710 N.W.2d 713 (Wis.App. 2006), 2004AP267, City of Janesville v. CC Midwest, Inc.

Docket Nº:2004AP267.
Citation:710 N.W.2d 713
Opinion Judge:1 VERGERONT, J.
Party Name:CITY OF JANESVILLE, Plaintiff-Respondent, [d] v. CC MIDWEST, Inc. a foreign corporation, Defendant-Appellant.
Attorney:On behalf of the defendant-appellant, the cause was submitted on the briefs of Alan Marcuvitz, Andrea H. Roschke, and Susan M. Sager, orally argued by Alan Marcuvitz and Andrea H. Roschke, Michael Best & Friedrich LLP, Milwaukee., On behalf of the plaintiff-respondent, the cause was orally argued...
Case Date:January 26, 2006
Court:Court of Appeals of Wisconsin
 
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Page 713

710 N.W.2d 713 (Wis.App. 2006)

CITY OF JANESVILLE, Plaintiff-Respondent, d

v.

CC MIDWEST, Inc. a foreign corporation, Defendant-Appellant.

No. 2004AP267.

Court of Appeals of Wisconsin

January 26, 2006

Oral Argument Nov. 22, 2005.

APPEAL from a judgment of the circuit court for Rock County: Cir. Ct. No. 2003CV1288, John W. Roethe, Judge.

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On behalf of the defendant-appellant, the cause was submitted on the briefs of Alan Marcuvitz, Andrea H. Roschke, and Susan M. Sager, orally argued by Alan Marcuvitz and Andrea H. Roschke, Michael Best & Friedrich LLP, Milwaukee.

On behalf of the plaintiff-respondent, the cause was orally argued by and submitted on the briefs of Mark J. Steichen, Boardman, Suhr, Curry & Field LLP, Madison.

Before Lundsten, P.J., Vergeront and Higginbotham, JJ.

¶1 VERGERONT, J.

The City of Janesville initiated this action for a writ of assistance to remove CC Midwest, Inc., from property the City had acquired by exercising its power of eminent domain. The City also sought a declaration that it had satisfied all its obligations under Wis. Stat. ch. 321 and was therefore entitled to possession. The issue on appeal is whether the circuit court correctly concluded that the City had met its obligation under Wis. Stat. § 32.05(8)(b) and (c) to make available to CC Midwest a comparable replacement property before requiring CC Midwest to vacate. We conclude that, because none of the properties

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identified by the City met the definition of "comparable replacement business" in Wis. Stat. § 32.19(2)(c), the City was not entitled to the writ. Accordingly, we reverse the circuit court's judgment granting the writ and direct it to enter judgment denying the writ.

BACKGROUND

¶2 The property at issue consists of approximately nine acres located in the City of Janesville. CC Midwest rented the property and operated a trucking terminal there. CC Midwest was a division of a company that was owned by Cen Tra, Inc., and a corporation related to Cen Tra owned the property. CC Midwest is a "less than truckload" operation, meaning that its customers send and receive freight in quantities less than a semi-trailer can carry. Each truck makes as many pickups as it can in the terminal's service area, then returns to the terminal where the freight is unloaded and reloaded into other trucks that deliver to remote terminals in the network, which covers thirty-eight states. The service area of the CC Midwest terminal on the property acquired by the City was South Central Wisconsin. The building on the property included twenty docks arranged in a "cross-docking" configuration, which allowed the trucks that were being unloaded to be directly across the terminal floor from the doors of the trucks that receive the freight.

¶3 On February 7, 2003, the City acquired the property occupied by CC Midwest as part of a transportation project that involved reconstructing a street and constructing a railroad bridge, underpass, and drive. CC Midwest had been notified of the City's plans in November 2001. In October 2002, the City sent CC Midwest a letter advising that it would need to relocate, would receive a ninety-day advance notice of when it had to move, and would be eligible for specified relocation assistance. The letter also listed several " 'comparable replacement businesses' that [CC Midwest might] wish to consider." On February 6, 2003, the City notified CC Midwest that it would have until May 8, 2003, to vacate the property; there would be no rent due for the thirty-day period commencing February 15, 2003, and the City specified the rent for any other period of occupancy. Later in February the City notified CC Midwest of eight "more possible sites … for the relocation of CC Midwest."

¶4 In March 2003, CC Midwest2 informed the City by letter that none of the suggested sites were comparable: some were only vacant land; the land and/or the building on some were too small; some of the buildings were warehouses not conducive to cross-docking operations; four sites were too far from Janesville (one over fifty miles, two approximately 100 miles, and one over 125 miles); and one was not for sale. The City's position was that at least three of those sites were "comparable replacement properties." By letter dated April 14, 2003, the City advised CC Midwest that it had to physically vacate the property by May 16, 2003. CC Midwest did not vacate the property by May 16. The parties subsequently entered into an occupancy agreement defining the terms under which CC Midwest could occupy the property while the City sought a writ of assistance requiring CC Midwest to vacate the property.

¶5 The City initiated this action seeking a declaration that it had complied with its obligations under Wis. Stat. ch. 32 and was entitled to a writ of assistance directing the sheriff to remove CC Midwest from

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the property. CC Midwest opposed the writ on the ground that the City had not made available a comparable replacement property as required by Wis. Stat. § 32.05(8)(b) and (c) before a condemnor may make an occupant vacate the property. The court treated the City's motion for the issuance of a writ as a motion for summary judgment, and the parties filed briefs and affidavits on the issue whether the City had met its statutory obligation to make available a comparable replacement property. The circuit court concluded that there were no issues of material fact and that the City had met its obligation to make available a comparable replacement property. The court therefore issued a judgment for a writ of assistance.3

ANALYSIS

¶6 On appeal CC Midwest contends, as it did in the circuit court, that the City was not entitled to a writ of assistance because it did not make available a "comparable replacement property" as required by Wis. Stat. § 32.05(8)(b) and (c). CC Midwest asserts that none of the properties the City identified met the definition of "comparable replacement business" in Wis. Stat. § 32.19(2)(c).4

¶7 The City at oral argument conceded that there is no dispute that the properties it identified did not meet the statutory definition for a comparable replacement business in Wis. Stat. § 32.19(2)(c) at the time it was requiring CC Midwest to vacate the property. However, its position is that the relevant statutory provisions, when read together in light of City of Racine v. Bassinger, 163 Wis.2d 1029, 473 N.W.2d 526 (Ct. App. 1991), and Dotty Dumpling's Dowry, Ltd. v. Community Development Authority of the City of Madison, 2002 WI App 200, 257 Wis.2d 377, 651 N.W.2d 1, require only that it identify property that could be made comparable as defined in § 32.19(2)(c) and offer the payment identified in § 32.19(3) and (4m).5

¶8 When we review a summary judgment, we employ the same methodology as the circuit court and our review is de novo. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816 (1987). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2) Given the competing theories

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of statutory construction advanced by the parties, we conclude that the material facts are undisputed. The proper construction of a statute when applied to undisputed facts presents a question of law, which this court reviews de novo. State v. Setagord, 211 Wis.2d 397, 405-06, 565 N.W.2d 506 (1997).

¶9 When we construe a statute, we start with the language of the statute and give it the common, ordinary, and accepted meaning, except that technical or specially defined words are given their technical or special definitions. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110. We interpret statutory language in the context in which it is used, not in isolation but as part of a whole, in relation to the language of surrounding or closely related statutes, and we interpret it reasonably to avoid absurd or unreasonable results. Id., ¶ 46, 681 N.W.2d 110. We also consider the scope, context, and purpose of the statute insofar as they are ascertainable from the text and structure of the statute itself. Id., ¶ 48, 681 N.W.2d 110. If, employing these principles, statutory language is unambiguous—that is, there is only one reasonable meaning—then we apply this plain meaning. Id., ¶ 46, 681 N.W.2d 110 (citation omitted). We also consider prior cases construing the statute, because judicial construction becomes part of the statute unless subsequently amended by the legislature. Wenke v. Gehl Co., 2004 WI 103, ¶ 31 n.17, 274 Wis.2d 220, 682 N.W.2d 405.

¶10 We begin with an analysis of the statutory language at issue and then discuss the cases on which the City relies.

¶11 Wisconsin Stat. § 32.05 provides the procedure for certain municipalities to follow when condemning land for certain public projects, and the parties agree that this is the applicable section. After describing the procedure for acquiring title and determining the amount of compensation to the property owner, this section addresses the occupants of the property and provides in part:

Condemnation for sewers and transportation facilities. (8) Occupancy; writ of assistance; waste.

….

(b) No person occupying real...

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