Klemm v. American Transmission Co.
2011 WI 37
Wis.2011Background
- ATC condemned the Klemm property for an electrical transmission easement under Wis. Stat. § 32.06(2a) and recorded a conveyance and a certificate of compensation at $7,750.
- The condemnees timely appealed the negotiated price; the circuit court referred the matter to the chairperson of the county condemnation commissioners for a hearing under § 32.06(8).
- The condemnation commission awarded $10,000, and a subsequent settlement of $30,000 was reached with no party appealing the commission’s award.
- Wis. Stat. § 32.28(3)(d) provides for litigation expenses when the commission’s award exceeds the prior offer by at least $700 and 15% and neither party appeals to the circuit court.
- The court of appeals held no litigation expenses were recoverable under § 32.28(3)(d); the supreme court reversed, holding that expenses may be recovered under the negotiated-price route when thresholds are met and no jurisdictional offer is issued.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 32.28(3)(d) allows litigation expenses in negotiated-price appeals without a jurisdictional offer | Klemm argues § 32.28(3)(d) applies only with a jurisdictional offer | ATC contends no recovery where no jurisdictional offer exists | Expenses are recoverable in negotiated-price appeals when thresholds are met and no jurisdictional offer is issued |
| How to interpret the phrase 'the highest written offer prior to the jurisdictional offer' in this context | Klemm argues the phrase requires a jurisdictional-offer context to trigger expenses | ATC argues the phrase restricts recovery to cases with a written offer prior to a jurisdictional offer | Interpretation must fit § 32.06(2a) context; 'written offer' includes the negotiated price certificate; no jurisdictional offer is needed for this route |
| Whether the dual purposes of § 32.28(3) support awarding expenses in negotiated-price cases | Klemm emphasizes policy to level bargaining and reimburse litigation costs when offer is too low | ATC claims broad fee shifting undermines negotiation and public policy | Dual purposes apply to both routes; expenses promote fair compensation and discourage inequitable offers |
Key Cases Cited
- Warehouse II, LLC v. State of Wisconsin Dep't of Transportation, 291 Wis. 2d 80 (WI 2006) (establishes general purpose of § 32.28 to encourage fair offers and condemnors to negotiate)
- Kolupar v. Wilde Pontiac Cadillac, Inc., 275 Wis. 2d 1 (WI 2004) (fee-shifting goals to encourage enforcement of eminent-domain rights)
- Juneau County v. Courthouse Employees, Local 1312, 221 Wis. 2d 630 (WI 1998) (statutory interpretation and public policy in wage-and-cost shifting contexts)
- State v. Martin, 162 Wis. 2d 883 (WI 1991) (statutory interpretation principles; avoid surplusage)
- City of Milwaukee Post No. 2874 Veterans of Foreign Wars of U.S. v. Redev. Auth. of the City of Milwaukee, 319 Wis. 2d 553 (WI 2009) (contextual discussions on litigation costs and public policy considerations)