Town of Colby wins appeal over Town of Green Grove
By Neal Hogden
The Court of Appeals for District IV has sided with the Town of Colby in an on-going lawsuit against the Town of Green Grove over bridge maintenance on the shared Meridian Avenue.
After hearing the decision, the two town chairmen had different tones when discussing the results.
“I’m just glad that it’s over,” Town of Colby Chairman Larry Oehmichen said. “The bleeding on everyone’s checkbook was terrible with all of these lawyer bills.”
Town of Green Grove Chairman Tom Wilcox expressed disappointment, saying he doesn’t understand the court’s decision.
“If you and your neighbor owned a driveway and it needed gravel, wouldn’t you both chip in for the gravel?” Wilcox asked, rhetorically. “To me this is pretty basic stuff. It’s the way towns have done this since the 20s. I’m terribly confused myself.”
According to a notice sent by Green Grove to Colby, the bridge project cost $52,776.85. In 2020, Green Grove had $45,788,400 in equalized valuation and Colby had $45,719,100 meaning Colby would be on the hook for 48 percent of the bridge construction project which came out to $25,332.89.
Oehmichen said the Town of Colby had spent $41,924 on legal fees over the course of three years. He said because the court of appeals decided in their favor,
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Colby’s share of legal fees would be covered under liability insurance. He mentioned that although the town wouldn’t need to pay for the legal fees, the overall cost of litigation could have been mitigated by a peace offering that the Town of Colby offered the Town of Green Grove in 2021.
In 2022, Dempsey Law Attorney Lee D. Turonie spoke on behalf of Green Grove and said Green Grove had offered to settle for a $20,000 payment instead of half the cost of the bridge. Instead of accepting that offer, the Town of Colby came back with $17,500 before approving the full $20,000 later.
“It’s a regrettable thing,” Oehmichen said. “You know, we had offered $17,500 to try to avoid any attorney fees getting into it, which [Green Grove] rejected.”
Wilcox said the issue was about more than a bridge and said it was about doing what was right.
“I will always stand up for what’s right for our citizens in Green Grove and Clark County,” Wilcox said. “It really doesn’t matter what the case is. I’ll stand up for what’s right. I still believe sharing the cost of that bridge is what’s right.”
The legal battle goes back three years when the Town of Green Grove decided to sue the Town of Colby over the lack of financial support the Town of Colby gave the Town of Green Grove for a bridge that was replaced on Meridian Avenue in 2019. According to court documents, Colby declined to share the replacement costs citing a 2010 agreement in which then Green Grove chairman Mark Klein and the town board agreed to provide maintenance for the north 1.32 miles of Meridian Avenue while Colby would provide maintenance for the south 1.32 miles.
Colby argued that the 2010 agreement was for all maintenance costs related to each section of road while Green Grove stated in its argument that the 2010 agreement was for regular maintenance only and not for bigger projects.
Green Grove brought the case to Clark County Circuit Court Judge Lyndsey Boon Brunette in June of 2021. Boon Brunette decided in favor of Colby in her judgement which was handed down on September 14, 2022. Just over a week later, Green Grove filed an appeal with the Wisconsin District IV Court of Appeals.
The appeal was heard and a decision came down from the court on May 2. The court, comprised of Judges JoAnne F. Kloppenburg, Rachel A. Graham and Jennifer E. Nashold. The court examined the viability of the 2010 agreement, specifically looking at a section of the agreement that said the two towns were to share the expenses of Meridian Avenue.
Court records indicate that the Town of Colby maintained the part of Meridian Avenue that included the bridge before 2010 and did not seek contributions from Green Grove for the costs of doing so.
The court noted that Green Grove sought copies of bridge reports for the prior several years before assuming responsibility of the section of road with the bridge. The Green Grove town clerk at the time emailed the office manager at the Highway Department of Clark County to obtain information regarding the bridge and when it might need to be replaced. A quote from the email stated, “the bridge on Meridian Avenue seems to be in a state that needs watching for possible replacement, now that we know it belongs to the Town of Green Grove.” According to the court decision, Green Grove then began paying for the annual inspection of the bridge, including all labor and equipment, and did not ask Colby to contribute.
In the ensuing years, the Green Grove board discussed replacing the bridge and sought state funding but did not communicate with the Town of Colby about the pending replacement of the bridge. The court noted that these facts are undisputed and demonstrate that the two towns understood that under the 2010 agreement, the Town of Green Grove was responsible for maintaining and replacing the bridge.
Green Grove made five sets of arguments as to why the 2010 agreement should force Colby to share in the bridge replacement cost.
■ ■ First, Green Grove argued that there is a factual dispute about when Colby first learned that the bridge was being replaced. Former Green Grove town chairperson said he spoke to Town of Colby Chairperson Larry Oehmichen about the replacement of the bridge in 2016. Oehmichen denied that the conversation occurred. The court decided that even if they viewed the conversation as something that had happened, and Oehmichen was aware of the replacement, it would not show that Green Grove and Colby intended to share the cost of the bridge.
■ ■ Second, Green Grove argued that if Green Grove were to be considered solely responsible for the bridge maintenance and replacement, the 2010 agreement would need to be rewritten to include a bridge provision. The court directly disagreed with this statement and stating that all evidence points to Green Grove as being the party responsible for the section of road that included the bridge so such a provision was not needed.
■ ■ Third, Green Grove argued that it is not solely responsible for the costs of replacing the bridge because of language in the 2010 agreement that states, “This contract does not include any major road upgrades or culvert replacement.
The section of contract in which this language resides is under a section that talks about a .32 mile stretch of road. Therefore, the court said it assumes that provision is speaking about that specific stretch of road and not the shared road as a whole.
■ ■ Fourth, Green Grove argued that some of the extrinsic evidence was innocuous or does not speak on behalf of Green Grove. The court decision said Green Grove did not develop that argument and therefore, there was no need to address it.
■ ■ Finally, Green Grove argued that the administrative paperwork of the Wisconsin Department of Transportation’s Local Bridge Program was not legally relevant. Green Grove argued that the circuit court erred by considering the fact that Green Grove listed itself as the owner of the bridge when it submitted its application to replace the bridge, and the fact that Green Grove did not demand that Colby pay for a share of the bridge until after the bridge was completed, which Green Grove argued is attributable to how the Local Bridge Program is administered.
The court also disagreed with Green Grove’s argument that a 1929 agreement states that both Green Grove and Colby would be responsible for the maintenance on the bridge. Green Grove made subsequent arguments alluding to the 1929 agreement but the court rejected each argument.
The court summed up its decision by saying that the two parties should be adhering to the agreement that was set in 2010. After the decision was made, Oehmichen expressed his relief that the matter was decided.
“I’m very happy it’s over and of course I’m very happy that the Town of Colby prevailed,” Oehmichen said. “It was a trying three years on my life running around to attorney’s offices.”
The Town of Green Grove could appeal the appeal court’s decision to the Wisconsin Supreme Court but Wilcox said that wasn’t in the cards at this time.
