2010AP1809 Clear Channel Outdoor, Inc. v. City of Milwaukee

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Wisconsin Court of Appeals

Civil Opinion

Tax

Exhaustion

Before bringing suit to challenge a tax assessment, a property owner must exhaust his administrative remedies.

“Despite Clear Channel’s and Lamar’s attempt to blur the exhaustion-of-administrative-remedies issue with extensive citation to cases that either pre-date Hermann or are not on point, no case has either overruled or limited Hermann. Hermann and its clear delineation of the limited area in tax-assessment cases where a taxpayer need not first exhaust its administrative remedies is thus dispositive and binding. See Zarder v. Humana Ins. Co., 2010 WI 35, ¶58, 324 Wis. 2d 325, 350, 782 N.W.2d 682, 694 (‘[T]he court of appeals may not dismiss a statement from an opinion by [the supreme] court by concluding that it is dictum.’) (emphasis added); State v. Holt, 128 Wis. 2d 110, 123, 382 N.W.2d 679, 686 (Ct. App. 1985), superseded by statute on other grounds (‘When an appellate court intentionally takes up, discusses and decides a question germane to a controversy, such a decision is not a dictum but is a judicial act of the court which it will thereafter recognize as a binding decision.’). Thus, we cannot say that the circuit court erroneously exercised its discretion in applying Hermann to dismiss without prejudice Clear Channel’s and Lamar’s declaratory-judgment complaints pending the exhaustion of their administrative remedies. Moreover, we would affirm the circuit court even if our review were de novo.”

Affirmed.

Publication in the official reports is recommended.

2010AP1809 Clear Channel Outdoor, Inc. v. City of Milwaukee

Dist. I, Milwaukee County, Moroney, J., Fine, J.

Attorneys: For Appellant: Gordon, Robert L., Milwaukee; Marcuvitz, Alan, Milwaukee; Roschke, Andrea H., Milwaukee; For Respondent: Moschella, Vincent D, Milwaukee; Seibel, Amy R., Mequon