TJ Prop, LLC v. Tim Mueller Mason Contractor, LLC

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 27, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals 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

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)).

2
No. 2022AP514

¶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.

3
No. 2022AP514

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,”

4
No. 2022AP514

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.

5
No. 2022AP514

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.

6
No. 2022AP514

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.

7
No. 2022AP514

¶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.

8
No. 2022AP514

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,

9
No. 2022AP514

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[]”

10
No. 2022AP514

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

11
No. 2022AP514

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 complaint6 stated:

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.

12
No. 2022AP514

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

13
No. 2022AP514

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.

14
No. 2022AP514

¶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

15
No. 2022AP514

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

16
No. 2022AP514

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.

17