3 Rivers Adver., Inc. v. Augelli
| Decision Date | 12 July 2012 |
| Docket Number | No. 2010AP2295.,2010AP2295. |
| Citation | 344 Wis.2d 122,820 N.W.2d 155,2012 WI App 97 |
| Parties | 3 RIVERS ADVERTISING, INC., Plaintiff–Appellant, v. Anthony J. AUGELLI, Jr. and Kathie J. Augelli, Defendants–Respondents. |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HEREAppeal from a judgment of the circuit court for Richland County: Edward E. Leineweber, Judge. Affirmed.
Before LUNDSTEN, P.J., VERGERONT and HIGGINBOTHAM, JJ.¶ 1HIGGINBOTHAM, J.
3 Rivers Advertising, Inc. appeals the circuit court's judgment entered following a trial to the court declaring Anthony and Kathie Augelli owners of the billboard located on real estate purchased by the Augellis, and awarding the Augellis the leasing fees for the billboard from the date of their purchase of the subject real estate. 3 Rivers also appeals the circuit court's partial summary judgment dismissing 3 Rivers' claim for tortious interference with contract.1 We affirm.
¶ 2 3 Rivers Advertising, Inc. is an outdoor advertising company located in Boscobel, Wisconsin. Roderick Dull is president of 3 Rivers and has been in the outdoor advertising business for twenty-five years. 3 Rivers entered into a land-use agreement with Center Lanes, Inc. in September 1992 to erect and maintain a billboard on property located at 27589 Highway 14 East, Town of Orion, Richland County (the property). Tom Hauber signed the land-use agreement on behalf of Center Lanes, Inc. Hauber owned Center Lanes Bowling Alley which was located on the property.2 The land-use agreement stated:
This agreement is between Center Lanes, Inc. and 3 Rivers Advertising regarding the use of property owned by Center Lanes, Inc., for purpose of installing and maintaining a billboard owned by 3 Rivers Advertising.
Specific provisions are as follows:
Landowner agrees to allow 3 Rivers Advertising to install and maintain a rental Billboard on Property belonging to “Center Lanes, Inc.,” In the town of Richland at the location presently occupied by Center Lanes. This Contract shall be considered as an easement and therefore shall be transferred with and as part of any change of ownership to such property until such time that both parties agree to terminate this contract.
3 Rivers Advertising agrees to erect and maintain good legibility of a new sign advertising “Center Lanes” on this same property. 3 Rivers Advertising will install this sign as complete payment for use of land on which 3 Rivers Advertising Billboard will be erected....
Terms of Contract: This contract shall begin immediately upon the receipt of valid state and local sign permits and shall terminate only at which time both parties jointly agree to terminate.
Pursuant to the terms of the land-use agreement, 3 Rivers erected a billboard on the property. 3 Rivers also installed a sign advertising Center Lanes on the property. As set forth in the land-use agreement, the billboard advertising Center Lanes constituted payment for the use of land and easement on which 3 Rivers erected the billboard. Although the land-use agreement provided for an easement, 3 Rivers never recorded the easement with the local register of deeds or any other governmental entity.
¶ 3 In March 2008, Anthony and Kathie Augelli began negotiations for the purchase of the property with Hauber's realtor, Ray Starnes. The Augellis noticed the billboard on the property, but did not approach the billboard due to the deep snow. Only the back of the billboard was visible from the property, and it contained no markings or identifications. The Augellis made an offer to purchase the property for $55,000. In the offer and in reference to the billboard, the Augellis added a provision regarding “leased property” which reads: (Emphasis added.) Hauber counteroffered, raising the purchase price to $62,500.
¶ 4 Prior to accepting the counteroffer, the Augellis inquired of Hauber's agent, Starnes, about ownership of the billboard. In response to the Augellis' inquiry, Starnes handwrote “Seller represents that Billboard is part of property” on the counteroffer. At the time Starnes added this representation, Hauber had not yet signed the counteroffer. Anthony Augelli then placed his initials next to the handwritten representation and both Anthony and Kathie signed the counteroffer. The purchase was completed according to schedule. Nothing in the title report revealed any owner of the billboard other than Hauber. The Augellis never spoke to Hauber during the purchase process; all discussions were with Starnes only.
¶ 5 After closing, the Augellis contacted Fillback Ford (the entity currently advertising on the billboard) to obtain lease payments for that advertising. In that contact, the Augellis learned for the first time that Roddy Signs was making a claim to the billboard and receiving rent payments from Fillback Ford.3
¶ 6 As seen only from the highway side of the billboard, the billboard had a tag affixed that read “Affordable Outdoor Advertising” above “Division of Roddy's Signs Inc. Boscobel 608–375–7446.” The tag was put on the billboard when Roddy's Signs, Inc. was leasing the billboard from 3 Rivers. The phone number listed on the tag reached an office where both 3 Rivers and Roddy's Signs, Inc. were located.4 Due to the dispute between 3 Rivers and the Augellis, Fillback Ford has withheld payment of rent to either 3 Rivers or the Augellis to the present date, on the premise that it does not want to pay the wrong party.
¶ 7 3 Rivers brought suit against the Augellis alleging tortious interference with contract and seeking a declaration that it had an easement interest in the billboard. The Augellis answered, denying 3 Rivers' allegations, and counterclaimed, also alleging tortious interference with contract and seeking a declaration that they were the true owners of the billboard. On cross-motions for partial summary judgment, the trial court dismissed both parties' claims of tortious interference with contract and 3 Rivers' claim for declaration of an easement. It left for trial the issue of ownership of the billboard and the allocation of rental payments.
¶ 8 After a trial to the court, the court concluded that the Augellis were bona fide purchasers for value without notice because 3 Rivers failed to take reasonable and proper steps to perfect its easement or otherwise protect its interest in the billboard by failing to record the lease agreement with the county register of deeds. The trial court held that the Augellis were the proper owners of the entire property, including the billboard, and awarded the Augellis the leasing fees owed by Fillback Ford for use of the billboard. 3 Rivers appeals both the summary judgment decision dismissing its tortious interference with contract claim and the court's decision following trial awarding the Augellis the billboard and leasing fees. Additional facts, as necessary, are set forth in the discussion section.
¶ 9 As we explained above, we review the trial court's order denying 3 Rivers' motion for partial summary judgment. We review a grant of summary judgment de novo, applying the same methodology as the circuit court. State v. Bobby G., 2007 WI 77, ¶ 36, 301 Wis.2d 531, 734 N.W.2d 81. Summary judgment is appropriate when the affidavits and other submissions show that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2) (2009–10).5 We draw all reasonable inferences from the evidence in the light most favorable to the non-moving party. Burbank Grease Servs., LLC v. Sokolowski, 2006 WI 103, ¶ 40, 294 Wis.2d 274, 717 N.W.2d 781.
¶ 10 We also review the trial court's decision following trial awarding the billboard and the leasing fees to the Augellis. When the trial court sits as the fact finder, it is the ultimate arbiter of the witnesses' credibility, and we must uphold its factual findings unless they are clearly erroneous. Kersten v. H.C. Prange Co., 186 Wis.2d 49, 56, 520 N.W.2d 99 (Ct.App.1994). We are not bound, however, by the circuit court's conclusions of law; we review conclusions of law de novo. Landwehr v. Landwehr, 2006 WI 64, ¶ 8, 291 Wis.2d 49, 715 N.W.2d 180.
¶ 11 We organize our discussion of the issues as follows. We first address the trial court's decision following the trial to the court awarding the billboard and the leasing revenues to the Augellis. We then address the court's summary judgment order dismissing 3 Rivers' tortious inference with contract claim against the Augellis and declaring 3 Rivers had no property interest in the billboard.
¶ 12 Two issues were tried to the court: (1) which party owned the billboard; and (2) which party was entitled to the income stream from the billboard. Both issues required the court to determine whether the Augellis were bona fide purchasers for value without notice of 3 Rivers' claim on the billboard, pursuant to Wis. Stat. §§ 706.08(1)(a) and 706.09(2)(a). In concluding that the Augellis were bona fide purchasers for value without notice, the trial court found that 3 Rivers did not provide affirmative notice of its easement interest in the billboard because it failed to perfect its interest in the sign easement by not recording the leasing agreement with the county register of deeds. The court further found that the billboard provided no information that 3 Rivers, or anyone else, owned it. The court also found that the Augellis made “due and diligent inquiry” into who owned the billboard by seeking confirmation through Hauber's realtor that the billboard belonged to the property and by having a title company conduct a title search to...
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