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COURT OF APPEALS
NOTICE
DECISION
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.
September 13, 2005
A party may file with the Supreme Court a
Cornelia G. Clark                                                                                                                                    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.
                                                                                                                                                     Cir. Ct. No.   2003CV134
Appeal No.                                                                           2004AP3038
STATE OF WISCONSIN                                                                                                                                   IN COURT OF APPEALS
DISTRICT III
WALTER L. LARSEN,
PLAINTIFF-APPELLANT,
V.
TOWN OF EGG HARBOR,
DEFENDANT-RESPONDENT.
APPEAL from a judgment of the circuit court for Door County:
PETER C. DILTZ, Judge.   Reversed and cause remanded.
Before Cane, C.J., Hoover, P.J., and Peterson, J.
¶1                                                                                   PER CURIAM.    Walter L. Larsen appeals a judgment dismissing
his action against the Town of Egg Harbor for return of part of the property taxes
Larsen paid in 2002.   The trial court concluded Larsen’s claims of discrimination
or unequal taxation must fail because Larsen held a property interest different




No.   2004AP3038
from other property owners in platted subdivisions by virtue of a 1978 court order.
Because  we  conclude  the  1978  order  was  ambiguous  and  should  have  been
construed to deny Larsen title to the disputed property, we reverse the judgment
and remand the case for further proceedings consistent with this decision.
¶2                                                                                                    Larsen’s  father,  his  predecessor  in  title,  bought  two  lots  in  the
subdivision in 1949.   One of the lots as described in the warranty deed did not
exist because that area had been set aside for a street.   To resolve that dispute, the
buyer, seller and the Town, by resolution, agreed to amend the plat.   Larsen’s
father was given title to the lot that had been set aside as a street and the street was
moved to an adjacent lot.   The court order effectuating the agreement, drafted by
Larsen’s  father,  contained  two  provisions  that  affect  the  present  controversy.
First, it gave Larsen title to the northerly half of the relocated street subject to the
right of the public for street purposes; and second, it provided that the relocated
street “shall have the same status as though said street had originally been platted
in its relocated position in said plat.”
¶3                                                                                                    In 2002, the Town assessed Larsen based on his ownership of half
the lot set aside for the relocated street.   Larsen paid the tax and sued the Town for
a  refund.1    The  trial  court concluded that Larsen  has title  to the  property in
question by virtue of the 1978 court order.   Therefore, without addressing Larsen’s
discrimination or unequal taxation issues, the court concluded that Larsen’s claims
fail.
1  The Town argues that Larsen used an incorrect method of challenging his assessment,
contending that he should have sought relief from the board of review and certiorari review by the
court.  We reject that argument because it is based on the false premise that Larsen is challenging
the property’s valuation.  Rather, he is challenging the Town’s assertion that he owns the property
in question, an issue that is not properly submitted to the board of review.
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No.   2004AP3038
¶4                                                                                        Whether  a  judgment  is ambiguous  is  a  question of  law  that  we
decide without deference to the trial court.   See Washington v. Washington, 2000
WI 47, ¶26, 234 Wis. 2d 689, 611 N.W.2d 261.   A court order, like any other
writing, is ambiguous if it is reasonably susceptible to more than one construction.
See In re Estate of Flejter, 2000 WI App 26, ¶28, 240 Wis. 2d 401, 623 N.W.2d
552.   If an order is ambiguous, the court should consider the underlying record and
pleadings to determine its intent.   See Wright v. Wright, 92 Wis. 2d 246, 255, 284
N.W.2d 894 (1979).
¶5                                                                                        We  conclude  the  1978  order  is  ambiguous  because  it  contains
mutually exclusive terms.   Granting Larsen title to half of the lot on which the
street was relocated is inconsistent with giving the street  “the same status as
though the street had been originally platted in its relocated position.”   Had the
street been platted in its relocated position, it would have been held in trust by the
Town for that purpose.   See WIS. STAT. § 236.29(1).2   The inconsistent language
that purports to give  Larsen title to a portion of  the platted street creates an
ambiguity as to the parties’ and the court’s intent.
¶6                                                                                        Our review of the underlying case compels the conclusion that the
language purporting to give Larsen title to half the property on which the street is
relocated should not be enforced.   The 1978 proceeding arose from an error in a
conveyance to Larsen’s father.   He would have been made whole by receiving title
to the land on which the street was initially platted.   Awarding him title to any
portion of the lot on which the relocated street was placed would be an undeserved
2  All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise
noted.
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No.   2004AP3038
windfall.   Construing the 1978 order to deny Larsen title to the relocated street
area is also consistent with the requirements of WIS. STAT.  § 236.29(1) which
requires the platted street to be held in trust by the Town.   It is also consistent with
the only evidence presented on the parties’ intent.   Larsen submitted his father’s
affidavit stating his intention when he drafted the 1978 order was to confirm that
the relocated street would become the property of abutting landowners if the street
was later vacated, as set out in WIS. STAT. § 236.28.
¶7                                                                                          Under these circumstances, we conclude the 1978 order should be
construed to enforce the clause that gives the relocated street the same status as
though  it  had  been  originally  platted  in  its  relocated  position,  rendering
unenforceable the provision that purports to give the abutting landowner title to
the area under the street.    We remand this case to the trial court to consider
Larsen’s discrimination and unequal taxation claims in light of this holding.
By the Court.—Judgment reversed and cause remanded.
                                                                                            This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                                   (b)5.
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