COURT OF APPEALS 

DECISION 

DATED AND FILED

September 4, 2019 

Sheila T. Reiff 

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. 2018AP1211 Cir. Ct. No. 2016CV97

STATE OF WISCONSIN IN COURT OF APPEALS 

DISTRICT III 

RICHARD A. BIRNSCHEIN D/B/A PROGRESSIVE CARPENTRY, 

 PLAINTIFF-RESPONDENT, 

 V. 

DAVID SANDLUND AND PATRICIA SANDLUND, 

 DEFENDANTS-APPELLANTS. 

 APPEAL from a judgment of the circuit court for Door County: 

D. T. EHLERS, Judge. Affirmed. 

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

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 

¶1 PER CURIAM. David and Patricia Sandlund (the Sandlunds) 

appeal from a money judgment in favor of general contractor Richard Birnschein 
No. 2018AP1211 

2 

d/b/a Progressive Carpentry regarding a construction project at the Sandlunds’ 

Door County home. We affirm. 

BACKGROUND

¶2 The construction project at issue involved installing a new roof and 

new windows. In July 2015, Birnschein’s son measured windows at the home and 

the windows were ordered in August. On August 14, Birnschein purchased 

shingles on authorization from the Sandlunds. On September 11, Birnschein 

emailed the Sandlunds and informed them that the shingles had arrived. The 

Sandlunds replied to the email as follows: 

Will call you later today[;] the kids think I am nuts to spend 

that much on the house at this stage of our lives ... The 

kids are now looking for someplace for us to move to warm 

and easier living ... I must admit this whole process has 

gotten me to thinking about just selling and moving on[.] I 

love it up here but maybe it is time for us to move on. 

Naturally I am not going to let you get stuck with any 

material costs that you have incurred but no decision has 

been made yet[.] [W]e may not even get a permit which 

will end the whole thing anyway. 

¶3 The parties met in late September to attempt to salvage the project, 

but they were unsuccessful. Birnschein subsequently prepared an invoice for the 

materials and labor provided. The Sandlunds disputed multiple charges, but the 

only disputed issue on appeal involves the charge for the windows which the 

Sandlunds claim they did not authorize. Birnschein commenced a breach of 

contract action to collect the amount allegedly due. The Sandlunds answered, 

denying they owed any sums for the windows and asserting affirmative defenses 
No. 2018AP1211 

3 

based upon the statute of frauds, pursuant to WIS. STAT. § 402.201(1) (2017-18),1

and claimed violations of the Wisconsin Home Improvement Practices Act under 

WIS. ADMIN. CODE § ATCP 110. 

¶4 After a bench trial, the circuit court issued a written decision 

granting judgment to Birnschein. The court found the parties had an oral contract 

and that the Sandlunds had authorized Birnschein’s purchase of the windows. The 

court concluded the statute of frauds did not apply because the contract was for 

home improvement services rather than a contract for the sale of goods. In 

addition, the court concluded the argument regarding WIS. ADMIN. CODE § ATCP 

110 was without merit. The Sandlunds now appeal. 

DISCUSSION 

¶5 The circuit court finds the ultimate facts in actions tried to the court, 

and those facts shall not be set aside unless clearly erroneous. WIS. STAT.

§ 805.17(2). Witness credibility is also the province of the circuit court. See

Johnson v. Merta, 95 Wis. 2d 141, 151-52, 289 N.W.2d 813 (1980). Statutory 

interpretation is a question of law we review de novo. Hutson v. Wisconsin Pers. 

Comm’n, 2003 WI 97, ¶31, 263 Wis. 2d 612, 665 N.W.2d 212. Determining the 

existence and nature of a contract also presents a question of law. 1325 N. Van 

Buren, LLC v. T-3 Group, Ltd., 2006 WI 94, ¶29, 293 Wis. 2d 410, 716 N.W.2d 

822. 

 

1

 All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted. 
No. 2018AP1211 

4 

¶6 The claims in the circuit court for Birnschein’s preparatory costs and 

the shingles he ordered on behalf of the Sandlunds were undisputed. What the

Sandlunds disputed was whether they authorized Birnschein to order the

windows.2 At trial, David Sandlund specifically denied ever having authorized 

Birnschein to order the windows. However, the court discredited David’s 

testimony. It is not our function to review questions as to the credibility of 

witnesses where more than one reasonable inference can be drawn. Johnson, 95 

Wis. 2d at 151. The court found the evidence “supports no other conclusion than

the [Sandlunds] knew [Birnschein] was ordering these Anderson windows on their 

behalf and that they authorized [Birnschein] to do so.” The court’s findings are 

not clearly erroneous. See WIS. STAT. § 805.17(2). 

¶7 It was undisputed that after having undertaken other projects in the

winter of 2014, the Sandlunds contemplated undertaking additional improvement

projects at their home. Between the winter of 2014 and the autumn of 2015, the 

parties negotiated the extent of those additional improvement projects. The circuit 

court found that by at least May 2015 the Sandlunds agreed that Birnschein would 

replace the windows and roof on their home. 

¶8 The circuit court noted the Sandlunds and Birnschein met at a 

building supply company in the summer of 2015 to discuss the style of windows 

Birnschein would be installing. David Sandlund, in his testimony at trial, did not 

dispute that this meeting took place. Birnschein’s son testified that he met his 

father at the Sandlunds’ home on July 22 where David was also present. 

 

2

 In the circuit court, the Sandlunds also disputed a 10% markup on materials and 

services. However, the circuit court disallowed the markup and it is not an issue on appeal. 
No. 2018AP1211 

5 

Birnschein testified unequivocally that David at that meeting gave him the 

go-ahead to order the windows. Birnschein’s son testified David knew he was 

going to the building supply company to order the windows after he remeasured 

the patio doors and back bedroom windows. 

¶9 The circuit court also found that David Sandlund’s September 11 

email stating “I am not going to let you get stuck with any material costs that you 

have incurred” was intended to include the windows and the shingles. The court 

noted in this regard that David in that email “[did] not state that he was not going 

to let [Birnschein] get stuck with the shingle cost but ‘any material costs that 

[Birnschein had] incurred.’” The court ultimately found: 

This case is a prime example of buyer’s remorse by [the 

Sandlunds]. They intended to have [Birnschein] do 

additional remodeling work on their home and authorized 

him to order the windows and shingles. They knew at a 

minimum that work had to be done. What, if any, 

additional work would be done was up in the air for 

months. When [the Sandlunds] procrastinated long enough 

into September and [Birnschein] then told them he couldn’t 

get to their project until the spring of 2016, [the Sandlunds] 

got angry and then had someone else do the work. 

¶10 The Sandlunds argue “Mr. Birnschein’s complaint should be 

dismissed because his claim for money violates the statute of frauds under 

sec. 402.201, Wis. Stats.” The circuit court found the parties’ oral contract was 

for home improvement services and therefore it was not subject to WIS. STAT.

§ 402.201, which requires a writing for the sale of goods in excess of $500 

sufficient to indicate that a contract for sale has been made between the parties and 

signed by the party against whom enforcement is sought. The Sandlunds 

challenge whether the contract was for services rather than goods. 
No. 2018AP1211 

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¶11 The parties agree that courts apply the predominant purpose test in 

determining whether a contract is one for the sale of goods or services. When 

considering the predominant purpose of a contract, the totality of the 

circumstances surrounding a transaction is to be examined. Ultimately, the test is 

aimed at determining whether the parties’ “predominant factor, their thrust, their 

purpose, reasonably stated, is the rendition of service, with goods incidentally 

involved ... or is a transaction of sale, with labor incidentally involved.” 

Van Sistine v. Tollard, 95 Wis. 2d 678, 684, 291 N.W.2d 636 (Ct. App. 1980). 

Specific factors used by courts include the language of the contract, the nature of 

the business of the supplier, the intrinsic worth of the materials, the circumstances 

of the parties, and the primary objective they hope to achieve. Linden v. Cascade 

Stone Co., Inc., 2005 WI 113, ¶¶20-21, 283 Wis. 2d 606, 699 N.W.2d 189. 

Applying these factors to the present case, we agree with the circuit court that the 

predominant purpose of the contract was for services, rather than for goods, and 

that the transaction does not violate the statute of frauds under WIS. STAT.

§ 402.201. 

¶12 The circuit court found the Sandlunds intended to have Birnschein 

do additional remodeling work on their home and authorized Birnschein to install 

a new roof and new windows. The parties did not merely agree that Birnschein 

would purchase the materials. Birnschein was not in the business of selling 

shingles and windows. Rather, he was in the business of installing them, 

providing a service rather than selling goods. Birnschein’s customers chose the 

products—as the Sandlunds did in this case—the goods were essentially selected 

independently by the Sandlunds. 

¶13 Moreover, trial exhibit 6—the estimate for labor and materials for 

the remodeling work—further supports the circuit court’s determination the parties 
No. 2018AP1211 

7 

contracted for Birnschein to provide services rather than goods, as it shows the 

materials purchased were worth less than half of the estimated contract value. In 

their reply brief, the Sandlunds contend “Birnschein again ignores the fact that 

there was no contract for the work described in Exhibit 6 and that Exhibit 6 was 

never given to the Sandlunds.” However, the Sandlunds concede in their principal 

brief that the court “decided that a contract existed,” and they do not develop an 

argument that the court erred in doing so. The court discredited David Sandlund’s 

testimony denying that he authorized Birnschein to order the windows. To the 

contrary, the court specifically found the Sandlunds knew Birnschein “was 

ordering these Anderson windows on their behalf and that they authorized 

[Birnschein] to do so.” We also note the Sandlunds do not argue the estimate is 

inaccurate. Further, the court found that David’s email providing “[n]aturally I am 

not going to let you get stuck with any material costs that you have incurred” was 

“intended to include the windows in addition to the shingles.” 

¶14 The Sandlunds’ reliance on Linden and 1325 N. Van Buren is 

misplaced. First, both Linden and 1325 N. Van Buren were construction cases 

where the main issue involved the economic loss doctrine, which is a judicially 

created doctrine that bars recovery in tort for a product that fails in its intended use 

but injures only itself. See Linden, 283 Wis. 2d 606, ¶¶6-7. Economic damages 

recoverable in a breach of contract action do not include losses due to personal 

injury or damage to other property. Id., ¶6. The present case does not involve the 

economic loss doctrine, the policy of which is to avoid tort liability in contract 

cases, as Birnschein makes no claim for personal injury or damage to property. 

The dispute here is purely contractual in nature. 

¶15 In addition, in analyzing the predominant purpose of the contract in 

Linden, the supreme court determined the Lindens contracted for a product—a 
No. 2018AP1211 

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new house—rather than services. Id., ¶25. The court stated “the primary reason 

the Lindens entered into the contract was to have a house custom built for them.” 

Id. The court also stated: 

We conclude that when one contracts with a general 

contractor to build a house and the general contractor 

subcontracts with others to provide various services, the 

general contract controls whether the economic loss 

doctrine is available as a defense. ... In the present case, we 

conclude that the general contract between the Lindens and 

Groveland was primarily for a product. 

Id., ¶32. 

¶16 Similarly, the contract in 1325 N. Van Buren involved the 

renovation of an industrial warehouse which entailed gutting it entirely and 

turning it into forty-two residential condominium units. 1325 N. Van Buren, 293 

Wis. 2d 410, ¶46. The court concluded the predominant purpose of the contract 

was for the sale of goods, specifically “to provide a completed condominium 

complex rather than to provide construction management services.” Id., ¶45. 

¶17 The present case is more analogous to Van Sistine. There, the 

dispute concerned two contracts for improvements to the defendant’s house—to 

install windows, install stucco siding, reposition appliances and perform finishing. 

Van Sistine, 95 Wis. 2d at 680. This court noted the contractor was described as a 

“siding contractor” in the contracts and on the bills submitted, and the tasks to be 

undertaken were described in the second contract as services such as “install,” 

“reposition,” “move,” and “finishing.” The contract did not speak in terms of a 

sale. Id. at 685. This court also considered that more than half of the cost of the 

project was for labor, with a lesser amount expended for materials. Id. Under the 

totality of the circumstances, this court concluded the contract was primarily for 

services, with an incidental sale of materials. Id. 
No. 2018AP1211 

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¶18 The Sandlunds also reiterate their argument below that the 

Wisconsin Home Improvement Practices Act under WIS. ADMIN. CODE § ATCP 

110 required the contract to be in writing because Birnschein required progress 

payments before the work was completed, and that absent a written contract the 

oral agreement is void. However, § ATCP 110 does not provide that a violation of 

its requirements necessarily voids the contract. “[I]t is a ‘grave error’ to assert that 

all contracts in violation of a statute are unenforceable.” Baierl v. McTaggart, 

2001 WI 107, ¶19, 245 Wis. 2d 632, 629 N.W.2d 277. And, regardless of whether 

a person who has suffered loss because of a violation may sue directly for 

damages or otherwise on equitable grounds, the Sandlunds have not brought a 

claim for damages and neither have they alleged they suffered any pecuniary loss 

because of an alleged violation of § ATCP 110. Moreover, performance did not 

progress to the point where Birnschein sent them any interim bills. Birnschein’s 

first interim statement, as shown by trial exhibit 10, was not sent until after the 

Sandlunds had already repudiated the remodeling work. Thus, the court properly 

concluded any violation of § ATCP 110 by Birnschein did not void the parties’ 

contract. 

¶19 The Sandlunds contend that a written contract prevents confusion 

and disputes. That may be, but the circuit court was not confused as to whether 

the parties had a contract or whether the Sandlunds authorized the windows. Quite 

simply, the Sandlunds got exactly what they bargained for—the windows that the 

court found they authorized Birnschein to order on their behalf. 

¶20 Finally, the Sandlunds claim the circuit court erred by failing to void 

the oral contract because Birnschein furnished material constituting a home 

improvement under WIS. ADMIN. CODE § ATCP 110.01(4) prior to obtaining all 

required permits. Section ATCP 110.03(1) provides that except as provided under 
No. 2018AP1211 

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subdivision (4), “no seller may start work under a home improvement contract 

until all required state and local permits have been issued.” However, the 

Sandlunds provide no citation to legal authority supporting the conclusion that 

someone requires a permit to merely purchase windows for installation or to do 

site preparation planning. And, to the extent the windows were purchased before a 

building permit to install was issued, the court found the Sandlunds knew and 

approved that action. 

¶21 Moreover, the windows and shingles had been ordered prior to 

David Sandlund’s September 11, 2015 email stating, “I am not going to let you get 

stuck with any material costs that you have incurred.” The Sandlunds will not 

now, because of what the circuit court found to be “a prime example of buyer’s 

remorse by the Defendants,” be heard to argue the contract for window purchase 

and installation is void because the windows were purchased before a permit was 

issued. The Sandlunds approved the purchase knowing it was made before 

permitting took place and subsequently promised to pay for any material costs 

Birnschein may have incurred. 

 By the Court.—Judgment affirmed. 

 This opinion will not be published. See WIS. STAT. RULE 

809.23(1)(b)5.