CED Properties LLC v. City of Oshkosh
836 N.W.2d 654
Wis. Ct. App.2013Background
- City of Oshkosh levied two separate special assessments against CED Properties LLC for a street intersection project: $19,241.73 on Murdock Avenue and $19,404.93 on Jackson Street, issued July 27, 2010.
- CED filed a notice of appeal and complaint on September 23, 2010 challenging the assessments.
- In June 2011, CED amended the complaint to clearly address both assessments, listing grounds against the “special assessment(s).”
- The City moved for summary judgment arguing the Jackson Street claim was untimely under Wis. Stat. § 66.0703(12)(a); CED contended notice pleading and relation back could save the Jackson Street claim.
- The circuit court granted partial summary judgment for CED on the Murdock Avenue assessment and dismissed the Jackson Street claim as untimely; the court did not expressly decide on relation back.
- The Wisconsin Supreme Court affirmed, holding that notice pleading and relation back provisions apply to § 66.0703 appeals, but the Jackson Street claim is untimely because it was not properly noticed or related back.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether notice pleading applies to § 66.0703 appeals | CED: notice pleading should apply | City: statutory § 66.0703(12) governs with no room for liberal pleading | Yes, they apply |
| Whether the Jackson Street claim received proper notice | CED: Jackson Street claim was adequately noticed | City: only the Murdock Avenue portion was noticed | No, Jackson Street not adequately noticed |
| Whether the Jackson Street claim relates back under § 802.09(3) | CED: amended claim relates back to original filing | City: does not relate back | No, does not relate back |
Key Cases Cited
- Emjay Inv. Co. v. Village of Germantown, 333 Wis. 2d 252 (Wis. 2011) (notice pleading and amendment standards in special proceedings)
- Korkow v. General Cas. Co. of Wis., 117 Wis. 2d 187 (Wis. 1984) (fair notice under 802.09(3) when amended claim arises from original facts)
- Thom v. OneBeacon Ins. Co., 300 Wis.2d 607 (Wis. Ct. App. 2007) (relation back under 802.09(3) requires factual linkage to original pleading)
- Smith, Becker & McCormick Props. v. City of LaCrosse, 268 Wis.2d 253 (Wis. Ct. App. 2003) (relation back not precluded by statute of limitations when pleading amends)
- Mayek v. Cloverleaf Lakes Sanitary Dist. No. 1, 238 Wis. 2d 261 (Wis. 2000) (predecessor statute to § 66.0703; related procedures intact)