Town of Green Grove v. Town of Colby ( 2024 )

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.
May 2, 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. 2022AP1611 Cir. Ct. No. 2021CV57
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
TOWN OF GREEN GROVE,
PLAINTIFF-APPELLANT,
V.
TOWN OF COLBY,
DEFENDANT-RESPONDENT.
APPEAL from an order of the circuit court for Clark County:
LYNDSEY A. B. BRUNETTE, Judge. Affirmed.
Before Kloppenburg, P.J., Graham, and Nashold, JJ.
¶1 NASHOLD, J. The Town of Green Grove (“Green Grove”) appeals
a circuit court order granting summary judgment in favor of the Town of Colby
(“Colby”) (collectively, “the Towns”). For the reasons stated below, we affirm.
No. 2022AP1611
BACKGROUND
¶2 The following facts are derived from the parties’ summary judgment
materials and are undisputed for purposes of summary judgment unless otherwise
noted.
¶3 Meridian Avenue is a town line highway1 that runs north to south on
the border between Green Grove and Colby in Clark County. Green Grove lies to
the west, Colby to the east. There is a bridge where Meridian Avenue crosses the
East Fork of the Popple River.
¶4 Green Grove replaced the bridge in 2019, and Colby refused to share
the replacement costs. Green Grove then filed suit, alleging that Colby was
obligated to share the costs pursuant to WIS. STAT. § 82.23 (2021-22).2 The
parties filed cross-motions for summary judgment, which the circuit court denied.
After Green Grove discovered an agreement between the Towns from 1929 (“the
1929 agreement”3), which stated that the Towns were jointly responsible for
maintaining the bridge, Green Grove again filed for summary judgment. The
court denied Green Grove’s motion, and instead granted summary judgment in
“‘Town line highway’ means a highway that runs on or across the boundary line
1
between a town and another town, a village, or a city.” WIS. STAT. § 82.01(9). All references to
the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
WISCONSIN STAT. § 82.23 states, “Unless otherwise provided by statute or agreement,
every highway bridge on a city, village, or town boundary shall be repaired and maintained by
any adjoining municipality in which the bridge is located. The cost of repairs and maintenance
shall be paid by the adjoining municipalities in proportion to the last equalized valuation of the
property in the adjoining municipalities.”
3
As we later explain, the parties dispute how this agreement should be characterized.
We refer to it as “the 1929 agreement,” which is consistent with our analysis below.
2
No. 2022AP1611
favor of Colby.4 The court concluded that, pursuant to a “Road Maintenance
Agreement for Meridian Avenue” between the Towns from 2010 (“the
2010 agreement”), Green Grove is entirely responsible for the bridge’s
replacement costs. Green Grove appeals.5
STANDARD OF REVIEW
¶5 We review summary judgment de novo, using the same
methodology as the circuit court. Bauer v. Wisconsin Energy Corp., 2022 WI 11,
¶11, 400 Wis. 2d 592, 970 N.W.2d 243. Summary judgment is appropriate when
the summary judgment materials “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).
¶6 This appeal also requires us to interpret contracts. “The
interpretation of an unambiguous contract presents a question of law” that we
review de novo. Town Bank v. City Real Est. Dev., LLC, 2010 WI 134, ¶32, 330
Wis. 2d 340, 793 N.W.2d 476. “Only when the contract is ambiguous, meaning it
is susceptible to more than one reasonable interpretation, may the court look
4
The circuit court did so pursuant to WIS. STAT. § 802.08(6), which states, “If it shall
appear to the court that the party against whom a motion for summary judgment is asserted is
entitled to a summary judgment, the summary judgment may be awarded to such party even
though the party has not moved therefor.”
5
Colby’s brief does not comply with WIS. STAT. RULE 809.19(8)(bm), which addresses
the pagination of appellate briefs. See RULE 809.19(8)(bm) (providing that, when paginating
briefs, parties should use “Arabic numerals with sequential numbering starting at ‘1’ on the
cover”). This rule was amended in 2021, see S. CT. ORDER 20-07, 2021 WI 37, 397 Wis. 2d xiii(eff. July 1, 2021), because briefs are now electronically filed in PDF format and electronically
stamped with page numbers when they are accepted for e-filing. As our supreme court explained
when it amended the rule, the pagination requirement ensures that the numbers on each page of
the brief “will match … the page header applied by the eFiling system, avoiding the confusion of
having two different page numbers” on every page of a brief. S. CT. ORDER 20-07 cmt. at x1.
3
No. 2022AP1611
beyond the face of the contract and consider extrinsic evidence to resolve the
parties’ intent.” Id., ¶33. When a contract is ambiguous and the extrinsic
evidence “is undisputed and but one inference can be reasonably drawn therefrom,
a question of law is presented.” Cutler-Hammer, Inc. v. Industrial Comm’n, 13
Wis. 2d 618, 632, 109 N.W.2d 468 (1961).
¶7 This appeal further involves statutory interpretation, which we
review de novo. Marx v. Morris, 2019 WI 34, ¶21, 386 Wis. 2d 122, 925 N.W.2d
112.
DISCUSSION
¶8 As stated, Green Grove brought this action under WIS. STAT.
§ 82.23, alleging that Colby is required to share the costs of replacing the bridge
pursuant to that provision. Section 82.23 states:
Unless otherwise provided by statute or agreement, every
highway bridge on a city, village, or town boundary shall
be repaired and maintained by any adjoining municipality
in which the bridge is located. The cost of repairs and
maintenance shall be paid by the adjoining municipalities
in proportion to the last equalized valuation of the property
in the adjoining municipalities.
The issue on appeal is whether an agreement “provide[s]” “otherwise,” rendering
§ 82.23’s default apportionment of costs inapplicable. As we explain below, we
conclude that the 2010 agreement provides otherwise—specifically, that Green
Grove is solely responsible for the costs of replacing the bridge—and we reject
Green Grove’s arguments to the contrary. We further conclude that Green Grove
fails to show that the 1929 agreement mandates a different result.
4
No. 2022AP1611
I. The 2010 agreement controls.
¶9 In 2010, Green Grove and Colby entered into a “Road Maintenance
Agreement for Meridian Avenue.” It states that “an agreement was reached by
both Town Boards whereby the Town of Colby will maintain one mile of
Meridian Avenue from Cloverdale Road to Popple River Road. The Town of
Green Grove will maintain 1.64 miles of Meridian Avenue from Cloverdale Road
to County Road N.” In other words, under the 2010 agreement, Colby is to
maintain the part of Meridian Avenue south of where it intersects with Cloverdale
Road, and Green Grove is to maintain the part of Meridian Avenue north of the
Cloverdale Road intersection. The parties do not dispute that the bridge is located
on the part of Meridian Avenue that Green Grove is responsible for maintaining
under the 2010 agreement.
¶10 Under the 2010 agreement, Green Grove and Colby also agreed that
Green Grove will “bill … Colby for .32 miles of road maintenance,” to account for
the fact that Green Grove is responsible for maintaining more than half of
Meridian Avenue along the Towns’ shared border. The 2010 agreement reflects
an intent to make the Towns’ respective road maintenance obligations consistent
with how they are designated on the “Wisconsin Department of Transportation
Mileage Maps” (“Mileage Maps”), according to which “[t]he southern 1.32 miles
belong to the Town of Colby and the northern 1.32 miles belong to the Town of
Green Grove.”6
6
The parties do not explain what Mileage Maps are, but it appears that these maps refer
to the plats that are filed by municipalities and used by the Department of Transportation to
determine the amount of transportation aids provided to the municipalities. See WIS. STAT.
§ 86.302 (“[T]he board of every town … shall file with the [D]epartment [of Transportation] …
every year, a certified plat of the municipality … showing the highways under its jurisdiction and
(continued)
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No. 2022AP1611
¶11 Before the 2010 agreement, the Towns’ respective road maintenance
obligations were reversed: Colby maintained Meridian Avenue north of
Cloverdale Road, Green Grove maintained Meridian Avenue south of Cloverdale
Road, and Green Grove reimbursed Colby for maintaining .32 miles of Meridian
Avenue north of the Cloverdale Road intersection.
¶12 Colby argues that because the bridge is on the part of Meridian
Avenue that Green Grove is responsible for maintaining under the
2010 agreement, Green Grove is responsible for the costs of replacing the bridge
pursuant to that agreement. As support, Colby relies on our supreme court’s
holding in Town of Pella v. Town of Larabee, 164 Wis. 403, 160 N.W. 161(1916).
¶13 Pella similarly involved a dispute between neighboring towns
regarding who would bear the costs of replacing a bridge on a town line road. Id.An agreement between the towns of Pella and Larabee stated that Pella was
responsible for maintaining the stretch of road that contained the bridge, but the
agreement did not specifically allocate the responsibility for maintaining the
bridge. Id. at 404. Pella maintained the bridge for 16 years, but when the bridge
had to be replaced following a flood, Pella sued Larabee to recover half the
replacement costs. Id. Our supreme court concluded that Pella was responsible
for the bridge replacement costs, reasoning that such costs must be borne by the
the mileage thereof to be open and used for travel …. The [D]epartment [of Transportation] may
use the plats in making computations of transportation aids. One-half of the mileage of highways
on boundary lines shall be considered as lying in each municipality or county.”). The parties do
not dispute that the bridge is located on the part of Meridian Avenue that belongs to Green Grove
according to the Mileage Maps—that is, the bridge is not located on the .32-mile portion of
Meridian Avenue north of the Cloverdale Road intersection that, under the 2010 agreement,
“belongs” to Colby but is maintained by Green Grove.
6
No. 2022AP1611
town that maintains the portion of the road that contains the bridge. Id. at 405. In
so concluding, our supreme court adopted the reasoning of the circuit court, the
latter of which concluded:
The bridge as it was in 1897 must have been in the minds
of the supervisors of the two towns when the highway was
divided, though it was not mentioned. If it then had been
deemed of importance enough to mention, the supervisors
could have apportioned the expense of maintaining it ….
That the bridge was not then mentioned and no provision
made for its joint maintenance at least tends to warrant the
conclusion that it was included in the first 120 rods of the
highway which Pella was to maintain, because of the small
cost of maintaining it.
Id.¶14 Colby argues that under Pella, Green Grove is solely responsible for
replacing the bridge because, pursuant to the 2010 agreement, Green Grove is
responsible for maintaining the portion of Meridian Avenue on which the bridge is
located. Thus, Colby contends that WIS. STAT. § 82.23’s default joint
apportionment does not apply because the 2010 agreement provides otherwise.7
We agree, and conclude that Green Grove’s attempts to distinguish Pella lack
merit.
7
Colby also relies on attorney general opinions from 1926 and 1927, which are
consistent with Town of Pella v. Town of Larabee, 164 Wis. 403, 160 N.W.2d 161 (1916). See
Milwaukee J. Sentinel v. City of Milwaukee, 2012 WI 65, ¶41, 341 Wis. 2d 607, 815 N.W.2d
367 (“The opinions of the Attorney General are not binding on the courts but may be given
persuasive effect.”). The attorney general opinions that Colby cites address facts similar to those
here: two neighboring towns entered into an agreement regarding the maintenance of a town line
highway, whereby they were each responsible for maintaining different sections of the highway.
15 Wis. Op. Att’y Gen. 182-83 (1926); 16 Wis. Op. Att’y Gen. 646-47 (1927). The agreement
was silent regarding the bridge. 16 Wis. Op. Att’y Gen. 646 (1927). The attorney general
opinions conclude that the town that was responsible for maintaining the part of the highway on
which the bridge was located was responsible for repairing and reconstructing the bridge.
15 Wis. Op. Att’y Gen. 182-83 (1926); 16 Wis. Op. Att’y Gen. 647 (1927).
7
No. 2022AP1611
¶15 Green Grove argues that Pella is “a highway order case” that does
not bear on the interpretation of the 2010 agreement, which is a contract.
Although the circuit court in Pella referred to “the order dividing the highway,”
our supreme court consistently referred to the “agreement” between the two towns.
Pella, 164 Wis. at 404-05. Additionally, Green Grove does not argue why this
distinction would matter for purposes of applying the holding from Pella on which
Colby relies—namely, that, unless otherwise stated in an agreement, the town
responsible in the agreement for maintaining a part of a highway containing a
bridge is also responsible for maintaining and replacing that bridge.
¶16 Green Grove also argues that Pella is distinguishable because in
Pella, the town of Pella had historically maintained the bridge on the stretch of
road that was allocated to it in the agreement. Green Grove asserts that the parties
here, pursuant to the 1929 agreement, have a history of jointly maintaining the
bridge. However, the Pella court looked at the parties’ conduct after they entered
into the agreement. Id. As discussed in greater detail below, after the parties in
this case entered into the 2010 agreement, Green Grove solely maintained the
bridge. As to the parties’ conduct before the 2010 agreement, Green Grove’s
assertion of a history of joint maintenance of the bridge is not supported by the
summary judgment materials. Those materials show that prior to entering the
2010 agreement, going back to at least 1985, Colby solely maintained the bridge.
The facts here are thus consistent with those in Pella: in both instances, the town
that was responsible for maintaining the part of the highway that contained the
bridge also maintained the bridge. Id.¶17 Thus, Green Grove does not persuasively argue that Pella is
distinguishable. Furthermore, as we next explain, even if Pella were
distinguishable as a “highway order case,” under ordinary principles of contract
8
No. 2022AP1611
law, we would reach the same result—namely, that, under the 2010 agreement,
Green Grove is responsible for the costs of maintaining the bridge.
¶18 As mentioned earlier, we consider extrinsic evidence when a
contract is ambiguous, Town Bank, 330 Wis. 2d 340, ¶33, and the parties appear
to agree that the 2010 agreement is ambiguous: Green Grove explicitly argues
that the 2010 agreement’s “silence as to bridges is ambiguous,” and Colby argues
that the circuit court properly considered extrinsic evidence when interpreting the
2010 agreement.8 As set forth below, the summary judgment materials contain
undisputed extrinsic evidence showing that the parties intended for Green Grove
to be responsible for the costs of maintaining and replacing the bridge under the
2010 agreement.
¶19 The summary judgment materials establish the following undisputed
facts. Before entering the 2010 agreement, when Colby maintained the part of
Meridian Avenue that includes the bridge, Colby maintained the bridge and did
not seek contributions from Green Grove for the costs of doing so. The Towns
intended for the 2010 agreement to flip their maintenance obligations regarding
Meridian Avenue, and, consistent with this mutual intent, before entering the
2010 agreement, Green Grove asked Colby for copies of bridge reports for the
prior several years.
8
Green Grove argues that the circuit court should not have considered extrinsic evidence
without first determining whether the 2010 agreement is ambiguous, but that is an argument that
we need not address because our review on summary judgment is de novo. See Bauer v.
Wisconsin Energy Corp., 2022 WI 11, ¶11, 400 Wis. 2d 592, 970 N.W.2d 243. On our de novo
review, and for purposes of addressing Green Grove’s argument that the holding in Pella does not
apply here, we accept the parties’ apparent positions that the 2010 agreement is ambiguous.
9
No. 2022AP1611
¶20 After entering the 2010 agreement, Green Grove’s town clerk
emailed the office manager at the Highway Department of Clark County to obtain
information regarding the bridge and when it might need to be replaced, saying
that “the bridge on Meridian Avenue seems to be in a state that needs watching for
possible replacement, now that we know it belongs to the Town of Green Grove.”
Green Grove also began paying for the annual inspection of the bridge, including
all labor and equipment, and did not ask Colby to contribute.
¶21 In addition, Mark Klein, who served as Green Grove’s town board
chairperson from 2007 or 2009 until 2019, testified at a deposition to the
following. When Green Grove first began seeking federal aid for the replacement
of the bridge in 2013, he did not consult with Colby’s town board chairperson
about the decision to replace the bridge. The replacement of the bridge was a
topic at multiple Green Grove town meetings around this time, during those
meetings there was no discussion about Colby contributing to the bridge
replacement costs, and Green Grove assumed that Green Grove was entirely
responsible for replacing the bridge. While Klein was Green Grove’s town board
chairperson, up until April 2019, he had no discussions with any members of
Colby’s town board regarding the bridge, and to his knowledge no one from Green
Grove’s town board had ever contacted Colby town board members to express an
understanding that Colby would contribute to the costs of replacing the bridge.
¶22 Also, according to the minutes from a Green Grove town meeting in
2015, Green Grove’s town board approved an agreement regarding the funding for
the bridge’s replacement, under which Green Grove would pay for the
replacement costs of the bridge: “The state put together an agreement to help with
funding for the Meridian Ave bridge that needs replacing, with the state paying
80% and the town paying the rest.” The minutes do not reflect that any mention
10
No. 2022AP1611
was made of Colby sharing the costs of replacing the bridge. Green Grove first
sought to obtain from Colby a contribution to the costs of replacing the bridge in
August 2019, after a new town board chairperson, David Frederick, was elected.
¶23 None of these facts are disputed, and they demonstrate an
understanding between Green Grove and Colby that, under the 2010 agreement,
Green Grove is responsible for maintaining and replacing the bridge.
¶24 Green Grove makes a number of arguments to the contrary, all of
which we reject. First, Green Grove argues that there is a factual dispute about
when Colby first learned that the bridge was being replaced. Frederick avers in an
affidavit that he told Colby’s town board chairperson in 2016 which engineering
firm Green Grove had hired for the bridge project, a conversation that Colby’s
town board chairperson avers in an affidavit never occurred. But whether this
conversation actually occurred is not a material fact. Viewing this in the light
most favorable to Green Grove, as we must on summary judgment, even if we
assume that Colby’s town board chairperson was aware in 2016 of which
engineering firm Green Grove hired, that does not show that Green Grove and
Colby intended to share the replacement costs of the bridge.
¶25 Second, Green Grove argues that to conclude that Green Grove is
entirely responsible for maintaining the bridge under the 2010 agreement requires
us, in effect, to improperly rewrite the 2010 agreement by inserting a bridge
provision. We disagree. The 2010 agreement allocates to Green Grove the
responsibility for maintaining the portion of Meridian Avenue that includes the
bridge, which, consistent with all of the uncontested extrinsic evidence discussed
above, allocates to Green Grove the responsibility for maintaining and replacing
the bridge as part of the allocated portion of Meridian Avenue.
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No. 2022AP1611
¶26 Third, Green Grove argues that it is not solely responsible for the
costs of replacing the bridge because of language in the 2010 agreement that
states, “This contract does not include any major road upgrades or culvert
replacement. If major upgrades need to be undertaken, it will be the responsibility
of the Town of Colby to provide those upgrades or culvert replacement, and
inform the Town of Green Grove of such work in progress.” It is clear from
context, however, that this language applies specifically to the Towns’ agreement
regarding the .32 miles of Meridian Avenue north of the intersection with
Cloverdale Road. The 2010 agreement first explains why the parties entered into
the agreement—so that the Towns’ maintenance responsibilities for Meridian
Avenue are consistent with the Wisconsin Department of Transportation’s
Mileage Maps—and then states that Colby will maintain the southern 1 mile of
Meridian Avenue and that Green Grove will maintain the northern 1.64 miles.
After that, the 2010 agreement states:
The Town of Green Grove will bill the Town of
Colby for .32 miles of road maintenance, based on the
appropriate yearly road aid formulas.
Now therefore, the parties hereby agree, effective
July 1[,] 2010, to the following:
1. Town of Colby agrees to pay the Town of Green
Grove for maintenance of Meridian Avenue from
the corner of Cloverdale Road north, .32 miles
subject to the following conditions:
a. Addition of road granite and grading as
needed.
b. Clearing of brush in ditches to maintain
visibility and proper drainage.
c. Clearing of snow and ice during winter
months.
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No. 2022AP1611
2. The Town of Green Grove agrees to provide
their services to the best of their ability, and to
abide by this contract between the two parties.
3. This contract does not include any major road
upgrades or culvert replacement. If major
upgrades need to be undertaken, it will be the
responsibility of the Town of Colby to provide
those upgrades or culvert replacement, and
inform the Town of Green Grove of such work in
progress.
The language that Green Grove quotes is the last of three numbered items that
apply specifically to the agreement between the two Towns that Green Grove will
maintain the .32 miles north of the Cloverdale Road intersection, for which Colby
will reimburse Green Grove. The three numbered items immediately follow the
language stating that Green Grove will bill Colby for .32 miles of road
maintenance.
¶27 These numbered items also state that Green Grove will provide
maintenance to the best of its ability, and they make Colby responsible for major
upgrades and culvert replacement. Although this makes sense regarding the
parties’ agreement as to the .32 mile stretch of Meridian Avenue that Green Grove
will maintain, for which Colby will reimburse Green Grove, this would not make
sense regarding the parties’ larger maintenance agreement for the rest of Meridian
Avenue. For example, under Green Grove’s reading, Colby would be responsible
for major road upgrades anywhere on Meridian Avenue, even on the northern
1.32 miles that Green Grove was otherwise supposed to maintain and that the
Mileage Maps show belong to Green Grove. In addition, whereas the 2010
agreement generally refers to “this agreement,” the three numbered list items
regarding the maintenance of the .32-mile part of Meridian Avenue refer to “this
contract,” thereby distinguishing between the larger “agreement” regarding the
Towns’ respective responsibilities for all of Meridian Avenue, and the more
13
No. 2022AP1611
specific “contract” regarding the .32-mile part of Meridian Avenue north of the
intersection with Cloverdale Road.9
¶28 Fourth, Green Grove argues that “[s]ome of [the extrinsic evidence]
is innocuous; some of it does not necessarily speak on behalf of the party, Green
Grove; and some of this is out of Green Grove’s hands.” However, Green Grove
does not develop this argument—that is, Green Grove does not identify which
evidence cannot be considered and for which reason, and it provides no supporting
legal authority. Accordingly, we do not address this argument. See State v. Pettit,
171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (stating that we need not
address undeveloped arguments or arguments that are unsupported by references
to legal authority).
¶29 Finally, Green Grove argues that the administrative paperwork for
the Wisconsin Department of Transportation’s Local Bridge Program “is not
legally relevant.” Green Grove appears to argue that the circuit court erred by
considering: (1) the fact that Green Grove listed itself as the owner of the bridge
when it submitted its application to replace the bridge, and (2) the fact that Green
Grove did not demand that Colby pay for a share of the bridge until after the
9
We observe that Frederick—who, before becoming Green Grove’s town board
chairperson, served as a member of Green Grove’s town board, and who signed the
2010 agreement in that capacity—avers in an affidavit submitted with Green Grove’s second
motion for summary judgment that he “ha[s] never understood the [2010] [a]greement to mean
that Green Grove would replace the bridge at Green Grove’s expense without any contribution
from Colby.” Instead, he avers that he “ha[s] always understood that the [a]greement is for Colby
to pay Green Grove for performing basic road maintenance such as adding and grading gravel,
brushing, and snow removal on a 0.32 mile length of Meridian Avenue.” However, as explained
above, this understanding of the 2010 agreement is inconsistent with the terms of the agreement,
and in any event, we do not consider conclusions of law asserted in affidavits. Bilda v.
Milwaukee County, 2006 WI App 159, ¶48, 295 Wis. 2d 673, 722 N.W.2d 116 (“Affidavits
which contain … conclusions of law must be disregarded.”).
14
No. 2022AP1611
bridge was completed, which Green Grove argues is attributable to how the Local
Bridge Program is administered. That the circuit court considered these facts is
inconsequential because our review is de novo, and we do not rely on them on
appeal.
II. The 1929 agreement does not control.
¶30 Green Grove argues that, as a result of the 1929 agreement, Green
Grove and Colby are jointly responsible for the costs of replacing the bridge. We
disagree.
¶31 As mentioned above, after the circuit court denied the parties’ initial
cross-motions for summary judgment, Green Grove discovered an entry in its
official record book from 1929. The entry states:
[W]e the undersigned town boards of the towns of
Green Grove and Colby at a meeting of said towns held in
the town hall in the town of Green Grove on June 19[,]
1929[,] do agree and order that the town line road between
said towns be divided as follows in regards to maintenance
and upkeep beginning at the South East corner of the town
of Green Grove and the South West corner of the town of
Colby thence running North on said line we allot to the
town of Green Grove the first mile on said line to maintain
and the next mile to the town of Colby to maintain[,] the
Bridges still be maintain[ed] as before jointly of both
towns[.]
This agreement to take effect immediately[.]
(Emphasis added.)
¶32 Green Grove argues that this entry is a type of “highway order”
under WIS. STAT. § 82.21 and its predecessor WIS. STAT. § 80.11 (1929) that can
only be modified under that statute, and that it thus could not be modified by the
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No. 2022AP1611
subsequent 2010 agreement.10 Alternatively, Green Grove argues that even if the
1929 entry is an agreement rather than a highway order, the agreement’s allocation
of responsibility for maintaining the bridge still controls because the
2010 agreement is silent regarding maintenance of the bridge specifically. We
address, and reject, each argument in turn.11
A. The 1929 agreement is not an order issued pursuant to WIS.
STAT. § 80.11.
¶33 Green Grove argues that the 1929 agreement is what Green Grove
alternatively labels “a highway order,” an “apportionment order,” or “an
apportionment highway order,” issued pursuant to WIS. STAT. § 80.11 (1929). As
a result, Green Grove argues, the 1929 agreement can only be modified by that
statute, meaning that it could not be modified by the 2010 agreement. In contrast,
Colby characterizes the 1929 entry in Green Grove’s official record book for 1929
as “at best, nothing more than an ‘agreement’ that ‘divided’ responsibilities” for
Meridian Avenue. We conclude that Green Grove has not shown on summary
judgment that the 1929 agreement is an order under § 80.11 (1929).
¶34 In 1929, town boards issued highway orders to lay out, alter, widen,
or discontinue highways. See WIS. STAT. § 80.07 (1929) (“Whenever the [town]
supervisors shall lay out, alter, widen or discontinue any highway they shall make
10
The parties do not dispute that WIS. STAT. § 82.21 and WIS. STAT. § 80.11 (1929) are
substantively similar.
11
Green Grove also argues that the 1929 order “cannot be challenged as evidence.”
Because Colby does not “challenge[]” the 1929 agreement “as evidence,” we do not address this
argument.
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No. 2022AP1611
and sign an order therefor ….”).12 Besides being laid out in highway orders,
highways may also be established by “user.” See Town of Muskego v. Town of
Vernon, 19 Wis. 2d 159, 119 N.W.2d 474 (1963) (referring to highways not laid
out in highway orders as having their “origins in user”); WIS. STAT. § 80.01(2)
(1929) (“All roads not recorded which shall have been or shall be used and worked
as public highways ten years or more shall be deemed public highways ….”).
Highway orders for town line highways could designate which town was
responsible for which part of the town line highway. WIS. STAT. § 80.11(3)
(1929) (“[The town supervisors], upon laying out, altering or widening [a town
line] highway may determine, in the [highway] order, what part of such highway
shall be made and kept in repair by each town ….”). Under certain circumstances,
maintenance responsibilities for town line highways could be reapportioned after
the highway order for the town line highway had been issued. In 1929, § 80.11(4)
stated:
If by any change of the boundaries of either or both such
towns the territory of either shall be increased or
diminished, or in the event a portion of said town line
highway is or has been taken over by the state or county
under the state or county highway system, or if a new town
or village be formed out of a part of the territory of either
or both of said towns, having a portion of such town line
highway within its borders, that part of such order fixing
their liabilities shall be deemed vacated, and a majority of
the supervisors of each such town shall, before the time for
making the next tax roll, meet together with a majority of
the supervisors of such new town or, with the president of
such village, and all of them when so convened shall, if
they can agree, make a new order apportioning the
liabilities on account of such highway ….
A “highway order” is currently defined as “an order laying out, altering, or
12
discontinuing a highway or a part of a highway.” WIS. STAT. § 82.01(3).
17
No. 2022AP1611
See also Town of Whitewater v. Town of Richmond, 204 Wis. 388, 392, 235
N.W. 773, 774 (1931) (“[T]he law at all times did, and now does, empower the
[town] supervisors to make [an] apportionment [of a town line highway] only in
and by their order laying out the highway.”).
¶35 There are thus a limited number of circumstances under which
Green Grove and Colby could have, in 1929, apportioned maintenance
responsibilities for Meridian Avenue pursuant to WIS. STAT. §80.11 (1929). As
stated, they could have apportioned the maintenance responsibilities for Meridian
Avenue in a highway order laying out, altering, widening, or discontinuing
Meridian Avenue. See § 80.11(3) (1929). However, the 1929 agreement does not
purport to lay out, alter, widen, or discontinue Meridian Avenue. Indeed, the
parties do not dispute that Meridian Avenue existed as far back as 1892, and
Green Grove concedes that Meridian Avenue has never been altered or
discontinued.
¶36 Otherwise, if Green Grove and Colby had earlier issued a highway
order that apportioned maintenance responsibilities, they could have reapportioned
those responsibilities if the boundaries of Green Grove or Colby changed, if a
portion of Meridian Avenue became a state or county highway, or if a new town or
village formed within Green Grove or Colby that contained a part of Meridian
Avenue. See WIS. STAT. § 80.11(4) (1929). However, Green Grove does not
identify any evidence in the summary judgment materials showing that Meridian
Avenue was ever initially apportioned in a highway order, nor does Green Grove
identify evidence showing that any of the circumstances that would allow
Meridian Avenue to be reapportioned pursuant to § 80.11(4) (1929) preceded the
1929 agreement. Indeed, Green Grove concedes that “there is no record of what
scenario occurred in 1929,” and instead argues that it does not matter.
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No. 2022AP1611
¶37 Green Grove argues that it does not matter because “[t]here was no
other legal authority in existence in 1929 for the creation of the 1929 Order other
than [WIS. STAT.] § 80.11 (1929).” As a result, Green Grove argues, “the only
possible conclusion” is that the 1929 agreement is an apportionment order that was
issued pursuant to § 80.11 (1929).
¶38 In support of this argument, Green Grove cites Whitewater. There,
the towns of Whitewater and Richmond entered into an agreement in 1842 that
apportioned parts of a town line highway for each town to maintain. Whitewater,
204 Wis. 2d 388. The towns then entered into a subsequent agreement in 1923
that reapportioned the town line highway. Id. When Whitewater sued to enforce
the 1923 agreement, our supreme court concluded that the town line highway
could only be apportioned “in and by [the] order laying out the highway,” and that
the 1923 agreement, which did not do so, was thus void. Id. at 392. Whitewater
does not support Green Grove’s argument. Even if the 1929 agreement could have
only lawfully been created pursuant to WIS. STAT. § 80.11 (1929), the 1929
agreement here, like the agreement in Whitewater, would have been made without
legal authority, rendering it void.
¶39 More importantly, we disagree that WIS. STAT. § 80.11 (1929)
provided the only lawful means through which the Towns could have apportioned
the maintenance of Meridian Avenue. In response to Green Grove’s argument that
a highway order or apportionment order is the only means to apportion
maintenance responsibilities of a town line highway, Colby argues that towns have
freedom to contract with one another regarding maintenance, citing Town of Eau
Galle v. Town of Waterville, 207 Wis. 389, 241 N.W. 377 (1932). Green Grove
does not address Eau Galle in its reply brief, which we take as a concession that
Colby is correct. See United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39,
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No. 2022AP1611
304 Wis. 2d 750, 738 N.W.2d 578 (failure by appellant to respond in reply brief to
an argument made in respondent’s brief may be taken as a concession).
¶40 In Eau Galle, our supreme court concluded that “towns have implied
or inherent power to arrange for the convenient maintenance of [a town line
highway that has its origins in user],” and that “the natural and reasonable
arrangement under such circumstances is for each town, by agreement with the
other town, to take over or assume the repair of a specific portion of the highway.”
Eau Galle, 207 Wis. at 394. The Eau Galle court explained that “[t]he power of
the towns to divide the highway was implied, and quite apart from the express
power conferred upon the supervisors at the time of laying out the highway.” Id.
at 395. In Eau Galle, the court specifically rejected an argument similar to the
one Green Grove raises here:
The premise that the commissioners had no authority to act
is based upon the provision that no one acting for the town
has authority to make a division of a town line highway
except the supervisors, and they, formerly, were required to
act at the time of laying out the highway. However, this is
not a legally laid out town line highway. This highway
came into existence as a legal highway by user. The power
of the towns to divide the highway was implied, and quite
apart from the express power conferred upon the
supervisors at the time of laying out the highway.
Id. Here, there is no evidence in the summary judgment materials that Meridian
Avenue was ever laid out in a highway order. Indeed, the parties do not dispute
that there is no evidence explaining how Meridian Avenue was established. Green
Grove has thus failed to establish on summary judgment that the 1929 order must
necessarily be an apportionment order under WIS. STAT. § 80.11 (1929).
¶41 Green Grove also appears to argue that even if the 1929 agreement is
an agreement rather than an apportionment order, it was “protected by” and
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No. 2022AP1611
“covered by” WIS. STAT. § 82.21(4)(d), which states: “Any written order or
agreement made before August 27, 1947, by a majority of the supervisors of each
town concerned, acting together, apportioning, or reapportioning a town line
highway has the same effect as though made on or after August 27, 1947.” Green
Grove does not otherwise develop this argument, but appears to assert that under
§ 82.21(4)(d), pre-1947 maintenance agreements are equivalent to apportionment
orders. This assertion is unsupported by the text of § 82.21(4)(d), and Green
Grove provides no additional authority to support it. We reject it on that basis.
See Pettit, 171 Wis. 2d at 646.
B. The 2010 agreement does not leave intact the 1929 agreement’s
bridge provision.
¶42 Alternatively, Green Grove argues that if the 1929 agreement is not
a highway order, but is instead an agreement or contract, then “the
2010 [a]greement fails because its silence as to the Bridge means that the
2010 [a]greement did not modify the terms specific to bridges in the 1929 Order.”
Colby responds that Green Grove and Colby were unaware of the 1929 agreement
when they entered the 2010 agreement, and that as a result they could not have
intended for the 2010 agreement to leave intact the bridge provision from the
1929 agreement.
¶43 “The primary goal in interpreting a contract is to determine and give
effect to the parties’ intention.” Wisconsin Label Corp. v. Northbrook Prop. &
Cas. Ins. Co., 2000 WI 26, ¶23, 233 Wis. 2d 314, 607 N.W.2d 276; see also
Estreen v. Bluhm, 79 Wis. 2d 142, 152, 255 N.W.2d 473 (1977) (“[A] modified
agreement should be construed in connection with the original contract in order to
ascertain the intent of the parties.”). The parties do not dispute that neither Green
Grove nor Colby knew that the 1929 agreement existed until after Green Grove
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No. 2022AP1611
discovered the agreement during litigation. For example, in Green Grove’s reply
brief supporting its first motion for summary judgment, which it submitted before
it knew of the 1929 agreement, it argued that “[t]he [2010] [a]greement was a new
agreement and it is not apparent that there was anything previously in writing.”
Consistent with this, the 2010 agreement does not mention or otherwise reflect an
intent to modify an earlier agreement. And, as discussed above, the undisputed
extrinsic evidence shows that, contrary to the 1929 agreement’s bridge provision,
the parties intended that Green Grove will be responsible for maintaining the
bridge under the 2010 agreement. See Estreen, 79 Wis. 2d at 153-54 (considering
extrinsic evidence as to the parties’ intent to determine whether a contract
abrogated the terms of prior contracts).
¶44 Green Grove argues that there is evidence that Colby and Green
Grove adhered to the 1929 agreement. Specifically, Green Grove argues that
before the 2010 agreement, and consistent with the 1929 agreement, Green Grove
was responsible for maintaining the southern portion of Meridian Avenue, while
Colby was responsible for maintaining the northern portion. However, the
undisputed evidence in the summary judgment materials shows that the parties
were not, from at least 1985 until 2010, complying with the 1929 agreement as it
related to the Towns’ maintenance responsibilities for the bridge. In his affidavit,
Colby’s town board chairperson avers that before 2010, Colby maintained and
repaired the bridge at its own expense, as part of the stretch of Meridian Avenue
for which it was responsible. Similarly, in response to an interrogatory from
Green Grove asking for a description of Colby’s maintenance of Meridian Avenue
prior to the 2010 agreement, Colby’s town board chairperson stated that Colby’s
maintenance included “work to the bridge.” That Colby, prior to 2010 and going
back at least as far as 1985, maintained and repaired the bridge at its own expense
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No. 2022AP1611
is undisputed, and it is inconsistent with the 1929 agreement as it relates to
bridges.
¶45 Green Grove also argues that the 1929 agreement’s bridge provision
is still in effect because the 2010 agreement’s “silence as to bridges is ambiguous
and not unequivocal.” As support, Green Grove cites Carnes Co. v. Stone Creek
Mechanical, Inc., 412 F.3d 845, 853 (7th Cir. 2005), which states that “[t]he acts
relied upon to modify a prior contract must be unequivocal” and not ambiguous.
However, as apparent from the quoted language, this case law discusses what is
required to show an implied modification of an agreement through the parties’
conduct, and thus does not support Green Grove’s argument.
¶46 For these reasons, we conclude, based on the undisputed evidence,
that when the parties entered the 2010 agreement, they did not do so intending to
leave intact the 1929 agreement’s bridge provision. As explained above, the
undisputed extrinsic evidence shows that the parties intended for Green Grove to
assume responsibility for maintenance of the bridge under the 2010 agreement.13
13
Green Grove makes a number of additional arguments, all of which we reject. First,
Green Grove points to maintenance agreements between Green Grove and other neighboring
towns, which Green Grove argues are similar to the 1929 agreement. However, Green Grove
does not explain the circumstances or the legal significance of these other agreements, and we
thus do not consider them. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App.
1992).
Green Grove also argues that it is “entitled to its reasonable expenses incurred in proving
the issue of the 1929 Order” pursuant to WIS. STAT. § 804.12(3), apparently asking that we make
such an award. However, § 804.12(3) does not support making such an award on appeal, and
Green Grove does not otherwise cite any authority to support this argument. On that basis, we
need not consider it. See Pettit, 171 Wis. 2d 627, 646 (we need not consider arguments that are
undeveloped and unsupported by legal authority).
Green Grove further argues that Colby submitted improperly pled facts on summary
judgment. Specifically, Green Grove points to averments in an affidavit from Colby’s
chairperson that he knew when the Towns were created from “review[ing] Colby’s historical
(continued)
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No. 2022AP1611
CONCLUSION
¶47 For the reasons stated, we affirm the circuit court’s order granting
summary judgment in favor of Colby.
By the Court.—Order affirmed.
Not recommended for publication in the official reports.
records as well as the history of the townships in Clark County.” Green Grove argues that Colby
violated WIS. STAT. § 802.08(3) because the records relied on were not attached to the affidavit
and had not already been shared in discovery, and that as a result we should disregard those
averments in the affidavit relating to when the Towns were created. However, Green Grove does
not explain why these averments are consequential, and even if we assume that Green Grove is
correct and we disregard them, our analysis remains unchanged.
24