CED Properties LLC v. City of Oshkosh

2014 WI 10

SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP5
COMPLETE TITLE: CED Properties LLC,
Plaintiff-Appellant-Petitioner,
v.
City of Oshkosh,
Defendant-Respondent.

REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 348 Wis. 2d 305, 836 N.W.2d 654
(Ct. App. 2013 – Published)
PDC No.: 2013 WI App 75

OPINION FILED: March 6, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 18, 2013

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Winnebago
JUDGE: Thomas J. Gritton

JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:

ATTORNEYS:
For the plaintiff-appellant-petitioner, there were briefs
by Erik S. Olsen and Eminent Domain Services, LLC, Madison, and
oral argument by Erik S. Olsen.

For the defendant-respondent, there was a brief by Richard
J. Carlson and Silton Seifert Carlson S.C., Appleton, and oral
argument by Richard J. Carlson.
 2014 WI 10
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP5
(L.C. No. 2010CV1866)

STATE OF WISCONSIN : IN SUPREME COURT

CED Properties, LLC,

Plaintiff-Appellant-Petitioner,
FILED
v.
MAR 6, 2014
City of Oshkosh,
Diane M. Fremgen
Defendant-Respondent. Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Reversed and

cause remanded.

¶1 N. PATRICK CROOKS, J. This is a review of a

published court of appeals decision that affirmed the circuit

court.1 This case involves special assessments levied by the

City of Oshkosh ("the City") against a corner lot property owned

by CED Properties, LLC ("CED"), which is located at the

intersection of Jackson Street and Murdock Avenue in Oshkosh,

Wisconsin. Specifically, we review whether CED's complaint was

1
CED Properties, LLC v. City of Oshkosh, 2013 WI App 75,
348 Wis. 2d 305, 836 N.W.2d 654.
 No. 2012AP5

sufficient to place the City on notice that CED intended to

appeal both the Jackson Street and Murdock Avenue special

assessments.

¶2 The City maintains that its typical practice is to

issue a separate special assessment for each street that abuts a

property. The City, therefore, asserts that it issued two

separate special assessments against CED: one assessment against

Murdock Avenue and another separate assessment against Jackson

Street. In contrast, CED argues that the City issued a single

special assessment against its property when it adopted Final

Resolution 10-227, which stated that "the assessments for all

projects included in said report are hereby combined as a single

assessment, but any interested property owners shall be entitled

to object to each assessment separately or both assessments,

jointly for any purpose or purposes."

¶3 Both the circuit court and the court of appeals held

that the City did, in fact, levy two separate special

assessments against CED. CED Properties, LLC v. City of
Oshkosh, 2013 WI App 75, ¶11, 348 Wis. 2d 305, 836 N.W.2d 654.

We also conclude that the City issued two special assessments

rather than a single special assessment against CED's property;

however, we ultimately conclude that CED's original complaint

provided the City with reasonable and sufficient notice that CED

2
 No. 2012AP5

intended to appeal the entirety of the special assessments

levied against its property.2

¶4 On November 30, 2011, the Winnebago County Circuit

Court, the Honorable Thomas J. Gritton presiding, held that Wis.

Stat. § 66.07033 governed as the specific statute applicable to

appeals of special assessments. Under Wis. Stat.

§ 66.0703(12)(a), the circuit court held that CED failed to

appeal the Jackson Street special assessment within the required

90-day time limit; therefore, it issued an order granting the

defendant, the City, partial summary judgment regarding the

Jackson Street special assessment. The court of appeals

affirmed the decision of the circuit court that CED failed to

timely appeal the Jackson Street special assessment but based

its holding on different reasoning than the circuit court's.

2
After the City conceded that both special assessments
failed to include the total cost of the intersection improvement
project in violation of Wis. Stat. § 66.0703(5)(b), the circuit
court granted partial summary judgment in favor of CED in regard
to the Murdock Avenue special assessment. Our decision today
does not review the Murdock Avenue special assessment. This
procedural deficiency, which the City concedes, applies to both
the Murdock Avenue and the Jackson Street special assessments,
and CED timely appealed both special assessments. Therefore,
summary judgment in favor of CED is also appropriate in regard
to the Jackson Street special assessment. As a result of our
decision today, neither of the July 27, 2010, special
assessments against CED's property located at the intersection
of Jackson Street and Murdock Avenue in Oshkosh, Wisconsin,
remains valid.
3
This and all subsequent references to the Wisconsin
Statutes are to the 2011-12 version unless otherwise indicated.

3
 No. 2012AP5

¶5 CED sought review and argues that under Wisconsin's

rules of notice pleading, its original complaint was sufficient

to challenge both the Jackson Street and the Murdock Avenue

special assessments. Alternatively, CED argues that Wis. Stat.

§ 802.09(3), Wisconsin's relation back statute, applies to the

appeal of special assessments and, as a result, CED's amended

complaint saves its claim regarding the Jackson Street special

assessment.

¶6 We agree with CED's first argument and hold that its

original complaint was sufficient to appeal not only the Murdock

Avenue special assessment, but the Jackson Street special

assessment as well. Wisconsin has long abandoned rigid pleading

requirements in favor of liberal civil procedural rules. Notice

pleading rules not only simplify pleading in Wisconsin, but also

favor the resolution of claims on the merits. CED filed its

original complaint within the 90-day time period required by

Wis. Stat. § 66.0703(12)(a). The original complaint included

the parcel number, 15-1898-1000, which is the only parcel number
assigned to the property in question. Furthermore, the original

complaint included reference to the "Jackson Street - Murdock

Avenue intersection improvement project," which formed the basis

for the special assessments levied by the City.

¶7 The alleged problem with the complaint was that it

included only the monetary value, $19,241.73, which corresponds

with the Murdock Avenue special assessment. That the complaint

failed to identify an additional $19,404.93 for the Jackson
Street special assessment is not detrimental to CED's appeal of
4
 No. 2012AP5

both special assessments. The parcel number and the reference

to both street names when identifying the project for which the

special assessments were levied placed the City on notice that

CED intended to appeal the total amount of special assessments

levied against its property. This notice to the City was

reasonable and sufficient and, therefore, is all that is

required under Wisconsin's rules of notice pleadings.

Accordingly, we reverse the court of appeals.

I. Background

¶8 CED owns property situated on the northeast corner of

Jackson Street and Murdock Avenue in Oshkosh, Wisconsin. On

July 27, 2010, the City passed a resolution that levied special

assessments against several properties, including CED's

property, to assist in funding an intersection improvement

project. The project consisted of the creation of a multi-lane

roundabout and various landscape improvements at the

intersection of Jackson Street and Murdock Avenue. The City

levied a total of $38,646.66 in special assessments for the
"Jackson Street - Murdock Avenue intersection improvement

project," against parcel number 15-1898-1000, CED's property.

The City levied $19,404.93 against the portion of CED's property

bordering Jackson Street and assigned an additional $19,241.73

against the same corner lot property, which also runs alongside

Murdock Avenue.

¶9 While the City issued one final resolution, the final

resolution included maps indicating, as reference points, both
Jackson Street and Murdock Avenue. Most important, two
5
 No. 2012AP5

schedules accompanied the final resolution. Each schedule

identified the same parcel I.D., 15-1898-1000, and the same

description, 1800 Jackson Street, in reference to the owner,

CED. However, the schedule immediately following the Jackson

Street map indicates a concrete paving assessment of $19,404.93,

while the schedule associated with the Murdock Avenue map lists

a concrete paving assessment of $19,241.73.

¶10 On September 23, 2010, CED appealed the special

assessments by simultaneously filing a notice of appeal and a

complaint with the circuit court. Paragraph three of the

complaint states, "Plaintiff owns property located at 1800

Jackson Street Oshkosh, WI 54901, City of Oshkosh parcel number

15-1898-1000." Paragraph four of the complaint states, "On July

27, 2010 Oshkosh, by its Common Council, authorized the issuance

of a $19,241.73 special assessment on parcel number 15-1898-1000

to help pay for the street repair portion of the Jackson Street

– Murdock Avenue intersection improvement project."

¶11 It is undisputed that CED filed its notice of appeal
and complaint within the 90-day time limit set forth in Wis.

Stat. § 66.0703(12)(a). It is also undisputed that CED filed an

amended complaint on June 28, 2011, well past the 90-day time

limit to appeal. In its amended complaint, CED recognized that

its original complaint did not include the correct monetary

value for the entirety of the special assessments levied against

its property. Therefore, its amended complaint did not include

the reference to a specific monetary value that previously
appeared in paragraph four of the original complaint. The
6
 No. 2012AP5

amended complaint also changed "special assessment" to read

"special assessment(s)" throughout.

¶12 The City moved for partial summary judgment arguing

that CED's claim regarding the $19,404.93 Jackson Street special

assessment was not filed within the 90-day time limit set forth

in Wis. Stat. § 66.0703(12)(a). The City did not challenge

CED's appeal of the Murdock Avenue special assessment, and the

City conceded that it did not follow procedural requirements set

forth in Wis. Stat. § 66.0703(5) when issuing the special

assessments.

¶13 CED moved for summary judgment arguing that its

original complaint sufficiently challenged the entirety of the

special assessments. Alternatively, CED argued that its amended

complaint related back to the original complaint and thus saved

its claim as to the Jackson Street special assessment.

Furthermore, CED argued that the City's special assessments were

invalid for a number of reasons, including that the City failed

to comply with procedural requirements.4
¶14 As to the Murdock Avenue special assessment, the

circuit court agreed with CED and granted it partial summary

judgment. In granting CED partial summary judgment, the circuit

4
In addition, CED's original and amended complaints alleged
that the special assessments were not local in nature, that the
improvement project failed to benefit CED's property, that the
special assessments were not reasonably apportioned, that the
amount of the special assessments exceeded any benefit to CED's
property, that the special assessments were a violation of equal
protection, and that CED received untimely notice of the hearing
in which the City adopted the special assessments.

7
 No. 2012AP5

court relied on the City's concession that it failed to follow

proper procedure when levying the special assessments at issue.

Specifically, the City failed to include the total cost of the

intersection improvement project in the engineer's report as

required by Wis. Stat. § 66.0703(5) when it issued the special

assessments. In regard to the Jackson Street special

assessment, the circuit court granted the City's motion for

partial summary judgment. It held that under Wis. Stat.

§ 66.0703(12)(a), the specific statute governing appeals of

special assessments, CED failed to appeal the Jackson Street

special assessment within the 90-day time limit.

¶15 A majority of the court of appeals agreed; however,

its reasoning differed from the circuit court's. First, as a

preliminary matter, the court of appeals determined that the

City, did, in fact, issue two separate special assessments

against CED's property. Second, the court of appeals, contrary

to the circuit court, held that the rules of notice pleading and

the relation back statute, Wis. Stat. § 802.09(3), apply to
special proceedings such as the appeal of special assessments

under Wis. Stat. § 66.0703. However, the court of appeals

concluded that CED's amended complaint did not save its

challenge of the Jackson Street special assessment. It held

that the amended complaint could not relate back to the original

complaint because the Jackson Street special assessment did not

arise out of the Murdock Avenue special assessment.

Furthermore, the court of appeals reasoned that the original
complaint related only to the Murdock Avenue special assessment;
8
 No. 2012AP5

therefore, appeal of the Jackson Street special assessment

remained untimely.

¶16 Judge Paul F. Reilly, who dissented, would have first

held that the City issued a single special assessment against

CED. In addition, Judge Reilly argued in his dissent that CED's

original complaint gave fair notice to the City that CED

intended to appeal the entire special assessment levied against

its property.

¶17 Before this court, CED asserts that under Wisconsin's

notice pleading rules, its original complaint was sufficient to

challenge the entirety of the special assessments levied against

its property. As we noted previously, in the alternative, CED

argues that Wisconsin's relation back statute, Wis. Stat.

§ 802.09(3), applies to the appeal of special assessments and

that its amended complaint relates back to its original

complaint, which saves its appeal of the Jackson Street special

assessment.

¶18 Because we conclude that CED's original complaint
provided reasonable and sufficient notice to challenge the

entirety of the special assessments levied against its property,

we do not address its alternative argument.

II. Analysis

A. Principles of Notice Pleading

¶19 Wisconsin Stat. § 802.02 sets forth the general rules

of pleading. In Wisconsin, a pleading must set forth "[a] short

and plain statement of the claim, identifying the transaction or
occurrence or series of transactions or occurrences out of which
9
 No. 2012AP5

the claim arises and showing that the pleader is entitled to

relief." Wis. Stat. § 802.02(1)(a). A pleading must also set

forth "[a] demand for judgment for the relief the pleader

seeks." Wis. Stat. § 802.02(1)(b). In addition, Wis. Stat.

§ 802.02(6) governs "[c]onstruction of pleadings," which

requires that "[a]ll pleadings shall be so construed as to do

substantial justice." Wis. Stat. § 802.02(6). Finally, the

Wisconsin Rules of Civil Procedure "shall be construed to secure

the just, speedy and inexpensive determination of every action

and proceeding." Wis. Stat. § 801.01(2).

¶20 The Wisconsin Rules of Civil Procedure, effective

January 1, 1976, are patterned after the federal rules of civil

procedure. Korkow v. General Cas. Co. of Wis., 117 Wis. 2d 187,

193, 344 N.W.2d 108 (1984). In Korkow, this court addressed the

question of whether an amended complaint that added a separate

claim by an added plaintiff could relate back to the filing date

of the original complaint. Id. at 192. In interpreting

Wisconsin's relation back statute, we analyzed "Wisconsin's
liberal civil procedure rules." Id. We noted that Wisconsin

does not employ rigid civil procedure rules. See id. Instead,

Wisconsin's notice pleading rules "are intended to facilitate

the orderly adjudication of disputes." Id. at 193.

¶21 We have explained that "[t]his functional approach to

pleading reflects a determination that the resolution of legal

disputes should be made on the merits of the case rather than on

the technical niceties of pleading." Id. at 193. "A complaint
which might well have failed under the old procedure for failure
10
 No. 2012AP5

to state sufficient facts now will be sustained if reasonable

notice is given to the defendant in respect to the nature of the

claim." Anderson v. Cont'l Ins. Co., 85 Wis. 2d 675, 684, 271

N.W.2d 368 (1978).

¶22 In Canadian Pac. Ltd. v. Omark-Prentice Hydraulics,

Inc., 86 Wis. 2d 369, 371, 272 N.W.2d 407 (Ct. App. 1978), the

court of appeals addressed the issue of whether an "omission in

the summons of a statement that the answer must be served within

twenty days after the date of service of the summons and

complaint deprives the trial court of jurisdiction." In holding

that the omission in question did not defeat the circuit court's

jurisdiction, the court of appeals noted,

[O]ur Rules of Civil Procedure, like the federal rules
relating to pleadings, "reject the approach that
pleading is a game of skill in which one misstep by
counsel may be decisive to the outcome and accept the
principle that the purpose of pleading is to
facilitate a proper decision on the merits."
Canadian Pac. Ltd., 86 Wis. 2d at 373 (Ct. App. 1978)(citing

Conley v. Gibson, 355 U.S. 41, 48 (1957), abrogated on other

grounds by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)).

B. Standard of Review

¶23 Whether a circuit court properly granted a motion for

summary judgment is reviewed de novo. Everson v. Lorenz, 2005

WI 51, ¶9, 280 Wis. 2d 1, 695 N.W.2d 298. In reviewing a

previous court's summary judgment decision, this court will

apply "the same methodology as the circuit court[,] and

benefit[s] from its analysis." Id. Summary judgment "shall be
rendered if the pleadings, depositions, answers to

11
 No. 2012AP5

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law." Wis. Stat. § 802.08(2).

C. The Sufficiency of CED's Original Complaint

¶24 CED argues that the City issued a single special

assessment and that under Wisconsin's rules of notice pleading,

its original complaint placed the City on notice that it

intended to challenge the entire amount of that assessment. In

addition, CED argues that the City's answer to its original

complaint supports CED's argument because the City's answer

makes reference to a single special assessment.

¶25 The City argues that municipalities customarily issue

two separate special assessments for corner lots and that the

City "clearly and unambiguously" levied two special assessments

as indicated by the assessment schedules. The City further

contends that CED appealed only the Murdock Avenue special

assessment because the original complaint references $19,241.73,
which corresponds to the Murdock Avenue special assessment. The

City concedes that the special assessments were procedurally

invalid because they failed to include "[a]n estimate of the

entire cost of the proposed work or improvement" as required by

Wis. Stat. § 66.0703(5)(b) and also lacked any "statement that

the property against which the assessments are proposed is

benefited . . ." as required by Wis. Stat. § 66.0703(5)(d).

¶26 Despite these procedural inadequacies, the City
maintains that CED appealed only the Murdock Avenue special
12
 No. 2012AP5

assessment within the 90-day time limit required by Wis. Stat.

§ 66.0703(12)(a). Since the City argues that Wis. Stat.

§ 66.0703(12)(a) is the controlling statute, it asks this court

to conclude that the Jackson Street special assessment appeal

was untimely.

¶27 While we agree with the circuit court and the court of

appeals that the City issued two special assessments as

indicated by the assessment schedules, we ultimately conclude

that CED's original complaint gave the City reasonable and

sufficient notice that it intended to appeal the entire amount

of special assessments levied against its property. First, Wis.

Stat. § 802.02, governing the general rules of pleadings,

applies to appeals of special assessments under Wis. Stat.

§ 66.0703. This result is dictated by the text of Wis. Stat.

§ 801.01(2), which, in part, provides: "Chapters 801 to 847

govern procedure and practice in circuit courts of this state in

all civil actions and special proceedings whether cognizable as

cases at law, in equity or of statutory origin except where
different procedure is prescribed by statute or rule." Wis.

Stat. § 801.01(2) (emphasis added).

¶28 Special assessment appeals under Wis. Stat. § 66.0703

are special proceedings. Mayek v. Cloverleaf Lakes Sanitary

Dist. No. 1, 2000 WI App 182, ¶5, 238 Wis. 2d 261, 617 N.W.2d

235 (interpreting Wis. Stat. § 66.60, the predecessor to Wis.

Stat. § 66.0703); Outagamie Cnty. v. Town of Greenville, 2000 WI

App 65, ¶7, 233 Wis. 2d 566, 608 N.W.2d 414 (reviewing the

13
 No. 2012AP5

procedures to appeal a special assessment under Wis. Stat.

§ 66.60(12)(a)).

¶29 Since the Wisconsin Rules of Civil Procedure apply to

special proceedings such as special assessment appeals under

Wis. Stat. § 66.0703(12)(a), we next consider whether any

conflict exists between rules of notice pleading and Wis. Stat.

§ 66.0703. After careful consideration of Wis. Stat.

§§ 802.02, 801.01(2), and 802.02(6), along with review of our

prior case law on notice pleading, we conclude that nothing in

Wis. Stat. § 66.0703 conflicts with Wisconsin's notice pleading

rules. Furthermore, we find no reason why the principles of

notice pleading should not apply to appeals of special

assessments under § 66.0703.

¶30 Under principles of notice pleading, we are satisfied

that CED's original complaint was sufficient to challenge the

entire amount of the special assessments levied against its

property. This is because the original complaint placed the

City on reasonable and sufficient notice that it intended to
appeal the entirety of the special assessments.

¶31 First, the original complaint identified the parcel

number, 15-1898-1000, against which the City levied the special

assessments. The property in question is identified by one and

only one parcel number. Second, the original complaint

identified the improvement project for which the special

assessments were issued as the "Jackson Street – Murdock Avenue

intersection improvement project." Not only does the original

14
 No. 2012AP5

complaint identify the name of the improvement project, but the

project name itself references both street names in question.

¶32 The fact that CED included only the amount of the

Murdock Avenue special assessment in its original complaint does

not defeat CED's intention to appeal the entire amount of the

special assessments. By listing the parcel number and the name

of the improvement project along with a reference to both street

names, CED's original complaint placed the City on reasonable

and sufficient notice that it intended to appeal the entire

amount of special assessments levied against its property. To

conclude otherwise would hold CED to the type of technical

pleading requirements that we have held no longer apply under

our rules of civil procedure.

¶33 Having concluded that CED's original complaint

properly appealed both the Murdock Avenue and Jackson Street

special assessments, we also conclude that CED's appeal was

timely and that summary judgment in favor of CED is appropriate.

In its original complaint, CED asserted that the City failed to
comply with Wis. Stat. § 66.0703(5) when issuing the special

assessments in question. As we have previously discussed, the

City conceded that it did not comply with Wis. Stat.

§ 66.0703(5). Due to the City's failure to comply with Wis.

Stat. § 66.0703(5) in regard to both the Murdock Avenue and the

Jackson Street special assessments and CED's timely appeal of

both special assessments, we conclude that no genuine issues of

material fact remain, and this case is appropriate to resolve,

15
 No. 2012AP5

in favor of CED, on summary judgment, based on the legal issue

presented.

¶34 Because we hold that CED's original complaint

contained sufficient information to place the City on reasonable

notice of CED's intent to appeal the total amount of special

assessments, we do not reach CED's alternative argument

regarding the application of Wisconsin's relation back statute

to special assessment appeals.

III. Conclusion

¶35 We agree with CED's first argument and hold that its

original complaint was sufficient to appeal not only the Murdock

Avenue special assessment, but the Jackson Street special

assessment as well. Wisconsin long abandoned rigid pleading

requirements in favor of liberal civil procedural rules. Notice

pleading rules not only simplify pleading in Wisconsin, but also

favor the resolution of claims on the merits. CED filed its

original complaint within the 90-day time period required by

Wis. Stat. § 66.0703(12)(a). The original complaint included
the parcel number, 15-1898-1000, which is the only parcel number

assigned to the property in question. Furthermore, the original

complaint included reference to the "Jackson Street – Murdock

Avenue intersection improvement project," which formed the basis

for the special assessments levied by the City. The alleged

problem with the complaint was that it included only the

monetary value, $19,241.73 which corresponds with the Murdock

Avenue special assessment. That the complaint failed to
identify an additional $19,404.93 for the Jackson Street special
16
 No. 2012AP5

assessment is not detrimental to CED's appeal of both special

assessments. The parcel number and the reference to both street

names when identifying the project for which the special

assessments were levied placed the City on notice that CED

intended to appeal the total amount of special assessments

levied against its property. This notice to the City was

reasonable and sufficient and, therefore, is all that is

required under Wisconsin's rules of notice pleadings.

Accordingly, we reverse the court of appeals.

By the Court.—The decision of the court of appeals is

reversed and cause remanded to the circuit court with

instructions to enter summary judgment in favor of CED

Properties, LLC in regard to the Jackson Street special

assessment.

17
 No. 2012AP5

1