Country Side Restaurant, Inc. v. Country Side Rest., Inc.

• Decision Date: 04 May 2012
• Docket Number: No. 2010AP2023.,2010AP2023.
• Citation: Country Side Restaurant, Inc. v. Country Side Rest., Inc., 340 Wis.2d 335, 814 N.W.2d 159, 2012 WI 46 (Wis. 2012)
• Parties: In re the Petition of COUNTRY SIDE RESTAURANT, INC. for the Clerk of the Circuit Court of Winnebago County to Accept a Portion of an Award of Damages Made by the DOT on 10/09/08 for Property located at 1145 Abraham Lane, Oshkosh, WI. The Lamar Company, LLC, d/b/a Lamar Outdoor Advertising, Petitioner–Appellant–Petitioner, v. Country Side Restaurant, Inc., Respondent–Respondent.
• Court: Wisconsin Supreme Court

340 Wis.2d 335

814 N.W.2d 159

2012 WI 46

In re the Petition of COUNTRY SIDE RESTAURANT, INC. for the Clerk of the Circuit Court of Winnebago County to Accept a Portion of an Award of Damages Made by the DOT on 10/09/08 for Property located at 1145 Abraham Lane, Oshkosh, WI.The Lamar Company, LLC, d/b/a Lamar Outdoor Advertising, Petitioner–Appellant–Petitioner,

v.Country Side Restaurant, Inc., Respondent–Respondent.

No. 2010AP2023.

Supreme Court of Wisconsin.

Argued March 6, 2012.

Decided May 4, 2012.

For the petitioner-appellant-petitioner there were briefs filed by Thomas S. Hornig and Kraig A. Byron and von Briesen & Roper, S.C., Madison, and oral argument by Thomas S. Hornig.

For the respondent-respondent, there was a brief filed by Hugh R. Braun and Nicholas R. Diulio and Godfrey, Braun & Frazier, LLP, Milwaukee, and oral argument by Hugh R. Braun.

An amicus curiae brief was filed by Kathleen M. Batha, assistant attorney general, for the Wisconsin Department of Transportation, and oral argument by Kathleen M. Batha.

ANNETTE KINGSLAND ZIEGLER, J.

[340 Wis.2d 338]¶ 1 This is a review of an unpublished decision of the court of appeals, Lamar Co., LLC v. Country Side Restaurant, Inc.,No.2010AP2023, unpublished slip op., 2011 WL 2022942(Wis.Ct.App.May 25, 2011), that affirmed an order by the Winnebago County Circuit Court¹ disbursing to Country Side Restaurant, Inc.(Country Side) $120,000 on deposit with the Clerk of the Circuit Court of Winnebago County.

¶ 2 Pursuant to its power of eminent domain, the Wisconsin Department of Transportation(DOT) acquired a 76,628 square foot parcel of land owned by Country Side, a portion of which Country Side leased to the Lamar Company, LLC(Lamar) for the purpose of constructing and maintaining a billboard.As compensation for the taking, the DOT issued to Country Side and Lamar an award of damages totaling $2,000,000.Country Side and Lamar agreed that all proceeds would be transferred to Country Side, save for $120,000 deposited with the Clerk of the Circuit Court of Winnebago County for eventual distribution.Thereafter, Lamar applied for and received from the DOT a relocation payment of $83,525.

¶ 3 Country Side and Lamar were unable to agree on a division of the $120,000.Consequently, Lamar filed a claim for partition, seeking the full amount on deposit, plus interest.Country Side responded by petitioning the circuit court for an order disbursing to Country Side the full amount on deposit, plus interest.

¶ 4The circuit court granted Country Side's petition and ordered the $120,000 to be disbursed to Country Side.The circuit court determined that the DOT had already justly compensated Lamar for the value of its billboard and that Lamar had lost its right to seek a share of the award of damages issued to Country Side and Lamar by failing to join in Country Side's appeal of the award.The court of appeals affirmed, though on slightly different grounds.

¶ 5We granted Lamar's petition for review and now reverse the decision of the court of appeals and remand the cause to the circuit court for further proceedings consistent with this opinion.

¶ 6We hold that Lamar has not lost its right to seek a share of the award of damages issued to Country Side and Lamar, and therefore, the circuit court improperly dismissed Lamar's claim for partition.First, we conclude that Lamar did not lose its right to seek a share of the award of damages by failing to join in Country Side's appeal of the award.Second, we conclude that Lamar did not lose its right to bring a claim for partition by accepting payment from the DOT for relocation expenses.The DOT's payment for Lamar's relocation expenses is distinct from the DOT's award for the fair market value of the property taken.Lamar has a right to seek both.

I.FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶ 7 In October 2008, as part of its plan to reconstruct Highway 41, the DOT acquired a 76,628 square foot parcel of land located in Oshkosh, Wisconsin and owned by Country Side.Country Side had leased a portion of its property to Lamar for the purpose of constructing and maintaining a billboard.The ten-year lease commenced on April 1, 2006, and provided for an annual rent of $5,400, payable in monthly installments of $450.Lamar's billboard was permitted by the DOT.²

[340 Wis.2d 341]¶ 8 The DOT's jurisdictional offer ³ was issued to both Country Side and Lamar and listed a purchase price of $2,000,000.The purchase price was allocated as $1,934,900 for “Loss of land, including improvements and fixtures actually being acquired” and $65,100 for “Other: Sign.”

¶ 9 In his June 12, 2008, report, the DOT's appraiser, James Norby(Norby), clarified that $65,100 was the value of the permitted sign site, as opposed to the value of the billboard structure: “The purpose of the permitted sign site valuation is to determine the contributing value of the permitted sign site.The billboard structure is owned by Lamar Companies.Therefore, it is not included in this valuation.The land occupied by the structure is owned by [Country Side].”

¶ 10 The valuation of the permitted sign site was completed by Ronald Borree(Borree), also of the DOT, and attached to Norby's report as an addendum.Borree valued the permitted sign site at $65,000 and valued the billboard structure at $65,079.

¶ 11 On October 15, 2008, the DOT issued to Country Side and Lamar an award of damages ⁴ totaling $2,000,000.By a single check dated October 9, 2008, the DOT paid to Country Side and Lamar $1,985,785.51, or $2,000,000 less $14,214.49 in prorated taxes.⁵

¶ 12 On November 7, 2008, Country Side petitioned the circuit court to accept deposit of $120,000 for the benefit of Country Side and Lamar, pursuant to Wis. Stat. § 32.05(7)(d).Counsel for Country Side averred that Country Side and Lamar had agreed to transfer to Country Side all but $120,000 of the award of damages.The parties requested the circuit court to accept deposit of the remaining $120,000 for eventual distribution by court order.

¶ 13The circuit court granted Country Side's petition and ordered the $120,000 to be deposited with the clerk.

¶ 14 On December 5, 2008, pursuant to Wis. Stat. § 32.05(11), Country Side appealed to the circuit court, challenging the adequacy of the $2,000,000 award of damages.⁶

¶ 15 Lamar did not join in Country Side's appeal.However, by letter dated July 16, 2009, counsel for Lamar submitted to the DOT, inter alia, a completed “Relocation Claim—Application and Release” Form DT1527 (Form DT1527) and a “Payment Schedule Summary Worksheet”(Worksheet), claiming $83,525 in relocation expenses associated with its billboard.⁷By signing Form DT1527, Lamar “agree[d] to accept the amounts as payment in full for the items claimed, and release the [DOT] and any public body, board or commission acting in its behalf, from any and all claims for damages arising through this project, for the listed items for which an amount is claimed.”As detailed by the Worksheet, the claimed amount of $83,525 consisted of $75,175 for the in-place value of the billboard, i.e. the cost to build the billboard new; $2,500 for relocation expenses; and $5,850 for take-down cost.The Worksheet was signed by representatives from both Lamar and the DOT and contained the following release: “The reimbursement stated on this worksheet has been reviewed and agreed to by both parties.The sign owner or representative, by signing this document, waives any right to future claims for damage or loss involving this sign.”

¶ 16 Sometime thereafter, Lamar's counsel contacted the DOT to inquire about recovering the value of its billboard.In a letter dated September 22, 2009, the DOT, through Assistant Attorney GeneralKathleen M. Batha(Attorney Batha), responded by advising Lamar that only the value of the sign site, not the value of the structure itself, was included within the $2,000,000 award of damages:

The $2 million payment to Country Side and Lamar covers all interests in the value of the sign site.For example, if you have a claim for leasehold value or permit value, etc., you will need to seek satisfaction from Country Side.The sign structure itself is treated as a tenant's fixture which is not included in the payment that has been made.

Attorney Batha noted, however, that Lamar was entitled to “moving expenses or depreciated reproduction cost under [Wis. Admin. CodeCOMM § 202.64(Mar.1997) ].”⁸Enclosed with Attorney Batha's letter was a copy of Form DT1527.

¶ 17 Country Side and Lamar were unable to agree on a division of the $120,000 on deposit with the clerk of the circuit court.Consequently, on November 4, 2009, Lamar filed a claim for partition under Wis. Stat. §§ 32.05(9)(a)3. and 820.01, seeking the full amount on deposit, plus interest.Lamar contended that it was entitled to the fair market value of its billboard and the bundle of rights that accompany it.

¶ 18 In response, on November 10, 2009, Country Side petitioned the circuit court for disbursement of the $120,000 to Country Side.In support of its petition, Country Side argued that the $65,100 allocated to the sign in the jurisdictional offer was the value of the permitted sign site which was owned by Country Side and in which Lamar had no interest.By contrast, Country Side alleged, Lamar owned and was entitled to compensation only for the billboard itself.Country Side maintained that Lamar had already been compensated for the value of the billboard, plus relocation expenses, through Lamar's receipt of $83,525.

¶ 19The circuit court agreed and ordered the $120,000 to be disbursed to Country Side, thereby dismissing Lamar's claim for partition.Noting that Lamar did not join in Country Side's appeal of the award of damages, the circuit court determined that any right to the value of the permitted sign site belonged to Country Side.According to the circuit court, Lamar had already “made [its] deal with the DOT” for the value...