Savich v. Columbia Cnty. Bd. of Adjustments

Decision Date11 May 2023
Docket Number2022AP1348
PartiesBuddy J. Savich, Plaintiff-Appellant, v. Columbia County Board of Adjustments, Columbia County Planning & Zoning Department, Tillman Infrastructure LLC, AT&T Mobility, Chris McNicol and Robin McNicol,Defendants-Respondents. Janel M. Savich and SBA Structures, LLC, Plaintiffs,
CourtWisconsin Court of Appeals

This opinion will not be published.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

APPEAL from an order of the circuit court for Columbia County No 2021CV162: TODD J. HEPLER, Judge. Reversed and cause remanded for further proceedings.

Before Blanchard, P.J., Kloppenburg, and Fitzpatrick, 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).


¶1 The Columbia County Planning and Zoning Department (the "Department") issued a permit for construction of a "mobile [telecommunications] service facility" to Tillman Infrastructure LLC "as agents of" Chris McNicol and Robin McNicol, the owners of the property where the facility would be constructed.[1] Buddy and Janel Savich appealed the Department's decision to issue the permit to the Columbia County Board of Adjustment (the "Board"). The Board affirmed the Department's issuance of the permit.

¶2 The Saviches, pro se, filed a "Complaint and Petition" in the Columbia County circuit court, seeking certiorari review of the Board's decision, the opportunity to engage in discovery, certain "finding[s] or declaration[s]," and damages. The circuit court granted Tillman's motion to dismiss the Saviches' complaint for certiorari review as untimely on the ground that it was filed beyond the 30-day statutory deadline.[2] Buddy Savich ("Savich"), pro se appeals.[3] ¶3 We conclude that the circuit court erred in dismissing the Saviches' complaint seeking certiorari review because Tillman in its motion to dismiss failed to direct the circuit court to any allegations in the complaint or to any features of the documents before the court that showed when the decision was filed that commenced the 30-day period, and therefore Tillman failed to provide sufficient grounds to dismiss the complaint for certiorari review as untimely filed. In order to provide guidance to the circuit court and the parties on remand, we also explain why we conclude that the monetary damages requested in the Saviches' complaint are not available on certiorari review. Accordingly, we reverse and remand for further proceedings.

I. Tillman fails to show that the complaint for certiorari review was untimely filed.

¶4 Before we address the issue of whether Tillman showed that the complaint was untimely filed, we pause to address an alternative basis offered by Tillman to affirm the circuit court's dismissal of the complaint for certiorari review. Tillman argues that the court "properly exercised its discretion" in dismissing the complaint based on the Saviches' failure to timely respond in writing to Tillman's motion to dismiss. The problem with this argument is that Tillman points to no part of the court's ruling showing that the court exercised its discretion in this manner. Rather, the record shows that at the hearing on the motion the court asked Savich why he had not responded in writing to the motion, heard Savich's explanation, and implicitly rejected Savich's failure to file a written response as a basis for dismissal by not referencing that basis again and proceeding directly to grant the motion to dismiss solely on the merits.

¶5 The pertinent procedural facts are as follows. Tillman filed its motion to dismiss on July 28, 2021, and the circuit court ultimately gave the Saviches until December 13, 2021, to respond to the motion. On December 7, 2021, Tillman moved to consolidate SBA's certiorari action with the Saviches' action, and the actions were consolidated by order dated March 8, 2022. The first hearing in the consolidated cases was scheduled for June 15, 2022, to address SBA's motion for default judgment, based on Tillman's failure to file an answer after the circuit court denied Tillman's motion to dismiss SBA's complaint, which had been filed in November 2021. The only subject matter referred to in the court's notice for that first hearing in the consolidated case was the default judgment motion. By the time of the hearing, the Saviches had not filed a written response to the motion to dismiss.

¶6 At the hearing, as the parties began to present argument on the default judgment motion, counsel for the County defendants advised the circuit court that the default judgment motion should be denied and that it "would be useful" to address Tillman's motion to dismiss at the same hearing. The court heard more argument on the default judgment motion, denied the motion, and proceeded to hear argument from all parties on Tillman's motion to dismiss.

¶7 The circuit court first noted that Savich had not responded in writing to the motion to dismiss. Savich explained that he had been confused by the different motions pending in the consolidated cases, and that, because the notice for the instant hearing referenced only the motion for default judgment, he assumed that the court would set a different date for a hearing on the motion to dismiss. In response, Tillman's counsel briefly summarized Tillman's untimeliness argument based on the two documents it had attached to its motion, and elaborated on its argument that the Saviches' purported claim for declaratory judgment must be dismissed because certiorari is the exclusive method of review of the Board's decision. Savich explained why the Saviches are entitled to pursue a declaratory judgment claim as to the validity of the ordinance that the Saviches had alleged the Board failed to enforce.

¶8 The circuit court then made its ruling, proceeding directly to the merits of the motion and determining that the complaint was untimely filed and that the Saviches are not entitled to declaratory relief on certiorari review. In the course of clarifying its ruling, both Savich and Tillman's counsel continued to present arguments on both the untimeliness and declaratory judgment claim issues, and the court reiterated its ruling as to both issues. The court did not make any ruling based on the Saviches' failure to respond in writing to Tillman's motion to dismiss, or reference any facts, law, or reasoning relevant to a ruling on that basis.

¶9 In sum, we reject this argument because the record shows that the circuit court implicitly rejected it as a basis for granting the motion to dismiss, and Tillman fails to argue that the court erroneously exercised its discretion in so doing.

A. Applicable Standard of Review and Legal Principles

¶10 "Upon a motion to dismiss, we accept as true all facts well-pleaded in the complaint and the reasonable inferences therefrom." Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶19, 356 Wis.2d 665, 849 N.W.2d 693 (citing Kaloti Enters., Inc. v. Kellogg Sales Co., 2005 WI 111, ¶11, 283 Wis.2d 555, 699 N.W.2d 205). We do not add facts when analyzing the sufficiency of the complaint, nor do we accept as true any legal conclusions it states. Data Key Partners, Inc., 356 Wis.2d 665, ¶19. An appellate court "review[s] a [circuit] court's decision to dismiss a complaint de novo." Fee v. Board of Review, 2003 WI.App. 17, ¶7, 259 Wis.2d 868, 657 N.W.2d 112.

¶11 An otherwise sufficient claim will be dismissed if it is time barred. Pritzlaff v. Archdiocese of Milwaukee, 194 Wis.2d 302, 312, 533 N.W.2d 780 (1995). The applicable statute of limitations here is Wis.Stat. § 59.694(10), which states: "A person aggrieved by any decision of the board of adjustment … may, within 30 days after the filing of the decision in the office of the board, commence an action seeking the remedy available by certiorari." Sec. 59.694(10); see also Columbia County, Wis., Ordinances §12.150.04(6) (Amended July 21, 2021) ("Any persons aggrieved by any decision of the Board of Adjustment may appeal the decision by filing an action in certiorari in the Columbia County Circuit Court within 30 days of the filing of the decision, setting forth that such decision is illegal and specifying the grounds of the illegality.").[4]

¶12 A motion to dismiss for failure to meet a statute of limitations can be decided on the sufficiency of the facts alleged in the petition when combined with those facts asserted by the response when there is no conflict. State ex rel. Johnson v. Litscher, 2001 WI.App. 47, ¶4, 241 Wis.2d 407, 625 N.W.2d 887. However, plaintiffs are not required to include in their complaint allegations to negate a potential statute of limitations defense. See Robinson v. Mount Sinai Med. Ctr., 137 Wis.2d 1, 16, 402 N.W.2d 711 (1987) ("We note that, as a general rule of pleading, plaintiffs are not required to anticipate defenses which defendants may raise and thus are not required to negative potential defenses in their complaint.").

¶13 If, on a motion to dismiss based on statute of limitations grounds, "matters outside of the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in s. 802.08 [governing motions for summary judgment], and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by s. 802.08." Wis.Stat. § 802.06(2)(b).

¶14 "[W]hether the applicable statute of limitations has run on a claim is a question of law" that we also review de novo. Munger v. Seehafer, 2016 WI.App. 89, ¶18, 372 Wis.2d 749, 890 N.W.2d 22.

¶15 On certiorari review, we review the decision of the Board. State ex rel. City of Waukesha v. City of Waukesha Bd. of...

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