Hoeft v. City of Beaver Dam

• Decision Date: 25 June 2015
• Docket Number: No. 2014AP2790.,2014AP2790.
• Citation: 364 Wis.2d 528,868 N.W.2d 199 (Table)
• Parties: Jay R. HOEFT, Plaintiff–Appellant, v. CITY OF BEAVER DAM and Mark Williams, Director, Department of Administration, State of Wisconsin, Defendants–Respondents.
• Court: Wisconsin Court of Appeals

364 Wis.2d 528

868 N.W.2d 199 (Table)

Jay R. HOEFT, Plaintiff–Appellant

v.CITY OF BEAVER DAM and Mark Williams, Director, Department of Administration, State of Wisconsin, Defendants–Respondents.

No. 2014AP2790.

Court of Appeals of Wisconsin.

June 25, 2015.

Opinion

¶ 1 KLOPPENBURG, J.

Jay Hoeft's property was damaged by flooding in 2008 and purchased by the City of Beaver Dam in 2013. Hoeft seeks payment of relocation benefits from the City under Wis. Stat. ch. 32 (2013–14), specifically “loss of income from his property and related expenses resulting from a four-year delay by [the City] in acquiring his property.”¹ Hoeft also seeks compensatory and punitive damages from the City and Mark Williams, “Director, Department of Administration,” pursuant to 42 U.S.C. § 1983, alleging that actions by the City and Williams, in relation to the acquisition of his property and the review of his relocation claim, violated certain federal laws and caused him to suffer monetary loss.

¶ 2 The circuit court granted the City's motion for summary judgment on the grounds that Hoeft failed to state “a valid cause of action.” The court also granted Williams's motion to dismiss. We reject Hoeft's arguments that the circuit court erred and affirm.

BACKGROUND²

¶ 3 The facts in this background section are taken from the allegations in the seconded amended complaint. Additional undisputed facts established on summary judgment are stated in the discussion section that follows.

¶ 4 Jay Hoeft owned a tavern on Front Street in the City of Beaver Dam. In June 2008, a flood damaged Hoeft's property and other nearby properties. Hoeft reopened his tavern later in 2008 and closed it in 2011.

¶ 5 The City purchased Hoeft's property in July 2013 at its 2008 fair market value. After the sale, Hoeft filed a claim for relocation benefits totaling $392,810. 19, and was awarded $20,000.

¶ 6 In January 2014, Hoeft filed a complaint naming “City of Beaver Dam” as the sole defendant. Hoeft filed an amended complaint in July 2014, adding an additional claim under 42 U.S.C. § 1983 against the “State of Wisconsin Department of Commerce/Department of Administration.” Hoeft filed a second amended complaint substituting “Mark Williams, Director Department of Administration State of Wisconsin,” as a defendant in place of the State departments.

¶ 7 The City moved for summary judgment on the basis that Hoeft failed to state a claim upon which relief can be granted. Williams filed a motion to dismiss on the basis of sovereign immunity. The circuit court granted both motions, dismissing the entire action with prejudice.

DISCUSSION

¶ 8 Hoeft argues that the circuit court erred in granting summary judgment in favor of the City and in dismissing his claim against Williams. We reject Hoeft's arguments and affirm.

A. Summary Judgment in Favor of City of Beaver Dam

¶ 9 In his pleadings, Hoeft claimed that, under Wis. Stat. ch. 32, he is entitled to recover from the City “payment of his Relocation Claim in the amount [of] $392,810. 19 plus additional accrued losses after date of filing along with interest [and] litigation expenses.” Hoeft also claimed that he is entitled to compensatory and punitive damages pursuant to 42 U.S.C. § 1983 because the City violated certain federal laws when, according to Hoeft, it acted maliciously with respect to the acquisition of his property and the review of his relocation claim. The circuit court granted summary judgment in favor of the City on the basis that Hoeft could not recover under either the state or federal statutes. We agree.

¶ 10 “We review an order for summary judgment de novo, using the same methodology as the circuit court.” Yahnke v. Carson, 2000 WI 74, ¶ 10, 236 Wis.2d 257, 613 N.W.2d 102. “Summary judgment is appropriate when ‘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.’ “ Id. (quoted source omitted). “Although our review is de novo, we benefit from the analyses of the circuit court....” Id.

¶ 11 “To make a prima facie case for summary judgment, a moving defendant must show a defense which would defeat the claim. If the moving party has made a prima facie case for summary judgment, the court examines the affidavits submitted by the opposing party for evidentiary facts and other proof to determine whether a genuine issue exists as to any material fact, or reasonable conflicting inferences may be drawn from the undisputed facts, and therefore a trial is necessary.” Preloznik v. City of Madison, 113 Wis.2d 112, 116, 334 N.W.2d 580 (Ct.App.1983).

¶ 12 With these principles of summary judgment methodology in mind, we proceed to examine each of Hoeft's claims against the City along with the defenses raised by the City on summary judgment.

1. Recovery Under Wis. Stat. ch. 32

¶ 13 “The Wisconsin Constitution and the United States Constitution, made applicable to the states through the Fourteenth Amendment, provide that the government may not ‘take’ a person's private property for public use without providing just compensation.” Fromm v. Village of Lake Delton, 2014 WI App 47, ¶ 14, 354 Wis.2d 30, 847 N.W.2d 845 ; see also Wis. Const. art. I, § 13. “Ch. 32 of the Wisconsin statutes sets out the procedure the government must follow in acquiring such property for public use.” Zinn v. State, 112 Wis.2d 417, 432, 334 N.W.2d 67 (1983). Although relocation expenses are not constitutionally required as a part of “just compensation,” the legislature has imposed a statutory requirement that a “condemnor” provide to persons displaced by public projects certain relocation assistance, such as moving expenses, business replacement, and other expenses incidental to the transfer of property. See City of Janesville v. CC Midwest, Inc., 2007 WI 93, ¶ 16, 302 Wis.2d 599, 734 N.W.2d 428 ; Wis. Stat. §§ 32. 19, 32. 195.

¶ 14 A “condemnor” is defined in the statute as including “any state agency, political subdivision of the state or person carrying out a program or project with public financial assistance that causes a person to be a displaced person, as defined in [Wis. Stat. § 32. 19(2)(e) ].” Wis. Stat. § 32.185.

¶ 15 A “displaced person” is defined in the statute to include “any person who moves from real property or who moves his or her personal property from real property ... [a]s a direct result of a written notice of intent to acquire or the acquisition of the real property, in whole or in part or subsequent to the issuance of a jurisdictional offer under this subchapter, for public purposes.”Wis. Stat. § 32. 19(2)(e)1.

¶ 16 On appeal, the City does not specifically argue that Wis. Stat. ch. 32 does not apply, and therefore we assume without deciding that the City is a “condemnor” and Hoeft is a “displaced person” as defined in Wis. Stat. ch. 32.³

¶ 17 As stated above, Hoeft seeks payment of relocation expenses from the City under Wis. Stat. ch. 32, specifically “payment of his Relocation Claim in the amount of $392,810. 19 plus additional accrued losses after date of filing along with interest [and] litigation expenses.” Hoeft's relocation claim itemized the following costs:

Moving Costs [Wis. Stat. § 32. 19(3) ]:	$9,845.00
Business Replacement Costs [Wis. Stat. § 32. 19(4m) ] (in lieu of acquisition):	$50,000.00
Loss of Income/Delay in Relocation (Attachment A):	$275,294.00
Rent Loss [Wis. Stat. § 32. 195(6) ]:	$37,200.00
Real Estate Taxes, 2011, 2012 & 2013 [Wis. Stat. § 32. 195(5) ]:	$8,223.74
Attorney Fees and Costs:	$12,247.45

¶ 18 In support of its motion for summary judgment dismissing Hoeft's relocation claim, the City contends that “as a matter of law, Hoeft cannot recover damages under Wis. Stat. ch. 32,” because “Hoeft received all the benefits provided by Wis. Stat. ch. 32 to which he was entitled.” Specifically, the City argues that Hoeft has recovered certain costs he seeks and cannot recover the remaining itemized costs for the following reasons: (1) the Department of Administration awarded Hoeft $20,000 in lieu of actual moving costs and real estate taxes, and the $20,000 awarded exceeds the costs claimed by Hoeft for those items; (2) Hoeft did not actually replace his business and, therefore, he is not entitled to business replacement costs; (3) loss of business income is not recoverable under Wis. Stat. ch. 32; (4) Hoeft's rent loss cannot be recovered because it is not directly attributable to a public improvement project; and (5) attorney's fees and costs are not recoverable under ch. 32.

¶ 19 Hoeft does not dispute the City's assertions that his claims for moving costs and taxes were covered by the award, and that his claims for business replacement costs, rent loss, and attorney's fees and costs were properly denied. Therefore, we deem conceded the City's assertions as to the proper disposition of Hoeft's claims for moving costs, taxes, business replacement costs, rent loss, and attorney's fees and costs. See Fischer v. Wisconsin Patients Comp. Fund, 2002 WI App 192, ¶ 1 n. 1, 256 Wis.2d 848, 650 N.W.2d 75 (“An argument asserted by a respondent on appeal and not disputed by the appellant in the reply brief is taken as admitted.”). However, Hoeft does dispute the City's assertion that his claim for loss of business income was properly denied. We now address and reject the two grounds asserted by Hoeft in support of his position.

¶ 20 Hoeft asserts that the City's “delay in acquisition” of his property caused him to incur $275,294 in lost business income between 2008 and 2013. Hoeft argues that his alleged loss of business income is recoverable (1) under Wis. Stat. ch. 32, and (2) under the Wisconsin Constitution as interpreted by Luber v. Milwaukee Cnty., 47 Wis.2d 271, 177 N.W.2d 380 (1970). As to Hoeft's first basis for his challenge to the denial of his claim for loss of business income, Hoeft does not cite any particular section of Wis. Stat....