Green Bay Broadcasting Co. v. Redevelopment Authority of City of Green Bay

• Decision Date: 23 December 1983
• Docket Number: No. 82-472,82-472
• Citation: 342 N.W.2d 27,116 Wis.2d 1
• Parties: GREEN BAY BROADCASTING COMPANY, a Wisconsin corporation, and Jean Flatow, d/b/a Flatow's Plaintiffs-Respondents, v. The REDEVELOPMENT AUTHORITY OF the CITY OF GREEN BAY, Wisconsin, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 27

342 N.W.2d 27

116 Wis.2d 1

GREEN BAY BROADCASTING COMPANY, a Wisconsin corporation, and Jean Flatow, d/b/a Flatow's Plaintiffs-Respondents, v. The REDEVELOPMENT AUTHORITY OF the CITY OF GREEN BAY Wisconsin, Defendant-Appellant-Petitioner.

No. 82-472.

Supreme Court of Wisconsin.

Argued Sept. 6, 1983.

Decided Dec. 23, 1983.

Robert L. Bittner, Green Bay, argued, for defendant-appellant-petitioner; Bittner, Hinkfuss, Sickel & Calewarts, Green Bay, on brief.

J. Robert Kaftan, Green Bay, argued, for Green Bay Broadcasting Co.; Kaftan, Kaftan, Kaftan, Van Egeren, Ostrow, Gilson & Geimer, S.C., Green Bay, on brief.

Bernard Berk, Green Bay, argued, for Jean Flatow; Avram D. Berk, Berk Law Offices, S.C., Green Bay, on brief.

HEFFERNAN, Chief Justice.

This is a review of an unpublished decision of the court of appeals, 109 Wis.2d 694, 326 N.W.2d 783 dated October 26, 1982, which affirmed an order of the circuit court for Brown county, N. Patrick Crooks, circuit judge, which dismissed the appeal of the Redevelopment Authority of the City of Green Bay from a condemnation award. We reverse and direct that the cause be remanded to the circuit court for the disposition of the appeal on its merits.

The condemnation proceeding was commenced pursuant to sec. 32.06, Stats. Sec. 32.06 outlines the procedure to be used for condemnations when the project does not involve a transportation project. ¹ The principal issue is whether a party aggrieved by a condemnation award under sec. 32.06 is required to give notice of an appeal to all who were parties in the proceeding or only to "opposite" parties. We conclude that, although it is required the appeal be taken from the whole award, it is necessary, under sec. 32.06, only to give notice of the appeal to opposite parties, i.e., parties whose property interests are valued in an amount that the appellant finds objectionable. We also conclude that the phrase in sec. 32.06(10), "giving notice of appeal ... as provided in s. 32.05(10)," does not mandate any requirement in respect to whom notice shall be given but is only mandatory in respect to the mode or method of giving notice. Additionally, we hold that, where the statutes require that notice of appeal be given to the clerk of court and also to the additional party or parties as provided in sec. 32.06(10) and sec. 32.05(10), ² the order of giving notice, under these portions of the condemnation statute, is irrelevant. All that is required is that the conjunctive requirement that both be given notice be satisfied.

The petitioner in this review, The Redevelopment Authority of the City of Green Bay (Authority), is a municipal corporation created by the common council of the city of Green Bay pursuant to sec. 66.431(3), Stats., to eliminate urban blight and to renew portions of the city of Green Bay. The Authority commenced a condemnation under sec. 32.06, Condemnation procedure in other than transportation matters. The property was an office building owned by the Green Bay Broadcasting Company and occupied by it and six other tenants: Jean Flatow, d/b/a Flatow's, who is denominated as a plaintiff in the appeal from the condemnation award; Doering Jewelry, Inc.; Riedi Hearing Aids; Custom Tailor Shop; Green Bay Blueprint, Inc.; and the law firm of Egan, Laird, and Nellen, S.C. Each of these tenants and the Green Bay Broadcasting Company, in its additional capacity as a tenant of the building, had installed immovable fixtures in separately leased premises. On October 28, 1980, the Authority served an appraisal and combined jurisdictional offer on the owner and on each tenant. The jurisdictional offer was accepted by no one within the time set by the statutes; and, accordingly, the jurisdictional offer was deemed rejected. Sec. 32.06(6).

Because of the nonacceptance of the jurisdictional offer, the Authority, pursuant to sec. 32.06(7), Stats., petitioned the circuit court for the assignment of the matter to the Brown County Condemnation Commission to determine the amount of just compensation and to determine the respective interests of the owner and the tenants in the property. On December 17, 1980, the circuit court for Brown county, Richard G. Greenwood, Circuit Judge, assigned the matter to the Brown County Condemnation Commission. A hearing was held before that commission pursuant to sec. 32.06(8). On January 29, 1981, the commission filed its award with the clerk of circuit court, specifying the property and the value of the property in respect to the owner and each of the tenants. ³

It should be noted that the condemnation commission awarded as compensation for the building, land, and fixtures $353,184, whereas the jurisdictional offer for building, land, and fixtures was $280,398. In respect to fixtures, the computation made by the commission was identical to the jurisdictional offer with the exception of the fixtures of Flatow and Green Bay Broadcasting Company. The jurisdictional offer for Flatow's fixtures was $9,885. The award was in the sum of $20,366. The jurisdictional offer for Green Bay Broadcasting Company's fixtures was $13,518, while the award was $22,374.

On March 25, 1981, the Authority filed a notice of appeal in the office of the clerk of court for Brown county. The notice of appeal was captioned, "Green Bay Broadcasting Company, a Wisconsin corporation, and Jean Flatow, d/b/a Flatow's, Plaintiffs, vs. The Redevelopment Authority of the City of Green Bay, Wisconsin, Defendant." The notice of appeal recited:

"PLEASE TAKE NOTICE, That pursuant to Sec. 32.06(10), Wis.Stats., the Defendant herein appeals to the Circuit Court the matter of the determination of the Condemnation Commission of Brown County, Wisconsin, regarding the taking of the parcel of land described in the attached legal description ...."

The attached legal description is identical to that which appeared in the caption in the lis pendens filed on November 21, 1980, and in the order of the circuit court assigning the matter to the condemnation commission. The notice of appeal was served only on the parties named in the caption, The Green Bay Broadcasting Company and Jean Flatow. The remaining five tenants on whom the jurisdictional offer was served were not served with the notice of appeal, named in the caption, nor joined as parties. After sixty days had elapsed following the date of the filing of the commission's award, the condemnees, i.e., Green Bay Broadcasting Company and Flatow, moved to dismiss the appeal on the ground that the Authority had failed to comply with the provisions of secs. 32.06(10) and 32.05(10), Stats. Sec. 32.06(10) provides, in part:

"Within 60 days after the date of filing of the commission's award either condemnor or owner may appeal to the circuit court by giving notice of appeal to the opposite party and to the clerk of the circuit court as provided in s. 32.05(10)."

Sec. 32.05(10), Stats., provides, in part, that:

"Notice of such appeal shall be given to the clerk of the circuit court and to all persons other than the appellant who were parties to the proceeding before the commissioners."

The condemnees, Green Bay Broadcasting Company and Flatow, persuaded the circuit court that, taken together, these two sections compelled the court to hold that notice to Green Bay Broadcasting Company and Flatow was insufficient--that for the circuit court to secure jurisdiction to proceed, notice had to be given to the other five parties to the proceeding before the commission. The trial court concluded that, because only two of the seven parties were given notice, the appeal was not from the gross award, as it should have been. In addition, there was a failure to join necessary parties; and, moreover, the service was improper even as to Flatow and Green Bay Broadcasting Company, because sec. 32.06, Stats., required that notice first be given to the opposite parties and then to the clerk, while the reverse order of service was employed by the Authority. The trial court, N. Patrick Crooks, Circuit Judge, dismissed the appeal on January 15, 1982. On appeal, the trial court's order was affirmed. We reverse.

The basis on which the court of appeals made its decision is not clear. At one point it asserts that, because the appeal was "from the commission's gross award and that all of the parties to the condemnation proceeding should have been joined," the appeal was defective. At another point in the opinion it is asserted that the appeal was defective because it was not from the gross award but only from those portions of the award which determined the just compensation for Green Bay Broadcasting Company as a landowner and as a tenant and Jean Flatow as a tenant. ⁴

We conclude that the notice of appeal filed by the Authority, without question, referred to the gross award. The court of appeals was correct when, from its inspection of the record, it initially so held.

The petitioner, Redevelopment Authority, in this court, has asserted that adherence to "the unit rule" or the necessity to appeal from a gross award is not required. This assertion by the Redevelopment Authority is erroneous. However, this erroneous view of the law is not fatal in the instant case, because the document captioned, "Notice of Appeal," was, in fact, addressed to the gross award. As set forth in the summary of facts, the notice stated the appeal to be in regard to the "taking of the parcel of land described in the attached legal description." The land described constitutes the whole of the taking and is the same description utilized in the original petition, the lis pendens, and in the jurisdictional offer. The appeal was from the whole award, the entire determination by the condemnation commission.

Because the Authority on this petition for review has asserted that the unit rule does not apply in Wisconsin, we point out that its acceptance is beyond question in Wisconsin jurisprudence. The unit rule and the undivided fee rule...