Justia.com Opinion Summary: This case involved litigation expenses under Wis. Stat. 32.28(3)(d) in a condemnation proceeding between defendant and plaintiffs, the condemnees, when defendant initiated condemnation proceedings against the condemnees under Wis. Stat. 32.06 for an easement to construct an electrical transmission line across the condemnees' property. At issue was whether litigation expenses should be awarded when an appeal was taken from a negotiated price recorded in a certificate of compensation. The court held that an owner who accepted the negotiated price under section 32.06(2a), timely appealed that price, and subsequently received an award from the county condemnation commission that exceeded the thresholds under section 32.28, should be awarded litigation expenses. The court also considered, but was not persuaded by various other arguments defendant made criticizing the circuit court's and the court's interpretation of section 32.06(a) and section 32.28(3)(d) that the condemnees in the present case should be awarded litigation expenses.
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2011 WI 37
SUPREME COURT
CASE NO.:
COMPLETE TITLE:
OF
WISCONSIN
2009AP2784
Mark Klemm and Jeanne Klemm,
Plaintiffs-Respondents-Petitioners,
v.
American Transmission Company, LLC,
Defendant-Appellant.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at: 329 Wis. 2d 415, 791 N.W. 2d 233
(Ct. App. 2010 – Published)
OPINION FILED:
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
May 26, 2011
April 14, 2011
Circuit
Marathon
Gregory B. Huber
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For
the
plaintiffs-respondents-petitioners
there
were
briefs by Shane J. VanderWaal and Pietz, Vanderwaal, Stacker &
Rottier,
S.C.,
Wausau,
and
oral
argument
by
Shane
Jon
VanderWaal.
For the defendant-appellant there was a brief by Steven M.
Streck, Sara K. Beachy, and Axley Brynelson, LLP, Madison, and
oral argument by Steven M. Streck.
An amicus brief was filed by Robert W. Roth, Joseph C.
Niebler, Jr., James B. Hanley and Niebler, Pyzyk, Roth & Carrig,
L.L.P., Menomonee Falls and Frank J. Jablonski and Progressive
Law Group L.L.C, Madison and Michael R. Bauer and Bauer & Bach
L.L.C. Madison as Eminent Domain Attorneys.
2
2011 WI 37
NOTICE
This opinion is subject to further
editing and modification.
The final
version will appear in the bound
volume of the official reports.
No.
2009AP2784
(L.C. No.
2008CV432)
STATE OF WISCONSIN
:
IN SUPREME COURT
Mark Klemm and Jeanne Klemm,
FILED
Plaintiffs-Respondents-Petitioners,
v.
MAY 26, 2011
American Transmission Company, LLC,
Defendant-Appellant.
A. John Voelker
Acting Clerk of Supreme
Court
REVIEW of a decision of the Court of Appeals.
¶1
SHIRLEY S. ABRAHAMSON, C.J.
Reversed.
This is a review of a
published opinion of the court of appeals1 reversing the judgment
of the circuit court for Marathon County, Greg Huber, Judge.
1
Klemm v. Am. Transmission Co., LLC, 2010 WI App 131, 329
Wis. 2d 415, 791 N.W.2d 233.
No.
This
review
involves
§ 32.28(3)(d)
American
expenses2
litigation
(2009-10)3
Transmission
in
a
condemnation
Company,
LLC
(ATC)
under
2009AP2784
Wis.
proceeding
and
Mark
Stat.
between
Klemm
and
Jeanne Klemm, the condemnees.
¶2
This
case
interpretation:
presents
Shall
a
litigation
question
expenses
be
of
statutory
awarded
to
an
owner of property pursuant to Wis. Stat. § 32.28(3)(d) if:
• the owner conveys the property under the negotiated price
procedure
pursuant
and
to
receives
a
§ 32.06(2a),
certificate
with
no
of
compensation
jurisdictional
offer
issued under § 32.06(3);
• the
owner
refers
the
timely
matter
appeals
to
the
to
the
circuit
chairperson
court,
which
the
county
of
condemnation commissioners for a hearing;
• the owner is awarded at least $700 and at least 15% more
than the negotiated price under § 32.06(2a); and
• neither party appeals the commission's award?4
2
Wisconsin Stat. § 32.28(1) defines "litigation expenses"
as "the sum of the costs, disbursements and expenses, including
reasonable attorney, appraisal and engineering fees necessary to
prepare for or participate in actual or anticipated proceedings
before the condemnation commissioners, board of assessment or
any court under this chapter."
3
All references to the Wisconsin Statutes are to the 200910 version unless otherwise noted.
4
Wisconsin Stat. § 32.28(3)(d) applies when neither party
appeals the award to the circuit court.
In the present case,
neither party appealed the commission's award to the circuit
court.
2
No.
¶3
2009AP2784
The question whether or not litigation expenses shall
be awarded when an appeal is taken from a "negotiated price"
recorded in a certificate of compensation was identified soon
after the legislature's 1977 revision of chapter 32, entitled
"Eminent Domain."
office
of
In 1979, James Thiel, the director of the
advisory
services
of
the
Transportation at that time, wrote:
Wisconsin
Department
of
"It is not clear whether
litigation expenses may be awarded if an appeal is taken from a
negotiated price, i.e. certificate of compensation."5
years have elapsed.
Thirty
The court is now asked to resolve the
question posed by the statutes and identified by James Thiel in
1979.
¶4
The circuit court answered the question presented in
the affirmative.
ruling
that
Wis.
The court of appeals answered in the negative,
Stat.
§ 32.28(3)(d)
permits
an
award
of
litigation expenses only when a jurisdictional offer has been
made.
5
James S. Thiel, New Developments in Law of Eminent Domain,
Condemnation and Relocation, Wis. Bar Bull., June 1979, at 23,
25.
James Thiel is now Counsel in the Office of General Counsel
of the Department of Transportation.
Wisconsin Stat. § 32.05(2a), which governs condemnation in
transportation and sewerage cases, is substantially the same as
§ 32.06(2a), which governs most other condemnation proceedings.
Attorney Thiel wrote about both sections and § 32.28(3).
3
No.
¶5
We
examine
§ 32.28(3)(d)
(the
the
texts
statutes
at
of
Wis.
issue),
Stat.
the
2009AP2784
§ 32.06
statutes
in
and
the
context of the condemnation statutes, the legislative purpose of
awarding
litigation
expenses,
§§ 32.06 and 32.28(3)(d).
and
the
legislative
history
of
Upon such review, we conclude that
litigation expenses shall be awarded to an owner pursuant to
Wis. Stat. § 32.28(3)(d) if the owner conveys the property and
receives a certificate of compensation pursuant to § 32.06(2a),
with
no
jurisdictional
offer
issued
under
§ 32.06(3);
timely
appeals to the circuit court, which refers the matter to the
chairperson
of
the
county
condemnation
commissioners;
and
is
awarded at least $700 and at least 15% more than the negotiated
price
under
commission's
§ 32.06(2a);
award.
We
and
neither
consider
but
party
are
not
appeals
persuaded
the
by
various arguments ATC makes criticizing the circuit court's and
our interpretation of Wis. Stat. §§ 32.06(2a) and 32.28(3)(d)
that
the
condemnees
litigation expenses.
in
the
present
case
shall
be
awarded
Accordingly, we reverse the decision of
the court of appeals.6
I
6
Several attorneys who routinely represent owners in
condemnation actions filed a non-party (amicus curiae) brief
arguing that the decision of the court of appeals violates equal
protection.
We need not address the equal protection argument
because our interpretation of the statutes leads us to reverse
the decision of the court of appeals.
4
No.
¶6
The
undisputed.
underlying
facts
in
the
case
are
2009AP2784
brief
and
In stating the facts we set forth the two statutes
at issue.
¶7
ATC
initiated
condemnation
proceedings
against
the
condemnees under Wis. Stat. § 32.06 for an easement to construct
an electrical transmission line across the condemnees' property.
More specifically, the parties proceeded under subsection (2a)
of § 32.06, entitled "Agreed Price."
Thus, § 32.06(2a) governs
the condemnation proceeding in the present case.
¶8
least
Under Wis. Stat. § 32.06(2), the condemnor obtains at
one
appraisal
of
the
property
to
be
taken.
Under
§ 32.06(2a), the condemnor is required to "attempt to negotiate
personally with the owner" of the property to be taken "before
making
the
jurisdictional
condemnor
to
record
condemnor
"executed
any
as
a
offer."
The
statute
conveyance
from
result
negotiations
of
the
requires
owner
to
the
the
under
this
§ 32.06(2a),
the
subsection."7
¶9
In
addition,
under
Wis.
Stat.
condemnor must record a certificate of compensation detailing
among other matters the compensation for the acquisition.
condemnor
must
also
serve
a
copy
of
the
certificate
The
of
compensation on the owner, including "a notice of the right to
7
For a discussion of Wis. Stat. § 32.06(2a), see Ross F.
Plaetzer, Comment, Statutory Restrictions on the Exercise of
Eminent Domain in Wisconsin: Dual Requirements of Prior
Negotiation and Provision of Negotiating Materials, 63 Marq. L.
Rev. 489 (1979-80).
5
No.
2009AP2784
appeal [six months from the date of recording the certificate]
the amount of compensation under this subsection."
¶10
Wisconsin Stat. § 32.06(2a) provides in relevant part
as follows:
(2a) Agreed price. Before making the jurisdictional
offer under sub. (3) the condemnor shall attempt to
negotiate personally with the owner . . . of the
property . . . for the purchase of the same. . . . The
condemnor shall record any conveyance by or on behalf
of the owner of the property to the condemnor executed
as a result of negotiations under this subsection with
the register of deeds. . . . The condemnor shall also
record a certificate of compensation stating . . . the
compensation for such acquisition.
The condemnor
shall serve upon . . . [the owner] the statement and a
notice
of
the
right to
appeal
the amount
of
compensation under this subsection.
Any person named
in the certificate may, within 6 months after the date
of
its
recording,
appeal
from
the
amount
of
compensation therein stated by filing a petition with
the judge of the circuit court of the county in which
the property is located for proceedings to determine
the amount of just compensation. . . . The judge shall
forthwith assign the matter to the chairperson of the
county condemnation commissioners for hearing under
sub. (8) . . . (emphasis added).
¶11
ATC
provided
the
appraisal
that
estimated the fair market value of the easement at $7,750.
The
condemnees
agreed
to
Proceeding
under
Wis.
conveyance
from
the
condemnees
convey
the
with
an
for
§ 32.06(2a),
Stat.
easement
ATC
condemnees
to
ATC,
as
that
price.
recorded
well
as
a
the
certificate of compensation (in proper statutory form) in the
amount of $7,750.
¶12
In
compliance
with
Wis.
Stat.
§ 32.06(2a),
the
condemnees filed a Notice of Appeal and Petition with the judge
of
the
circuit
court
for
Marathon
6
County.
Adhering
to
the
No.
statute,
the
chairperson
circuit
of
the
court
county
hearing under § 32.06(8).
referred
the
condemnation
2009AP2784
matter
to
commissioners
the
for
a
The commission awarded the condemnees
$10,000 as just compensation for the value of the easement.
¶13
Following
the
commission's
award,
ATC
and
the
condemnees negotiated a settlement for $30,000 as compensation
for the easement.
The settlement provided that neither party
would appeal the commission's award but that the circuit court
for Marathon County would determine whether the condemnees are
entitled to litigation expenses under Wis. Stat. § 32.28(3)(d).8
¶14
Wisconsin
Stat.
§ 32.28(3)(d)
provides
for
awarding
litigation expenses to the condemnee when "[t]he award of the
condemnation commission under s. 32.05(9) or 32.06(8) exceeds
the jurisdictional offer or the highest written offer prior to
the jurisdictional offer by at least $700 and at least 15% and
neither
party
appeals
the
award
to
the
circuit
court . . ."
(emphasis added).
¶15
The condemnees filed a motion in circuit court seeking
an order awarding litigation expenses.
The circuit court ruled
that the condemnees were entitled to litigation expenses under
Wis. Stat. § 32.28(3)(d).
of
litigation
expenses
The parties stipulated to an amount
and
judgment for the condemnees.
the
circuit
court
entered
final
ATC filed an appeal.
8
The parties agreed that the additional sums paid the
condemnees under the settlement were not relevant to the circuit
court's decision of litigation expenses.
7
No.
¶16
not
2009AP2784
The court of appeals ruled that the condemnees were
entitled
to
§ 32.28(3)(d).
litigation
expenses
under
Wis.
Stat.
This court granted the condemnees' petition for
review.
II
¶17
The
instant
case
presents
a
question
of
statutory
interpretation and application of statutes to undisputed facts.
This
court
will
ordinarily
decide
the
interpretation
of
the
statutes and the application of the statutes to undisputed facts
independently
of
the
circuit
court
or
court
of
appeals
but
benefiting from their analyses.
III
¶18
Statutory interpretation begins with the text of the
statute.
Statutory
common
and
others
that
approved
have
a
language
usage;
is
construed
technical
peculiar
meaning
construed according to such meaning.9
according
words
in
and
the
to
its
phrases
and
law
shall
be
Statutes are interpreted
to give effect to each word and to avoid surplusage.10
The
statutory language is examined within the context in which it is
9
Wis. Stat. § 990.01(1).
10
See State v. Martin, 162 Wis. 2d 883, 894, 470 N.W.2d 900
(1991) ("A statute should be construed so that no word or clause
shall be rendered surplusage and every word if possible should
be given effect." (quoting Donaldson v. State, 93 Wis. 2d 306,
315, 286 N.W.2d 817 (1980))).
8
No.
used.11
An
interpretation
that
fulfills
the
2009AP2784
purpose
of
the
statute is favored over one that undermines the purpose.12
¶19
Wisconsin Stat. § 32.28(3)(d) provides:
(3) In lieu of costs under ch. 814, litigation
expenses shall be awarded to the condemnee if:
. . . .
(d) The award of the condemnation commission under s.
32.05(9) or 32.06(8) exceeds the jurisdictional offer
or
the
highest
written
offer
prior
to
the
jurisdictional offer by at least $700 and at least 15%
and neither party appeals the award to the circuit
court; . . . .
¶20
that
in
commission
In analyzing the text of 32.28(3)(d), we point out
the
instant
was
jurisdictional
case
made
offer
was
the
under
award
Wis.
made;
no
of
Stat.
the
condemnation
§ 32.06(8);
jurisdictional
offer
no
was
required under the statutes; the condemnor made a written offer;
the condemnation commission award, $10,000, exceeds the agreed
11
See Juneau County v. Courthouse Employees, Local 1312,
221 Wis. 2d 630, 641, 585 N.W.2d 587 (1998) ("The circuit court
properly stated that in resolving the issue of statutory
interpretation . . . it
must
examine
first
the
statutory
language and then the statute in context.")
See also Landis v. Physicians Ins. Co. of Wis., Inc., 2001
WI 86, ¶16, 245 Wis. 2d 1, 628 N.W.2d 893 ("[A]lthough 'it is
true that statutory interpretation begins with the language of
the statute, it is also well established that courts must not
look at a single, isolated sentence or portion of a sentence,
but at the role of the relevant language in the entire
statute.'" (quoting Alberte v. Anew Health Care Servs., 2000 WI
7, ¶10, 232 Wis. 2d 587, 605 N.W.2d 515)).
12
County of Dane v. LIRC, 2009 WI 9, ¶34, 315 Wis. 2d 293,
759 N.W.2d 571.
9
No.
2009AP2784
price, $7,750, by more than $700 and 15%; and neither party
appealed the award to the circuit court.
¶21
The focus of the present case is on that part of the
text of Wis. Stat. § 32.28(3)(d) that requires that the county
condemnation
written
offer
added).
prior
award
to
the
"exceed[
] . . . the
jurisdictional
offer"
highest
(emphasis
The parties ask us to interpret this language and to
determine
route
commission
whether
set
it
forth
applies
in
to
the
§ 32.06(2a)
negotiated
in
which
price
appeal
there
is
no
jurisdictional offer.
¶22
As
we
explained
above,
the
parties
proceeded
under
Wis. Stat. § 32.06(2a), the negotiated price appeal route.
jurisdictional offer was made or required.
No
The record does not
contain a written offer from ATC to the condemnees.
The signed
easement materials, including the certificate of compensation,
are
in
writing
condemnor.
and
are
in
effect
a
written
offer
from
the
The phrase "written offer" appearing in Wis. Stat.
§ 32.28 does not appear any other place in chapter 32.
We give
the phrase "written offer" in § 32.28 its ordinary meaning in
common usage, not a peculiar meaning in the law.
¶23
that
the
Both the circuit court and the court of appeals agreed
statutory
language
of
plain, clear, and unambiguous.
Wis.
Stat.
§ 32.28(3)(d)
was
Nevertheless, the two courts
came to opposite conclusions about the meaning of the statute
and its application to the present case.
¶24
explained
The different results reached by the two courts may be
by
their
different
10
approaches
to
statutory
No.
interpretation.
2009AP2784
The circuit court interpreted the text of Wis.
Stat. § 32.28(3)(d) by focusing on the clause "highest written
offer,"
and
by
examining
§§ 32.06(2a)
and 32.28(3)(d)
in
the
context of the condemnation statutes.
¶25
of
In contrast, the court of appeals interpreted the text
§ 32.28(3)(d)
jurisdictional
by
focusing
offer"
in
on
the
isolation,
clause
without
"prior
looking
phrase in the context of the condemnation statutes.
to
at
the
this
Because the
court of appeals concluded that the text of § 32.28(3)(d) was
plain, it determined that it need not harmonize the statute with
other provisions in chapter 32.
¶26
Wis.
The circuit court viewed the "negotiated price" under
Stat.
within
§ 32.06(2a)
the
meaning
as
of
a
the
written
phrase
§ 32.28(3)(d).
It
viewed
the
jurisdictional
offer"
as
offer
"written
having
jurisdictional offer been made.
by
clause
the
offer"
"prior
significance
condemnor
used
to
had
in
the
a
If a jurisdictional offer had
been made, the highest written offer prior to the jurisdictional
offer would determine whether litigation expenses are awarded
under
§ 32.28(3)(d).
The
circuit
court
did
not
interpret
§ 32.28(3)(d) as requiring that a jurisdictional offer be made
for litigation expenses to be awarded.
¶27
The circuit court interpreted Wis. Stat. § 32.28(3)(d)
by examining
statutes.
the
The
statute
circuit
in
court
the
context
explained
of
that
the
the
condemnation
legislature
created two different routes by which the parties would reach
the county condemnation commission and then get court review.
11
No.
2009AP2784
One route is the route the parties in the present case took: the
negotiated price appeal route.
This route is used, according to
§ 32.06(2a), before the condemnor makes a jurisdictional offer.
As
we
explained
§ 32.06(2a)
above
begins
and
by
as
the
stating
circuit
that
court
"[b]efore
explained,
making
the
jurisdictional offer," the condemnor shall attempt to reach a
negotiated price.
judge
to
refer
condemnation
Section
The last step under § 32.06(2a) is for the
the
matter
to
for
commissioners
32.06(8)
is
the
a
referenced
chairperson
hearing
in
of
the
under
county
§ 32.06(8).
§ 32.28(3)(d),
governing
litigation expenses; § 32.28(3)(d) explicitly governs awards of
the condemnation commission under § 32.06(8).
¶28
The
other
route
is
for
the
condemnor
jurisdictional offer under Wis. Stat. § 32.06(3).
to
make
a
This route
begins with the condemnor getting an appraisal under § 32.06(2).
If
the
parties
§ 32.06(2a),
the
cannot
reach
condemnor
jurisdictional offer.
a
negotiated
presents
the
Wis. Stat. § 32.06(3).
price
condemnee
under
with
a
If the condemnee
accepts the jurisdictional offer, the condemnation process is
completed with a transfer of title.
Wis. Stat. § 32.06(6).
No
further litigation is contemplated.
¶29
If the condemnee rejects the jurisdictional offer, the
condemnor may proceed with a petition in condemnation before the
circuit court.
Wis. Stat. § 32.06(7).
The judge assigns the
matter of determining the amount of just compensation to the
chairperson
hearing
of
under
the
county
Wis.
Stat.
condemnation
§ 32.06(8).
12
commissioners
Section
for
32.06(8)
a
is
No.
referenced
in
§ 32.28(3)(d)
§ 32.28(3)(d)
explicitly
governing
governs
awards
litigation
of
the
2009AP2784
expenses;
condemnation
commission under § 32.06(8).13
¶30
Regardless of whether the parties proceed under the
negotiated price appeal route or the jurisdictional offer route,
the county condemnation commission and court procedures are the
same.
The circuit court concluded correctly that "the statutory
condemnation procedure offers two different routes to the same
destination."
¶31
The circuit court concluded that the plain language of
Wis. Stat.
§ 32.28(3)(d) "makes
litigation
expenses
under both of the litigation scenarios . . . ."
available
The circuit
court further concluded that a jurisdictional offer need not be
made;
"the
'prior
to'
language
of
§ 32.28(3)(d)
echoes
the
beginning words of § 32.06(2a), which requires that negotiations
be attempted '[b]efore making the jurisdictional offer.'"
Thus,
when § 32.28(3)(d) refers "to the jurisdictional offer or the
highest written offer prior to the jurisdictional offer,"
13
it is
Either party may appeal the award of the county
condemnation commission to the circuit court.
Wis. Stat.
§ 32.06(10). If a condemnation commission award is appealed to
the circuit court, then § 32.28(3)(f), (g), and (h) apply to
determine whether a condemnee receives litigation expenses.
Each subsection includes the language "or the highest written
offer prior to the jurisdictional offer."
Each scenario
presented by subsections (f), (g), and (h) can be reached either
through the negotiated price appeal route or the jurisdictional
offer route.
Our interpretation of "or the highest written
offer prior to the jurisdictional offer" can be consistently
applied to these subsections of Wis. Stat. § 32.28.
13
No.
2009AP2784
referring to the two routes——the jurisdictional offer route and
the negotiated price appeal route.
¶32
In
contrast,
the
court
of
appeals
based
its
interpretation on the text of Wis. Stat. § 32.28(3)(d), focusing
on the use of the article "the" in the phrase "The award of the
condemnation commission exceeds . . . the highest written offer
prior to the jurisdictional offer . . . ."
According to the
court of appeals, § 32.28(3)(d) provides for litigation expenses
only when there has been a jurisdictional offer.
¶33
Resting
its
decision
on
the
article
"the"
in
§ 32.28(3)(d), the court of appeals concluded: "The use of the
article
'the'
jurisdictional
anticipates
offer."14
that
there
is,
in
fact,
Because no jurisdictional offer
a
was
made in the present case, the court of appeals held that the
condemnees
were
not
entitled
to
litigation
expenses
under
§ 32.28(3)(d).
¶34
its
The court of appeals' emphasis on the article "the" in
interpretation
of
§ 32.28(3)(d)
cannot
be
consistently
applied in interpreting § 32.28(3) and § 32.06(2a).
¶35
The article "the" is used throughout § 32.06(2a), when
the article "a" or "an" might be more grammatically correct.
For
instance,
consider
the
§ 32.06(2a)
owner's
provides
appraisal
that
under
"the
sub.
condemnor
(2)(b)"
shall
(emphasis
added), although an owner may not always obtain an appraisal.
Likewise, the first words in Wis. Stat. § 32.06(2a) are: "Before
14
Klemm, 329 Wis. 2d 415, ¶10.
14
No.
2009AP2784
making the jurisdictional offer . . . " (emphasis added).
This
phrase cannot reasonably be interpreted to contemplate, in the
words
of
the
court
of
jurisdictional offer."15
appeals,
that
"there
is,
in
fact,
a
The plain objective of § 32.06(2a) is
that the parties come to a negotiated agreement such that a
jurisdictional offer is unnecessary.
Indeed, the condemnor is
required to negotiate with the owner before a jurisdictional
offer can be made.16
¶36
We have considered the interpretations of the circuit
court and court of appeals and the arguments of the parties.
We
are persuaded by the circuit court's interpretation of the text
and context of the statutes.
The court of appeals' emphasis on
the article "the" is too restrictive a reading of the statute;
the emphasis on "the" does not fit the statutory language in
§ 32.06(2a) (and elsewhere in chapter 32), which uses the phrase
"the jurisdictional offer" but does not require a jurisdictional
offer to materialize.
Furthermore, the emphasis on "the" is not
consistent with the legislative purpose of awarding litigation
expenses.
15
Id.
16
Warehouse II, LLC v. DOT, 2006 WI 62, 291 Wis. 2d 80, 715
N.W.2d 213 (§ 32.06(2a) requires that a condemnor negotiate with
the owner in good faith before issuing a jurisdictional offer);
Arrowhead Farms, Inc. v. Dodge County, 21 Wis. 2d 647, 651-52,
124 N.W.2d 631 (1963) ("[T]he condemnor stipulated that it did
not negotiate with the property owner as required by sec.
32.05(2a), Stats.
Because such negotiation is a necessary
condition of conferring jurisdiction upon the administrative
body and the court to determine just compensation, the judgment
would be invalid . . . .").
15
No.
¶37
We
conclude
that
reading
the
text
of
2009AP2784
Wis.
Stat.
§ 32.28(3)(d) in the context of § 32.06(2a) and the condemnation
statutes, as the circuit court did, is the appropriate method of
statutory interpretation.
provides
comprehensive
Chapter 32 of the Wisconsin Statutes
statutory
procedures
for
condemnation.
Wisconsin Stat. § 32.06 sets forth the condemnation procedures
used
in
the
present
case.
Wisconsin
Stat.
§ 32.28
governs
litigation expenses in chapter 32 proceedings.
¶38
Section 32.06(2a) sets forth a sequential process of
reaching
just
compensation.
Negotiations
under
Wis.
Stat.
§ 32.06(2a) must be attempted by the condemnor "[b]efore making
the
jurisdictional
offer . . . ."
Nothing
in
Wis.
Stat.
§ 32.06(2a) suggests that the legislature excluded owners from
recovering
litigation
§ 32.06(2a).
expenses
if
they
proceeded
only
under
Instead, § 32.06(2a) expressly allows the owner to
challenge the negotiated price through the same appeals process
established for owners who receive and reject a jurisdictional
offer.
¶39
The
text
of
§ 32.28(3)(d)
explicitly
governs
litigation expenses when condemnation awards are made by the
county
condemnation
commission
under
§ 32.06(8).
Both
the
negotiated price appeal route and the jurisdictional offer route
are
heard
by
the
county
condemnation
commission
under
§ 32.06(8).
¶40
Evaluating
§ 32.28(3)(d)
and
the
statutory
§ 32.06(2a)
language
within
the
of
Wis.
context
of
Stat.
the
comprehensive condemnation statutes, we conclude that an owner
16
No.
who
accepts
the
negotiated
price
under
2009AP2784
§ 32.06(2a),
timely
appeals that price, and subsequently receives an award from the
county condemnation commission that exceeds the thresholds under
§ 32.28
shall
interpretation
language
statutes.
of
be
is
awarded
consistent
the statutes
This
in
litigation
with,
the
interpretation
and
context
is
also
expenses.
supported
of
the
This
by,
the
condemnation
supported
by
the
legislative purpose of chapter 32 and Wis. Stat. § 32.28(3) and
by the legislative history.
IV
¶41
The legislative purpose of chapter 32 and specifically
of Wis. Stat. § 32.28(3) supports our interpretation of Wis.
Stat. §§ 32.06(2a) and 32.28(3)(d) that the condemnees in the
present case are entitled to litigation expenses.
¶42
Under the American Rule, litigants must pay their own
attorney fees unless there is a statute or enforceable contract
providing otherwise.17
part
of
just
Litigation expenses are not ordinarily
compensation.18
The
determination
of
whether
17
Kolupar v. Wilde Pontiac Cadillac, Inc., 2004 WI 112,
¶17, 275 Wis. 2d 1, 683 N.W.2d 58; Elliott v. Donahue, 169
Wis. 2d 310, 323-25, 485 N.W.2d 403 (1992).
18
Wieczorek v. City of Franklin, 82 Wis. 2d 19, 23, 260
N.W.2d 650 (1978); Martineau v. State Conservation Comm'n, 54
Wis. 2d 76, 85, 194 N.W.2d 664 (1972); W.H. Pugh Coal Co. v.
State, 157 Wis. 2d 620, 634-35, 460 N.W.2d 787 (Ct. App. 1990).
17
No.
2009AP2784
litigation expenses may be shifted is a matter of policy to be
determined by the legislature.19
¶43
To
assist
us
in
determining
the
meaning
and
application of Wis. Stat. § 32.28(3)(d), a litigation-expenseshifting statute, we explore the legislative purpose in awarding
litigation expenses under Wis. Stat. § 32.28(3).
¶44
The
court
has
concluded,
in
cases
in
which
a
jurisdictional offer was made and a condemnee asserted a right
to litigation expenses, that the litigation expense statute has
a dual
purpose.
The legislature's
dual
purpose
in
awarding
litigation expenses under the jurisdictional offer route is "(1)
to
discourage
the
condemnor
from
making
inequitably
low
jurisdictional offers and (2) to make the condemnee, who meets
the statutory requirements, whole."20
19
Wieczorek, 82 Wis. 2d at 23 ("The allowance of attorney's
fees in condemnation cases is a matter of policy to be
determined by the legislature . . . .").
Generally there is a "rule against taxation of costs
against the state in the absence of a statute expressly allowing
such taxation." Martineau, 54 Wis. 2d at 85.
20
Redev. Auth. of City of Green Bay v. Bee Frank, Inc., 120
Wis. 2d 402, 411,
355 N.W.2d 240
(1984)
(citing
Standard
Theatres v. DOT, 118 Wis. 2d 730, 741, 349 N.W.2d 661 (1984)).
In Warehouse II, 291 Wis. 2d 80, ¶33, the court concluded
that the purpose of chapter 32 "is driven by the legislative
decision to make condemnees whole through lightening the
financial burden of successful challenges and to discourage
inequitable jurisdictional offers during the exercise of the
extraordinary power of condemnation."
18
No.
¶45
The
same
dual
purpose
in
identified
2009AP2784
awarding
litigation expenses pursuant to Wis. Stat. § 32.28(3) in cases
in which a jurisdictional offer is made is applicable to the
present case in
taken.
It is
which the
unreasonable
negotiated
to
price
conclude
appeal
that
the
route
was
legislature
intended to treat better the contentious owner who forces the
condemnor to go through the hoops of a jurisdictional offer than
the
cooperating
route.
owner
who
takes
the
negotiated
price
appeal
Thus, the dual purpose of § 32.28(3)(d) may be stated as
follows:
Section
32.28(3)(d)
was
enacted
to
induce
the
condemnor to offer (whether under the negotiated price appeal
route or the jurisdictional offer route) just compensation or
reimburse the condemnee for litigation expenses associated with
an offer of compensation that is significantly less than just
compensation.
¶46
This statement of the dual purpose of § 32.28(3)(d) in
a negotiated price appeal case is in keeping with Warehouse II,
LLC v. State of Wisconsin Dep't of Transp., 2006 WI 62, ¶33, 291
Wis. 2d 80, 715 N.W.2d 213, in which the court summarized the
purpose of the entirety of
§ 32.28
as
"a
legislative
policy
choice to encourage condemnors to take seriously commencing a
condemnation action, to make fair jurisdictional offers and to
carefully follow the condemnation statutes."21
¶47
Although
the
Warehouse
II
court
examined
§ 32.28(3)(b), which allows litigation expenses when the court
21
Warehouse II, 291 Wis. 2d 80, ¶29.
19
No.
2009AP2784
determines the condemnor does not have the right to condemn the
property, the Warehouse II court nevertheless interpreted Wis.
Stat. § 32.28(3) as a whole and stated that the circumstances in
which condemnees
recover
litigation
expenses under
§ 32.28(3)
are those in which the condemnor has not made a reasonable offer
to the owner.
The court stated the underlying rationale of all
of the subsections of § 32.28(3) as follows:
[A]ll [are] directed at actions that significantly
short-change the property owner in some respect. For
example, in paras. (3)(d)-(i), if the compensation
offered by the condemnor was at least $700 and 15% too
low, the condemnee "shall" be awarded the reasonable
litigation expense incurred. . . . These paragraphs of
subsec. (3) level the playing field by shifting the
obligation to pay expenses that may have been
unnecessary
if
the
condemnor
shouldered
its
22
responsibilities properly.
¶48
In
a
similar
vein,
the
Warehouse
II
court
also
declared that "the overall purpose of the 1977 amendments was to
provide
more
specific
and
concrete
opportunities
to
recover
litigation expenses for condemnees with legitimate challenges to
the actions of condemnors."23
¶49
The condemnees in the present case have a legitimate
challenge to the price offered by ATC.
¶50
We
conclude
that
our
interpretation
of
Wis.
Stat.
§ 32.28(3)(d) comports with the legislative purpose in awarding
litigation
expenses
litigation
expenses
22
to
Wis.
the
Stat.
§ 32.28(3).
condemnor,
Id., ¶22.
23
under
Id., ¶33.
20
whether
Shifting
under
the
No.
2009AP2784
negotiated price appeal route or the jurisdictional offer route,
ensures that the condemnee need not bear the cost of obtaining a
fair amount of compensation for the property taken.
litigation
expenses
in
the
present
case
An award of
discourages
the
condemnor from offering an inequitably low negotiated price and
makes
the
condemnee,
who
meets
the
statutory
requirements,
whole.
V
¶51
The
legislative
history
of
§ 32.28(3)(d)
gives
some
support to our interpretation of Wis. Stat. §§ 32.06(2a) and
32.28(3)(d) that the condemnees in the present case shall be
awarded litigation expenses.
¶52
The eminent domain statutes were substantially revised
in 1977 by Laws of 1977, ch. 440, which was the culmination of
the work of the Legislative Council Special Committee on Eminent
Domain.
¶53
Prior
to
1977,
costs and attorney fees
condemnation
proceeding
the
statutes
only
when
after
the
a
permitted
condemnor
commission's
recovery
of
abandoned
the
award.24
The
statutes did not permit recovery when the purchase price was
negotiated or when a jurisdictional offer was too low.
¶54
Eminent
A goal of the Legislative Council Special Committee on
Domain
was
to
change
the
law
to
allow
litigation
expenses when a condemnee receives more money through an action
24
Wis. Stat. § 32.06(6)(a) (1975-76).
21
No.
or appeal than was originally offered.25
2009AP2784
An award of litigation
expenses was needed, according to the Special Committee, because
it was not fair that a condemnee had to pay the expenses of
litigation
to
receive
a
fair
and
reasonable
amount
of
compensation.26
25
See, e.g., Legislative Council Staff Brief 77-7, at 3, 4
(June 13, 1977):
Present Wisconsin Statutes do not permit recovery of
any costs or expenses where the purchase price is
negotiated or where the award of the condemnation
commissioners is accepted by the condemnee. The
condemnee bears his own expenses even when the circuit
court judge or jury find the jurisdictional award too
low.
. . . .
. . . [M]any landowners may settle out of court for
less than full compensation, in the knowledge that the
cost of obtaining a fair price may exceed the
difference between such price and the condemnor's
offer.
The intent of the attorney fee statutes is thus not to
encourage litigation, but to equalize the bargaining
position of condemnor and condemnee so that the
former's offers and settlements will more nearly
reflect full value.
Legislative Council materials are on file with the Wis.
Legislative Council and the Wis. Legislative Reference Bureau,
Madison, Wis.
26
See Legislative Council Report no. 77-28, at 5 (Dec. 12,
1977):
[T]he Bill awards statutory costs to the successful
party in condemnation actions . . . . The condemnee is
the "successful party" whenever the award of the
commissioners or verdict of the court exceeds the
jurisdictional offer. . . .
22
No.
¶55
Although
demonstrate
that
the
the
proceedings
purpose
of
of
the
Special
the
more
2009AP2784
Committee
robust
litigation-
expense-shifting statute is to allow condemnees to receive a
fair and reasonable amount of compensation, the materials speak
in
terms
of
jurisdictional
offers
and
jury
awards.
That
references are to jurisdictional offers and jury awards, and
that no reference is made to negotiated price appeals or to "the
highest written offer prior to the jurisdictional offer," is to
be expected because the only route to the county condemnation
commission or a jury was, under the Special Committee materials,
through the jurisdictional offer route.
did
not
propose
the
negotiated
price
The Special Committee
appeal
route
that
ultimately became part of the 1977 legislation.
The costs of condemnation actions are often a problem
when
the
condemnation
proceedings
involve
a
condemnation commission.
When the condemnee appeals
the basic award, the condemnation commission's award
is often higher than the jurisdictional offer. If the
condemnor then appeals, the jury verdict is often less
than the condemnation commission's award, although
still more than the basic award.
Under these facts,
the current statutes provide that the condemnee must
pay the costs of the appeal by the condemnor to the
court.
This Bill changes this result and requires the
condemnor to pay the costs of the condemnee's appeal
if either the award of the commissioners or the
verdict of the court is more than the jurisdictional
offer. The Bill thus assures that the condemnee need
not bear the cost of obtaining a fair amount of
compensation for property taken.
Legislative Council materials are on file with the Wis.
Legislative Council and the Wis. Legislative Reference Bureau,
Madison, Wis.
23
No.
¶56
2009AP2784
Accordingly, the legislative history evidenced by the
material of the Legislative Council Special Committee on Eminent
Domain does not enlighten us about the legislature's intended
meaning of the language "or the highest written offer prior to
the jurisdictional offer."
¶57
The legislative drafting record of ch. 440 of the Laws
of 1977 provides some guidance about the meaning of the language
"or
the
highest
written
offer
prior
to
the
jurisdictional
offer," as it relates to an action arising from the negotiated
price appeal route.
¶58
The legislature added both the negotiated price appeal
route in Wis. Stat. § 32.06(2a) and the language "or the highest
written
offer
prior
to
the
jurisdictional
offer"
in
§ 32.28(3)(d).
¶59
Assembly
Representative Francis J. Lallensack, a member of the
Highway
Committee,
asked
the
Legislative
Reference
Bureau to draft an amendment to § Wis. Stat. § 32.06(2a) adding
the negotiated price appeal route.27
27
Assembly
§ 32.06(2a):
Amendment
8
added
the
following
language
The condemnor shall record any conveyance by or on
behalf of the owner of the property to the condemnor
executed as a result of negotiations under this
subsection with the register of deeds of the county in
which the property is located.
The condemnor shall
also record a certificate of compensation stating the
identity of all persons having an interest of record
in the property immediately prior to its conveyance,
the legal description of the property, the nature of
the interest acquired and the compensation for such
acquisition.
The condemnor shall serve upon or mail
24
to
No.
¶60
Special
2009AP2784
Thomas S. Hanson, who had been the chairperson of the
Committee,28
and
Representative
Carl
Otte29
asked
the
Legislative Reference Bureau to draft an amendment adding the
words "or the highest written offer prior to the jurisdictional
by certified mail to all persons named therein a copy
of the statement and a notice of the right to appeal
the amount of compensation under this subsection. Any
person named in the certificate may, within 2 years
[subsequently amended to "6 months"] after the date of
its recording, appeal from the amount of compensation
therein stated by filing a petition with the judge of
the circuit court of the county in which the property
is located for proceedings to determine the amount of
just compensation.
Notice of such petition shall be
given to all persons having an interest of record in
such property.
The judge shall forthwith assign the
matter to the chairperson of the county condemnation
commissioners for hearing under sub. (8).
The
procedures prescribed under subs. (9)(a) and (b),
(10), (12) and 13 [subsequently amended to "subs.
(9)(a) and (b), (10), and 12 and chs. 808 and 809"]
shall govern such appeals. The date the conveyance is
recorded shall be treated as the date of taking and
the date of evaluation.
The amendment also added substantially similar language to
32.05(2a).
See drafting request for Assembly Amendment 8 in drafting
record for Laws of 1977, ch. 440, on file with the Wis.
Legislative Reference Bureau, Madison, Wis.
28
See Legislative Council Report no. 77-27, at ii (Sept.
19, 1977).
Legislative Council materials are on file with the Wis.
Legislative Council, and the Wis. Legislative Reference Bureau,
Madison, Wis.
29
See drafting request for Assembly Amendment 6 in drafting
record for Laws of 1977, ch. 440, on file with the Wis.
Legislative Reference Bureau, Madison, Wis.
25
No.
2009AP2784
offer" to Wis. Stat. § 32.28(3)(d) (and to other paragraphs of
subsection § 32.28(3)).
¶61
Nothing
in
the
legislative
history
clarifies
the
impetus for these amendments.
¶62
There is nothing explicit in the drafting records that
suggests that the creation of the negotiated price appeal route
in § 32.06(2a) is tied to the words "or the highest written
offer
prior
to
§ 32.28(3)(d).
amendments
the
jurisdictional
offer"
in
Wis.
Stat.
Nevertheless, the legislature adopted the two
contemporaneously,
and
we
may
surmise
that
the
legislature intended to include condemnees who enforced their
statutory
rights
under
the
negotiated
price
appeal
route
in
§ 32.06(2a) under the words "or the highest written offer prior
to the jurisdictional offer" in Wis. Stat. § 32.28(3)(d).
¶63
provides
The legislative history of the two revisions to ch. 32
no
§ 32.28(3)(d)
evidence
as
contrary
providing
to
our
condemnees
interpretation
litigation
of
expenses
regardless of whether the negotiated price appeal route or the
jurisdictional
offer
price
route
is
used
to
get
a
county
condemnation commission determination of just compensation.
¶64
We conclude that the limited legislative history gives
some support to our interpretation of the statutory language to
provide condemnees litigation expenses when the owner agrees to
a price with a condemnor under Wis. Stat. § 32.06(2a); timely
appeals; and receives an award that is at least $700 and 15%
greater than the negotiated price; and neither party appeals the
commission's award.
26
No.
¶65
2009AP2784
This interpretation comports not only with the text
and the text viewed in the context of the condemnation statutes,
but
with
the
negotiations
legislature's
and
providing
purpose
owners
with
of
full
promoting
fair
compensation
for
property taken through the condemnation process.
VI
¶66
Before we wrap up, we address several arguments ATC
makes criticizing the circuit court's and our interpretation of
Wis. Stat. §§ 32.06(2a) and 32.28(3)(d) that the condemnees in
the present case shall be awarded litigation expenses.
¶67
ATC
asserts
that
an
interpretation
that
allows
condemnees who accept a negotiated price to recover litigation
expenses
does
negotiation.
not
comport
with
the
purpose
of
good
faith
ATC contends that the condemnees in the present
case did not negotiate with ATC, and that if the condemnees in
the
present
case
did
not
think
that
its
offer
was
just
compensation then they should have negotiated and should not
have agreed to the price.
¶68
We agree with ATC that the condemnees in the present
case did not exhaust the options that the statutes provide them
to more effectively negotiate just compensation.
For instance,
the condemnees did not get their own appraisal at the expense of
ATC prior to agreeing on a price.
The condemnees did not submit
a counter-offer.
¶69
That the condemnees in the present case did not use
all of the procedures available to them to negotiate a price
does not support ATC's conclusion that the statutes prevent the
27
No.
2009AP2784
condemnees (and all other property owners reaching a negotiated
price) from recovering litigation expenses when the condemnation
award is $700 and 15% higher than the negotiated price.
The
statute provides that the condemnor shall record any conveyance
by
the
owner
"executed
as
a
result
of
negotiations."
By
recording the conveyance, ATC appears to have indicated that the
conveyance
and
the
certificate
of
conveyance
compensation were the result of negotiations.
stating
the
If the condemnor
is not satisfied that the compensation was determined by good
faith
negotiations,
the
condemnor
can
make
a
jurisdictional
interpretation
of
Wis.
to
the
with
that
offer.
¶70
Stat.
ATC
also
suggests
§ 32.28(3)(d)
jurisdictional
assertion.
In
that
renders
offer"
our
the
surplusage.
the present
case
phrase
We
there
"prior
disagree
was
no
jurisdictional
offer, yet the highest written offer presented to the plaintiffs
occurred
prior
to
any
jurisdictional
offer,
just
as
the
negotiations occurred "before making the jurisdictional offer,"
the beginning words of § 32.06(2a).
¶71
will
ATC further contends that the interpretation we reach
encourage
litigation
and
will
increase
condemnation for the State and other condemnors.
the
cost
In turn, this
added cost will be borne by the taxpayers or ratepayers.
asserts that our interpretation is bad public policy.
28
of
ATC
No.
¶72
Fee
shifting
owners that they will
may
encourage
have
access
litigation
to
2009AP2784
by
ensuring
representation
if
they
interpretation
that
believe the condemnor's offer is inequitable.30
¶73
allows
While
it
condemnees
is
to
axiomatic
recover
that
an
litigation
expenses
provides
a
greater opportunity for condemnees to exercise their statutory
right to appeal a negotiated price and will increase the costs
of
condemnation,
interpretation
we
is
disagree
not
with
commensurate
established by the legislature.
ATC's
with
assertion
the
that
public
this
policy
The legislature was advised of
the potential fiscal impacts of enacting additional fee-shifting
statutes in favor of condemnees.31
That these increased costs
are warranted is a decision for the legislature.
¶74
will
Further, we are not persuaded that our interpretation
open
process.
the
floodgates
for
litigation
in
the
condemnation
First, as ATC itself acknowledges, in the majority of
cases in which the condemnee and condemnor reach a negotiated
settlement,
the
property
owner
is
satisfied
received and there is no further litigation.
with
the
value
Second, property
owners recover litigation expenses only when the award is $700
and 15% higher than the offer.
In many instances, owners will
30
"[A]n important purpose of fee-shifting statutes is to
encourage injured parties to enforce their statutory rights when
the cost of litigation, absent the fee-shifting provision, would
discourage them from doing so." Kolupar, 303 Wis. 2d 258, ¶55.
31
See DOT Fiscal Estimate to 1977 A.B. 1077, at 6, 9,
drafting record for 1977 ch. 440, available at the Legislative
Reference Bureau, Madison, Wis.
29
No.
2009AP2784
be reluctant to take the risk that the award will not reach
these
thresholds,
in
which
case
they
must
pay
their
own
litigation expenses.
¶75
ATC suggests that as a result of our interpretation
today, condemnors will present initial offers that exceed the
just compensation value because of the specter of litigation
expenses if the condemnor misses the mark.
In other words, ATC
argues
skew
that
their
initial
offers higher than the actual value of the property.
Such a
result
policy
would
underlying
condemnors
not
eminent
be
will
in
consistently
keeping
domain——that
with
the
legislative
compensation
must
be
just
in
regard to both the owner and the public.32
¶76
At the same time, the legislature has recognized that
condemnors have an overwhelmingly strong bargaining position and
by statute have tried to level the negotiating power between
condemnors
and
owners
to
discourage
condemnors
from
offering
inequitably low compensation and to ensure that owners receive
just
compensation
expenses
to
a
for
property
condemnee
if
the
taken.
Awarding
compensation
that
litigation
has
been
offered is too low is one means the legislature has adopted to
32
City of Milwaukee Post No. 2874 Veterans of Foreign Wars
of U.S. v. Redev. Auth. of the City of Milwaukee, 2009 WI 84,
¶¶50-51, 319 Wis. 2d 553, 768 N.W.2d 749.
30
No.
foster just compensation.33
2009AP2784
Awarding litigation expenses has the
same function in both the negotiated price appeal route and the
jurisdictional offer route:
to encourage condemnors to be fair
and reasonable in calculating just compensation and to make the
owner whole.
¶77
Valuation is not an exact science, and we acknowledge
that litigation expenses may dwarf the difference between the
compensation offered and that eventually awarded.
We do not
doubt that our interpretation of the litigation-expense-shifting
statute will factor
into
the
calculus
presenting
written
offers
process.
If
legislature
the
in
the
made
by
negotiation
concludes
that
condemnors
stage
we
in
of
the
have
not
correctly interpreted Wis. Stat. § 32.28(3)(d), the legislature
may amend the statutes.
¶78
Finally, ATC argues that if the court concludes that
Wis. Stat. § 32.28(3)(d) applies in the present case, the court
must address an additional issue.
The court must determine,
according to ATC, the starting point for awardable litigation
expenses under Wis. Stat. § 32.28(1), which provides that the
owner is not entitled to litigation expenses incurred prior to
33
The legislature adopted several provisions intended to
equalize the bargaining positions between the parties.
For
example, the legislature has provided that a condemnor must
share its appraisal with the owner, pay for a second appraisal
by a qualified appraiser of the owner's choosing, and provide
the names of other owners to whom offers have been made. Wis.
Stat. § 32.06(2), (2a).
31
No.
2009AP2784
the need to "prepare for or participate in actual or anticipated
proceedings before the condemnation commission."
¶79
The date of the jurisdictional offer has been viewed
as an appropriate date of demarcation from which expenses are
necessary to prepare for or participate in actual or anticipated
proceedings.34
The jurisdictional offer is, according to case
law, an "official completive action" from which litigation can
be anticipated.
¶80
ATC
contends
that
when
a
there
completive
action"
negotiated
price.
The
equivalent
"official
completive
is
condemnor
circuit
no
and
court
action"
similar
"official
condemnee
determined
under
the
reach
that
a
the
negotiated
price route is provided by Wis. Stat. § 32.06(2a), namely "when
the
parties
agree
on
a
price
and
the
condemnor
records
the
conveyance and the certificate of compensation; from that point,
the condemnee has 6 months to file an appeal; at that point,
proceedings before the commission can be anticipated."35
34
See D.S.G. Evergreen F.L.P. v. Town of Perry, 2007 WI App
115, ¶17, 300 Wis. 2d 590, 731 N.W.2d 667; Kluenker v. DOT, 109
Wis. 2d 602, 606, 327 N.W.2d 145 (Ct. App. 1982).
35
The circuit court examined the following language from
Kluenker:
Since there is no official completive action in a
condemnation case until the jurisdictional offer, it
follows that a condemnee cannot be certain of a
condemnor's position until that juncture.
Only then
does the expectation of appeal to a commission accrue,
not when the preliminary negotiations are set in
motion
which
may
or
may
not
ultimately
prove
unsatisfactory.
32
No.
¶81
We
need
not,
and
therefore
do
not,
2009AP2784
determine
the
"official completive action" in a negotiated price appeal like
the present case.
The parties in the instant case stipulated to
the amount of litigation expenses to be awarded the condemnee
following the circuit court's award of litigation expenses to
the condemnee.
Because the issue of determining the specific
"official completive action" from which time litigation expenses
may be awarded is not presented by the facts of the present
case, we do not address the issue.
¶82
the
In sum, the arguments of ATC do not persuade us that
circuit
court's
and
our
interpretation
of
Wis.
Stat.
§§ 32.06(2a) and 32.28(3)(d) is wrong.
* * * *
¶83
We have examined the texts of Wis. Stat. § 32.06 and
§ 32.28(3)(d)
(the
statutes
at
issue),
the
statutes
in
the
context of the condemnation statutes, the legislative purpose of
awarding
litigation
expenses,
§§ 32.06 and 32.28(3)(d).
and
the
legislative
history
of
Upon such review, we conclude that
litigation expenses shall be awarded to an owner pursuant to
Wis. Stat. § 32.28(3)(d) if the owner conveys the property and
receives a certificate of compensation pursuant to § 32.06(2a),
with
no
jurisdictional
offer
issued
under
§ 32.06(3);
timely
appeals to the circuit court, which refers the matter to the
chairperson
of
the
county
condemnation
commissioners;
and
is
awarded at least $700 and at least 15% more than the negotiated
Kluenker, 109 Wis. 2d at 606.
33
No.
price
under
commission's
§ 32.06(2a);
award.
We
and
neither
consider
but
party
are
2009AP2784
appeals
not
persuaded
the
by
various arguments ATC makes criticizing the circuit court's and
our interpretation of Wis. Stat. §§ 32.06(2a) and 32.28(3)(d)
that
the
condemnees
litigation expenses.
in
the
present
case
shall
be
awarded
Accordingly, we reverse the decision of
the court of appeals.
By
the
Court.—The
decision
reversed.
34
of
the
court
of
appeals
is
No.
1
2009AP2784
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