WGLB Scholarship v. City of Milwaukee

2021 WI APP 43
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2019AP2352

Complete Title of Case:

WGLB SCHOLARSHIP IN MEMORY OF JOEL J. KINLOW, INC.,

PLAINTIFF-RESPONDENT,

V.

CITY OF MILWAUKEE,

DEFENDANT-APPELLANT.

Opinion Filed: June 22, 2021
Submitted on Briefs: December 9, 2020
Oral Argument:

JUDGES: Brash, P.J., Dugan and White, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of Tearman Spencer and William G. Davidson of the Office of
the City Attorney in Milwaukee.

Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief of Ohioma Emil Ovbiagele and Samantha Huddleston of OVB
Law & Consulting, S.C. in Milwaukee.
2021 WI App 43

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 22, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2019AP2352 Cir. Ct. No. 2019CV4317

STATE OF WISCONSIN IN COURT OF APPEALS

WGLB SCHOLARSHIP IN MEMORY OF JOEL J. KINLOW, INC.,

PLAINTIFF-RESPONDENT,

V.

CITY OF MILWAUKEE,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
MARY E. TRIGGIANO, Judge. Reversed and cause remanded with directions.

Before Brash, P.J., Dugan and White, JJ.

¶1 DUGAN, J. The City of Milwaukee appeals a non-final order of the
circuit court denying its motion to dismiss the action filed by WGLB Scholarship in
Memory of Joel J. Kinlow, Inc. (WGLB) pursuant to WIS. STAT. § 74.35 (2019-

2
No. 2019AP2352

20),1 seeking to recover an allegedly unlawful property tax imposed by the City for
the 2018 tax year. Because WGLB failed to timely pay its March installment
payment, we conclude that it has not met the statutory requirements to pursue its
claim under § 74.35. Therefore, we reverse the circuit court’s order and remand
with directions to dismiss WGLB’s complaint.

BACKGROUND

¶2 WGLB filed an action in circuit court on June 4, 2019, pursuant to
WIS. STAT. § 74.35(3)(d), to recover an unlawful property tax levied against it by
the City for the 2018 tax year.2 In its complaint, WGLB alleged that it owns real
estate located at 7841 West Appleton Avenue in Milwaukee, and it is exempt from
taxation under WIS. STAT. § 70.11(4) because WGLB is a non-stock benevolent
organization that leases its property to a church, Greater El Bethel House of
Worship, Inc., for religious activities. WGLB further alleged that it had submitted
a tax exemption request to the City prior to filing its action in the circuit court, but
the City denied the request. The City proceeded to tax WGLB for the year 2018,
and WGLB alleged that it had already paid $4,731.35 of the tax under protest.

¶3 The City filed a motion to dismiss in July 2019, in which it argued
first that the circuit court lacked competency over WGLB’s complaint because
WGLB failed to timely pay its March installment payment and second that WGLB

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
2
Prior to pursing an action in circuit court, WGLB was required to first pursue its claim
with the City. See WIS. STAT. § 74.35(2), (3). The City does not dispute that WGLB did this or
the timeliness of WGLB’s claim with the City. See § 74.35(5)(a) (“[A] claim under this section
shall be filed by January 31 of the year in which the tax is payable.”).

3
No. 2019AP2352

failed to state a claim because it failed to plead that it timely paid all of its tax
installment payments.3 As the City described, WGLB was to pay its property tax in
ten installments.4 Supported by a billing history report and copies of the checks
from WGLB for the March and April installments, the City asserted that WGLB had
paid its installments for January, February, March, April, May, and June, and while
most of these installments were paid timely, WGLB failed to pay its March
installment payment by the due date of March 31, resulting in the assessment of a
late penalty. The City further asserted that WGLB did not submit its March
installment payment until on or about April 16, 2019, and that WGLB paid the
assessed late penalty with its April installment payment.5 WGLB did not dispute
the City’s characterization of its payment history, but rather, WGLB argued that its
March installment payment does not defeat its ability to pursue its claim for an
unlawful tax.6

¶4 The circuit court agreed with WGLB, and in a written decision and
order dated December 2, 2019, the circuit court denied the City’s motion to dismiss.

3
This second argument raised by the City in its motion to dismiss has not been raised on
appeal.

WISCONSIN STAT. § 74.87(3) provides that “a city may, by ordinance, permit payment in
4

10 equal installments, without interest, of general property taxes” and that “[e]ach installment shall
be paid on or before the last day of each month from January through October.” There is no dispute
that WGLB opted to pay its tax in installments or that those installments were due on the last day
of each month.
5
The City attached an affidavit from a customer service representative that averred that
WGLB’s payment was placed in a lockbox on or about April 16, 2019, and the payment was
processed and credited to WGLB’s account on April 17, 2019. The representative further averred
that the check was dated April 16, 2019, consistent with the date it was believed to have been placed
in the lockbox.
6
WGLB additionally asserted that its March payment was untimely because it did not
timely receive the tax bill for its March payment.

4
No. 2019AP2352

The City sought leave to appeal the circuit court’s non-final order. We granted the
City’s request, and this appeal followed.

DISCUSSION

¶5 On appeal, the City argues that the circuit court misinterpreted the
applicable statutes, resulting in the circuit court erroneously denying its motion to
dismiss for lack of competency. We review issues of statutory interpretation
independently. Noffke ex rel. Swenson v. Bakke, 2009 WI 10, ¶9, 315 Wis. 2d 350,
760 N.W.2d 156.

¶6 “[S]tatutory interpretation ‘begins with the language of the statute. If
the meaning of the statute is plain, we ordinarily stop the inquiry.’” State ex rel.
Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d
110 (citation omitted). We give statutory language “its common, ordinary, and
accepted meaning, except that technical or specially-defined words or phrases are
given their technical or special definitional meaning.” Id. In addition, “statutory
language is interpreted in the context in which it is used; not in isolation but as part
of a whole; in relation to the language of surrounding or closely-related statutes; and
reasonably, to avoid absurd or unreasonable results.” Id., ¶46. “[T]he purpose of
statutory interpretation is to determine what the statute means so that it may be given
its full, proper, and intended effect.” Id., ¶44.

¶7 Pursuant to WIS. STAT. § 74.35(2)(a), “[a] person aggrieved by the
levy and collection of an unlawful tax assessed against his or her property may file
a claim to recover the unlawful tax against the taxation district which collected the
tax.” In addition to other requirements that are not relevant here, “a claim under
this section shall be filed by January 31 of the year in which the tax is payable” and
“[n]o claim may be filed or maintained under this section unless the tax for which

5
No. 2019AP2352

the claim is filed, or any authorized installment payment of the tax, is timely paid
under s. 74.11, 74.12 or 74.87.” Sec. 74.35(5)(a), (c).

¶8 WISCONSIN STAT. § 74.87(7), in turn, states that a tax payment,
including an installment payment, is considered timely if (1) “[i]t is mailed in a
properly addressed envelope and received by the city treasurer with postage prepaid
and the envelope is postmarked before midnight of the last date prescribed for
making the payment”; (2) “[i]t is received by the city treasurer by mail or otherwise
within 5 days of the prescribed date”; or (3) a “delay by, or an administrative error
of, the U.S. postal service” if neither of the above are satisfied. However,
§ 74.87(6)(a) also states that “[i]f one installment only is not paid on the due date,
that installment is not delinquent and does not render the unpaid balance delinquent,
but the installment shall be collected, together with interest and penalty as provided
under s. 74.47 from the day following the due date.”

¶9 Here, regardless of the reason for the delay, it is undisputed that
WGLB put the March installment payment in the lockbox on or about April 16,
2019, when the payment was due March 31, 2019. This payment, therefore, meets
none of the three situations enumerated in WIS. STAT. § 74.87(7), and the payment
is thus untimely under this subsection. However, as both WGLB and the City
recognize, the conflict in this case arises from the fact that WGLB failed to pay only
the March installment by the due date and paid the resulting late penalty with its
April installment. Thus, the March installment payment, along with the overall
balance, was also not considered delinquent under the meaning of § 74.87(6)(a).
Accordingly, WGLB asks this court to conclude that its one non-delinquent
installment payment does not defeat its ability to pursue a claim for an unlawful tax
under WIS. STAT. § 74.35, which requires timely payments to maintain a claim.

6
No. 2019AP2352

¶10 The plain language of WIS. STAT. § 74.35(5)(c) states that “no claim”
may be maintained unless a payment is “timely” paid under WIS. STAT. § 74.87.
The plain language of § 74.87(7) then states that a payment is considered timely in
three situations, none of which have been met here. However, the plain language
of § 74.87(6) also states that, if one payment is not paid by the due date, it is not
considered delinquent if it is “collected” along with any interest and penalty
associated with the late payment.

¶11 To reconcile these statutes, we look to the legislature’s use of the word
“timely” within the statutory context, and we see that “timely” is used both in WIS.
STAT. § 74.35(5)(c) and WIS. STAT. § 74.87(7), and § 74.87(7) begins with “[a]
payment is timely.” Reading these statutes together, i.e., within their context,
§ 74.87(7) defines “timely” as used in § 74.35(5)(c). Section 74.87(6), however,
applies to “late payment” and defines the circumstances under which a payment not
received by the due date can be considered delinquent, which is ultimately a finding
that then triggers a procedure for collection. “Timely” is never used in subsection
(6) and, therefore, cannot be said to define “timely” in § 74.35(5)(c).7 Thus, we
conclude that a payment is timely within the meaning of § 74.35(5)(c) if it meets
the criteria contained in § 74.87(7) and a payment is not considered timely simply
because it is not considered delinquent under § 74.87(6).8

7
In fact, in its briefing, WGLB argues that this court should conclude that “a single
untimely installment payment” does not defeat a taxpayer’s claim and that a taxpayer does not lose
the right to challenge a tax “merely because one installment payment is untimely.” WGLB’s
wording highlights the fundamental issue with its own argument, namely that these words cannot
be used interchangeably and its non-delinquent payment is nonetheless still considered untimely.
8
We, consequently, reject any invitation to use dictionary definitions because we apply
the “specially-defined word” provided by the statutes themselves. See State ex rel. Kalal v. Circuit
Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.

7
No. 2019AP2352

¶12 Having so concluded, we must necessarily address whether WGLB
can still maintain a claim because a separate claim arises from each installment
payment and it had several timely installment payments. On this matter, we
conclude that WGLB cannot maintain its claim because the separate installment
payments do not give rise to their own separate claims. In other words, a taxpayer
is allowed to file and maintain one claim for a given tax assessment. The plain
language of WIS. STAT. § 74.35 indicates that a taxpayer has one
claim: § 74.35(2)(a) says that an aggrieved person may file “a claim” to recover the
unlawful tax, and § 74.35(3)(c) references “the claim.”

¶13 Moreover, pursuant to WIS. STAT. § 74.35(5)(a), a taxpayer’s claim is
required to be filed with the clerk by January 31 of the year in which the tax is
payable. If each installment payment gave rise to a separate claim, a taxpayer would
ultimately only be able to pursue a claim for its January installment payment, if the
taxpayer chose to exercise the installment payment option. This is so because, by
the January 31 deadline to file a claim, the taxpayer would have only paid one of its
installment payments. See WIS. STAT. § 74.87(5). Thus, it would be unable to
pursue the recovery of any of its subsequent installment payments.

¶14 Additionally, we agree with the City that the tax assessment is one
assessment and the claim authorized in WIS. STAT. § 74.35 is for the one tax
assessment. See § 74.35(2)(a) (“an unlawful tax” and “the unlawful tax”); see also
§ 74.35(1) (“‘unlawful tax’ means a general property tax”). If each individual
installment payment gave rise to a separate claim, it would be comparable to stating
that each installment payment is its own assessment, which it is not. Rather, each
installment payment is credited toward the one assessment. See WIS. STAT.
§ 74.87(3).

8
No. 2019AP2352

¶15 In support of its position that it can maintain its claim with its one
untimely payment, WGLB contends that adopting the City’s position writes
language into the statute. As WGLB argues, and the circuit court agreed, the
legislature saw fit to write “any” authorized installment payment of the tax in WIS.
STAT. § 74.35(5)(c) and did not write “each and every” or “all” authorized
installment payments of the tax. While this argument appears compelling on its
face, when taken to its logical conclusion, it would also only be necessary for a
taxpayer to pay one installment timely in order to maintain a claim for an unlawful
tax. Interpreting § 74.35 in context with WIS. STAT. § 74.87 to avoid absurd or
unreasonable results, we cannot accept WGLB’s invitation that simply any
installment payment must be timely made in order for a taxpayer to maintain a
claim. To do so would render the requirement in § 74.35(5)(c) to “timely” pay taxes
under § 74.87, and the definition of “timely” in § 74.87(7), essentially useless and
mere surplusage. See Kalal, 271 Wis. 2d 633, ¶46 (“Statutory language is read
where possible to give reasonable effect to every word, in order to avoid
surplusage.”).

CONCLUSION

¶16 In sum, we conclude that WGLB cannot maintain a claim for an
unlawful tax under WIS. STAT. § 74.35 because WGLB has one claim for the 2018
tax assessment, maintaining that claim requires that it pay its installment payments
timely, and it failed to timely pay its March installment payment. Thus, we reverse
the circuit court’s order and remand with directions to dismiss WGLB’s complaint.

By the Court.—Order reversed and cause remanded with directions.

9