiguity could exist if the lien 

waiver is not specifically and expressly limited to a particular 
No. 2019AP2095 

14

portion of work. This is not so in this case. "Partial" 

unambiguously applies to the "particular portion of such labor, 

services, materials, plans, or specifications" represented by 

the amount of the "$33,448 Dollars" written on the waiver form 

and received in consideration for the partial release.8 Wis. 

Stat. § 779.05(1). 

¶20 Riverworks conceded during oral argument that a waiver 

could be limited to a dollar amount, and suggested Great Lakes 

could have satisfied Wis. Stat. § 779.05(1) by agreeing "I 

hereby waive my lien rights to the extent of X dollars." 

Although this would have been a clearer limitation of the 

waiver, we decline to adopt such a formulaic reading of 

 

8 The dissent claims our contract construction "rests on the 

false premise that when a party receives a certain amount of 

money in exchange for a waiver, it must be waiving its lien only 

up to that dollar amount," and suggests Great Lakes could have 

accepted the $33,448 "in exchange for waiving its lien claims 

related to the original contract amount of $37,165" or "any 

other dollar amount." Dissent, ¶30. Great Lakes could have 

chosen to limit its waiver as the dissent describes, which we 

would have honored had the lien waiver document so indicated. 

But no such limitation can be reasonably gleaned from the 

document before us. The dissent posits purely hypothetical 

intentions possibly underlying Great Lakes' addition of 

"Partial," which, according to the dissent, make the waiver

ambiguous. In doing so, the dissent reaches beyond the four 

corners of the document to introduce ambiguity where it does not 

exist. There are myriad ways Great Lakes might have intended to 

limit its lien waiver, but we need not consider any of these 

speculative iterations because our review is confined to the 

four corners of the lien waiver document, which——as the dissent 

acknowledges——is "all the property owner has to go on[.]" Id., 

¶26. Confined to its four corners, the lien waiver document in 

this case yields but one reasonable interpretation, and while it 

does not mirror the model forms reproduced by the dissent, it 

nonetheless meets the statutory bar.
No. 2019AP2095 

15

§ 779.05(1). The statute specifies only that a partial lien 

waiver must be "specific[] and express[]."9 The partial waiver 

satisfies § 779.05(1) because it is unambiguously partial——

waiving Great Lakes' lien rights only in the amount of "$33,448 

Dollars"——an amount representing the "particular portion" of the 

work to which the waiver applies. 

¶21 In further support of this reading, as of the date the 

lien waiver was signed, no one contended that any of the 

$222,238 allegedly due to Great Lakes did not cover lienable 

work. Prior to 2006, waivers of construction lien rights were 

limited to "labor and materials furnished or to be furnished by 

the claimant at any time for the improvement to which the waiver 

relates[.]" Wis. Stat. § 779.05(1) (2003–04). In 2006, the 

legislature amended § 779.05(1) to include "all labor, services, 

materials, plans, or specifications performed, furnished, or 

procured, or to be performed, furnished, or procured, by the 

claimant at any time for the improvement to which the waiver 

relates[.]" 2005 Wis. Act 204; § 779.05(1) (2005–06). Because 

no party maintains that any portion of the fully completed work 

is not lienable, limiting the waiver to a specific dollar value 

does not create any additional ambiguity.

 

9 Contrary to Riverworks' suggestion at oral argument that 

we are left to "divine" what portion of work the waiver 

attempted to release, no divination is required. Construing the 

document as a partial waiver limited to $33,448 is the only 

reasonable interpretation of the contract. Interpreting the 

waiver before us does not involve the kind of "guessing games" 

Riverworks and the dissent assert the statute is designed to 

avoid. See dissent, ¶31.
No. 2019AP2095 

16

¶22 Because we conclude the lien waiver document within 

its four corners satisfies the statutory requirements by 

specifically and expressly limiting the waiver to the $33,448 

Great Lakes received in consideration, we need not decide the 

other issues presented, including the propriety of considering 

extrinsic evidence of intent, or whether equitable estoppel 

precludes Riverworks' claim.

IV. CONCLUSION

¶23 The construction lien waiver document on its face 

satisfies the statutory requirements of Wis. Stat. § 779.05(1) 

necessary to limit the waiver of Great Lakes' lien rights. The 

document "specifically and expressly" restricts the lien waiver 

to "a particular portion of such labor, services, materials, 

plans, or specifications"——the $33,448 received in consideration 

of the waiver.

By the Court.—The decision of the court of appeals is 

reversed, and the cause is remanded to the circuit court for 

further proceedings consistent with this opinion.
No. 2019AP2095.rfd

1

¶24 REBECCA FRANK DALLET, J. (dissenting). This case 

presents a straightforward application of a straightforward 

statute. The majority's reliance on common law contract 

principles is misguided, resulting in a decision at odds with 

the legislature's chosen policy regarding construction-lien 

waivers. I therefore respectfully dissent.

¶25 Wisconsin Stat. § 779.05(1) provides that if a party 

wants to limit a construction-lien waiver to only a portion of 

what it's owed, it must "specifically and expressly limit[] the 

waiver to apply to a particular portion of [the] labor, 

services, materials, plans, or specifications" (emphases added).

Such specificity is necessary because if the party limits the 

waiver in an ambiguous way, that ambiguity "shall be construed 

against the person signing" the waiver. Id. Without a 

specific, express, and unambiguous limitation, the waiver 

applies to "all [of that party's] lien rights." Id. (emphasis 

added).

¶26 The rationale for both the statute's heightenedclarity requirement and its presumption in favor of a complete 

waiver is rooted in the "reliance placed on waivers by 

owners . . . making payouts." See Legislative Council Note, 

1967, Wis. Stat. § 289.05.1 Wisconsin allows both general and 

subcontractors to file lien claims, regardless of whether the 

property owner is aware of the subcontractor's work. Thus, if a 

 

1 Section 289.05 was eventually renumbered as § 779.05, but 

the relevant language was unchanged. See § 57, ch. 32, Laws of 

1979.
No. 2019AP2095.rfd

2

property owner hires a general contractor, who hires a 

subcontractor, who hires a subcontractor, that last 

subcontractor has the same right to file a construction lien for 

its work as does the general contractor. And because a general 

contractor, not the property owner, hires and supervises 

subcontractors, the owner may not know how much work a 

subcontractor has performed or what they are owed for that work. 

In addition, the property owner is often not a party to a 

construction-lien waiver between contractors. Thus, when a 

subcontractor who signed a lien waiver later attempts to 

foreclose on a lien, claiming that the waiver was only partial, 

all the property owner has to go on is what is within the four 

corners of the waiver document. See generally Walter B. 

Raushenbush, Wisconsin Construction Lien Law 8–12 (1975). This 

explains the statute's requirements that a lien waiver "shall be 

deemed to waive all lien rights" unless it "specifically and 

expressly limits the waiver to apply to a particular portion" of 

the claimant's work. See § 779.05(1); see also Robert J. Smith 

et al., Wisconsin Construction Law and Construction Liens 218 

(1989) (cautioning that "care should always be taken" when 

writing a partial lien waiver because any "attempt to hold back 

part of the claimant's rights will be construed against the 

claimant").
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¶27 There is no one form a party must use to limit the 

scope of its lien waiver, but the following sample forms 

demonstrate the specificity required under § 779.05. The State 

Bar's Construction Lien Law Handbook contains the following 

example:
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Steven W. Martin & Bridget M. Hubing, Wisconsin Construction 

Lien Law Handbook app. II at 14 (4th ed. 2019). One of the 

statute's drafters offers another option:2

LIMITED WAIVER OF CONSTRUCTION LIEN

For value received, the undersigned hereby waives all 

rights to or claims for a lien on the land hereafter 

described, for any and all work, materials, plans or 

specifications furnished between the ___ day of _____, 

[20]__, which was the last day of furnishing any labor 

or materials to which this waiver relates, for the 

improvement of said lands, said improvements being 

done for [owner] by [contractor], said lands being 

situated in _____ County, State of Wisconsin, and 

described as 

follows:___________________________________________.

It is expressly stipulated that this waiver applies 

only to work done or materials, plans or 

specifications furnished on or before the above-stated 

last date of furnishing any labor or materials to 

which this waiver relates, and that the work done or 

materials furnished by the undersigned for said job on 

or before said date was __________________________ 

[describe]. The amount of compensation due or paid 

for such work, for which lien is hereby waived, is 

__________ [Here insert the dollar amount of 

compensation waived by this partial waiver].

The right to assert construction lien rights for work 

done or materials furnished after said date on said 

job is hereby expressly reserved.

Walter B. Raushenbush, Wisconsin Construction Lien Law 267–69 

(1975). Both sample forms include specific spaces for the lien 

claimant to expressly limit the waiver to a certain "percentage 

performed, dollar value, and/or dates . . . necessary to 

 

2 See Walter B. Raushenbush, Wisconsin Construction Lien 

Law, at iv (1975) (explaining Raushenbush's role in the 

statute's drafting process).
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accurately describe the [w]ork to which the [w]aiver relates, 

stating exceptions, if any." See Martin & Hubing, supra. 

¶28 Great Lakes' waiver stands in stark contrast to those 

samples in that it lacks the "careful detailing," see

Raushenbush, supra, at 268–69, of the particular portion of work 

covered by the waiver: 

The waiver plainly states that Great Lakes waived and released 

"any and all" liens or claims related to all of work Great Lakes 

"furnished to this date [March 20, 2017]." Great Lakes had 

completed all of its work on the Riverworks project in November 

2016, so here, "to this date" encompasses the entirety of Great 

Lakes' work. The only change Great Lakes made to the waiver was 

to the document's title, where it changed "Waiver of Lien to 

Date" to "Waiver of Lien Partial." 
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¶29 Nowhere, however, does Great Lakes' waiver 

specifically and expressly identify what particular "part" of 

Great Lakes' lien claims were waived. The waiver is not limited 

to a certain dollar amount's worth of services, work completed 

up to a certain date (short of the date Great Lakes signed the 

waiver), or certain raw materials, for example. Rather, it 

expressly states that, in exchange for $33,448, Great Lakes 

waived "any and all" lien claims related to all work it had 

furnished to date——which, since it had already completed the 

project, encompassed the original contract as well as all of the 

subsequent change orders. See Tufail v. Midwest Hosp., LLC, 

2013 WI 62, ¶26, 348 Wis. 2d 631, 833 N.W.2d 586 (explaining 

that courts "construe [an unambiguous] document according to its 

literal terms" because we "presume the parties' intent is 

evinced by the words they chose"). Accordingly, § 779.05(1) 

mandates the court to construe the waiver as waiving all lien 

claims.

¶30 Great Lakes argues, and the majority mistakenly 

agrees, that because Great Lakes received $33,448 in exchange 

for the lien waiver, the waiver applies to $33,448 worth of the 

$222,238 Great Lakes claims it was owed for the project. But 

that argument rests on the false premise that when a party 

receives a certain amount of money in exchange for a waiver, it 

must be waiving its lien only up to that dollar amount.3 For 

 

3 Had Great Lakes intended to limit its waiver to $33,448 

worth of its services, it could have specifically and expressly 

done so by waiving its lien claims "to the extent of $33,448 

only of the $222,238 worth of services provided." See Smith, 

supra, at 262.
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example, Great Lakes could have accepted AMCON's $33,488 payment 

in exchange for waiving its lien claims related to the original 

contract amount of $37,165. Or Great Lakes could have accepted 

$33,488 to waive its lien claims related to any other dollar 

amount. The point is: we don't know.4 And given that every 

other term in the document indicates a complete waiver, 

interpreting it as such is the only option.

¶31 Great Lakes also argues that its handwritten edit 

reflects its and AMCON's intent for the waiver to be a partial 

one, and therefore Riverworks (who hired AMCON) should be held 

to that understanding. The problem with that argument is twofold. First, Riverworks was not a party to the waiver and the 

record does not indicate that AMCON was Riverworks' agent, such 

that Riverworks would be bound by AMCON's actions. See Romero 

v. W. Bend Mut. Ins. Co., 2016 WI App 59, ¶38, 371 Wis. 2d 478, 

885 N.W.2d 591 (summarizing general agency principles). Plus, 

because Riverworks was not a party to the waiver, it has no way 

of knowing what Great Lakes intended other than by reading the 

document——which says that Great Lakes waived "any and all" lien 

claims for all of its work. See Tufail, 348 Wis. 2d 631, ¶26. 

Second, even if crossing out "to date" and writing "partial" in 

the title is enough to indicate that Great Lakes and AMCON 

intended the document to waive only part of Great Lakes' lien 

 

4 All we can do is guess about what Great Lakes' handwritten 

edit to the waiver's title means. But even if we knew what 

"partial" meant, it would still be at odds with the rest of the 

waiver's text, making the waiver at best ambiguous. And 

§ 779.05(1) requires the court to resolve any ambiguity against 

Great Lakes.
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claims, we——and Riverworks——are still left to guess the 

particular portion of work to which Great Lakes is waiving its 

lien claims. The point of § 779.05(1), however, is to eliminate 

such a guessing game from how courts or third-parties understand 

a lien waiver. As one of the statute's drafters explained, the 

statute tilts heavily in favor of construing lien waivers as 

waiving all lien claims because other, less stringent 

possibilities present "serious problems of proof" regarding the 

portion of work to which a partial waiver would apply. 

Raushenbush, supra, at 102–03. Great Lakes' position would 

circumvent the statute's text and must therefore be rejected.

¶32 Instead of focusing on the text of § 779.05(1), the 

majority wrongly relies upon default principles of contract law. 

It claims that the handwritten "term" places the waiver in 

irreconcilable conflict with itself, and therefore we must apply 

the common law rule that a handwritten provision controls over a 

conflicting printed provision. For starters, Great Lakes did 

not change a "term" of the contract; it changed part of the 

title while leaving all of the substantive terms unchanged. But 

more importantly, common law contract rules are irrelevant here 

because a construction lien is a "purely statutory right" that 

"cannot be maintained" outside of the relevant statutory rules. 

See Goebel v. Nat'l Exchangors, Inc., 88 Wis. 2d 596, 606, 277 

N.W.2d 755 (1979) (quoting Rees v. Ludington, 13 Wis. 308, 

311-12 (1860); Scott v. Christianson, 110 Wis. 164, 167, 85 

N.W. 658 (1901) ("The lien being purely a statutory right, it 

must be pursued as the statute directs, or it fails."). 

Section 779.05 provides the statutory rule for how to construct 
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and interpret lien waivers. Under that rule, a waiver is 

binding even without consideration——that is, even if the waiver 

is not a contract.5 Accordingly, the common law contract rule 

the majority references is irrelevant. See Goebel, 88 Wis. at 

606; see also Hinrichs v. DOW Chem. Co., 2020 WI 2, ¶55, 389 

Wis. 2d 669, 937 N.W.2d 37 (explaining that common law 

principles are "irrelevant" when the legislature enacts a 

statute directly addressing the same issue).

¶33 Concluding that Great Lakes waived all of its lien 

claims would undoubtedly be a harsh result. But just because 

Great Lakes waived its lien claims does not mean that it can't 

try to recover what it's owed under the construction contract. 

See § 779.05(1) (explaining that a lien waiver "is a waiver of 

lien rights only, and not of any contract rights of the claimant 

otherwise existing"). Moreover, the legislature has made the 

policy choice that construction-lien waivers should be treated

as complete waivers unless they contain specific and express 

limitations. The legislature can change that policy by amending 

the statute to allow a party to limit a waiver in the way Great 

Lakes attempted to here. See Kohn v. Darlington Cmty. Schs., 

2005 WI 99, ¶43, 283 Wis. 2d 1, 698 N.W.2d 794. As § 779.05(1) 

reads now, Great Lakes' claim fails. I would therefore affirm 

the court of appeals' decision.

 

5 Although a waiver doesn't have to be a contract, Great 

Lakes' waiver is one because it gave up something of value——all 

of its lien claims——in exchange for consideration. But the 

lien-waiver statute applies whether or not the lien waiver is a 

contract. See Goebel, 88 Wis. at 606; Christianson, 110 Wis. at 

167.
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¶34 I am authorized to state that Justice ANN WALSH 

BRADLEY joins this opinion.
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