Schoenhofen v. DOT, 99-0629.

• Decision Date: 18 November 1999
• Docket Number: No. 99-0629.,99-0629.
• Citation: 231 Wis.2d 508,605 N.W.2d 249
• Parties: IN the MATTER OF the ACQUISITION OF the PROPERTY OF Germaine SCHOENHOFEN, Condemnee, by the Wisconsin Department of Transportation, a state agency, Condemnor: Germaine SCHOENHOFEN, Plaintiff-Appellant, v. WISCONSIN DEPARTMENT OF TRANSPORTATION, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

231 Wis.2d 508

605 N.W.2d 249

IN the MATTER OF the ACQUISITION OF the PROPERTY OF Germaine SCHOENHOFEN, Condemnee, by the Wisconsin Department of Transportation, a state agency, Condemnor:

Germaine SCHOENHOFEN, Plaintiff-Appellant, v. WISCONSIN DEPARTMENT OF TRANSPORTATION, Defendant-Respondent.

No. 99-0629.

Court of Appeals of Wisconsin.

Submitted on briefs September 10, 1999.

Decided November 18, 1999.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Christopher J. Blythe and Michael R. Bauer of Bauer Law Office of Madison.

On behalf of the defendant-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Michael E. Perino, assistant attorney general.

Before Vergeront, Roggensack and Deininger, JJ.

¶ 1. VERGERONT, J.

Germaine Schoenhofen appeals the order withdrawing assignment to the Waupaca County Condemnation Commission for a determination of a condemnation award under § 32.05(9), STATS.¹ The grounds for the order were that her first application for assignment to the commission, although timely, was a nullity under the statute, and the corrected application was untimely because it was filed after the two-year statute of limitations had run. Under the circumstances of this case, we consider Schoenhofen's appeal to be from a final order entered by a circuit court in a special proceeding. We therefore reject the argument of the condemning authority, the Wisconsin Department of Transportation (DOT), that we have no jurisdiction over the appeal. We conclude that Schoenhofen's first application for assignment was not a nullity within the meaning of § 32.05(9), STATS. Accordingly, we reverse.

¶ 2. The relevant facts are not disputed. As part of the reconstruction of U.S. Highway 10 in Waupaca County, DOT determined it was necessary to acquire a parcel of real estate owned by Schoenhofen. DOT notified her with a written "Award of Damages" that it would occupy the property on September 25, 1996, offering her $20,200 in damages for the acquisition of the real estate. On August 24, 1998, Schoenhofen filed with the clerk of court in Waupaca County four pages stapled together. The first page was titled "Notice of Application for Assignment to Waupaca County Condemnation Commission." The first two pages, numbered 1 and 2, stated that in accordance with § 32.05(9), STATS.,² Schoenhofen appealed the "amount of compensation stated in the Award of Damages" and requested that the circuit court judge of Waupaca County assign the matter to the chairperson of the commission. The third page, unnumbered, was titled "Exhibit `A' Legal Description," and the fourth page, also unnumbered, was the Award of Damages. The next day, Philip Kirk, "as a Judge of the Circuit Court of Waupaca County," entered an order assigning Schoenhofen's appeal as requested.

¶ 3. Approximately one month later, by letter dated September 29, 1998, counsel for DOT informed the clerk of court that the Award of Damages, containing the amount of compensation offered by the State, was attached to the Notice of Application in violation of § 32.05(9), STATS. Counsel asked that the application not be referred to a judge, or, if referred, not acted upon, or if assigned to the commission, then withdrawn. Schoenhofen's counsel received a copy of this letter and immediately, on September 30, 1998, filed a "Corrected Notice of Application" for assignment to the commission that did not have the Award of Damages attached. The next day Judge Kirk entered an order assigning this application to the chairperson of the commission. On November 9, 1998, after writing two more letters to the clerk of circuit court asking that the matter not be assigned to the commission, DOT filed a "Notice of Request for Judge to Withdraw Assignment," asking that Judge Kirk withdraw the assignment made on August 25, 1998, because it disclosed the amount of the award.

¶ 4. Schoenhofen opposed DOT's request to withdraw the assignment. In addition to contending that she had filed a valid application, she argued Judge Kirk did not have the power to withdraw the assignment of the application because the assignment procedure under § 32.05(9), STATS., is an ex parte administrative proceeding and not a judicial proceeding, and once an assignment is made, the judge has no power to act further. Judge Kirk held a hearing on DOT's request. At the hearing DOT's counsel agreed with Schoenhofen that the proceeding was an administrative proceeding, not a judicial proceeding. He explained that was the reason he filed a request for withdrawal rather than a motion, although he acknowledged that his request was the equivalent of a motion. In DOT's view, Judge Kirk, acting in his administrative capacity, did have the authority to withdraw the assignment.

¶ 5. Judge Kirk decided that, because of the plain language of § 32.09(5), STATS., he had no choice but to consider the first application a nullity, with the result that the second application was not timely, and neither application could be assigned to the commission. Judge Kirk therefore entered an order withdrawing assignment of the matter to the commission. Judge Kirk stated that he was aware he was acting in an administrative rather than judicial capacity, but he did not expressly address Schoenhofen's argument that he did not have the power in an administrative capacity to withdraw the assignment.

DISCUSSION

¶ 6. On appeal Schoenhofen contends that, since the amount of the award was not disclosed in the application itself, and since there was no prejudice because the commission did not see the amount of the award,³ the first application was not a nullity.⁴ In addition to responding to this argument, DOT contends, relying on Acheson v. Winnebago County Highway Comm., 14 Wis. 2d 475, 478, 111 N.W.2d 446 (1961), that we do not have jurisdiction to entertain an appeal before the commission has made a decision, and we must therefore dismiss the appeal. We address this issue first.

¶ 7. There are two distinct rationales in the cases which hold that an appellate court⁵ does not have the power to entertain an appeal from a judge acting under § 32.09(5), STATS., although courts citing this rule do not often distinguish these: lack of finality and lack of a circuit court order. The former was articulated in Manns v. Marinette & Menomonee Paper Co., 205 Wis. 349, 238 N.W. 624 (1931). In that case, after the county judge⁶ appointed the commissioners upon the landowner's petition, the condemning authority filed a motion in circuit court to vacate and set aside the assignment on the ground that the petition for assignment was defective in certain ways and therefore a nullity. The condemning authority appealed the circuit court's order denying its motion to the supreme court, and the supreme court dismissed the appeal because the circuit court order was not a final order,⁷ since the condemning authority had the statutory right to appeal the award of the commissioners to the circuit court and could raise any issue before the circuit court.⁸Id. at 355, 238 N.W. at 626.

¶ 8. This lack of finality rationale was relied on in a number of subsequent cases, including Barrows v. Kenosha County, 275 Wis. 124, 125, 81 N.W.2d 519 (1957). Barrows, in turn, was relied upon by the court in Acheson, 14 Wis. 2d at 478,111 N.W.2d at 447, in concluding that it had no authority to entertain the appeal from a county court order granting the motion of the Winnebago County Highway Committee to dismiss the landowner's application for assignment to a commission because the application for assignment disclosed the basic award in violation of § 32.05(9)(a), STATS., 1959. The governing statute in effect just prior to the date on which the landowner filed the application, § 84.09(2), STATS., 1957, gave the landowner the right to apply to the county judge to appraise the value of the land, and that is what the landowner's application asked for, also stating the amount awarded by the highway committee. The supreme court held that the function of the judge in assigning the application to the commission under § 32.05(9) was "administrative, not judicial"; until the commissioners made their award the proceeding was not of a judicial nature; and the county judge lacked the authority to act on the landowner's application. Acheson, 14 Wis. 2d at 478,111 N.W.2d at 447. The court also held that the county judge, with only the power of an administrative officer under § 32.05(9), did not have the authority to grant the landowner's motion to amend the application to conform to the new statute. Id. at 479, 111 N.W.2d at 448.

¶ 9. However, in a later case, Schroedel Corp. v. State Highway Comm'n, 32 Wis. 2d 305, 310, 145 N.W.2d 217, 220 (1966) (Schroedel I), the supreme court held that the finality rationale of Manns was no longer valid⁹ because statutory revisions limited the issues that could be raised in a trial de novo in the circuit court following the commission's award. Under § 32.05(10), STATS., enacted by Laws of 1959, ch. 639, the court noted, only the issues of title and the amount of just compensation could be raised in the circuit court after the commission's award, and therefore the court's decision that the jurisdiction of the commission had been properly achieved was a final decision subject to review under § 274.33(2), STATS., 1965. Schroedel I, 32 Wis. 2d at 309-10,145 N.W.2d at 220. The supreme court indicated in a later case, 519 Corp. v. DOT, 92 Wis. 2d 276, 282, 284 N.W.2d 643, 646-47 (1979), that its ruling in Acheson on its power to entertain the appeal had to be considered in light of Schroedel I. In summarizing the disposition of Acheson as "dismiss[al of] the appeal for lack of jurisdiction to entertain the appeal [without] reach[ing] the merits of the matter," the supreme court added this footnote: "But see Schroedel Corp. v. State Highway Comm'n, 32 Wis. 2d 305, 145 N.W.2d 217 (1966)." 519 Corp.,92...