COURT OF APPEALS DECISION DATED AND RELEASED JANUARY 22, 1997 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1336
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
GEORGE D. FRENCH, JR.,
D/B/A
ORDE ADVERTISING
COMPANY,
Petitioner-Appellant,
v.
RONALD R. FIEDLER,
SECRETARY
WISCONSIN DEPARTMENT
OF
TRANSPORTATION, AND
THE
WISCONSIN DEPARTMENT
OF
TRANSPORTATION,
Respondents-Respondents.
APPEAL from a judgment
of the circuit court for Brown County:
JOHN P. HOFFMAN, Judge. Affirmed.
Before Cane, P.J., Myse
and Carlson, JJ.
CARLSON, J. George French, Jr., d/b/a Orde Advertising
Company, appeals a summary judgment concluding that certain billboard site
leases were terminated and that the sign owner had no legal basis for claiming
compensation from the State. Orde
contends that the trial court erred by failing to properly follow Vivid,
Inc. v. Fiedler, 174 Wis.2d 142, 497 N.W.2d 153 (Ct. App. 1993), modified,
182 Wis.2d 71, 512 N.W.2d 771 (1994).
It claims that Vivid held that the Wisconsin Constitution
requires the State to pay just compensation for personal property such as
billboards that are "taken" as part of highway condemnation
proceedings. Because the trial court
properly determined that the leases were terminated, we conclude that there was
no taking, and Orde is not entitled to compensation. Accordingly, we affirm the judgment.
The Department of
Transportation was engaged in the reconstruction of Riverside Drive in the
Green Bay area. Orde had back-to-back
advertising structures located on St. Joseph Orphan Asylum property. As part of the project, the department
acquired a portion of the property following negotiations and a warranty deed
conveyance. Orde's billboards were
located on this portion.
There was no written
lease between Orde and St. Joseph.
Orde possessed month-to-month tenancy and was paying St. Joseph $80
per month for the right to have the billboards at that location. The department did not undertake to acquire
any property interests from Orde, but instead informed Orde that as a tenant,
it would have to remove its signs. The
department did advise Orde that as a displaced tenant, it would be entitled to
relocation benefits under § 32.19, Stats.
On September 2, 1988,
the Diocese of Green Bay, the owner of the St. Joseph property, advised
Orde's counsel by letter that regardless of the outcome of the highway widening
project, its plans no longer included outdoor advertising at that site and that
it expected the billboards to be removed no later than December 31, 1989.
On April 3, 1989, the
department informed Orde that the property acquisition had been completed and
the signs would not have to be removed until at least July 5, 1989, but a
notice to vacate could come at any time thereafter. On March 12, 1990, the department notified Orde that the
signs would have to be removed by May 1, 1990. The department acknowledged that since the parties had not been
able to reach a settlement on relocation benefits, Orde could file a claim
under § 32.20, Stats. The signs were removed on or about
May 8, 1990. Orde still has the
signs in its possession.
On July 31, 1990,
French, on behalf of Orde, filed a $66,500 claim for relocation benefits. The department refused to approve the claim
within ninety days, and it was deemed denied.
Orde then commenced this inverse condemnation action under § 32.10,
Stats.
The State filed a
summary judgment motion on the basis that Orde, as a matter of law, did not
have a claim for which relief could be granted. The court granted the motion.
While
the matter was pending in the trial court, it was stayed pending a decision in Vivid. When the case was reactivated following the
supreme court's decision in Vivid, the summary judgment motion
was rebriefed. The trial court
determined that although a sign company could have a constitutional claim based
on the court of appeals decision in Vivid, Orde could not make
out such a claim in this case because the Diocese had terminated Orde's sign
site lease.
Orde's principal
contention is that the department and the trial court ignored the court of
appeals holding in Vivid.
Orde argues that under the terms of Vivid, it is entitled
to bring this action for inverse condemnation for the department's taking of
the outdoor signs and sign sites. We
conclude that Orde's reliance on Vivid is misplaced. We are satisfied that the trial court
properly determined that when the Diocese terminated the month-to-month tenancy
in Orde's use of the billboard site, it effectively ended any right Orde had to
seek compensation from the State for an alleged taking. Any rights Orde had vanished when the
Diocese terminated the lease arrangement, even under its interpretation of Vivid.
Our review of summary
judgments is de novo; we apply the same methodology as the trial court and
consider the legal issues independently, without deference to the trial court's
decision. Hake v. Zimmerlee,
178 Wis.2d 417, 420-21, 504 N.W.2d 411, 412 (Ct. App. 1993). Summary judgment is appropriate if there is
no genuine issue of material fact and the moving party is entitled to judgment
as a matter of law. Germanotta v.
National Indem. Co., 119 Wis.2d 293, 296, 349 N.W.2d 733, 735 (Ct. App.
1984).
The facts of this case
are distinguishable from Vivid.
Orde had an oral agreement with the Diocese to allow the placement of
the billboards. Although that agreement
had been in effect for some time, it was nothing more than a month-to-month
tenancy. According to Orde, it was
paying $80 per month for the site lease.
Orde had no contractual right to any form of automatic extension or
renewal of this agreement. In Vivid,
however, the billboard company had a five-year lease subject to renewal for a
like period. Vivid also intended to
have the signs fixed to the site indefinitely.
Orde simply was not in
the same position as Vivid in terms of its rights under the lease. All Orde possessed was the right to at least
a twenty-eight-day notice of termination of the tenancy. See § 704.19(3), Stats.
In fact, Orde received significantly more than thirty days' notice. After the State began negotiations to
acquire the St. Joseph property, the Diocese advised Orde by letter dated
September 2, 1988, that its plans for the property after the widening
"will not include present or new locations for any outdoor advertising. Should the highway department not complete
the widening for some reason we would still expect the Orde billboards to be
removed on or before December 31, 1989."
This letter constitutes
written notice of the termination of the month-to-month tenancy. Orde received nearly sixteen months' notice
of the termination by this letter.
However, prior to the December 31, 1989, deadline, the State acquired
ownership of the property. In fact, in
an April 3, 1989, letter, the State informed Orde that it had acquired
ownership and, based on highway widening plans at the time, the signs could
remain until at least July 5, 1989, but that a notice to vacate could come
at any time thereafter. Even if this
letter were construed as a revised notice of termination of tenancy, Orde
received a minimum of three months' notice.
As it happened, Orde was
permitted to keep its signs on the property until they were removed on
May 8, 1990, thirteen months after the State's April 3, 1989, letter and
twenty months after the September 2, 1988, letter from the Diocese. Orde cannot complain that it had
insufficient notice of the termination of the lease.
When the State acquired
ownership, it also acquired the same rights of the original owner with respect
to this lease. As with the prior owner,
the new owner could terminate the lease with twenty-eight days' notice.[1] Orde possessed no greater rights with
respect to the leasehold interest after the State took ownership than it had
when the Diocese owned the property.
After acquiring
ownership, the department was in the analogous position as the city in City
of Whitewater v. Vivid, Inc., 140 Wis.2d 612, 412 N.W.2d 519 (Ct. App.
1987). In that case, Vivid had a site
lease on property owned by the city. At
the end of the lease, the city declined to renew the lease. Vivid sought compensation for the loss of
its leasehold interest. That case holds
that a city as landowner has all the same rights as a private landowner and is
under no obligation to renew a lease. Id.
at 619, 412 N.W.2d at 522. By declining
to renew a lease, the city did not trigger any compensation rights concerning
Vivid. Just as Vivid could not be heard
to complain that city ownership somehow gave them greater rights under the
leasehold, Orde cannot argue that it magically was endowed with any greater
rights under the month-to-month tenancy than it had with the Diocese.
Similarly, in Riebs
v. Milwaukee County Park Comm'n, 252 Wis. 144, 31 N.W.2d 190 (1947),
the Wisconsin Supreme Court held that a tenant's compensable interest is
limited to the time remaining on the lease.
See also Maxey v. Redevelopment Auth., 94 Wis.2d
375, 401, 288 N.W.2d 794, 806 (1980). Riebs
concerned tenants who operated a concession stand on property leased for over
fifty years from the City of Milwaukee.
The tenants had expected the leasehold interest to continue
indefinitely. The court held that,
notwithstanding their subjective beliefs, the compensable interest was limited
to the remaining time on the actual lease.
Id. at 148, 31 N.W.2d at 192. Therefore, if either the Diocese or the department terminated the
Orde lease, the maximum compensable interest to Orde would be the value of the
one-month termination right. Because
Orde had between sixteen to twenty months' prior notice of termination, it has
no compensable interest in this case.
Therefore,
the decision in this case does not turn on either the court of appeals decision
in Vivid or an interpretation of the supreme court's review of
that decision. It is unnecessary to
reach those issues because both the Diocese and the department gave more than
adequate notice of termination of the month-to-month tenancy, thus ending any
property rights Orde had in the St. Joseph location. Without any property rights at stake, there is no "taking." The court did not err when it decided as a
matter of law that Orde had no compensable property interest in the billboard
site and granted summary judgment to the State. The judgment is therefore affirmed.
By the Court.—Judgment
affirmed.
Not recommended for
publication in the official reports.
[1] A month-to-month tenant has no property interest that entitles him to compensation. If a lessee is a month-to-month tenant, the state, having succeeded to the title of the landlord as condemnor, has the right to terminate the tenancy on a month's notice. See 2 Nichols on Eminent Domain § 5.06(4) at 5-129-30 (rev. 3d ed. 1995).