Vivid, Inc. v. Department of Transp.
| Decision Date | 02 October 1997 |
| Docket Number | No. 96-1900,96-1900 |
| Citation | 215 Wis.2d 321,572 N.W.2d 901 |
| Court | Wisconsin Court of Appeals |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. VIVID, INC., a Wisconsin corporation, Petitioner-Respondent, v. Ronald R. FIEDLER, Secretary of the Wisconsin Department of Transportation and Wisconsin Department of Transportation, Respondents-Appellants. |
APPEAL FROM A JUDGMENT OF THE CIRCUIT COURT FOR ROCK COUNTY: john h. lussow, JUDGE. AFFIRMED.
Before EICH, C.J., and DYKMAN, P.J., and ROGGENSACK, J.
This is an appeal from a money judgment for $217,292 in favor of Vivid, Inc. and against the Wisconsin Department of Transportation (DOT). There are several issues, all of which contest the amount of damages included in the judgment. We conclude that none of the errors asserted by DOT requires reversal. We therefore affirm.
This appeal arrives with a considerable history. In April 1989, DOT removed two of Vivid's outdoor advertising signs during a highway improvement project at the junction of I-90 and Avalon Road in Rock County. Vivid refused DOT's offer of relocation benefits, payable under § 32.19, STATS, 1 and commenced an inverse condemnation action under § 32.10. 2 The circuit court granted DOT's summary judgment motion, and Vivid appealed. We concluded that Vivid's complaint stated a claim under § 32.10 for inverse condemnation, that the outdoor advertising signs were property that could not be taken for public use without just compensation, and that the items permitted as compensation under § 32.19 did not constitute just compensation under WIS. CONST. art. I, § 13. 3 We remanded for further proceedings, noting that the question of how Vivid's signs were to be valued would be determined at trial. Vivid, Inc. v. Fiedler, 174 Wis.2d 142, 149, 497 N.W.2d 153, 156 (Ct.App.1993) (Vivid I ).
The supreme court granted DOT's petition for review. That court determined, without reaching Vivid's other arguments, that § 84.30(6), STATS., 4 required DOT to pay Vivid just compensation for the signs. Vivid, Inc. v. Fiedler, 182 Wis.2d 71, 75, 512 N.W.2d 771, 773 (1994). (Vivid II ).
On remand, the trial court allowed Vivid to try the case as an inverse condemnation case under § 32.10, STATS. Over DOT's objection, Vivid's experts used an income approach and a gross income multiplier approach in valuing the billboards. The jury determined that the billboards had a fair market value of $37,800. The trial court entered judgment on the verdict and awarded Vivid its actual attorneys' fees. DOT appeals.
We first must address what part, if any, Vivid I plays in deciding the issues raised in this appeal. This question is closely intertwined with the rules of summary judgment methodology, and we will discuss these issues together. Our decision on this question will determine several of the issues in this case, because the court of appeals and the supreme court previously decided this case on separate and distinct grounds.
In the trial court, DOT argued that because the supreme court had decided Vivid II the court of appeals decision, Vivid I, was a "nullity." DOT asserted that in two other circuit court cases where this issue was being litigated, the courts agreed with this position. Here, DOT continues its assertion, arguing that our opinion in Vivid I lacks any continuing precedential force.
We conclude that the effect of a supreme court review of a court of appeals opinion must be determined on a case-by-case basis. Here, it is significant that this case arises from summary judgment. Certainly, when a court of appeals decision is vacated, or a single-issue case is reversed, our decision is a nullity. But here, the supreme court affirmed our decision and modified it only by remanding the cause for a determination of the amount of just compensation that DOT must pay. We agree that this modification could be considered ambiguous because the court of appeals mandate also remanded the case to the trial court for further proceedings. Vivid I, 174 Wis.2d at 163, 497 N.W.2d at 162. Vivid I also noted: "The question of how Vivid's signs are to be valued is to be determined at trial." Vivid I, 174 Wis.2d at 149, 497 N.W.2d at 156. We find no significance in this factor. Both courts concluded that further trial court proceedings were necessary.
We see no reason to conclude that when a published court of appeals opinion is affirmed, though by a rationale not addressed by the court of appeals, the court of appeals opinion loses all jurisprudential significance. This is what we meant in State ex rel. Dicks v. Employe Trust Funds Bd., 202 Wis.2d 703, 709, 551 N.W.2d 845, 848 (Ct.App.1996), where we said: But see Bergmann v. McCaughtry, 211 Wis.2d 1, 10 n. 8, 564 N.W.2d 712, 716 (1997) ().
In analogous situations, courts have held that a multi-issue court of appeals decision reversed on one issue remains authority for issues not reversed. In Pennington v. Gillaspie, 63 W.Va. 541, 61 S.E. 416, 417 (W.Va.1908), the court said: "That the decision has been overruled as to one of the points decided argues nothing against its soundness in respect to other propositions enunciated by it." And in a more colorful way, the Michigan Court of Appeals noted:
WE REJECT THE INSURERS' ARGUMENT, MADE IN A SUPPLEMENTAL BRIEF, THAT THE SUPREME COURT'S REVERSAL OF THIS COURT'S OPINION IN POLKOW RENDERS THE OPINION OF THE COURT OF APPEALS COMPLETELY WITHOUT PRECEDENTIAL VALUE. "JUST AS THE DISCOVERY OF ONE ROTTEN APPLE IN A BUSHEL IS NO REASON TO THROW OUT THE BUSHEL, ONE OVERRULED PROPOSITION IN A CASE IS NO REASON TO IGNORE ALL THE OTHER HOLDINGS APPEARING IN THAT DECISION."
Michigan Millers Mut. Ins. Co. v. Bronson Plating Co., 197 Mich.App. 482, 496 N.W.2d 373, 377 (Mich.Ct.App.1992), aff'd, 445 Mich. 558, 519 N.W.2d 864 (Mich.1994) (citations omitted).
This principle is recognized in the parenthetical "reversed on other grounds," used to note the subsequent history of a case. If a supreme court decision reversing one issue of a multi-issue court of appeals opinion resulted in the nullification of the entire court of appeals opinion, there would be no need for such a statement. The supreme court has cited court of appeals opinions after they were reversed on other grounds. See State v. Solberg, 211 Wis.2d 372, 384, 564 N.W.2d 775, 780 (1997); Management Comp. Servs., Inc. v. Hawkins, Ash, Baptie & Co., 206 Wis.2d 157, 176, 557 N.W.2d 67, 75 (1996).
Certainly a supreme court opinion affirming a court of appeals opinion on grounds not considered by the court of appeals could not affect the latter opinion more significantly than a supreme court opinion reversing one of several issues in a court of appeals opinion and leaving other issues untouched. We conclude that only to the extent a supreme court opinion reverses, modifies or vacates a court of appeals opinion is the court of appeals opinion or some portion of it rendered a nullity.
Summary judgment methodology explains what happened in this case. That methodology is discussed in many cases, more recently in L.L.N. v. Clauder, 209 Wis.2d 674, 682-84, 563 N.W.2d 434, 438-39 (1997). The pertinent part of the methodology is:
We review a grant of summary judgment de novo, applying the standards set forth in Wis. Stat. § 802.08(2) in the same manner the circuit court applies them. Specifically, a court first examines the pleadings to determine whether a claim for relief is stated and whether a material issue of fact is presented.
Id. at 682, 563 N.W.2d at 438 (citations omitted).
In 1989, the circuit court granted DOT's motion for summary judgment, adopting DOT's brief as its opinion. That brief concluded that Vivid had failed to state a claim for inverse condemnation. Although it is not entirely clear, the reason for the court's conclusion appears to be that Vivid's billboards were personal property, and that only real property is subject to the "just compensation" requirement of Chapter 32, STATS. Vivid's complaint did not (and could not) allege that it was the owner of the real estate underlying the signs.
WE REVIEWED THE TRIAL COURT'S ORDER DISMISSING VIVID'S COMPLAINT 5 DE NOVO, AS REQUIRED BY § 802.08(2), STATS. WE FIRST EXAMINED THE PLEADINGS TO DETERMINE WHETHER A CLAIM FOR RELIEF WAS STATED. WE CONCLUDED THAT VIVID'S PLEADINGS STATED A CLAIM IN INVERSE CONDEMNATION:
We conclude that the owner of property which is "taken" by the state may maintain an action under sec. 32.10 if the state does not provide the owner with just compensation as required by article I, section 13, of the Wisconsin Constitution, regardless of whether the property taken is personal property or an interest in land.
....
... We conclude that the items payable under sec. 32.19 and sec. ILHR 202.64 are not just compensation for the taking of property under WIS. CONST. art. I, § 13.
Vivid I, 174 Wis.2d at 148-49, 497 N.W.2d at 156.
The supreme court granted DOT's petition for review. It, too, reviews trial court decisions on motions for summary judgment de novo, although it did not repeat that methodology in Vivid II. Neither the supreme court nor the court of appeals was required to determine whether Vivid's complaint stated any particular cause of action. Section 802.08(2), STATS., requires only that the moving party show that it is entitled to a judgment as...
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