CED Properties LLC v. City of Oshkosh , 352 Wis. 2d 613 ( 2014 )

2014 WI 10SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP5
COMPLETE TITLE: CED Properties LLC,
Plaintiff-Appellant-Petitioner,
v.
City of Oshkosh,
Defendant-Respondent.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 348 Wis. 2d 305, 836 N.W.2d 654(Ct. App. 2013 – Published)
PDC No.: 2013 WI App 75OPINION FILED: March 6, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 18, 2013
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Winnebago
JUDGE: Thomas J. Gritton
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-appellant-petitioner, there were briefs
by Erik S. Olsen and Eminent Domain Services, LLC, Madison, and
oral argument by Erik S. Olsen.
For the defendant-respondent, there was a brief by Richard
J. Carlson and Silton Seifert Carlson S.C., Appleton, and oral
argument by Richard J. Carlson.
2014 WI 10NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP5
(L.C. No. 2010CV1866)
STATE OF WISCONSIN : IN SUPREME COURT
CED Properties, LLC,
Plaintiff-Appellant-Petitioner,
FILED
v.
MAR 6, 2014
City of Oshkosh,
Diane M. Fremgen
Defendant-Respondent. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Reversed and
cause remanded.
¶1 N. PATRICK CROOKS, J. This is a review of a
published court of appeals decision that affirmed the circuit
court.1 This case involves special assessments levied by the
City of Oshkosh ("the City") against a corner lot property owned
by CED Properties, LLC ("CED"), which is located at the
intersection of Jackson Street and Murdock Avenue in Oshkosh,
Wisconsin. Specifically, we review whether CED's complaint was
1
CED Properties, LLC v. City of Oshkosh, 2013 WI App 75,
348 Wis. 2d 305, 836 N.W.2d 654.
No. 2012AP5
sufficient to place the City on notice that CED intended to
appeal both the Jackson Street and Murdock Avenue special
assessments.
¶2 The City maintains that its typical practice is to
issue a separate special assessment for each street that abuts a
property. The City, therefore, asserts that it issued two
separate special assessments against CED: one assessment against
Murdock Avenue and another separate assessment against Jackson
Street. In contrast, CED argues that the City issued a single
special assessment against its property when it adopted Final
Resolution 10-227, which stated that "the assessments for all
projects included in said report are hereby combined as a single
assessment, but any interested property owners shall be entitled
to object to each assessment separately or both assessments,
jointly for any purpose or purposes."
¶3 Both the circuit court and the court of appeals held
that the City did, in fact, levy two separate special
assessments against CED. CED Properties, LLC v. City of
Oshkosh, 2013 WI App 75, ¶11, 348 Wis. 2d 305, 836 N.W.2d 654.
We also conclude that the City issued two special assessments
rather than a single special assessment against CED's property;
however, we ultimately conclude that CED's original complaint
provided the City with reasonable and sufficient notice that CED
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No. 2012AP5
intended to appeal the entirety of the special assessments
levied against its property.2
¶4 On November 30, 2011, the Winnebago County Circuit
Court, the Honorable Thomas J. Gritton presiding, held that Wis.
Stat. § 66.07033 governed as the specific statute applicable to
appeals of special assessments. Under Wis. Stat.
§ 66.0703(12)(a), the circuit court held that CED failed to
appeal the Jackson Street special assessment within the required
90-day time limit; therefore, it issued an order granting the
defendant, the City, partial summary judgment regarding the
Jackson Street special assessment. The court of appeals
affirmed the decision of the circuit court that CED failed to
timely appeal the Jackson Street special assessment but based
its holding on different reasoning than the circuit court's.
2
After the City conceded that both special assessments
failed to include the total cost of the intersection improvement
project in violation of Wis. Stat. § 66.0703(5)(b), the circuit
court granted partial summary judgment in favor of CED in regard
to the Murdock Avenue special assessment. Our decision today
does not review the Murdock Avenue special assessment. This
procedural deficiency, which the City concedes, applies to both
the Murdock Avenue and the Jackson Street special assessments,
and CED timely appealed both special assessments. Therefore,
summary judgment in favor of CED is also appropriate in regard
to the Jackson Street special assessment. As a result of our
decision today, neither of the July 27, 2010, special
assessments against CED's property located at the intersection
of Jackson Street and Murdock Avenue in Oshkosh, Wisconsin,
remains valid.
3
This and all subsequent references to the Wisconsin
Statutes are to the 2011-12 version unless otherwise indicated.
3
No. 2012AP5
¶5 CED sought review and argues that under Wisconsin's
rules of notice pleading, its original complaint was sufficient
to challenge both the Jackson Street and the Murdock Avenue
special assessments. Alternatively, CED argues that Wis. Stat.
§ 802.09(3), Wisconsin's relation back statute, applies to the
appeal of special assessments and, as a result, CED's amended
complaint saves its claim regarding the Jackson Street special
assessment.
¶6 We agree with CED's first argument and hold that its
original complaint was sufficient to appeal not only the Murdock
Avenue special assessment, but the Jackson Street special
assessment as well. Wisconsin has long abandoned rigid pleading
requirements in favor of liberal civil procedural rules. Notice
pleading rules not only simplify pleading in Wisconsin, but also
favor the resolution of claims on the merits. CED filed its
original complaint within the 90-day time period required by
Wis. Stat. § 66.0703(12)(a). The original complaint included
the parcel number, 15-1898-1000, which is the only parcel number
assigned to the property in question. Furthermore, the original
complaint included reference to the "Jackson Street - Murdock
Avenue intersection improvement project," which formed the basis
for the special assessments levied by the City.
¶7 The alleged problem with the complaint was that it
included only the monetary value, $19,241.73, which corresponds
with the Murdock Avenue special assessment. That the complaint
failed to identify an additional $19,404.93 for the Jackson
Street special assessment is not detrimental to CED's appeal of
4
No. 2012AP5
both special assessments. The parcel number and the reference
to both street names when identifying the project for which the
special assessments were levied placed the City on notice that
CED intended to appeal the total amount of special assessments
levied against its property. This notice to the City was
reasonable and sufficient and, therefore, is all that is
required under Wisconsin's rules of notice pleadings.
Accordingly, we reverse the court of appeals.
I. Background
¶8 CED owns property situated on the northeast corner of
Jackson Street and Murdock Avenue in Oshkosh, Wisconsin. On
July 27, 2010, the City passed a resolution that levied special
assessments against several properties, including CED's
property, to assist in funding an intersection improvement
project. The project consisted of the creation of a multi-lane
roundabout and various landscape improvements at the
intersection of Jackson Street and Murdock Avenue. The City
levied a total of $38,646.66 in special assessments for the
"Jackson Street - Murdock Avenue intersection improvement
project," against parcel number 15-1898-1000, CED's property.
The City levied $19,404.93 against the portion of CED's property
bordering Jackson Street and assigned an additional $19,241.73
against the same corner lot property, which also runs alongside
Murdock Avenue.
¶9 While the City issued one final resolution, the final
resolution included maps indicating, as reference points, both
Jackson Street and Murdock Avenue. Most important, two
5
No. 2012AP5
schedules accompanied the final resolution. Each schedule
identified the same parcel I.D., 15-1898-1000, and the same
description, 1800 Jackson Street, in reference to the owner,
CED. However, the schedule immediately following the Jackson
Street map indicates a concrete paving assessment of $19,404.93,
while the schedule associated with the Murdock Avenue map lists
a concrete paving assessment of $19,241.73.
¶10 On September 23, 2010, CED appealed the special
assessments by simultaneously filing a notice of appeal and a
complaint with the circuit court. Paragraph three of the
complaint states, "Plaintiff owns property located at 1800
Jackson Street Oshkosh, WI 54901, City of Oshkosh parcel number
15-1898-1000." Paragraph four of the complaint states, "On July
27, 2010 Oshkosh, by its Common Council, authorized the issuance
of a $19,241.73 special assessment on parcel number 15-1898-1000
to help pay for the street repair portion of the Jackson Street
– Murdock Avenue intersection improvement project."
¶11 It is undisputed that CED filed its notice of appeal
and complaint within the 90-day time limit set forth in Wis.
Stat. § 66.0703(12)(a). It is also undisputed that CED filed an
amended complaint on June 28, 2011, well past the 90-day time
limit to appeal. In its amended complaint, CED recognized that
its original complaint did not include the correct monetary
value for the entirety of the special assessments levied against
its property. Therefore, its amended complaint did not include
the reference to a specific monetary value that previously
appeared in paragraph four of the original complaint. The
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No. 2012AP5
amended complaint also changed "special assessment" to read
"special assessment(s)" throughout.
¶12 The City moved for partial summary judgment arguing
that CED's claim regarding the $19,404.93 Jackson Street special
assessment was not filed within the 90-day time limit set forth
in Wis. Stat. § 66.0703(12)(a). The City did not challenge
CED's appeal of the Murdock Avenue special assessment, and the
City conceded that it did not follow procedural requirements set
forth in Wis. Stat. § 66.0703(5) when issuing the special
assessments.
¶13 CED moved for summary judgment arguing that its
original complaint sufficiently challenged the entirety of the
special assessments. Alternatively, CED argued that its amended
complaint related back to the original complaint and thus saved
its claim as to the Jackson Street special assessment.
Furthermore, CED argued that the City's special assessments were
invalid for a number of reasons, including that the City failed
to comply with procedural requirements.4
¶14 As to the Murdock Avenue special assessment, the
circuit court agreed with CED and granted it partial summary
judgment. In granting CED partial summary judgment, the circuit
4
In addition, CED's original and amended complaints alleged
that the special assessments were not local in nature, that the
improvement project failed to benefit CED's property, that the
special assessments were not reasonably apportioned, that the
amount of the special assessments exceeded any benefit to CED's
property, that the special assessments were a violation of equal
protection, and that CED received untimely notice of the hearing
in which the City adopted the special assessments.
7
No. 2012AP5
court relied on the City's concession that it failed to follow
proper procedure when levying the special assessments at issue.
Specifically, the City failed to include the total cost of the
intersection improvement project in the engineer's report as
required by Wis. Stat. § 66.0703(5) when it issued the special
assessments. In regard to the Jackson Street special
assessment, the circuit court granted the City's motion for
partial summary judgment. It held that under Wis. Stat.
§ 66.0703(12)(a), the specific statute governing appeals of
special assessments, CED failed to appeal the Jackson Street
special assessment within the 90-day time limit.
¶15 A majority of the court of appeals agreed; however,
its reasoning differed from the circuit court's. First, as a
preliminary matter, the court of appeals determined that the
City, did, in fact, issue two separate special assessments
against CED's property. Second, the court of appeals, contrary
to the circuit court, held that the rules of notice pleading and
the relation back statute, Wis. Stat. § 802.09(3), apply to
special proceedings such as the appeal of special assessments
under Wis. Stat. § 66.0703. However, the court of appeals
concluded that CED's amended complaint did not save its
challenge of the Jackson Street special assessment. It held
that the amended complaint could not relate back to the original
complaint because the Jackson Street special assessment did not
arise out of the Murdock Avenue special assessment.
Furthermore, the court of appeals reasoned that the original
complaint related only to the Murdock Avenue special assessment;
8
No. 2012AP5
therefore, appeal of the Jackson Street special assessment
remained untimely.
¶16 Judge Paul F. Reilly, who dissented, would have first
held that the City issued a single special assessment against
CED. In addition, Judge Reilly argued in his dissent that CED's
original complaint gave fair notice to the City that CED
intended to appeal the entire special assessment levied against
its property.
¶17 Before this court, CED asserts that under Wisconsin's
notice pleading rules, its original complaint was sufficient to
challenge the entirety of the special assessments levied against
its property. As we noted previously, in the alternative, CED
argues that Wisconsin's relation back statute, Wis. Stat.
§ 802.09(3), applies to the appeal of special assessments and
that its amended complaint relates back to its original
complaint, which saves its appeal of the Jackson Street special
assessment.
¶18 Because we conclude that CED's original complaint
provided reasonable and sufficient notice to challenge the
entirety of the special assessments levied against its property,
we do not address its alternative argument.
II. Analysis
A. Principles of Notice Pleading
¶19 Wisconsin Stat. § 802.02 sets forth the general rules
of pleading. In Wisconsin, a pleading must set forth "[a] short
and plain statement of the claim, identifying the transaction or
occurrence or series of transactions or occurrences out of which
9
No. 2012AP5
the claim arises and showing that the pleader is entitled to
relief." Wis. Stat. § 802.02(1)(a). A pleading must also set
forth "[a] demand for judgment for the relief the pleader
seeks." Wis. Stat. § 802.02(1)(b). In addition, Wis. Stat.
§ 802.02(6) governs "[c]onstruction of pleadings," which
requires that "[a]ll pleadings shall be so construed as to do
substantial justice." Wis. Stat. § 802.02(6). Finally, the
Wisconsin Rules of Civil Procedure "shall be construed to secure
the just, speedy and inexpensive determination of every action
and proceeding." Wis. Stat. § 801.01(2).
¶20 The Wisconsin Rules of Civil Procedure, effective
January 1, 1976, are patterned after the federal rules of civil
procedure. Korkow v. General Cas. Co. of Wis., 117 Wis. 2d 187,
193, 344 N.W.2d 108 (1984). In Korkow, this court addressed the
question of whether an amended complaint that added a separate
claim by an added plaintiff could relate back to the filing date
of the original complaint. Id. at 192. In interpreting
Wisconsin's relation back statute, we analyzed "Wisconsin's
liberal civil procedure rules." Id. We noted that Wisconsin
does not employ rigid civil procedure rules. See id. Instead,
Wisconsin's notice pleading rules "are intended to facilitate
the orderly adjudication of disputes." Id. at 193.
¶21 We have explained that "[t]his functional approach to
pleading reflects a determination that the resolution of legal
disputes should be made on the merits of the case rather than on
the technical niceties of pleading." Id. at 193. "A complaint
which might well have failed under the old procedure for failure
10
No. 2012AP5
to state sufficient facts now will be sustained if reasonable
notice is given to the defendant in respect to the nature of the
claim." Anderson v. Cont'l Ins. Co., 85 Wis. 2d 675, 684, 271
N.W.2d 368 (1978).
¶22 In Canadian Pac. Ltd. v. Omark-Prentice Hydraulics,
Inc., 86 Wis. 2d 369, 371, 272 N.W.2d 407 (Ct. App. 1978), the
court of appeals addressed the issue of whether an "omission in
the summons of a statement that the answer must be served within
twenty days after the date of service of the summons and
complaint deprives the trial court of jurisdiction." In holding
that the omission in question did not defeat the circuit court's
jurisdiction, the court of appeals noted,
[O]ur Rules of Civil Procedure, like the federal rules
relating to pleadings, "reject the approach that
pleading is a game of skill in which one misstep by
counsel may be decisive to the outcome and accept the
principle that the purpose of pleading is to
facilitate a proper decision on the merits."
Canadian Pac. Ltd., 86 Wis. 2d at 373 (Ct. App. 1978)(citing
Conley v. Gibson, 355 U.S. 41, 48 (1957), abrogated on other
grounds by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)).
B. Standard of Review
¶23 Whether a circuit court properly granted a motion for
summary judgment is reviewed de novo. Everson v. Lorenz, 2005
WI 51, ¶9, 280 Wis. 2d 1, 695 N.W.2d 298. In reviewing a
previous court's summary judgment decision, this court will
apply "the same methodology as the circuit court[,] and
benefit[s] from its analysis." Id. Summary judgment "shall be
rendered if the pleadings, depositions, answers to
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No. 2012AP5
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).
C. The Sufficiency of CED's Original Complaint
¶24 CED argues that the City issued a single special
assessment and that under Wisconsin's rules of notice pleading,
its original complaint placed the City on notice that it
intended to challenge the entire amount of that assessment. In
addition, CED argues that the City's answer to its original
complaint supports CED's argument because the City's answer
makes reference to a single special assessment.
¶25 The City argues that municipalities customarily issue
two separate special assessments for corner lots and that the
City "clearly and unambiguously" levied two special assessments
as indicated by the assessment schedules. The City further
contends that CED appealed only the Murdock Avenue special
assessment because the original complaint references $19,241.73,
which corresponds to the Murdock Avenue special assessment. The
City concedes that the special assessments were procedurally
invalid because they failed to include "[a]n estimate of the
entire cost of the proposed work or improvement" as required by
Wis. Stat. § 66.0703(5)(b) and also lacked any "statement that
the property against which the assessments are proposed is
benefited . . ." as required by Wis. Stat. § 66.0703(5)(d).
¶26 Despite these procedural inadequacies, the City
maintains that CED appealed only the Murdock Avenue special
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No. 2012AP5
assessment within the 90-day time limit required by Wis. Stat.
§ 66.0703(12)(a). Since the City argues that Wis. Stat.
§ 66.0703(12)(a) is the controlling statute, it asks this court
to conclude that the Jackson Street special assessment appeal
was untimely.
¶27 While we agree with the circuit court and the court of
appeals that the City issued two special assessments as
indicated by the assessment schedules, we ultimately conclude
that CED's original complaint gave the City reasonable and
sufficient notice that it intended to appeal the entire amount
of special assessments levied against its property. First, Wis.
Stat. § 802.02, governing the general rules of pleadings,
applies to appeals of special assessments under Wis. Stat.
§ 66.0703. This result is dictated by the text of Wis. Stat.
§ 801.01(2), which, in part, provides: "Chapters 801 to 847
govern procedure and practice in circuit courts of this state in
all civil actions and special proceedings whether cognizable as
cases at law, in equity or of statutory origin except where
different procedure is prescribed by statute or rule." Wis.
Stat. § 801.01(2) (emphasis added).
¶28 Special assessment appeals under Wis. Stat. § 66.0703are special proceedings. Mayek v. Cloverleaf Lakes Sanitary
Dist. No. 1, 2000 WI App 182, ¶5, 238 Wis. 2d 261, 617 N.W.2d
235 (interpreting Wis. Stat. § 66.60, the predecessor to Wis.
Stat. § 66.0703); Outagamie Cnty. v. Town of Greenville, 2000 WI
App 65, ¶7, 233 Wis. 2d 566, 608 N.W.2d 414 (reviewing the
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No. 2012AP5
procedures to appeal a special assessment under Wis. Stat.
§ 66.60(12)(a)).
¶29 Since the Wisconsin Rules of Civil Procedure apply to
special proceedings such as special assessment appeals under
Wis. Stat. § 66.0703(12)(a), we next consider whether any
conflict exists between rules of notice pleading and Wis. Stat.
§ 66.0703. After careful consideration of Wis. Stat.
§§ 802.02, 801.01(2), and 802.02(6), along with review of our
prior case law on notice pleading, we conclude that nothing in
Wis. Stat. § 66.0703 conflicts with Wisconsin's notice pleading
rules. Furthermore, we find no reason why the principles of
notice pleading should not apply to appeals of special
assessments under § 66.0703.
¶30 Under principles of notice pleading, we are satisfied
that CED's original complaint was sufficient to challenge the
entire amount of the special assessments levied against its
property. This is because the original complaint placed the
City on reasonable and sufficient notice that it intended to
appeal the entirety of the special assessments.
¶31 First, the original complaint identified the parcel
number, 15-1898-1000, against which the City levied the special
assessments. The property in question is identified by one and
only one parcel number. Second, the original complaint
identified the improvement project for which the special
assessments were issued as the "Jackson Street – Murdock Avenue
intersection improvement project." Not only does the original
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No. 2012AP5
complaint identify the name of the improvement project, but the
project name itself references both street names in question.
¶32 The fact that CED included only the amount of the
Murdock Avenue special assessment in its original complaint does
not defeat CED's intention to appeal the entire amount of the
special assessments. By listing the parcel number and the name
of the improvement project along with a reference to both street
names, CED's original complaint placed the City on reasonable
and sufficient notice that it intended to appeal the entire
amount of special assessments levied against its property. To
conclude otherwise would hold CED to the type of technical
pleading requirements that we have held no longer apply under
our rules of civil procedure.
¶33 Having concluded that CED's original complaint
properly appealed both the Murdock Avenue and Jackson Street
special assessments, we also conclude that CED's appeal was
timely and that summary judgment in favor of CED is appropriate.
In its original complaint, CED asserted that the City failed to
comply with Wis. Stat. § 66.0703(5) when issuing the special
assessments in question. As we have previously discussed, the
City conceded that it did not comply with Wis. Stat.
§ 66.0703(5). Due to the City's failure to comply with Wis.
Stat. § 66.0703(5) in regard to both the Murdock Avenue and the
Jackson Street special assessments and CED's timely appeal of
both special assessments, we conclude that no genuine issues of
material fact remain, and this case is appropriate to resolve,
15
No. 2012AP5
in favor of CED, on summary judgment, based on the legal issue
presented.
¶34 Because we hold that CED's original complaint
contained sufficient information to place the City on reasonable
notice of CED's intent to appeal the total amount of special
assessments, we do not reach CED's alternative argument
regarding the application of Wisconsin's relation back statute
to special assessment appeals.
III. Conclusion
¶35 We agree with CED's first argument and hold that its
original complaint was sufficient to appeal not only the Murdock
Avenue special assessment, but the Jackson Street special
assessment as well. Wisconsin long abandoned rigid pleading
requirements in favor of liberal civil procedural rules. Notice
pleading rules not only simplify pleading in Wisconsin, but also
favor the resolution of claims on the merits. CED filed its
original complaint within the 90-day time period required by
Wis. Stat. § 66.0703(12)(a). The original complaint included
the parcel number, 15-1898-1000, which is the only parcel number
assigned to the property in question. Furthermore, the original
complaint included reference to the "Jackson Street – Murdock
Avenue intersection improvement project," which formed the basis
for the special assessments levied by the City. The alleged
problem with the complaint was that it included only the
monetary value, $19,241.73 which corresponds with the Murdock
Avenue special assessment. That the complaint failed to
identify an additional $19,404.93 for the Jackson Street special
16
No. 2012AP5
assessment is not detrimental to CED's appeal of both special
assessments. The parcel number and the reference to both street
names when identifying the project for which the special
assessments were levied placed the City on notice that CED
intended to appeal the total amount of special assessments
levied against its property. This notice to the City was
reasonable and sufficient and, therefore, is all that is
required under Wisconsin's rules of notice pleadings.
Accordingly, we reverse the court of appeals.
By the Court.—The decision of the court of appeals is
reversed and cause remanded to the circuit court with
instructions to enter summary judgment in favor of CED
Properties, LLC in regard to the Jackson Street special
assessment.
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No. 2012AP5
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