In Menard, Inc. v. City of Marinette (2018AP533), the Court of Appeals District III considered a lawsuit challenging the City of Marinette’s property tax assessment of a Menard’s store.

In 2016, Marinette assessed the Menard’s store at a value of $9 million. Menard challenged the assessment in circuit court, contending the fair market value of the property was $6 million. The parties agreed to certain deadlines, and the circuit court issued a scheduling order. Menard timely disclosed its expert witness but failed to timely file an expert report.

Meanwhile, Menard filed an essentially identical case challenging the city’s 2017 assessment of the store property. Menard moved to consolidate the two cases and modify the 2016 scheduling order. The circuit court accepted the consolidation but, not knowing Menard had missed a deadline in the 2016 case, ordered the newly consolidated cases to proceed under the 2016 scheduling order, under which Menard had failed to timely submit its expert report. The circuit court denied Menard’s motion for reconsideration of a new scheduling order and eventually granted summary judgment in favor of Marinette.

The appeals court upheld the circuit court’s initial decision to keep both cases on the 2016 scheduling order; however, the appeals court overturned the circuit court’s denial of Menard’s motion for reconsideration as to the 2017 case. The circuit court should have reconsidered the scheduling order for the 2017 case once it found out Menard had missed the 2016 deadline for its expert report. Menard had missed its opportunity to submit an expert report in the 2016 case, but the circuit court should not have prevented Menard from the opportunity to submit a timely report in the 2017 case. Accordingly, the appeals court upheld summary judgment in favor of Marinette in the 2016 case but remanded the 2017 case to proceed in circuit court.