Ced Props. LLC v. City of Oshkosh

• Decision Date: 01 May 2013
• Docket Number: No. 2012AP5.,2012AP5.
• Citation: 836 N.W.2d 654,348 Wis.2d 305
• Parties: CED PROPERTIES LLC, Plaintiff–Appellant, v. CITY OF OSHKOSH, Defendant–Respondent.
• Court: Wisconsin Court of Appeals

348 Wis.2d 305

836 N.W.2d 654

CED PROPERTIES LLC, Plaintiff–Appellant,^†

v.CITY OF OSHKOSH, Defendant–Respondent.

No. 2012AP5.

Court of Appeals of Wisconsin.

Submitted on Briefs March 8, 2013.

Opinion Filed May 1, 2013.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Erik S. Olsen of Samuel Phillip Law Offices, LLC, Madison.

On behalf of the defendant-respondent, the cause was submitted on the briefs of Richard J. Carlson of Silton Seifert Carlson, SC, Appleton.

Before NEUBAUER, P.J., REILLY and GUNDRUM, JJ.

GUNDRUM, J.

[348 Wis.2d 307]¶ 1 This case requires us to decide whether Wisconsin's notice pleading and relation back statutes, respectively Wis. Stat. §§ 802.02(1) and 802.09 (2011–12),¹ apply to special assessment appeals under Wis. Stat. § 66.0703 and, if so, whether those provisions save CED Properties LLC's otherwise untimely claim related to a special assessment levied against it by the City of Oshkosh. We conclude that our notice pleading and relation back statutes do apply, but they do not save CED's claim. We affirm.

BACKGROUND

¶ 2 On July 27 and 31, 2010, respectively, the City of Oshkosh passed and published a resolution levying assessments against multiple properties to help pay for improvements at the intersection of Murdock Avenue and Jackson Street. Because CED owned property on a corner of that intersection, the resolution levied special assessments ² against CED in the amount of $19,241.73 related to the Murdock Avenue portion of the project and $19,404.93 related to the Jackson Street portion.

¶ 3 On September 23, 2010, CED filed a notice of appeal and complaint with the circuit court. The notice of appeal states that CED “has appealed the special assessment as further described in the complaint.” The complaint states in paragraph three that CED “owns property located at 1800 Jackson Street Oshkosh, WI 54901, City of Oshkosh parcel number 15–1898–1000” and in paragraph four that “[o]n 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.” The next seven paragraphs begin with “[CED] objects to the special assessment on the grounds that,” and then each paragraph articulates a separate ground. CED's prayer for relief asks the court to find “said Special Assessment against [CED] to be ... void and unenforceable and that [CED] be reimbursed for any payments made in regard to the void Special Assessment.”

¶ 4 On June 28, 2011, CED filed an amended complaint modifying paragraph four to read: “On or around July 27th, 2010, Oshkosh, by its Common Council, authorized the levy of special assessment(s) on or against [CED's] parcel to help pay for a construction project that would be performed on and in the vicinity of the Jackson Street–Murdock Avenue intersection.” The amended complaint raises the same grounds for objection but one as in the complaint; however, CED modified each of the restated paragraphs in the amended complaint so that they relate to “the special assessment(s).” It is undisputed that CED filed this amended complaint in an attempt to clearly appeal the $19,404.93 Jackson Street assessment in addition to the $19,241.73 Murdock Avenue assessment.

¶ 5 The City moved for partial summary judgment and CED moved for summary judgment. Related to both motions, the City argued that CED's claim regarding the $19,404.93 Jackson Street special assessment was untimely because it was not filed within the ninety-day period permitted by Wis. Stat. § 66.0703(12)(a), and CED contended the complaint provided the City notice that CED was challenging both assessments and that, in any event, its $19,404.93 Jackson Street claim in the amended complaint was timely because it related back to the complaint. CED further argued that both special assessments were void based on the grounds identified in its amended complaint. The City conceded that judgment in favor of CED was appropriate with regard to the $19,241.73 Murdock Avenue assessment, based on one of the grounds raised by CED, and the circuit court granted CED's motion as to that assessment. The court, however, also granted the City's motion for partial summary judgment, dismissing CED's claim related to the $19,404.93 Jackson Street assessment on the ground that the claim was not timely filed. The court concluded that Wisconsin's notice pleading rules do not apply because there is a specific statute providing for a ninety-day limitation period. The court did not rule directly on whether the relation back provision applies, but implicitlyruled that it does not. CED appeals, raising the same issues. Additional facts are incorporated as necessary.

DISCUSSION

Standards of Review

¶ 6 Whether the circuit court properly granted a motion for summary judgment is a question of law we review de novo, applying the same standards used by the circuit court, which are set forth in Wis. Stat. § 802.08. Emjay Inv. Co. v. Village of Germantown, 2011 WI 31, ¶ 24, 333 Wis.2d 252, 797 N.W.2d 844. Summary judgment “shall be rendered 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.” Sec. 802.08(2). Further, whether Wisconsin's notice pleading and relation back statutes apply to special assessment appeals under Wis. Stat. § 66.0703 presents us with a question of statutory interpretation, a matter of law we review de novo. Dawson v. Town of Jackson, 2011 WI 77, ¶ 17, 336 Wis.2d 318, 801 N.W.2d 316.

Applicable Statutes

¶ 7 Special assessment appeals such as CED's are governed by Wis. Stat. § 66.0703(12). The City identifies subsections (12)(a) and (e) as particularly relevant here. Subsection (12)(a) affords an interested person ninety days after publication of a final resolution to appeal the municipality's determination to the circuit court. This provision has been referred to as a statute of limitation. See Emjay, 333 Wis.2d 252, ¶ 2 n. 3, 797 N.W.2d 844. Subsection (12)(e) provides in relevant part that “[a]n appeal under this subsection is the sole remedy of any person aggrieved by a determination of the governing body ... and shall raise any question of law or fact, stated in the notice of appeal, involving ... the levy of any special assessment.”

¶ 8 Wisconsin Stat. § 802.02(1), regarding notice pleading, provides in relevant part:

Contents of pleadings. A pleading ... that sets forth a claim for relief ... shall contain all of the following:

(a) A short and plain statement of the claim, identifying the transaction or occurrence or series of transactions or occurrences out of which the claim arises and showing that the pleader is entitled to relief.

(b) A demand for judgment for the relief the pleader seeks.

Wisconsin Stat. § 802.09(3) provides in relevant part:

Relation back of amendments. If the claim asserted in the amended pleading arose out of the transaction, occurrence, or event set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the filing of the original pleading.

The City issued two special assessments

¶ 9 As a threshold matter, we consider CED's contention that there was but one special assessment related to its property and that it just identified the wrong dollar amount in its complaint. The record does not support this assertion.

¶ 10 To begin, the City submitted on summary judgment an affidavit of its assistant public works director, whose duties include preparing and reviewing special assessments for public works projects. The director averred that the City has “a policy of exercising its special assessment authority for street and utility improvements by levying a separate special assessment for each street/utility improvement that abuts the property. For corner properties, the City will levy two separate special assessments, one for each street frontage.” He further averred that the City, on July 27, 2010, “levied two separate special assessments against [CED] in connection with” the intersection improvement project. Attached to the affidavit as exhibits are the separate schedules of assessments for Murdock Avenue and Jackson Street, copies of which are appended to this opinion.

¶ 11 Each schedule contains a column for “CONCRETE PAVING ASSESSMENT.” See Appendix. Beneath this heading, a dollar value is listed which corresponds to individual property owners identified in rows going down the left side of the schedule. Id. Consistent with the director's averment, there is a separate “CONCRETE PAVING ASSESSMENT” for each individual property owner on each of the two street schedules. Id. The Murdock Avenue schedule shows a “$19,241.73” “CONCRETE PAVING ASSESSMENT” for CED. Id. The Jackson Street schedule shows a “$19,404.93” “CONCRETE PAVING ASSESSMENT” for CED. Id. CED has identified nothing in the record showing the City ever merged the two “CONCRETE PAVING ASSESSMENT” amounts into one “$38,646.66” assessment, or otherwise undermining the above facts. CED complains that it was “confus[ed]” about the amount it was being assessed; however, the Jackson Street schedule of assessments identifies the $19,404.93 “CONCRETE PAVING ASSESSMENT” for CED related to that street as clearly as the Murdock Avenue schedule identifies the $19,241.73 “CONCRETE PAVING ASSESSMENT”for CED related to that street.³ Thus, we agree with the circuit court's conclusion that the schedules of assessments for Murdock Avenue and Jackson Street “do clearly indicate CED Properties, one for Jackson and one for Murdock.”

¶ 12 CED contends that the City's answer to the fourth paragraph of CED's complaint suggests there was only one assessment levied against CED. We disagree. That answer states: “Admits...