Lange v. City of Middleton, 2021AP1113

CourtCourt of Appeals of Wisconsin
Writing for the CourtPER CURIAM.
PartiesJohn T. Lange and John T. Lange Living Trust, dated October 28, 2016, Plaintiffs-Appellants, v. City of Middleton, Defendant-Respondent.
Decision Date19 May 2022
Docket Number2021AP1113

John T. Lange and John T. Lange Living Trust, dated October 28, 2016, Plaintiffs-Appellants,
v.

City of Middleton, Defendant-Respondent.

No. 2021AP1113

Court of Appeals of Wisconsin, District IV

May 19, 2022


This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.

APPEAL from a judgment of the circuit court for Dane County: No. 2018CV2956 RHONDA L. LANFORD, Judge.

Before Blanchard, P.J., Fitzpatrick, and Graham, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).

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PER CURIAM.

¶1 The City of Middleton ("the City") issued a statutory award of damages to John T. Lange and the John T. Lange Living Trust (collectively, "Lange") as just compensation for a partial taking of Lange's property ("the property"). Lange appealed that award to the Dane County Circuit Court, and the court determined that Lange is entitled to a lower amount of compensation for the partial taking than the City offered in the statutory award of damages. The circuit court entered a judgment ordering that Lange pay the City $9, 544, the difference between the statutory award and the compensation determined by the court.

¶2 On appeal, Lange argues that circuit court's determination of just compensation was erroneous for four separate reasons. First, Lange contends that the circuit court applied an incorrect legal standard in determining just compensation. Second, Lange argues that the court erred in excluding from evidence the value at which the property had been assessed for taxation purposes. Third, Lange contends that the circuit court erroneously denied Lange's motion to strike the City's untimely post-trial filings. Fourth, Lange argues that the circuit court's findings of fact were clearly erroneous. For the following reasons, we affirm.

BACKGROUND

¶3 The property is a parcel of land that is located at the intersection of University Avenue and Parmenter Street in the City of Middleton, Wisconsin. For many years, PDQ, Inc. leased the property from Lange and operated a small

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gasoline station and convenience store ("C-store")[1] on the site. In 2017, Kwik Trip Inc. acquired PDQ's leasehold interest in the property. Kwik Trip did not continue C-store operations at this location and removed the gas tanks, gas pumps, canopy, related gas dispensing equipment, signage, and most interior equipment and improvements. However, Kwik Trip did not remove the building located on the property.

¶4 In 2018, using its eminent domain authority, the City took a portion of the property for the purpose of reconstructing University Avenue. The City also acquired the rights to a temporary limited easement on the property for the reconstruction project. The building on the property was demolished for the partial taking and the property was left vacant. The City paid Lange $309, 300 as a statutory award of damages for the partial taking pursuant to Wis.Stat. § 32.05(7) (2019-20), [2] and Lange appealed that award to the circuit court pursuant to § 32.05(11). The parties agreed to proceed with a bench trial rather than a jury trial. See § 32.05(11) ("[The action] shall be tried by jury unless waived by both plaintiff and defendant.").

¶5 At trial, three expert witnesses-two called by Lange and one called by the City-testified as to the condition and fair market value of the property before and after the taking. We now summarize their pertinent testimony.

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¶6 Lange first called Michael Herl, a real estate broker. Herl testified that the fair market value of the property before the taking (the "before value") was $701, 100 and that the highest and best use of the property before the taking was to improve the building for office or retail use. Lange also called Dominic Landretti, a real estate appraiser. Landretti opined that the before value of the property was $720, 000. Landretti testified that the highest and best use of the property before the taking was to reinstall the gas pumps and tanks and return the property to C-store use. The City called Scott MacWilliams, a real estate appraiser. MacWilliams determined that the before value of the property was $360, 000 and that the highest and best use before the taking was to improve the property for office or retail use.

¶7 The three expert witnesses also testified as to their opinions of the fair market value of the property after the taking (the "after value"). Herl opined that the property had no immediate use and thus had an after value of one dollar. Landretti and MacWilliams both determined that the highest and best use after the taking is to assemble the property with neighboring properties.[3] Landretti testified that the after value of the property is $35, 000, while MacWilliams testified that the after value of the property is $71, 700. We consider other testimony of the experts in the Discussion section of this opinion.

¶8 During his direct examination, Landretti was asked about the 2018 tax assessment of the property. The City objected to the admissibility of that

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information, and the circuit court sustained the objection. As part of an offer of proof, Landretti testified that the property had been assessed for tax purposes at a value of $679, 000 in 2017 and $508, 000 in 2018. We further consider this testimony in the Discussion section of this opinion.

¶9 At the conclusion of the evidence, the circuit court ordered both parties to submit their final arguments and proposed findings of fact in writing by January 1, 2021. Lange filed a post-trial brief by January 1, 2021, but the City did not file its post-trial brief until January 15, 2021. Lange moved to strike the City's brief as untimely, and the City moved to extend the deadline. The court held a status conference and denied Lange's motion. This status conference was not on the record.

¶10 In a written decision, the circuit court gave weight to the opinions of MacWilliams, the City's expert, and determined that the property had a before value of $360, 000 and an after value of $71, 700. After making adjustments that are not in dispute based on the temporary limited easement, the court determined that Lange is owed $299, 756 in just compensation for the City's taking. Pursuant to Wis.Stat. § 32.05(11)(a), [4] the court entered a judgment for the City in the

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amount of $9, 544-the difference between the amount the City's award of damages to Lange and the lower amount of compensation determined by the court. Lange appeals the court's determination of just compensation.

¶11 Additional material facts are discussed later in this opinion.

DISCUSSION

¶12 As noted, Lange argues that this court should vacate the judgment and remand for a new trial because the circuit court erred in four separate ways: (1) the court applied an incorrect legal standard for determining "just compensation"; (2) the court excluded Landretti's testimony regarding the assessed value of the property for taxation purposes; (3) the court denied Lange's motion to strike the City's post-trial filings; and (4) the court's findings of fact were clearly erroneous. We address each argument in turn.

I. The Circuit Court Applied the Correct Standard for Determining Just Compensation.

¶13 Lange argues that the circuit court applied an incorrect legal standard for determining just compensation. "Whether the circuit court has applied the correct legal standard is a question of law reviewed de novo." Landwehr v. Landwehr, 2006 WI 64, ¶8, 291 Wis.2d 49, 715 N.W.2d 180.

¶14 Lange contends that the following single sentence from the court's written decision indicates that the circuit court applied an incorrect legal standard:

Just compensation "means compensation that would be just in regard to the public, as well as in regard to the individual." Milwaukee Post No. 2874 VFW v. Redev[elopment] Auth. Of Milwaukee, 2009 WI 84, ¶50, 319 Wis.2d 553, 768 N.W.2d 749.
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According to Lange, the proper measure of just compensation is set forth in Wis.Stat. § 32.09(6) and does not involve a consideration of what is "just in regard to the public" or what is "just in regard to the individual." Lange contends that these "equitable" considerations apply only when "market value is difficult or impossible to find, or when market value would result in 'manifest injustice' to the owner or to the public." The City does not dispute that the considerations cited in the single sentence from the circuit court's decision are not properly taken into account in determining just compensation.

¶15 Regardless of the one sentence in the decision of the circuit court that Lange asserts is erroneous, we conclude that the circuit court applied the proper legal standards in determining just compensation.

¶16 Examining the circuit court's written decision, we observe that the circuit court provided its analysis of the applicable authorities in a section entitled "Conclusions of Law." In this section, the court set forth the proper standard for calculating just compensation under Wis.Stat. § 32.09(6)[5] and Clarmar Realty Co. v. Redevelopment Authority of Milwaukee, 129 Wis.2d 81, 92, 383 N.W.2d 890 (1986).[6]

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Lange does not dispute that these standards are applicable in the present case. In addition, the circuit court determined the best use and fair market value for the property both before and after the taking and calculated just compensation based on that evidence.

¶17 Our review of the record and the court's written decision does not reveal any indication that the circuit court considered what would be "just" in regard to the "public" or the "individual" when determining just compensation as Lange asserts. Other than the single sentence that Lange highlights, Lange does not point to any portion of the court's decision which would reasonably lead to the conclusion that the circuit...

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