Gamroth v. Village of Jackson, 96-3396

• Decision Date: 26 November 1997
• Docket Number: No. 96-3396,96-3396
• Parties: Arthur P. GAMROTH, Petitioner-Appellant, v. VILLAGE OF JACKSON, Respondent-Respondent.
• Court: Wisconsin Court of Appeals

Page 917

571 N.W.2d 917

215 Wis.2d 251

Arthur P. GAMROTH, Petitioner-Appellant, v. VILLAGE OF JACKSON, Respondent-Respondent.

No. 96-3396.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 12, 1997.

Opinion Released Nov. 26, 1997.

Opinion Filed Nov. 26, 1997.

On behalf of the petitioner-appellant, the cause was submitted on the briefs of John F. Fuchs and Susan M. Ruppelt of Fuchs, Snow, O'Connell & DeStefanis, S.C. of Milwaukee.

On behalf of the respondent-respondent, the cause was submitted on the brief of Phillip J. Eckert of O'Meara, Eckert, Pouros & Gonring of West Bend.

Before SNYDER, P.J., and BROWN and NETTESHEIM, JJ.

BROWN, Judge.

In DNR v. City of Waukesha, 184 Wis.2d 178, 191, 515 N.W.2d 888, 893 (1994), decided June 1, 1994, our supreme court resolved long-standing and conflicting interpretations of the notice of claim statute, § 893.80(1), STATS., by deciding that the statute applied to any action, be it tort, money damages or equity. On May 8, 1996, in State ex rel. Auchinleck v. Town of LaGrange, 200 Wis.2d 585, 592-94, 547 N.W.2d 587, 590 (1996), the supreme court drew an exception to DNR and held that the notice of claim time limit was inapplicable to open records and open meetings actions because the specific rights and remedies provided by those statutes take precedence over the provisions of § 893.80. Here, we apply the rationale of Auchinleck to actions involving an appeal of a special assessment pursuant to § 66.60(12)(a), STATS. Further, in the interests of justice and judicial administration, we construe Arthur P. Gamroth's action before us to be an appeal of a denial of a motion under either one or all of § 806.07(1)(f), (g) or (h), STATS. We reverse and remand with directions that the trial court apply the law as announced in this decision and order that Gamroth be allowed to proceed with his appeal of an assessment.

The history of this case reveals a labyrinthine set of facts which, along with the statutes and case law, placed Gamroth between Scylla and Charybdis--equally hazardous alternatives.

Gamroth owns property in a tax incremental district (TID). The Village of Jackson determined to levy special assessments on property within the TID and caused a special assessment to be made against Gamroth's property on September 11, 1995. The Village then adopted a resolution authorizing assessment against properties on the basis of total acreage owned within the TID rather than a per-foot basis preferred by Gamroth. The resolution was published on September 30, 1995, in the West Bend Daily News.

Because there was a $50,000 difference between the total acreage assessment and the front-footage basis, Gamroth appealed the assessment to the circuit court on November 1, 1995, pursuant to § 66.60(12)(a), STATS. This statute provided that any person feeling aggrieved by a special assessment by a village or city "may, within 90 days after the date of the notice or of the publication of the final resolution" appeal to the circuit court. See id. Gamroth's appeal was timely under this statute.

On December 5, the Village moved to dismiss the appeal, in part because Gamroth failed to comply with the notice of claim provision in § 893.80(1)(b), STATS., 1993-94, ¹ prior to filing the appeal against the Village. Section 893.80(1)(b), as pointed out by the Village, says that no action may be brought against a governmental subdivision unless a written notice containing the claimant's address and an itemized statement of the relief sought is first submitted to the village clerk and is disallowed by the village. Disallowance occurs either by notice of disallowance or the passing of 120 days. The Village pointed out that, pursuant to DNR, this procedure is required in all cases, not just cases involving claims for money damages against a governmental subdivision.

At a hearing on the motion on December 18, Gamroth's counsel, while conceding that DNR applied, made the following statement:

I had not treated ... these appeals from assessments ... as being governed by 893.80, even in spite of the DNR case. And that's whether I'm representing a municipality or an applicant or petitioner. And the reason for that, and I know some day the Supreme Court is going to have to address this case again, the appeal time is 90 days. If the DNR case means 893.80 applies to this case and you file a claim, you give the municipality the option of sitting on it for six months, then it's deemed denied by law, then you can first take your appeal. And what I have yet to ever reach a conclusion on, in my own mind, is how can you either follow the DNR case and comply with 893.80 and still make your 90 day appeal time. It's an impossibility.

Gamroth's counsel moved for dismissal without prejudice so that the claim could comply with § 893.80, STATS., and the trial court, the Honorable James B. Schwalbach presiding, granted it.

Gamroth filed his notice of claim and waited the 120 days. Then he filed his appeal from the assessment. Again, the Village moved to dismiss. Only this time, the Village maintained that Gamroth had failed to abide by the 90-day limitation of § 66.60(12)(a), STATS. The hearing on the motion was held before the Honorable Lawrence F. Waddick. It is apparent from reading the transcript that Judge Waddick understood what had occurred at the hearing before Judge Schwalbach and knew that the law at the time of the hearing before Judge Schwalbach was the DNR case. Judge Waddick also knew that Auchinleck had been decided between the time that the action before Judge Schwalbach was dismissed without prejudice and the time that the action was commenced before him. The judge acknowledged that Auchinleck narrowed DNR only with regard to open records and open meetings laws. Nonetheless, the judge was convinced that eventually the supreme court would rule that wherever a statute sets forth specific time limits for beginning a court action, the specific statute will govern over the more general statute-- § 893.80, STATS. The judge was sympathetic to the dilemma Gamroth had been placed in by the timing of the DNR and Auchinleck cases. Yet, Judge Waddick felt constrained to rule that there was no jurisdiction "by virtue of the noncompliance with § 66.60 in the 90- day period." Although technically correct, for reasons we will explain later, we reach a different result.

First, we must decide what Auchinleck means. Both parties seem to be convinced that Auchinleck provides an exception to DNR whenever the legislature provides a different time limit for commencing a court action. We agree with Judge Waddick, however, that the supreme court did not go that far. In fact, the Auchinleck court took pains to point out that Auchinleck was confined to open meetings and open records laws. In a footnote, the court wrote:

Auchinleck also relies on other statutes not at issue in this case that contain various separate enforcement provisions and time limits. He argues that applying the notice of claim requirements to these statutes would lead to absurd results. Although we rely in part on the separate enforcement mechanism of the open records and open meetings laws in this case, we make no determination as to the application of the notice of claim requirements on other statutes which may contain similar enforcement mechanisms.

Auchinleck, 200 Wis.2d at 597 n. 10, 547 N.W.2d at 592. It is apparent that the supreme court has adopted a case-by-case approach to resolving whether a statute with specific enforcement methods and time limits will trump § 893.80, STATS.

Judge Waddick recognized this but believed that appeals under § 66.60(12)(a), STATS., should be addressed in the same manner as in Auchinleck. We agree. We said in Aiello v. Village of Pleasant Prairie, 196 Wis.2d 972, 976, 540 N.W.2d 236, 238 (Ct.App.1995), rev'd on other grounds, 206 Wis.2d 67, 556 N.W.2d 697 (1996), that parties must strictly comply with § 66.60(12)(a), which establishes a 90-day limit for commencing an appeal of an assessment in the circuit court. We said that the policy consideration behind this rule is to " 'maintain a simple, ordinary and uniform way of conducting legal business in our courts. Uniformity, consistency and compliance with procedural rules are important aspects of the administration of justice. If the statutory prescriptions are to be meaningful, they must be unbending.' " Aiello, 196 Wis.2d at 976, 540 N.W.2d at 238 (quoted source omitted).

It would be contrary to this policy to expect property owners feeling aggrieved by a village or city assessment to first file a notice of claim, wait up to 120 days for an answer from the assessing body and then file an action that the legislature says must be filed within 90 days. In fact, it is an impossibility, as was cogently pointed out by Gamroth's counsel during the hearing before Judge Schwalbach in the initial action. We extend Auchinleck to appeals under § 66.60(12)(a), STATS.

Now we briefly reach the issues framed by the parties. Gamroth contends that Judge Waddick dismissed the second appeal by reasoning as follows: Gamroth should not have voluntarily dismissed his first appeal in order to file a § 893.80(1)(b), STATS., claim. Rather, because he had filed his first appeal within 90 days pursuant to § 66.60(12)(a), STATS., he should have stuck with the first appeal. And Auchinleck should be applied retroactively such that compliance with § 893.80 was not the proper means of gaining access to the court.

Having construed Judge Waddick's decision in this light, Gamroth then argues that Judge Waddick was in error when he retroactively applied a case that was not in existence when the first appeal was heard and argues for reversal on that basis.

But we agree with the Village that Judge Waddick did not retroactively apply Auchinleck to the first appeal. We have read Judge Waddick's decision. All he was doing was noting that Auchinleck came down after the first appeal...