CED Properties LLC v. City of Oshkosh

REILLY, J.

¶ 23. 0dissenting). I respectfully dissent.

The City, on July 27, 2010, adopted Final Resolution 10-227, which created a "single assessment" for the "Jackson Street-Murdock Avenue intersection improvement project." The Final Resolution expressly states:

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. [1] (Emphasis added.)

*321¶ 24. CED challenged the "special assessment" for the "Jackson Street-Murdock Avenue intersection improvement project" as being "contrary to provisions of the Wisconsin Statutes, and void and unenforceable." Procedural steps for levying special assessments are jurisdictional and failure to comply with the statutory scheme for levying special assessments results in the action taken by the municipality to be null and void. Thomas v. City of Waukesha, 19 Wis. 2d 243, 250, 120 N.W.2d 58 (1963). The City admitted that it did not comply with the procedural steps required by Wis. Stat. § 66.0703 and consented to summary judgment that the assessment was null and void. The City convinced the circuit court, however, to limit the finding to the $19,241.73 Murdock Avenue "portion" of CED's assessment. The pertinent question on appeal is whether CED's appeal included the $19,404.93 "portion" of the assessment for the "Jackson Street-Murdock Avenue intersection improvement project." I believe it clearly does.

¶ 25. CED filed the statutorily required notice of appeal pursuant to Wis. Stat. § 66.0703(12) in which CED placed the City on notice that it "has appealed the special assessment." CED's complaint set forth seven paragraphs where it lodged its specific objections to the "special assessment," including that it did not comply with § 66.0703(5). The complaint speaks of the "special assessment" in the singular — consistent with the City's Final Resolution, which expressly describes all of the assessments related to the Jackson Street-Murdock Avenue intersection improvement project as "a single assessment."

¶ 26. Under Wisconsin's liberal notice pleading rule, "[a]ll pleadings shall be so construed as to do *322substantial justice." Wis. Stat. § 802.02(6). A complaint must be read "most favorably to the plaintiff." Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 635, 517 N.W.2d 432 (1994).

This fundamental 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 .... [PJleading is not to become a "game of skill in which one misstep by counsel may be decisive of the outcome."

Korkow v. General Cas. Co. of Wis., 117 Wis. 2d 187, 193, 344 N.W.2d 108 (1984). The majority pays lip service to this rule, but in application, it reverts to strictly construing the complaint's technical defects against the pleader — a notion long ago abandoned by our legal system. See Gunn v. Madigan, 28 Wis. 158, 164-65 (1871).

¶ 27. The majority concludes that, as CED referenced only the $19,241.73 figure in paragraph four of the complaint, the $19,404.93 "portion" attributable to the Jackson Street portion of the "Jackson Street-Murdock Avenue intersection improvement project" was not appealed. Majority, ¶ 17. The majority compounds its error by finding that CED's amended complaint does not relate back to the original complaint as the amended complaint's general challenge to the special assessment does not arise from facts set forth in the original complaint. Id., ¶ 21. The majority does not meaningfully address CED's argument that it "attempted to set forth" the facts to support a challenge to the entire special assessment levied against it in the original complaint, meeting the standard of Wis. Stat. § 802.09(3). The logic of the majority provides that the only assessment that was appealed was the Murdock *323Avenue repair assessment. Yet, the complaint does not say that; it gives notice of an appeal of the "special assessment" for the "Jackson Street-Murdock Avenue intersection improvement project." The confusion inherent in paragraph four of the complaint is directly attributable to the City's failure to prepare the proper report as required by Wis. Stat. § 66.0703(5).

¶ 28. Wisconsin Stat. § 66.0703(4) and (5) require that before a municipality may levy a special assessment upon a property owner, the municipality must prepare a report that shall consist of:

(a) Preliminary or final plans and specifications.
(b) An estimate of the entire cost of the proposed work or improvement.
(c) ... [A]n estimate, as to each parcel of property affected, of:
1. The assessment of benefits to be levied.
2. The damages to be awarded for property taken or damaged.
3. The net amount of the benefits over damages or the net amount of the damages over benefits.
(d)A statement that the property against which the assessments are proposed is benefitted, if the work or improvement constitutes an exercise of police power.

Sec. 66.0703(5). CED argued at its motion for summary judgment that the report prepared by the City failed to provide the information required in subsections (b), (c), and (d) of § 66.0703(5). The City did not challenge the proffer made by CED and admitted that the City assessment report is "not a picture of clarity." The City *324conceded that the levy was invalid and unenforceable and that the City would have to re-do the assessment pursuant to § 66.0703(10).2

¶ 29. The majority rewards the City for its failure to provide the statutorily required notice to those affected. CED thought the assessment of $19,241.73 was unfair and appealed. Only during discovery did CED learn that a total of $38,646.66 had been levied against it. The City's failure to comply with Wis. Stat. § 66.0703(5) is being utilized to defeat the purpose for which it was enacted. A government that attempts to tax its citizens should not profit from its failure to abide by statutes obligating it to provide full notice to those it seeks to tax.

¶ 30. CED's appeal revolved around the City's authority to levy the special assessment against it. It is due to the City's failure to give proper notice through the Wis. Stat. § 66.0703(5) report that CED thought the assessment was $19,241.73 rather than the total levy against it of $38,646.66. The majority ignores that the special assessment levied was a "single assessment" that is void and unenforceable. CED did not appeal the $19,241.73 "portion" attributable to "Murdock Avenue," it appealed the assessment of the "Jackson Street-Murdock Avenue intersection improvement project."

¶ 31. I would respectfully reverse.

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Oshkosh, Wis., Resolution 10-227 at ¶ 5 (July 27, 2010), available at http://www.ci.oshkosh.wi.us/weblink8/0/doc/584865/Pagel.aspx. The City provided an unreadable version of this resolution for the record in the form of its one-column published notice. I take judicial notice of the version posted by the City on its website per Wis. Stat. § 902.01(3) and Sisson v. Hansen Storage Co., 2008 WI App 111, ¶ 11, 313 Wis. 2d 411, 756 N.W.2d 667.

"[T]he legislature provided municipalities with the power to reopen and reconsider an assessment under [Wis. Stat. §] 66.0703(10), including any assessment that may be void or invalid." Park Ave. Plaza v. City of Mequon, 2008 WI App 39, ¶ 14, 308 Wis. 2d 439, 747 N.W.2d 703. The statute does not prohibit postimprovement assessments. Id., ¶ 16.