Wal-Mart Real Estate Bus. Tr. v. City of Merrill

• Decision Date: 14 February 2023
• Docket Number: 2021AP972
• Parties: Wal-Mart Real Estate Business Trust, Plaintiff-Appellant, v. City of Merrill, Defendant-Respondent.
• Court: Court of Appeals of Wisconsin

Wal-Mart Real Estate Business Trust, Plaintiff-Appellant, v. City of Merrill, Defendant-Respondent.

No. 2021AP972

Court of Appeals of Wisconsin, District III

February 14, 2023

APPEAL from an order of the circuit court for Lincoln County: Cir Ct. No. 2020CV95 ROBERT R. RUSSELL, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.

HRUZ J.

¶1 Wal-Mart Real Estate Business Trust appeals an order dismissing its claims for excessive tax assessment non-uniform tax assessment, and declaratory judgment against the City of Merrill. The circuit court concluded that Wal-Mart's claims could not proceed because Wal-Mart had failed to comply with its obligation under Wis.Stat. § 70.47(7)(a) (2021-22),^[1] to "present evidence and or sworn testimony" at a hearing held by the City's board of review ("the Board").

¶2 On appeal, Wal-Mart argues that the circuit court erred by dismissing Wal-Mart's claims. In doing so, Wal-Mart argues that in order to comply with Wis.Stat. § 70.47(7)(a), a taxpayer need only file an objection with the taxpayer's opinion about the property's value. In the context of a motion to dismiss, Wal-Mart insists that its complaint alleged compliance with § 70.47(7)(a) because Wal-Mart alleged that it filed a written objection with the Board and that the Board issued a notice of decision. Wal-Mart asserts that those allegations create reasonable inferences that a hearing was held and that Wal-Mart presented evidence to the Board. In the alternative, Wal-Mart argues that the City waived any argument regarding Wal-Mart's lack of compliance under § 70.47(7)(a) primarily because the Board held a hearing and issued a notice of decision. Wal-Mart also argues that it was denied due process because the Board failed to timely notify Wal-Mart that the hearing would not be waived and that Wal-Mart would not be permitted to appear by telephone.

¶3 We reject each of Wal-Mart's arguments. Unless a board of review waives the hearing provided under Wis.Stat. § 70.47(8), § 70.47(7)(a) requires a taxpayer to affirmatively present evidence under oath in support of its objection, either by appearing in person at the hearing or, if permitted by the board of review, by appearing via telephone or submitting written statements. Because Wal-Mart did not allege facts suggesting that it presented any evidence to the Board (either in person or-with the Board's approval-by telephone or written statements) or that the Board waived the hearing, we conclude that Wal-Mart's complaint did not allege compliance with § 70.47(7)(a). We also conclude that the City did not waive an argument regarding Wal-Mart's lack of compliance under § 70.47(7)(a), nor was Wal-Mart denied due process. Wal-Mart knew of the hearing and failed to appear, despite never affirmatively receiving permission not to appear. Accordingly, Wal-Mart's claims were properly dismissed, and we therefore affirm.

BACKGROUND

¶4 The following facts are alleged in Wal-Mart's complaint. Wal-Mart is a tenant of real property ("the Property") "located … within the City [of Merrill]." Wal-Mart "is responsible for the payment of property taxes, as well as for the prosecution of property tax disputes involving the Property." A tax dispute arose between Wal-Mart and the City after "the City Assessor's office" determined that the Property was worth $9,956,700 for purposes of the 2019 tax year. Wal-Mart disagreed with this assessment, believing the Property was worth "no more than $5,138,500."

¶5 Wal-Mart subsequently "filed an objection … with the [Board]." The Board, however, determined the Property was correctly assessed and worth $9,956,700. The Board issued a notice of decision in May of 2019, detailing its conclusion and explaining Wal-Mart's appeal options. Wal-Mart later filed an excessive assessment claim with the City.^[2] The City took no action on that claim such that it was statutorily deemed denied after ninety days, which prompted Wal-Mart to commence this action in July of 2020.

¶6 The City later filed a motion to dismiss Wal-Mart's complaint, arguing that Wal-Mart had failed to allege that it presented evidence to the Board. The City argued that such an allegation was required under Wis.Stat. § 70.47 because presenting evidence to the Board is a statutory condition precedent to filing a complaint.

¶7 In response, one of Wal-Mart's attorneys filed an affidavit explaining that he had made a prehearing request to waive the Board's hearing or, in the alternative, to allow Wal-Mart to appear at the hearing by telephone. The affidavit further explained that, based on the city attorney's representations, Wal-Mart's attorney "understood" that if the Board "declined to waive the matter … and required a personal appearance, that the matter would be adjourned so that an appearance by [Wal-Mart] could be made in person." Attached to the affidavit was an email to the city attorney, in which Wal-Mart's attorney stated in relevant part: "I know there is a [Board] hearing tomorrow and based on our discussion if the [Board] declines to waive the matter and requires our personal appearance[,] I would request they adjourn it so we could plan our appearance."

¶8 Based on Wal-Mart's attorney's affidavit, Wal-Mart argued that it had satisfied the statutory conditions precedent in Wis.Stat. § 70.47 by filing a written objection and by making "a good faith effort to present evidence." Wal-Mart further argued that § 70.47 does not require a personal appearance before the Board. In the alternative, Wal-Mart argued that the Board had either waived any argument that Wal-Mart failed to comply with § 70.47 or violated Wal-Mart's right to due process.

¶9 In an oral ruling, the circuit court granted the City's motion to dismiss Wal-Mart's complaint, concluding that Wal-Mart had not satisfied the requirements under Wis.Stat. § 70.47 because Wal-Mart did not present evidence to the Board. In doing so, the court recognized that the city attorney had not agreed that the Board's hearing would be adjourned if the Board denied Wal-Mart's prehearing requests. The court also rejected Wal-Mart's waiver and due process arguments.

¶10 Wal-Mart now appeals. Additional facts will be provided as necessary below.

DISCUSSION

I. Failure to state a claim upon which relief can be granted

¶11 Wal-Mart renews its earlier argument that the allegations in its complaint were sufficient to allege compliance with Wis.Stat. § 70.47(7)(a) and to state a claim upon which relief could be granted. Whether a complaint states a claim upon which relief can be granted is a question of law that we review de novo. Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶17, 356 Wis.2d 665, 849 N.W.2d 693.

¶12 When reviewing a motion to dismiss, "we construe the pleadings liberally and accept as true both the facts contained in the complaint and any reasonable inferences arising from those facts." Doe 56 v. Mayo Clinic Health Sys. - Eau Claire Clinic, Inc., 2016 WI 48, ¶14, 369 Wis.2d 351, 880 N.W.2d 681. We cannot, however, "add facts in the process of construing a complaint," and we need not accept as true any legal conclusions stated in the complaint. Data Key Partners, 356 Wis.2d 665, ¶19. "[T]he sufficiency of a complaint depends on substantive law that underlies the claim made because it is the substantive law that drives what facts must be pled." Cattau v. National Ins. Servs. of Wis., Inc., 2019 WI 46, ¶6, 386 Wis.2d 515, 926 N.W.2d 756 (alteration in original; citation omitted). If there are no conditions under which the plaintiff can recover, the complaint must be dismissed as legally insufficient. Kaloti Enters. v. Kellogg Sales Co., 2005 WI 111, ¶11, 283 Wis.2d 555, 699 N.W.2d 205.

¶13 In resolving Wal-Mart's arguments, we must interpret Wis.Stat. § 70.47, which presents a question of law that we review de novo. See Myers v. DNR, 2019 WI 5, ¶18, 385 Wis.2d 176, 922 N.W.2d 47. Statutory interpretation begins with the statute's language. Id. We give statutory language "its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning." State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis.2d 633, 681 N.W.2d 110. Where possible, we interpret statutory language "to give reasonable effect to every word, in order to avoid surplusage." Id., ¶46. We also interpret statutory language "in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." Id.

¶14 "Chapter 70 of the Wisconsin Statutes establishes a comprehensive procedure by which property owners may challenge the valuation or the amount of property assessed for taxation." Hermann v. Town of Delavan, 215 Wis.2d 370, 379, 572 N.W.2d 855 (1998). Specifically, under Wis.Stat. § 70.47(7)(a), an aggrieved property owner "may file an objection to an assessment with the municipal board of review." See State ex rel. Nudo Holdings, LLC v. Board of Rev., 2022 WI 17, ¶9, 401 Wis.2d 27, 972 N.W.2d 544. Before a board of review may hear such an objection, however, an objector must first "provide[] to the board's clerk written or oral notice of an intent to file an objection" "at least 48 hours before the board's first scheduled meeting." Sec. 70.47(7)(a). The objection must then "be made in writing and filed with the clerk of the board of review within the first 2 hours of the board's first scheduled meeting." Id.

¶15 "The board [of review] may, at the request of the taxpayer or assessor, or at its own discretion, waive the hearing of an objection under [Wis. Stat. § 70.47(8)]." Sec. 70.47(8m). But, if...