Vivid, Inc. v. Fiedler

*797ANN WALSH BRADLEY, J.

¶ 55. {concurring). I agree with the lead opinion's determination that the legislature intended Wis. Stat. § 84.30 to provide the exclusive statutory means by which an advertising company may obtain just compensation for a billboard ordered removed. I also agree with the lead opinion's determination that Wis. Stat. § 84.30 does not authorize an award of attorney's fees. Nevertheless, I write separately because I do not subscribe to the lead opinion's carte blanche approval of the gross income multiplier (GIM) as a method of determining just compensation or to the lead opinion's interpretation of the cost approach method of valuation.1

¶ 56. Just compensation is to compensate only for the value of the property, not for the value of the business. Yet, in many cases the application of the GIM will result in compensation for loss of business profits and for the value of expectation of lease renewal. Compensation for such items is specifically prohibited by our prior cases.

¶ 57. At trial, Vivid offered the testimony of both an expert appraiser and Vivid's Chairman as to the proper valuation of the signs ordered removed by the Department of Transportation (DOT). Both individuals offered valuations of the billboards based on a valuation technique often used in sales between market participants, the GIM. See 8A Nichols on Eminent *798Domain, Sec. 23.04[4] at 23-52 (1997). One offered a valuation of $50,400 based on a multiple of four, and the other offered a valuation of $44,100 based on a multiple of 3.5. Valuations with the GIM are obtained by dividing the sales price of a "comparable" property or enterprise by the annual gross earnings of the property sold. The resulting ratio is then multiplied against the annual earnings of the property that is being appraised. See id. at 23-58. Accordingly, the GIM is an earnings-dependent valuation technique.2

¶ 58. The DOT strongly objected to Vivid's proffer of the GIM based valuations. The DOT's objections to the GIM valuation were not novel, since states and advertising companies have been fighting over the merits of GIM valuations for years, with sporadic victories going to each side. Compare National Adver. Co. v. State Dept. of Transp., 611 So. 2d 566, 570 (Fla. Ct. App. 1992) with State ex. rel. Missouri Hwy. & Transp. Comm'n v. Quiko, 923 S.W.2d 489 (Mo. Ct. App. 1996); Whiteco Indus. v. City of Tucson, 812 P.2d 1075, 1078 (Ariz. Ct. App. 1991). This court has never opined as to whether the GIM is an acceptable method of valuation of billboards in "just compensation" cases, despite the general use of the GIM in market transactions.

¶ 59. The controversy surrounding the use of the GIM in this case exists in large part because the very foundation of the GIM is based on the sale of a business. The initial calculation of the GIM is derived not from the sale of one billboard, an unlikely prospect as the lead opinion concedes, but rather from the sale of an entire advertising concern. In such cases, it can be "virtually impossible to determine the amount of *799income that should be attributed to the billboard and which portion should be attributed to the marketing and other aspects of the business." Federal Highway Administration, U.S. Department of Transportation, Memorandum and Attachment, Guidance on the Valuation of Billboards, Oct. 20,1993.3

¶ 60. The DOT and the court of appeals cite two significant legal justifications for their claim that use of the GIM in valuing Vivid's signs was improper. First, the DOT argues that use of the GIM automatically gives Vivid compensation for the loss of "business profits." Such a result is problematic because in Wisconsin, like other states, "just compensation" does not include compensation for the loss of "business profits." See Dusevich v. Wisconsin Power & Light Co., 260 Wis. 641, 51 N.W.2d 732 (1952). "Business profits" is defined as those earnings attributable to the efforts and skill of the property owner in running the business, such as a program to increase sales, and not to the existence of the property itself. See Leathem Smith Lodge, Inc. v. State, 94 Wis. 2d 406, 412, 416, 288 N.W.2d 808 (1980).

¶ 61. The court of appeals, however, rested its reversal of the circuit court not on a "business profits" problem, but rather on that court's belief that the GIM had an "Achilles Heel:" the GIM compensates for the value of an expectation that a leasehold will be *800renewed. Like business profits, the value of such expectations is not compensable. See Riebs v. Milwaukee County Park Comm'n, 252 Wis. 144, 148-49, 31 N.W.2d 190 (1948). Testimony in this case indicated that Vivid was "95% certain" that its leases on the two signs would be renewed.

¶ 62. Vivid acknowledged in its brief that the "just compensation" concern of the court of appeals that the GIM may value the possibility of renewing a lease was "generally correct," but argued that such a concern did not exist in this case. See Respondent's brief at 25. Moreover, Vivid did not directly contradict the DOT's assertions that use of the GIM included compensation for Vivid's lost business profits. Vivid's only real response was that the record showed that "its business losses were significantly higher than what Vivid was seeking for just compensation." See id. at 29. Vivid apparently argues that because all of its business losses are not being compensated, the court should ignore the fact that some of its business profits are possibly being compensated — an untenable proposition.

¶ 63. The lead opinion responds to the concerns raised by the DOT and the court of appeals both substantively and procedurally. The lead opinion substantively dismisses the DOT's concerns over compensation for lost business profits by indicating that it "fail[s] to discern what 'business profits' are associated with an outdoor advertising sign once the sign is in place" and that "little if any labor is required to maintain a billboard, except for occasionally changing a light bulb." Lead op. at 790. Thus, in the lead opinion's view, the value of the GIM in this case is "largely attributable to the location of the sign," and there is no compensation for lost business profits.

*801¶ 64. The facts of this case, however, illustrate my concern that the use of the GIM in some cases may have the potential to compensate for lost business profits. The Chairman of Vivid testified that Vivid is not merely a corporate entity which owns the physical structure of the billboards. Rather, Vivid is a comprehensive advertising enterprise which actively markets the availability of its billboards, employs an artist to create the advertising copy for its clients, and creates the actual advertisement materials placed on the billboard. The Chairman also testified that in some cases Vivid changes the artwork on its billboards on a monthly basis for the same client. Thus, Vivid's involvement with its sign business also involves the skill and management of an ongoing concern.

¶ 65. Next I consider the court of appeals' focus on the "Achilles' Heel" of the GIM, the potential compensation for lease renewal. Vivid concedes that the use of the GIM in billboard cases generally requires close scrutiny since the valuation may include compensation for the value of an expected lease renewal. Despite the court of appeals' concern in this case with such a problem, it appears from the facts of this case that no such problem exists here. The GIM of 3.5 establishes the valuation for the billboard at the equivalent of 3.5 years of earnings, but the ground leases on the signs in question had a term of at least eight more years. Thus, while the court of appeals was correct in theory in highlighting inherent problems with the GIM, the compensation problem it raised does not affect the outcome of this case because the earnings used in the valuation are not attributable beyond the terms of the present leases.

¶ 66. Both of the concerns highlighted above demonstrate the potentially problematic nature of the *802GIM. Although the GIM is generally used in the marketplace for valuation purposes, inherent in this earnings-dependent method of valuation are the same general concerns acknowledged by both of the parties as well as the court of appeals — compensating for loss which cannot by law be included in just compensation.4

¶ 67. Instead of addressing the potential for compensation beyond "just compensation" when using the GIM directly, the lead opinion determines that it is for the jury, not the court, to evaluate the acceptability of the GIM valuation. Apparently acknowledging that there will be cases in which the GIM includes compensation for "business profits" and leasehold renewal expectancies, the lead opinion determines that all the circuit court need do is instruct the jury to avoid compensating Vivid for those uncompensable items. This procedural resolution of the dilemma presented by GIM valuations misconstrues the proper role of the court and the trier of fact.

¶ 68. The circuit court acts as the evidentiary gatekeeper at trial. This court accordingly has recognized that circuit courts retain significant discretion in the admission of evidence at trial. See Grube v. Daun, 213 Wis. 2d 533, 541-42, 570 N.W.2d 851 (1997). However, as this court has also repeatedly noted, a circuit court erroneously exercises that discretion when it *803applies the wrong legal standard to the facts at hand. See id. at 542.

¶ 69. As noted above, compensation for lost business profits and the expectancy of leasehold renewal is improper as a matter of law. See Dusevich, 260 Wis. at 642; Riebs, 252 Wis. at 148-49. If a circuit court can determine from the facts that a GIM valuation in a particular case includes components which are not otherwise compensable as part of "just compensation," then it is for the court, not the trier of fact, to bar the evidence. To reach any other conclusion would allow circuit courts to abdicate responsibility for precluding the jury from being swayed by inadmissible evidence.

¶ 70. Next, I address the lead opinion's misinterpretation of the cost approach.5 To further buttress its adoption of the GIM, the lead opinion indicates that the cost approach does not include any component of valuation for the location of the sign. The lead opinion states, "[hjaving determined that the State must compensate Vivid not only for the sign structure and leasehold but also for the location of the sign." The lead opinion additionally notes: "[w]e also conclude that all right, title, and interest in and to the sign and the leasehold interest includes not only the value of the sign structure itself and leasehold value, but also the value of the sign location." Lead op. at 782, 796-97.

¶ 71. However, under the cost approach the value of location is already considered in the value of the leasehold. The leasehold value is defined as the difference between the contractual rent that the sign *804company is paying to the landowner and the market rent at the time of the appraisal. See 23 CFR § 750.303(c) (1989).

¶ 72. The amount of rent is affected by location. The better the location, the higher the rent. Thus, the lead opinion is incorrect when it suggests that location must always be considered in the cost approach in addition to the value of the sign and the leasehold value. The value of the location is not in addition to the value of the leasehold but rather it is already included in the value of the leasehold because the value of the leasehold is determined by a comparison of rents.

¶ 73. While the lead opinion's implicit dissatisfaction with the cost approach may be appropriate in this case, as a general proposition, the cost approach is also an accepted method of valuation. Thus, to the extent the lead opinion disclaims it, that disclaimer is inconsistent with the lead opinion's justification for continued use of the GIM — it is a generally accepted method of valuation.

¶ 74. In sum, the lead opinion's carte blanche approval of the GIM fails to recognize that the GIM has certain inherent flaws which may call into question its use in particular cases. In granting just compensation based on a GIM valuation, the State may actually be paying for items which are not compensable as a matter of law.

¶ 75. While I do not believe remand on this issue is necessary in this particular case, as a general rule I would require circuit courts to first scrutinize proffers of GIM valuations to determine whether the GIM valuation includes compensation for items not compensable as a matter of law. In such cases, the GIM valuation cannot go to the jury. Moreover, I also emphasize that *805the cost approach is an acceptable method of valuation in most cases.

¶ 76. While I write separately for the reasons discussed above, I join the lead opinion in declaring Wis. Stat. ch. 84 to be the exclusive statutory means of pursuing just compensation and join the lead opinion's determination that Vivid is not statutorily entitled to attorney's fees. Accordingly, I respectfully concur.

¶ 77. I am authorized to state that Chief Justice Shirley S. Abrahamson, Justice Donald W. Steinmetz, and Justice Janine P. Geske join this opinion.

A concurrence which receives the support of a majority of participating justices on a particular issue becomes the opinion of the court on that issue. See State v. Dowe, 120 Wis. 2d 192, 194, 352 N.W.2d 660 (1984); see also State v. Elam, 195 Wis. 2d 683, 685, 538 N.W.2d 249 (1995); State v. Outlaw, 108 Wis. 2d 112, 321 N.W.2d 145 (1982); Greiten v. LaDow, 70 Wis. 2d 589, 235 N.W.2d 677 (1975); State v. King, 205 Wis. 2d 81, 88, 555 N.W.2d 189 (Ct. App. 1996).

If we assume that earnings are constant, a GIM of 3.5 can be viewed as valuing a piece of property as equal to 3.5 times annual earnings.

If GIMs in cases of this nature were derived through the use of comparable sales of individual signs with existing leases, I may give some credence to the lead opinion's reliance on the proposition that "the remaining length of the lease is a consideration in choosing the proper comparable. . . ." However, as the facts here demonstrate, that is not the case. Earnings multiples are at best an inexact method of valuation. Where it is apparent from the face of the evidence that the GIM compensates for something barred as a matter of law, the GIM must be rejected.

This concurrence and the lead opinion adopt divergent solutions to this quandary. I require the circuit court to consider the evidence on its face and uphold the law barring compensation for loss of business profits and the expectancy of renewing a lease, even in the face of technical valuation methods. The lead opinion, on the other hand, allows the circuit court to abdicate its responsibility to prevent unlawful compensation, enhancing the prospect of additional appellate review. Given a choice between the two positions, I chose the former.

Despite the lead opinion's interpretation of events to the contrary, I address this issue solely to respond to what I consider to be an attack on the cost approach used by the lead opinion to buttress its GIM analysis. But for the lead opinion's use of this tactic, I need not write on this issue.