Real Estate & Property Law

Wisconsin Supreme Court To Consider Litigation Expenses In Negotiated Condemnation Cases

By Robert Thomas (inversecondemnation.com)

According to this report, the Wisconsin Supreme Court has agreed to review Kelmm v. American Transmission Co., No. 2009AP2784 (Aug. 10, 2010) (a court of appeals' decision we noted here). In that case, the court of appeals held that in order to obtain litigation expenses under a state statute which provides that a property owner may recover expenses if a condemnation award exceeds the "jurisdictional offer" by at least $700 and at least 15%, there must be a "jurisdictional offer" made.

Wisconsin eminent domain procedure has a two-fold path, one of which results in a "jurisdictional offer," and the other a negotiated settlement. Either path can end up before the condemnation commission. ATC wanted to place an electricity transmission line across Klemm's land. Rather than fight the taking, the Klemms "agreed to the $7,750 compensation ATC offered in negotiations, with the understanding they had the right to appeal the amount." Slip op. at 1. They did, and the condemnation commissionmission awarded them $10,000. They asked for, and were awarded, litigation expenses pursuant to a statute which provides that litigation expenses shall be awarded if:

[t]he award of the condemnation commission under ... [Wis. Stat. §] 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%

Wis. Stat. § 32.28(3)(d).

The trial court concluded that "because either route leads to a commission hearing," if the property owner is successful in obtaining more compensation from the commission even though no jurisdictional offer was made, "the phrase 'the highest written offer prior to the jurisdictional offer' does not require that a jurisdictional offer actually be made." Slip op. at 5.

The court of appeals reversed, concluding the statute's requirement of a "jurisdictional offer" means just that: a jurisdictional offer must be made, and if the path chosen does not include such, the property owners are not entitled to litigation expenses.

The Klemms sought Supreme Court review and on January 28, 2011, the court agreed to take the case. The court's docket entry is here. We'll follow the case and post the briefs as they become available.

Full post as published by inversecondemnation on February 02, 2011 (boomark / email).