Warehouse II, LLC v. State Department of Transportation

II, LLC, The Warehouse Plaintiff-Appellant-Petitioner,

v. State of Wisconsin Department of Transportation,

Defendant-Respondent.

Supreme Court 28, argument September No. Oral 2003AP2865. Decided June 2006 WI 62 (Also 213.) reported 715 N.W.2d plaintiff-appellant-petitioner For there were Marcuvitz, briefs Alan Andrea H. Roschke and LLP, Michael Best & Friedrich Milwaukee, and oral argument by Alan Marcuvitz. argued defendant-respondent the cause was

For the attorney general, Magee, with assistant Pamela Lautenschlager, Peggy attor- A. was on the brief whom ney general. ROGGENSACK, J. This DRAKE PATIENCE requires Stat. decide whether Wis. to us

case (2003-04)1 § condemnee entitles a successful for the circuit when basis to ruling to failed that the condemnor in its favor is good court issuing negotiate faith before jurisdic- issuing prior negotiation a to faith Good offer.2 merely purchase3 a technical not offer to tional statutory obligation, fundamental, rather, it is but validly necessary requirement commence condemna- to jurisdiction com- the condemnation on confer tion and uncon- it is Therefore, because the courts. and mission (DOT) Transportation Department of tested that issuing good prior negotiate faith did not statu- did not commence offer, the DOT ais torily As condemnation condemnation. sufficient statutory procedure, lacked the purely the DOT II, LLC's condemn Warehouse statutes to under the (Warehouse) Accordingly, property. is en- Warehouse 32.28(3)(b), pursuant expenses litigation titled 32.28(1). reverse Therefore, we out as set appeals remand to the court of of the decision litigation ex- reasonable to determine court circuit penses. are to Statutes references to Wisconsin subsequent All indicated. otherwise unless

the 2003-04 version ruling not contested. circuit court's part This central is our the document refer to We sometimes Stat. as Wis. purchase," offer "jurisdictional focus as 32.05(3) as the simply refer to it does, we and sometimes (5) do. offer," as Wis. "jurisdictional

I. BACKGROUND undisputed. ¶ 2. The facts are The DOT com- proceedings against property- menced condemnation by jurisdic- owned Warehouse. After the DOT issued its purchase, challenged tional offer to Warehouse condemnation under Wis. Stat. in the Win- nebago County asserting Court,4 Circuit that because negotiate good prior the DOT had failed to faith issuing offer, it lacked the property. condemn Warehouse's ¶ evidentiary hearing; 3. The circuit court held an negotiated good ruled that the DOT had not faith; and purchase concluded that the DOT'S offer to subsequent was invalid and all DOT actions were null litigation expenses and void.5 It awarded Warehouse 32.28(3)(b). pursuant to Wis. Stat. Warehouse submit- litigation expenses ted an itemization of to the DOT pay. and the DOT refused to Warehouse then moved the pay. circuit court to order the DOT to However, after parties' positions, consideration of the the circuit court accepted the DOT's contention that the circumstances § 32.28(3)(b), of the case did not fall under so no 4 Judge William H. presided. Carver pertinent language from the circuit Findings court's Fact, Law, Conclusions of and Order Judgment is as follows: Offer, 1. Prior to the issuance of the Jurisdictional Defendant good negotiations,

did not enter required by into faith as sec. 32.05(2a), Stats. required good negotiations jurisdic- Because faith are a prerequisite tional to the power exercise of eminent domain under 32.05, Stats., sec. negotiations the absence of such causes the Jurisdictional Offer and all actions undertaken thereafter Defendant, including Damages, the Award of to be null and void. appealed; due. Warehouse were granted appeals affirmed; and we Warehouse's court petition for review.

II. DISCUSSION of Review A. Standard requires a statute us to construe review 4. Our Statutory interpre apply facts of the case. it to the application the facts found of a statute

tation and the questions deference that we review without of law are Reed, 53, 13, 280 2005 WI v. circuit court. State from However, we benefit 68, 695 N.W.2d315. 2dWis. previous v. analyses State courts' decisions. 2d 663 N.W.2d Cole, 12, 262 Wis. 59, 2003 WI statutory failing a directive to follow a defect in Whether question for of law a technical is also is fundamental Riegelman, WI independent 2002 v. review. our Schaefer 715. 494, 639 N.W.2d ¶ 2d 18, 25, 250 Wis. Offer

B. Jurisdictional 32.05(2a)6 requires that a Stat. 5. Wisconsin good property negotiate in owner with the condemnor purchase. jurisdictional issuing It offer to faith before purposes that the of this review not contested not do so. DOT did

6 32.05(2a) part: in relevant states Wisconsin condemnor shall making jurisdictional offer ... Before or one of the negotiate personally the owner attempt with to sought to be representative of the or her or his owners purchase same. of the taken for the Dodge County, Farms, In Arrowhead Inc. v. (1963), 647, 124 Wis. 2d N.W.2d631 we discussed the failing negotiate good making effect of faith before jurisdictional purchase. a explained offer to Id. at 651-52. We negotiation necessary

that "such is a condi conferring jurisdiction upon tion of the administrative body just compensa and the court to determine grounded requirement tion . . . ." Id. at 652. We good negotiation primary purpose statutory faith in a provide just compensation condemnation: to the property owner. Id. at 651.

¶ 7. In Herro v. Board, Natural Resources 53 Wis. (1971), 2d 192 N.W.2d 104 we reaffirmed that a negotiate jurisdictional issuing failure to before (citations offer is "a defect." Id. at 171 omitted). explained good We the nexus between faith negotiation prior issuing offer and ability power to exercise the of eminent domain:

[ U]nless there ais bona fide attempt part on the condemnor to induce the owner to sell the land at a figure, reasonable the condition under power which the granted fulfilled, is not any and in such case at tempted exercise of eminent domain is unauthorized and consequently void and of no effect.... (quoting

Id. Nichols, Eminent Domain at (3d ed.). examining negotiation efforts made Herró, provides we reiterated that ch. 32 the exclusive procedure including actions, the re quirement negotiate making jurisdictional before a purchase. offer Herro, 53 Wis. 2d at 171. ex We plained strictly portions that we construe the of ch. 32 apply by requiring that to condemnation that complete statutory condemnor steps all of the because

88 derogation law. Id. of the common condemnation is City (citing Tiedeman, 136, v. 1 Wis. 2d 83 Madison of (1957) High Corp. v. State 694 and Schroedel N.W.2d (1967)). way Comm'n, 32, 2d 148 691 34 Wis. N.W.2d disputed the DOT must It cannot that 9. be jurisdictional jurisdictionally offer to a sufficient issue purchase proceed statutory it before has property. of Wisconsin Stat. the condemnation with requirement. states, in It establishes part: relevant given. jurisdictional notice of offer

How jurisdictional requisite to a giving of is a such notice notice shall be called taking condemnation. ... Such "jurisdictional offer." jurisdictional every However, not defect purchase defect. Jurisdic offer is a 250 Schaefer, defects. tional defects are fundamental offer 494, defects 2d Other may merely purchase In See id. technical defects. be defect, the level a fundamental order to rise to underlying purpose" go "primary error must to the required id., ¶¶ 26, 28 See action. statute Royal Family (citing Co. v. Ins. Co. Am. Mut. Ins. (1992); Am., 524, 533, 2d 481 N.W.2d 629 167 Wis. Schlumpf Yellick, 504, 2d 288 834 v. 94 Wis. N.W.2d (1980)). defect, a technical to a fundamental contrast underlying primary purpose go does not to the defect prejudice statutory process, not and if it does opposing party, to cause dismissal it insufficient (citing 494, ¶ 2d Schaefer, 250 Wis. the action. 396, Prods., Inc., 198 Wis. 2d v. La Crosse Gaddis (1996)). N.W.2d analysis The of whether a defect is funda- important mental or technical is our to consideration of argument City Franklin, the DOT's that v. Wieczorek of (1978), 82 Wis. 2d 260 N.W.2d 650 controls property Wieczorek, outcome in this In case. owners city's right property. contested to condemn their Id. they presented at 20. After had case, their the circuit granted judgment court owners' favor jurisdictional purchase. a because of defect in the offer to Id. at 20-21. The defect was the failure a to include 32.05(3)(c) "proposed occupancy," date of as Wis. requires. right Id. at 21. The Wieczoreks claimed the to litigation expenses based on that defect. Id. at 22. The city argued jurisdictional purchase that the offer to had only "procedural by issuing a defect" that could be cured jurisdictional an amended therefore, offer and the Wiec- attorney no zoreks had to fees. Id. at 22. we While directly did not state that the failure a to indicate proposed occupancy procedural date of was a we defect, quoted Land, United States v. 4.18 Acres 542 F.2d 786 of (9th 1976) approval procedural Cir. with where error was held be insufficient to sustain an of award attorney fees under federal condemnation statute. Wieczorek,82 2d Wis. at 25. City Bassinger, ¶ 12. Racine v. 2d of (Ct. 1991), App.

1029, 473 N.W.2d 526 court appeals explained possible variety that it was to have a procedural proceedings, defects in condemnation some of which were some which appeals quoted were not. The court of the circuit court approval saying: with as procedural

The steps [in which other have cases] been found be in condemnation proceedings features in common. significant all have two first they particular statute are contained within is, procedure, the condemnation [that] sets forth exercise things [that] must be done have eminent domain power acquire property the to case. The second that the statute particular each is the of the condem- power or denies expressly impliedly taken, no particular the step to act unless is nor a to for failure statutory remedy provided is other only remedy step. [that] perform particular itself under Sec. challenge is to the condemnation exists 32.06(5), Stats. Wis. (footnote original). emphasis omitted; Id. at 1036-37 apply reasoning persuasive. it to When we This is failing procedural Wieczorek, we conclude that error juris- proposed occupancy a a of is not to include date 32.05(3)(c) requires dictional defect. While Wis. jurisdictional proposed indicate a date offer to only stating "proposed occupancy, a that task relates to occupancy goes proposed Indicating to a date of date." primary power nor a to act to the condemnor's neither providing just procedure, purpose of the property compensation Arrowhead owner. See to Farms, at 21 Wis. 2d 651-52. failing proposed date of Therefore, to a state failing comparable

occupancy enter into not issuing good negotiation a faith before primary purpose explained, offer. As we have negotiation to achieve a consensual sale compensation property property owner. to the with fair negotiation Herro, 2d faith See at 171-73. Good by a decision that are not forced court facilitates sales power rather, domain, but on the of eminent based negotiation. through Be- arrived at consensual sales achieving compensation property cause fair driving owner is the force behind the condemnation failing negotiate prior issuing jurisdic- statutes, legislative tional offer strikes at heart of that purpose. By failing proposed contrast, to list a date of occupancy primary legislative does not undermine the purpose drives the condemnation statutes: a- chieving just compensation property for the owner. prejudiced by Furthermore, Wieczoreks were not proposed occupancy jurisdic- the lack of a date Accordingly, tional offer. we conclude defect in purchase offer to in Wieczorek was only procedural a technical, such, defect. it As had no statutory right effect on the to condemn the and does not control our decision in this matter. C. Wisconsin Stat. 32.28(3)(b)

¶ 14. Wisconsin Stat. is a fee- shifting interpret statute. it We to determine whether challenge successful to a purchase litiga offer to entitles the owner to 32.28(3)(b). expenses tion meaning under To ascertain the employ principles statute, of a we well-known statutory interpretation. purpose "faithfully Our to is give legislature." effect to the laws enacted State County, ex rel. Kalal Circuit v. Court Dane 2004 WI ¶58, 44, Wis. 633, 2d 681 N.W.2d110. We defer to policy legislature choices of the assume we legislature's expressed statutory intent is language Id., ¶ it chose. 44. "Statutory language given

¶ 15. common, is its ordinary, accepted meaning, except that technical given phrases specially-defined or are their words or meaning." special Id., ¶ If 45. definitional technical plain, meaning language used in a statute is ordinarily stop inquiry. our Id. we

¶ of a 16. the structure statute Context and important language appears operative are which meaning. plain determining Therefore, a statute's statutory interpreted language is in relation to the language surrounding Id., ¶ of the statute. 46. Statu- give tory language "to reasonable also should be read surplusage." every If word, in to avoid Id. effect to order plain statutory meaning, analysis yields a and clear this unambiguous, apply it and we then the statute meaning. according Id. this ascertained ambiguous ¶ if However, a the statu 17. statute reasonably gives tory language to two or more rise meanings. plain Id., A that is on 47. statute different ambiguous by may its interaction its face also be made White, 193, 198, 2d other State v. 97 Wis. with statutes. (1980). ambiguous, we N.W.2d 346 If statute is legislative may sources, such as his turn to extrinsic meaning tory, Kalal, to ascertain the the statute. 2d in rel- states Wisconsin part: evant 814, litigation expenses costs under ch. lieu of be to the condemnee if:

shall awarded (b) that the condemnor does The court determines or all of the right part the to condemn not have or offer there is property described the necessity taking. for its no 32.28(3)(b) provides litigation expenses

Section for property prevails proving when a owner either that the condemnor does not have "the to condemn" or necessity taking." that "there no its Whether proven Warehouse that the has DOT did not have the "right to is at condemn" issue here. begin by assessing positions

¶ 19. We of both parties. interpret We conclude that it is reasonable to fee-shifting provisions 32.28(3)(b), of Wis. Stat. as requiring advocates, Warehouse as a court determina- "right tion that the condemnor does not have the particular property condemn" a at that time. Under interpretation, Warehouse's a successful condemnee challenging particular a condemnation could receive litigation expenses, even when the condemnor could eventually issue a offer that is sufficient property. interpretation to condemn the This turns on concept only jurisdictional offer issued after good negotiation statutorily sup- faith sufficient to port power of eminent otherwise, domain. Stated good negotiation prerequisite faith is itself a statutory right condemnor's to condemn.

¶ 20. We also conclude it is reasonable to interpret "right condemn," advocates, as DOT require a court determination that the condemnor permanently ability particular lacks to condemn a property, before can be awarded. interpretation, only types Under that of claims for parties litigation which successful would receive ex- penses under would be those in condemning authority which a court determined permanently prerequisite lacked some to an eminent taking, e.g., purpose taking domain an invalid for the inability question. an to condemn the "right Accordingly, to con- that the term we conclude 32.28(3)(b) ambiguous § can it is because demn" of ways. reasonably interpreted However, also we be both interpretations are not neces- that these conclude two mutually sarily view, In our effect the ^exclusive. analy- deficiency procedure the controls claimed sis. § undisputed It is that Wis. Stat. fee-shifting we examine the context statute. When 32.28(3)(b), § legislature placed can we

in which the meaning "the to condemn." better ascertain 32.28(1) Section states: section, the sum "litigation expenses"

In this means including costs, expenses, disbursements attorney, engineering fees appraisal reasonable in actual or necessary prepare participate for or com- the condemnation anticipated proceedings before missioners, any under this board court of assessment chapter. expansive expenses that a a more list of

It sets out 32.28(2). § could incur than those listed condemnee 32.28(2) states: Section (3), be al-

Except provided as in sub. costs shall this any brought ch. 814 in action under under lowed just compensation found If the amount of chapter. of condemnation exceeds court or commissioners highest prior written offer jurisdictional offer or the offer, be shall condemnee 814.02(2). under s. party deemed the successful only permits ¶ 22. Wisconsin (3)(a)-(i) paras. However, of 32.28 ch. costs. usual awarding general rule of circumstances when the list party applied only prevailing is not ch. 814 costs to the 32.28(1)7 and the litigation set out in expenses are awarded. The occasions where the owner awarded more incurred in expenses an contesting ac- (3) The other identify sections of subsection following particular types of actions and circumstances for which fee- shifting occurs:

(a) proceeding by condemnor; The is abandoned the (c) judgment plaintiff The is for the in an action under s. 32.10;

(d) The award of the condemnation commission under s. 32.05(9) 32.06(8) jurisdictional or highest exceeds the offer or the prior jurisdictional by written offer to the offer $700 at least and at party appeals least 15% and neither court; the award to the circuit (e) jury 32.05(11) approved by The verdict as the court under s. jurisdictional exceeds highest prior offer or the written offer jurisdictional by 15%; offer at least $700 and at least (f) appeals The condemnee an award of the condemnation jurisdictional commission which highest exceeds the offer or the prior jurisdictional written by offer to the offer at least $700 and at 15%, jury approved least if by verdict as the court under s. 32.05(10) 32.06(10) or exceeds the award of the condemnation by 15%; commission at least $700 and at least (g) appeals The condemnor the award of the condemnation commission, jury approved by if the verdict as the court under s. 32.05(10) 32.06(10) jurisdictional or exceeds the offer or the highest prior jurisdictional written offer by to the offer at least 15%; and $700 at least (h) appeals The condemnee an award the condemnation jurisdictional commission which does not exceed the offer or the highest prior jurisdictional written by 15%, offer to the offer if the jury 32.05(10) approved by verdict as the court under s. or exceeds the highest offer prior or the written offer by 15%; offer at least and $700 at least (i) appeals damages condemnee an assessment of 32.61(3), judgment benefits under s. if the $700 at least and at greater least by city. 15% than the award made by directed at actions are all a condemnor tion taken short-change significantly owner (3)(d)-(i), paras. example, respect. if the For some by compensation was at least the condemnor offered "shall" be low, too the condemnee and 15% $700 incurred. reasonable awarded (3)(a) (3)(c), litigation expenses paras. are awarded condemnation it either started a condemnor when the begun or the not have it should later determined proceed- commence condemnation did not condemnor ings (3)(b) Paragraph it have done so. when should legislative it part fee-shift, but sets decision to of that fee-shifting trigger in more circumstances that out general e.g., that the concludes terms, when the court or that there is to condemn" lacks "the condemnor taking." paragraphs necessity of sub- These for its "no (3) shifting obligation playing field level the sec. unnecessary may if pay expenses been have properly. responsibilities its had shouldered condemnor right here is is at issue to condemn that 23. The 32.06(5). 32.05(5) §§ There, in Stat. also used Wis. legislature the for relief when claims established right to condemn. Section not have the does condemnor 32.05(5) right pertains for sewers to condemn to the transportation in circumstances facilities, rights are All of these claim arises. Warehouse's which statutory rights. 32.05(5) § in relevant states 24. Wisconsin Stat.

part: right of the condem- to contest

If an owner desires jurisdic- in the property described nor to condemn the amount offer, any reason other than tional the owner inadequate, offered is compensation in the circuit court.... an action may ... commence 32.05(5) Section uses identical to that of terms 32.28(3)(b) § regarding right condemn, i.e., "right" of the condemnor to condemn the permits in described offer. It a con- challenge statutory right demnee to for reasons inadequate compensation. other than an offer of As we (3)(d)-(i) explained § paras. above, of 32.28 all involve (3)(a)-(c) inadequate compensation. Paragraphs do not. general any statement "for reason other than" in 32.05(5), § must be read to exclude from claims that 32.05(5) may § brought be under those claims described (3)(d)-(i). paras. (3)(a), para. That leaves abandon (3)(b), para. "right ment, and the lack of the to con permitted by demn," that could fall within claims 32.05(5).8 § parallel wording "right" noteWe § "right" to condemn in and the to condemn in 32.28(3)(b). They part statutory are both of a common they scheme, and we therefore assume refer to the same quality. City County, See Milwaukee v. Milwaukee (1965). 53, 59, Wis. 2d 133 N.W.2d 393 This appears statutory right to us to abe that cannot be jurisdiction. invoked without legislative history underly- ¶ 25. We now turn to ing the eminent domain statutes to see if it sheds light pro- further on whether Wis. Stat. litigation expenses vides when the offer negotiate good prior invalid due to a failure to faith issuing legislative history, particularly it. The regard to the 1977 revision to ch. demonstrates that 32.28(3)(c) We do not address Wis. Stat. actions for inverse brought condemnation that are under Wis. Stat. 32.10, but we note the court of appeals has concluded that § litigation actions under 32.10 are to expenses receive under 32.28(3)(c). Racine, § Maxey Redevelopment v. Auth. 120 Wis. of (Ct. 1984). 13, 20, 2d App. N.W.2d legislature's purposes in that revision was to one of the types in which con- of circumstances increase the litigation expenses. would receive demnees begin pre-1977 with the version 26. We expenses relating litigation in condemnation statute 32.05(5) § final sentence of Wis. Stat. actions. The (1973), It had 244, ch. Laws of 1971. was added provided: applicability as it limited judgment If the court is that the condemnor of final jurisdic- in described cannot condemn offer, award the owner judgment shall also tional opinion in the of the court reimburse such sum as will costs, disbursements the owner for his reasonable including attorney engineer- expenses reasonable action of the actually incurred because of the ing fees not, in condemnor, judgment shall addition but disburse- thereto, the owner taxable costs and award ch. 271. pursuant ments added.) Assembly

(Emphasis Bill 1977, November the above sentence introduced. It removed 1077 was 32.05(5) § § 32.28, "Costs." and created Wis. Stat. from specified included what was to be The new section 32.28(1), generally litigation and that costs costs, proceedings were to follow the usual eminent domain 32.28(2). out in ch. rules for costs set excep- created nine revisions also 27. The 1977 only general are ch. 814 costs rule that tions to They closely parallel paragraphs nine allowed. today. exceptions that exist Wis. Stat. expanded opportunities general rule on costs they when were success- to be made whole condemnees legisla- disputes. example, the For ful in condemnation challenges expanded fee-shifting to condemnees' ture pursuant transportation matters, to Wis. body other than 32.06(5), appeared a note that as original Additionally, bill indicates.9 while the 32.05(5) § provision granted in former Wis. Stat. discre- litigation expenses, tion to the circuit court to award provision the revised established a mandate10 that expenses paid any those be when the circumstances in (3) paragraph of subsec. of 32.28 are met. Further- 32.05(5) provision required more, the former in judgment" "final before the circuit court had the discre- litigation expenses. contrast, tion to award 32.28(3)(b) statutory language provides revised litigation expenses "[t]he if court determines that the right part condemnor does not have to condemn all of the described offer necessity taking," thereby or there no is for its elimi- nating requirement judgment be final before the The arises. ver- sion of created under the 1977 revision is any respect not different material from the current statute.11 legislature recognized expan-

¶ 28. The that its fee-shifting opportunities sion of would have a fiscal impact power on those entities that had the of eminent "Present s. requires the award of reasonable costs, expenses including attorney disbursements and and en gineering fees such cases. [bill] This extends the rule to Legislative actions under s. 32.06 .. .." Reference Bureau Drafting Record for 1977 A.B. 1077. normally The word "shall" mandatory. understood to be State, (1990) 612, 621-622,

C.A.K. v. 154 Wis. 2d 453 N.W.2d897 (citation omitted). only language difference between the in the 1977 version and the current the change wording version is (3): from subsec. "the litigation court shall award expenses" (1977) (3): "litigation awarded," subsec. expenses shall be pursuant to 1995 ActWis. The drafting

domain. record indicates the legislature considered the following:

Litigation. governments may sig- Local also incur changes nificant increased costs as a result of the which specify may four circumstances in which a condemnee "litigation expenses." receive reasonable Most of this likely cost increase appealed occur from cases where the condemnee receives an from award either the condemnation commission or circuit court that jurisdictional exceeds the offer at least 10%.The size possible of this increase is not to determine. ... addition, In coverage the broader of the sections relating to abandoned condemnation proceedings litigation challenges which either the condemnor's au- thority necessity taking to condemn or the of the also is likely government litigation increase local ... costs. in litigation increase costs for the Division of Highways, Department Transportation is estimated $2,000,000. in excess of This calculation is based on payments payments increased to owners and increased attorneys appraisers. for owners' As a result of Attorney discussions with members of the Wisconsin staff, General's we believe that a substantial increase activity litigation anticipated. should be 1077, 6, DOT Fiscal Estimate to A.B. at 9. 29. The 1977 amendments demonstrate a legis lative choice to condemnors to take policy encourage action, seriously commencing condemnation to make fair offers and to follow the carefully condemnation statutes. We have previously recognized these that underlie eminent domain policies legislation. Redevelopment Bay Frank, Inc., Auth. Green v. Bee (1984). 402, 411-12, 120 Wis. 2d 355 N.W.2d. 240 Frank, we held that under Wis. In Bee 30. 32.28(3)(d) of immovable fixtures tenant-owner prop- during condemnation of the taken that were building erty was entitled owner's for im- commission's award when the fix- the tenant's immovable fixtures exceeded movable portion Frank, 120 offer. Bee tures broadly interpreted Frank, 412-13. In Bee we 2d at (3)(d), holding legislature para. had a dual "(1) discourage enacting paragraph: intent jurisdic- making inequitably from low the condemnor (2) condemnee, meets make the who tional offers and statutory requirements, whole." Id. at heavily Frank, In we relied on Standard Bee DOT, Theatres, 2d Inc. v. 118 Wis. N.W.2d (1984), appeals' the court of in which we reversed attorney fees of the circuit court's award reduction explaining decision, we 32.28. our under Wis. Stat. said: against his or deprived property the owner is of

When will, justly not her it is obvious that the owner is or her if the must compensated property for his owner litigate in order to obtain the full initially be forced to land, pay for his or her value of the and then must attorney attorney full fees fees from this value. were, all, by after necessitated incurred here get the fair value of the owner's real attempt owner's Therefore, premise one must start from the estate. compensated attorney be for the fees. the owner is to words, make purpose other behind the statute is to "whole," through compensating the owner the owner attorney taken and for the property for the value of attempting fees incurred in to obtain this value. Id. 744-45. at expanded 32. The Bee Frank decision that ex-

planation:

While Standard Theatres specifically dealt with fees, attorney holding its clearly applicable to the litigation other expenses, 32.28(1), enumerated in sec. In permitting Stats. recovery litigation expenses, legislature sought provide the condemnee just with compensation by ensuring that he or she would not be part forced to use pay the award litigation expenses after a successful appeal. Frank,

Bee 120 Wis. 2d at 412. Bee Frank also rein- liberally statutory pro- forced our decision to construe regarding compensation visions takings for eminent domain property property

to favor the owner whose against (citing taken his her will. Id. at 409-10 Aero Parts, DOT, Auto Inc. v. 235, 241, 78 Wis. 2d 253 N.W.2d (1977)). Our liberal construction of condemnation favoring property grounded statutes in areas owners is entity our concern for the owner when an "extraordinary power" exercises the of eminent domain. Frank, Bee 2dWis. at 409. Accordingly,

¶ 33. we conclude the overall purpose provide of the 1977 amendments towas more specific opportunities litigation and concrete to recover expenses legitimate challenges for condemnees with purpose by the actions of condemnors. This is driven legislative decision to make condemnees whole through lightening the financial burden of successful challenges discourage inequitable and to during extraordinary power offers the exercise of the condemnation.12 policy This choice also is evidenced the abandonment

provision, 32.28(3)(a), Wis. Stat. where a condemnor could later commence an action to condemn the same property. that Wis. Stat. Therefore, conclude we jurisdic- applies the condemnor's when good purchase faith made after was not offer to

tional negotiations, causing jurisdictional thereby in defect jurisdictional jurisdictional purchase. This offer to statutory right lack the causes the condemnor defect if. were denied a condemnee note to condemn. We challenge to the a successful requirement, negotiation little to dis- there would be making courage a low-ball offer from a condemnor property money. filed a court owner When save claiming have the condemnor did not that the action property, "right could the condemnor to condemn" negotiate property and make a fair owner with the then expense with condemnor, but to the offer, with no added negotiate obligation property owner. a cost to the making property owner before with Kultgen property right owner, offer is a valuable (1958), for Mueller, 346, 349, 88 N.W.2d687 2d v. property to incur not be forced owner should which the attorney costs to and other court fees unrecoverable finally, conclude, as the DOT we to And were actualize. primary complying requests, a with we would not be purpose to ch. 32.13 of the 1977 revision interpreted we contends that because The dissent in right to condemn" mean "has no condemn" to phrase "cannot Franklin, 2d 260 N.W.2d 650 City 82 Wis. v. Wieczorek Dissent, the outcome of this case. (1978), controls Wieczorek merely a First, was disagree. the defect Wieczorek 42. We defect, here. present as is defect, not a technical Wieczorek, as we statute Second, interpreted a different we Third, Bureau's Legislative Reference above. explained have to the litigation costs due an increase Analysis anticipated under which a of circumstances increased number under the 1977 to condemn contest owner could

III. CONCLUSION good nego- sum, we conclude that faith prior issuing purchase tiation a offer to merely obligation, rather, is not a technical but it ais statutory requirement necessary fundamental, to val- idly jurisdiction commence condemnation and confer on the condemnation commission and the courts. There- it is fore, because uncontested that the DOT did not negotiate good issuing prior in faith statutorily offer,the DOT did not commence a sufficient statutory purely condemnation. As condemnation is a procedure, right the DOT lacked the under the statutes Accordingly, property. to condemn Warehouse's Ware- litigation expenses pursuant is entitled to house to Wis. 32.28(1). 32.28(3)(b), Therefore, as set out in appeals we reverse the decision the court of remand to the circuit court to determine reasonable litigation expenses.

By appeals the Court.—The decision court reversed and cause remanded. (dissent- ¶ ABRAHAMSON, SHIRLEY S. C.J. ing). agree I with the circuit court the court of appeals: litigation Warehouse II does recover not ex- penses. majority correctly opinion explains,

¶ 37. theAs primary purpose of the condemnation statute is to just compensation. Litigation expenses achieve are not just compensation.1 litigation expenses included If legislature expressly awarded, are be must so provide. legislative policy

revisions. Our decision is consistent with that choice. Comm'n, Martineau v. State Conservation 54 Wis. 2d (1972).

85, 194 N.W.2d 664 statutory interpretation The case. 38 This a when it means is what Wis. Stat. issue the con- when awards condemnee right to condemn" the not have the demnor "does majority opinion property. not concludes that "does means the condemnor to condemn" have "jurisdictional" complying with defect committed a "technical" defect 32.05 rather than Wis. Stat. proceedings. bringing I that condemnation conclude the phrase not the means the condemnor does property have the fully complied power if it to the even condemn steps set forth in 32.05. with the litigation expenses ¶ 39. The instant case involves objected on the to the condemnation when condemnee attempt ground to did the negotiate the condemnor not of offer. the notice the before objection proceedings valid, The was the condemnation begin terminated, to and the condemnor had were proceedings condemnation anew. began Department Transportation 40. The successfully proceeding condemnation and has

new property. parties cur- condemned Warehouse II's rently dispute the amount of the condemnation award. litigation pay II to for ex- Warehouse asks the State delay penses Warehouse II incurred to the inevitable Unfortunately, majority opinion the condemnation. litigation obliges. Many expenses of the condemnee's proceeding, II for which incurred in the first Warehouse probably II reimbursement, allowed seeks Warehouse proceeding. expenses to avoid second opinion disagree majority ¶ 41. I with the that the litigation expenses to under Wis. condemnee is entitled (2003-04) when the condemnation proceedings condemnor's failure are terminated attempt negotiate, a correctable defect. City Franklin, 42. Wieczorekv. 82 Wis. 2d (1978), interpreting 260 N.W.2d 650 Wis. Stat. (1971), governs this case.2 Wieczorek held that when offer is defective and the proceedings condemnation terminated, are the condem- bring proceedings nor can No anew. attorney may Apply- fees awarded to the be landowner. ing Wieczorek, I conclude that Warehouse II not entitled Wis. Stat. under 32.28(3)(b) (2003-04). majority opinion ¶ 43. The fails to overturn the successfully distinguish case Wieczorek Wieczorek present majority opin- from Furthermore, case. distinguish present ion fails statutes from interpreted in statutes Wieczorek. interpreting statute, the current ma-

jority opinion internally contradictory and contra- majority opinion text dicts the statute. The litigation. the law and will I muddies foster therefore join majority opinion. cannot majority opinion ¶ 45. The errs in at least five ways. majority opinion

¶ ERROR 1. 46. The in errs attempting jurisdictional to differentiate between de-

2 §32.05(5) (1971) Wisconsin provided pertinent in part: judgment "If final the of the court is the condemnor , property... cannot judgment condemn the the also shall award owner sum in opinion the such as will the of court the costs, the for reimburse owner his reasonable disbursements expenses, including and attorney engineering reasonable and fees in appeals The court of v. 119 County, Toombs Washburn (Ct. 346, App. 1984),

Wis. 2d 350 720 N.W.2d viewed Wieczorek Franklin, City (1978), v. 82 Wis. 2d as N.W.2d of applicable to the current statute. purposes for of condemna- and technical defects fects awarding purposes proceedings the of tion litigation expenses. condemnee According majority opinion, if ¶ a defect to the 47. (as jurisdictional proceedings is in condemnation the negotiate), majority opinion a failure to the classifies proceeding and the con- the terminates condemnation litigation expenses. demnee is entitled (as majority ¶ the If the defect is technical 48. opinion proposed of a to state the date classifies failure Wieczorek), occupancy, the the defect proceeding is not en- and the condemnee terminates majority opinion litigation expenses. The thus titled to to technical defects.3 limits Wieczorek jurisdictional ¶ defect or technical a Whether proceed- defect, a that the condemnation defect means ings proceed The unless the defect is corrected. cannot only a defect and difference between can to be that a condemnee technical defect seems a court labels receive when jurisdictional. defect major- problems are with 50. There several

ity analysis. opinion's jurisdictional/technical

A majority opinion's 51. The use of words "jurisdiction" "jurisdictional defect" is obscure. concluding After defect Wieczorek was techni cal, step its majority proceeds the second of jurisdictional/technical analysis and that "the Wiec- declares prejudiced proposed zoreks were not the lack date Did Majority op., offer." occupancy record, briefs, majority from Wiec- review even way litigated? majority has zorek? Was this issue even no knowing prejudiced. whether the Wieczoreks were

108 many possible 52. "Jurisdictional defect" has meanings, consequences. majority with different Is the opinion "jurisdictional using the words defect" to mean competence proceed?4 majority the court's Or opinion using personal jurisdiction the words to mean parties? majority opinion using over the Or is the something words to mean else? only majority opinion's meaning 53. Not is the "jurisdictional

of the words unclear, defect" but it is by majority doubtful that the cases cited use the "jurisdictional way words defect" same that the majority opinion does. majority opinion ¶ 54. The relies on v. Schaefer

Riegelman, 18, 2002 WI 494, 250 Wis. 2d 639 N.W.2d distinguish 715, to between and technical legal defects. is not a case; it ais Schaefer malpractice defectively action. involved a Schaefer signed complaint. summons and The summons and complaint malpractice were essential to commence the question action.5 The before the circuit court jurisdiction was whether it had over the action Schaefer complaint when the summons and were defective. The supreme deprived court concluded that the defect jurisdiction. circuit court of present case the condemnee's action properly

was commenced in circuit court summons complaint. challenges No one the circuit court's personal jurisdiction parties subject over the matter 1981, Eberhardy v. Circuit Court Starting in Wood County, 539, 2d (1981), 307 N.W.2d 881 the court has stated numerous subject times that a circuit court has jurisdiction, matter law, as a matter of state constitutional in all Thus, the majority opinion matters. referring must not be subject jurisdiction. matter 801.02(l)-(2) See Wis. Stat. (requiring a summons and action). complaint to commence a civil against jurisdiction the De- over the condemnee's suit Transportation. partment of in ¶ the court The circuit 56. issue before question of condemna- case was a substantive instant proceed- namely, the condemnation law, whether tion ings failed must be terminated because the condemnor statutory procedure for condemnation. to follow majority opinion ¶ The to make the 57. tries negotiate sending failure to before condemnor's jurisdictional major can, a Parties how- offer defect.6 negotiate jurisdictional made. a offer is An ever, attempt after negotiation made in instant

at was case jurisdictional negotiations offer; of after notice Negotiation apparently also failed second failed. proceeding. only negotiate ¶ The failure to means 58. may proceed anew, the error and as it condemnor correct negotiate present The is an did in the case. failure to gets rectified; the a "do- error that can be condemnor not lose to condemn The condemnor does its over." property. majority opinion the statu- dismisses (at occupancy tory requirement proposed of date Wieczorek).7 appeals Yet the court of has issue jurisdictional proposed that a offer declared without occupancy offer is a defective date jurisdictional requisite jurisdictional offer is a gets The condemnor a do-over. condemnation.8 question I whether distinction between (and errors in all and technical Schaefer relied) upon the cases which can be extended Schaefer 6 Majority op., 13¶ 7Id., 12-13. ¶¶ 8 Toombs, 2d at 349.

beyond complaint errors a summons and commenc- ing present any an action circuit court to the case. In nothing event, supports in the case law or ch. 32 of the statutes jurisdictional/technical

this distinction for purposes proceedings purposes of condemnation or for awarding litigation expenses.

B only majority opinion 61. Not does the errone- ously jurisdictional create a distinction between technical errors that does not exist in the condemnation ignores statutes, it also the fact only statutory provision "juris- that the that a creates requisite" provision dictional is not the at issue precisely provision case, instant but rather is was at issue in Wieczorek. Wisconsin Stat. 32.05 only required characterizes one act of the condemnor as "jurisdictional requisite," namely, sending jurisdic- a tional offer to the owner. 32.05(4)

¶ 62. Wisconsin Stat. states that "notice jurisdictional [of jurisdictional offer] requisite a ais to a added). taking by (emphasis condemnation" In other jurisdic- words, the condemnor must send a notice of a jurisdictional tional offer to the owner. of a Notice offer is jurisdictional requisite proceed a for the condemnor jurisdictional requisite condemnation, not a for the cir- challenge pro- cuit court to hear a ceeding. a requires Wisconsin Stat. eight

notice of a offer matters, state one of proposed occupancy. which date of great ¶ 63. Wisconsin Stat. 32.05 sets forth in procedure condemning detail the to be followed for land highway for construction. The condemnor shall take following steps:

(1) (§ 32.05(1)); "Shall" make a relocation order

(2) property of the appraisal cause an "Shall" (§ 32.05(2)); (3) juris- making a attempt negotiate before "Shall" (§ 32.05(2a)); dictional offer (4) offer to send to the owner "Shall" analysis the com- itemized setting forth an purchase (§ 32.05(3)): analysis "shall" state offer. pensation (a) and reference to project the nature of the intends to order and that the condemnor relocation (§ 32.05(3)(a)); property public purpose use (b) and interest description (§ 32.05(3)(b)); therein to be taken (§ 32.05(3) (c) (c)); occupancy date of proposed (d) compensation offered amount (§ 32.05(3)(d)); (e) the offer is based appraisal upon that the which (§ 32.05(3)(e)); inspection

is available for (f) reject the days accept has 20 that the owner (§ 32.05(3)(f)); jurisdictional offer days (g) the owner has 40 from date a court action to completion of service to commence § right of condemnation under contest the (§ 32.05(3)(g)); and (h) years 2 from the date of the that the owner has greater taking appeal compensation in which to (§ 32.05(3)(h)).

(5) jurisdictional offer give "Shall" notice of the of a circuit court service in manner of service personal (§ 32.05(4)). by certified mail summons following any error in If condemnor's statutory requires special procedures attention, it anis

112 jurisdictional relating offer. error notice nothing Nevertheless, describes the statutes importance procedural require- relative of these various Nothing imposed on ments the condemnor. 32.05(3)(c) distinguishes relating statutes Wis. Stat. proposed occupancy any to the date of from of the other jurisdictional any requirements of a offer or other listed obligation imposed including condemnor, on the negotiate. requirement attempt Indeed, each set (4) 32.05(1), (2), (2a), (3), mandatory, forth in us, the cases remind as statutes applying power to the exercise of the condemnation are strictly to be construed.9 legislature explicitly

¶ 65. The has treated all requirements imposed including condemnor, on the way: A offer, notice of the the same requirement failure to follow a is a flaw that does not proceedings affect the condemnation unless raised timely. any The condemnee defect must raise such just (except compensation) the amount of within 40 days jurisdic- personal from the date of service raising any tional offer or be forever barred from such 32.05(5). objection. See Wis. Stat. clear a condemnor must 66. The law is negotiate making

attempt before condemnee if offer. The law also is clear that does object negotiate not to the condemnor's failure to 9 Parts, DOT, 235, 241, 253 Aero Auto Inc. v. 78 Wis. 2d (1977) Eminent Domain Nichols, 1 (quoting 896 N.W.2d Bd., (rev. Herro v. Natural Resources 1976)); 3d ed. 3.213[4] (1972); City Racine v. 157, 171, 2d Wis. N.W.2d (Ct. 1029, 1037, Bassinger, App. 2d 473 N.W.2d 526 1991).

113 40-day period, from the condemnee is barred within objection raising again.10 ever majority opinion explicit dismisses the jurisdictional statutory requirement offer state that the occupancy going proposed "neither the date as providing just power act nor... com- condemnor's proposed pensation owner."11But the to the jurisdictional occupancy part offer;12 date of of the an made to the condemnee does not it, without offer jurisdictional qualify aas offer.13 light explicit characterization 32.05(4) offer as a Wis. Stat. "jurisdictional majority opinion's requisite," the charac- proposed occupancy terization of a date as a technical problematic. defect is recognized

¶ 69. Case law has the crucial just any public taking compensation issue in and has mandatory steps forth in Stat. described the set Wis. procedural 32.05 as "collateral matters" to be raised promptly.14 any words, In other a violation of of these provisions (including negotiation requirement, any offer, failure to of the other send may, requirements) statute, under the invalidate the proceeding, long condemnation challenges as as the condemnee days. the condemnation within 40 As the Dodge explained Farms, in Arrowhead Inc. v. court (1963), County, 21 2d 124 631, Wis. N.W.2d 631 judicial point review under Stat. is to Wis. challenges decide to the condemnation and to resolve 10 Farms, County, 21 2d Dodge Arrowhead Inc. v. Wis. (1963). 652, 124 N.W.2d 631

11Majority 12 op., ¶ 32.05(3)(c). Wis. 13Toombs, 119 Wis. 2d at 349. Farms, Arrowhead 2d at 651. procedural the matters before condem collateral these just a turns to the matter of nation commission or court today, the nor Until neither statute compensation.15 failing recognized to different remedies for case law had requirements paragraphs of of different follow the § 32.05. Stat. litiga-

¶ awards 70. Wisconsin expenses the condemnor to the condemnee when tion the condemn, to not when does not have statutorily comply condemnor has failed to with may steps its and the condemnor correct mandated errors. majority opinion,

¶ of the defect 71. As result (such as the omission of the in the proposed offer justify occupancy) the award date of does not attempt litigation expenses but the failure negotiate does this result make sense when does. How sending offer the statute states "jurisdictional requisite," does not so is a but owner negotiate? attempt to label the jurisdictional/ majority opinion ¶ The rests its 72. analysis precarious precipice technical on the "primary purpose" statutes, namely compensation. permitting award of fair Not nothing present case does primary purpose. interfere with

C majority opinion fails to follow the rules The 73. The makes clear forth in the cases it cites. case law set remedy failure to follow all that the for the condemnor's statutorily required steps the condemnee is that proceedings may challenge in court the condemnation correct the error. and force the condemnor to 15 Id. explain imposes The cases that if a statute

steps expressly impliedly on the condemnor and power denies the condemnor the to act unless the particular step remedy provided is taken and no other perform particular step, remedy for a failure to challenge tois the condemnation under Wis. Stat. § 32.05.16 majority opinion refuses to acknowl-

edge paragraph that each in Wis. Stat. 32.05 "sets procedure," "expressly forth the condemnation . . . power denies the of the condemnor to act unless the particular step statutory taken," is and that "no other remedy provided perform particu- for a failure to step."17 requirements procedural lar are the These for a step jurisdictional" by to be "found to be set forth appeals City Bassinger, court of Racine v. 163 Wis. of (Ct. 1991), App. 1029, 1036-37, 2d 473 N.W.2d526 upon by majority case relied for the rationale that negotiate jurisdictional. failure to must be majority opinion ¶ principle 76. The cites this of apply ¶ 12, law at but refuses to it. Wisconsin Stat. § steps 32.05 mandates numerous that the condemnor power must take and denies the condemnor the proceed steps with the condemnation unless the are provides taken. Furthermore, the statute no other remedy particular step except for a failure to take the challenge for the condemnee to the condemnation un- require comply der 32.05 and the condemnor to with statutory mandate.

16 Bassinger, 163 Wis. 2d at In Bassinger 1036-37. requirements regulations set forth in the or statutes other than distinguished § 32.05 were from the requirements set forth in Wis. Stat. 32.05. The latter jurisdictional. were labeled 1036-37; Bassinger, 163 Wis. 2d at majority op., 12. ¶ internally majority opinion thus con- The 77. tradictory.

D majority attempt opinion's to differen- The and technical de- defects tiate between Land, v. 4.18 Acres fects fails to follow United States of (9th 1976), interpreted a 786, 789 Cir. which 542 F.2d (1971) federal statute similar Wis. (2003-04)). (and therefore similar Wieczorek, 4.18 Land and con- we examined Acres of reasoning persuasive.18 was cluded that its Land, federal court of In 4.18 Acres of proceeding appeals a condemnation that was dismissed procedural premature flaw. The because of correctable pre- explained did not that the dismissal federal court acquiring agency land from the federal vent ap- Accordingly, of the federal court domain. eminent acquire" language peals of the "cannot concluded that the attorney governing fees the award federal statute agency suggests has moved to the federal a case which any authority to do so. condemn without fallacy explained appeals federal court recovery allowing reasoning majority opinion's authority litigation expenses has the condemnor when statutory proce- property if it follows the condemn the dure: requiring as [the statute] to construe federal

Were we the initial whenever an award reason, dismissed for whatever proceeding was fortuitous, depending largely often he award would to errors given by effect the trial court upon the Had the district during prior to trial. committed to amend permitted government court in this case 18 Wieczorek, 82 Wis. 2d at 25-26.

117 complaint procedural to reflect the correction of the error, action, dismissing appellants rather than Congress not be entitled to expenses. would could not right that the expenses have intended recover turn upon a difference.19 such 80. This for not an reasoning allowing award of

litigation expenses when condemnor has committed a correctable flaw is consistent procedural with holding Wieczorek's with Toombs v. Washburn (Ct. County, 346, 349, 119 Wis. 2d 350 N.W.2d 720 App. 1984), condemnee has a holding attorney only fees if the condemnee on the prevails merits and the condemnation cannot if proceed even defects procedural are cured. 81. Other state courts have this reason- adopted their

ing interpreting condemnation statutes litigation award to the condemnee. expenses These cases conclude that the owner is not awarded when a expenses condemnation is dismissed proceeding based on correct- able and the procedural flaws court does not rule that can never be condemnation.20 acquired by 19 Land, 786, United States v. 4.18 Acres 542 F.2d (9th 1976); 5,553.80 Land, Cir. see also United States v. Acres of (W.D. 1978) ("[T]he Supp. F. La. condemnee can recover and appraisal attorneys only costs fees if the court government determines that the is not entitled to condemn the property."). 20See, (Ind. e.g., Wyant, Bd. v. 672 N.E.2d 77 Ct. ofComm'rs (owner 1996)

App. attorney not entitled to fees when condem nation procedural defect); dismissed because of correctable Dist., Sorenson v. Lower Niobrara Natural Res. 340 N.W.2d164 (Neb. 1983) (owner attorney not entitled to fees when dismissal procedural flaw); condemnation based on Dep't of Transp. v. (N.C. Co., 1980) Winston Container 263 S.E.2d 838 App. Ct. (dismissal of proceeding because resolution of department was insufficient did justify not award of fees majority opinion provides no reason ¶ 82. The only identify why only who certain certain condemnees Nothing litigation expenses. in Wis. flaws are entitled to § supports the distinction Stat. 32.05 jurisdictional and technical defects. between majority opinion errs in 2. The 83. ERROR interpreting condemnor does not have the words "the 32.28(3)(b) by right Stat. to condemn" Wis. failing provision in the context to examine this majority op., ¶¶ 21-24. The context and 32.28. See determining important are its of a statute structure meaning. pay general rule is that condemnees 84. The Litigation expenses litigation expenses. are

their own taking just compensation for the not included as property by rule makes sense eminent domain. This property generally incur ex- real sellers of because attorney appraisal penses fees, and fees, as such broker buyers compensate the sellers. do not fees for which the Awarding litigation expenses a mat- to a condemnee is legislature.21 policy to be determined ter of four sets forth the 32.28 85. Wisconsin special are in which circumstances to the condemnee: to be awarded (a) by the condemnor is abandoned proceeding The (§ 32.28(3)(a));

(b) to condemn condemnor does not have offer described (§ (b)); Farms, Inc., P.2d

owner); v. Bellis Town Wheatland 1991) (owners attorney fees not entitled to when (Wyo. by condem acquired land could never be did not rule that court nation). 21Martineau, 54 2d at 85. (c) judgment plaintiff is for the the property when (inverse proceedings

owner institutes condemnation 32.28(3)(c)); condemnation — (d) property The amount the owner receives exceeds a prescribed amount or percentage offer, by city, by award the or award the condemnation (§ 32.28(3)(d)-(i)). commission special ¶ 86. These four circumstances evidence recurring themes. In each of the circumstances a con- expenses expenses demnee incurs extra over ordi- narily by just obtaining incurred condemnee com- pensation.

¶ 87. When the condemnor abandons the condem- proceeding, property. nation the owner retains the Because condemnor has forced the owner incur litigation expenses and the condemnor did not take the property, the condemnor should reimburse the owner litigation expenses.

¶ 88. When the condemnor does not have the right property, to condemn the the owner retains property. Because the condemnor has forced the owner to incur and the condemnor did not property, take the the condemnor should reimburse litigation expenses. owner for requirement Thus, that the court deter- mine that the condemnor "does not have the awarding litigation expenses, properly condemn" before interpreted, supports legislative policy the same as awarding litigation expenses when the condemnor abandons the commendation.

¶ 90. If the condemnor can correct the flaws its procedure property condemnation and take the domain, eminent the condemnor has not forced the expenses owner to incur even if it fails procedures. proper If the follow delay taking expend funds to owner wants primary litigating in eminent issue instead namely just compensation, the condemnor domain, for the not to reimburse the owner should be forced delaying expenditures inevi- incurred owner's table condemnation. brings the condemnation 91. When the owner condemnation) (i.e., wins, the owner is

suit inverse litigation expenses. condemnation, In inverse awarded expenses the owner to incur extra the condemnor forces just compensation for the to be able to receive order eminent domain. This situation condemnor's exercise of negotiate because, failure to in inverse is unlike the condemnees receive no cases, would they bring compensation if did from the condemnor not § 32.10. an inverse condemnation action under Finally, exceeds a when the ultimate award percentage amount, offer a certain legislative litigation expenses. The an owner awarded § history 32.28 clear that these Stat. makes Wis. provisions to induce condemnor to were enacted the just compensation or the reimburse condemnee offer litigation expenses an offer of com- for associated with just compensa- pensation significantly that is less than tion. 32.28 read as a whole Stat. Wisconsin compen- plan the owner is

evinces the ensure that condemnor aban- when the sated proceeding, have the does not dons the condemnation power property, the the have taken to take should property not, did or has offered an unreasonable hut just compensation. sum as majority opinion's interpretation

¶ 94. The right not "does have to condemn" contravenes not only the of the words statute but the context statute. majority opinion

¶ 95. 3. The ERROR errs in trying distinguish (2003-04), Wis. Stat. governing present litigation expenses, statute from 32.05(5) (1971), predecessor governing statute litigation expenses. interpreted predeces- Wieczorek authorizing litigation expenses sor statute as not when may, following procedures, the condemnor correct take property. predecessor provided ¶ 96. The statute for award- ing litigation expenses when a condemnor "cannot con- present property." demn the statute, 32.28(3)(b) (2003-04), phrase uses the "does not have right property.22 the preted to condemn" the Wieczorek inter- predecessor language statute's "cannot con- property" right demn the to mean "has no to condemn."23 example For an of no the property, condemn see DOT, 738, 740, v. (1994), Mitton 184 Wis. 2d N.W.2d which the court held that Department authority lacked part condemn authorizing of a because the statute did permit Department not to condemn land for Department's purpose. stated 23 Wieczorek, ("[T]he In 82 Wis. 2d at 24 phrase 'cannot .") right condemn' means 'has no quoted condemn'.. . we Builders, Madison, 37 Wisconsin Town House Inc. v. City Wis. of (1967), 2d stating: N.W.2d jurisdictional We think the is so offer defective that it cannot stand However, and must be declared void. it does . . not follow . that the process thereby lay including void ab initio the out of the as a street controlled-access street. The relocation order necessity purpose is determination of and of the of the condem- order, nation and remains unaffected. We think the relocation negotiation appraisal, steps process and the valid are in for the at awarding litigation expenses The statute 97. Wieczorek, (1971), stated issue in follows: in as part relevant

32.05(5)... final of the court judgment If the de- property the condemnor cannot condemn offer, jurisdictional judgment shall scribed such as will reimburse the also award owner sum costs, and owner for his reasonable disbursements attorney engineer- expenses including reasonable ing actually incurred of the action of the fees because added). (emphasis condemnor.... in to this sentence present counterpart 32.05(5) (1971) is Wis. Stat.

Wis. Stat. (2003-04). as follows: part It reads relevant (3) 814, litigation lieu of under ch.

32.28 costs if: to the condemnee expenses shall be awarded (b) the condemnor does The court determines that or all part to condemn not have is no offer or there described added). taking (emphasis necessity for .... this statutes, let of both cursory reading Even a the current reading, alone a careful evidences predecessor the same as the stat- is essentially statute Indeed, majority opin- ute Wieczorek. interpreted plaintiff compensating property taken. The purpose for the proper City offer Madison should make new proceeding plaintiffs purchase the land and the condemnation point. should continue from that Wieczorek, Town House at 21 n.2 Wisconsin (quoting 82 Wis. 2d 55). Builders, 37 Wis. 2d at

ion even concedes that Wieczorek is a inter- reasonable of pretation the statute at issue in the present case.24 100. the According to the majority opinion, ¶ 32.28(3) (b) (2003-04) statutory of change language § the "cannot from 1971 version "right condemn" to read condemn" changed substance the statute. Majority of The op., majority 25-27. opinion ¶¶ concludes that 32.28(3) (b) (2003-04) words "right § to condemn" must be interpreted way same as words "right 32.05(5) to condemn" in com- governing condemnee's mencement of a lawsuit. 24. Majority op., ¶ 101. The ignores the fact majority the lan-

¶ 32.05(5) (1971) 32.05(5) of guage and § (2003-04) same; is the of both speak "right condemn," governing condemnee's commencement of a lawsuit. 102. statute, predecessor Wis. Stat. 32.05(5) (1971), provided in relevant as follows part added):

(emphasis 32.05(5) an When owner right desires to contest the of the condemnor to condemn the property described in the jurisdictional offer for any reason than other that the compensation amount of inadequate, offered is such may owner . .. commence an action in the circuit court the county wherein property located .... statute, The current Wis. Stat. (2003-04), provides relevant as follows part (emphasis added): 32.05(5) If an owner desires contest the

condemnor to condemn described in the jurisdictional offer, any reason than other that the compensation amount of offered inadequate, may owner ... commence an action in the circuit court county wherein the property is located. 24Majority op., predecessor

¶ and current statutes Both the 104. right the an owner who contests the describe how of property the commences law- condemnor to condemn 32.28(3)(b), § Accordingly,I conclude that Wis. Stat. suit. using right condemn," no does not words "has the change forth in allocation set the Wieczorek. present case, In and the 105. both Wieczorek

judgment in was entered the for the condemnee 32.05(5) (1971) § condemnee's under Stat. action Wis. (2003-04), dismissing respectively, the condemna- judgments proceeding. for the condemnee tion The were brought by regarding proceeding the con- final the case, In and the instant the demnee. both Wieczorek condemnation action condemnor could initiate another against judgment In condemnee. both cases the the judgment in the not the final sense the condemnee was finally condemnor did that not determine that the it did right property if all the not to condemn the have the procedural prerequisites for were satis- fied.25 majority opinion I that makes conclude the distinguish nothing trying the

much about ado governing litigation expenses. statutes 2003-04 majority opinion errs in its 107. ERROR legislative history the amendment creat- the view of 32.28(3)(b) (2003-04). majority op., § ing See Wis. Stat. majority opinion Although ¶¶ characterizes the 25-29. statute, inter predecessor the Wieczorek interpreting judgment... that the condemnor cannot preted "final the words 35.05(5) (1971). Similarly, § condemn property" the in Wis. Stat. to condemn" right does not have the words "the condemnor 32.28(3) (b) (2003-04) § to an ultimate refer property not have the the condemnor does conclusion no condemn all. court reached such property at The circuit present or case. in either Wieczorek decision on merits 32.28(3)(b) (2003-04) ambiguous, requir- as ing history,26 legislative an examination legislative history support majority does not 32.28(3)(b) (2003-04). opinion's interpretation of majority opinion ignores ¶ 108. The a note to (1978) Assembly drafting Bill 1077 file of explains ch. Laws of 1977. The note substance of the final sentence of Wis. Stat.

(1971) above) (quoted is retained as new (2003-04) recovery necessary to allow of reasonable and expenses "when the court determines that the condem- power question, nor lacks to condemn the necessity taking that the has not been estab- (1971) goes explain lished." The on note to that 32.05 requires the of such award costs the same of kind 32.28(3)(b) (2003-04).27 cases as set forth in the new majority opinion ignores Leg- The 109. also the reports, part Council islative staff briefs and which are of legislative history the of the current statute. These repeatedly goal Leg- documents indicate that the the of Special Council islative on Committee Eminent Domain change was the law to allow when money litigation through the condemnee receives more appeal originally Special or than was offered. The Com- mittee concluded that it fair was not that a condemnee pay expenses litigation had to the of receive fair and compensation reasonable amount of 26Majority op., 27Drafting 440, 1977, Record for ch. Laws A.B. re:

(available Wis.). Legislative Bureau, at Wis. Madison, Reference 28 See, (Dec. e.g., Legislative 77-28, Report Council no. at 5 1977): 12, statutory Bill party [T]he awards the costs to successful condemnation actions.... The is condemnee the "successful party" whenever the of the award commissioners or verdict of the jurisdictional court exceeds the offer. ... fiscal of Transportation Department does relies majority which the upon opinion estimate increased costs to Wis. Stat. attribute not from (2003-04), carryover provision (1971). out, Wis. As majority opinion points 32.05 problem when actions are often a The costs condemnation proceedings commission. a condemnation condemnation involve award, appeals the condemnation condemnee the basic When the jurisdictional higher offer. If than the award is often commission's jury appeals, is less than the then verdict often the condemnor award, although more than commission's still facts, providethat the the current statutes award. Under these basic pay appeal by the condemnor must the costs of the condemnee corut. changes requires the condemnor This Bill this result appeal of the if either the award pay the costs of the condemnee's court more than the or is commissioners the verdict need that the condemnee offer.The Bill thus assures compensation obtaining a fair amount of not bear the cost property taken. 1977): (June 77-7, 13, at Staff Brief Legislative Council any permit recovery of do not Present Wisconsin Statutes price negotiated expenses purchase or where or where the costs accepted of the condemnation commissioners the award expenses even when The condemnee bears his own condemnee. judge jury too low. find the award circuit court may [Mjany out for less than settle of court . . . landowners obtaining knowledge compensation, that cost of full price price may and the difference between such fair exceed the offer. condemnor's attorney not to encour- of fee statutes thus The intent bargaining position condem- age litigation, equalize of but to will the former's offers and settlements nor and condemnee so that nearly reflect more full value. file the Wis. materials are on with Legislative Council Bureau, Legislative Reference Council and the Wis. Legislative Madison, Wis. contains nine in which circumstances litigation expenses.29Eight are to

condemnees entitled namely, of nine new, these circumstances were aban- types donment, actions, inverse condemnation six jurisdictional compensation of low-ball offers 32.28(3)(b), awarding litigation Section awards. ex- penses right when the condemnor does not have the predecessor condemn, was retained from the statute. pri- ¶ 111. Low-ball offers are the mary litigation expense cost increases under the shift- ing provisions that are identified the fiscal note. The explains "[m]ost [the] fiscal estimate cost in- likely appealed crease is from occur cases where condemnee an . . receives award. that exceeds the offer at least 10%."30 legislative history

¶ 112. The of Wis. Stat. 32.28 holding is consistent with Wieczorek's that a condemnee attorney only has a prevails if fees the condemnee by establishing

on the merits that the condem- proceed any procedural nation cannot even after defects opinion majority have been cured. The errs its reading legislative history. of majority opinion

¶ 113. ERROR 5. The errs in concluding legislative policy in Wis. Stat. litigation is to award a condemnee ex- penses encourage the condemnor to follow con- 32.28(3)(a)-(i); majority Wis. Stat. see op., 30Drafting 440, 1977, 1077, Record for ch. Laws re: A.B. (available Wis.). at Legislative Bureau, Madison, Reference estimate points fiscal also to increases in costs due to proceedings abandoned condemnation and challenges to the authority Drafting "condemnor's to condemn." Record for ch. (available 440, Legislative Laws re: A.B. 1077 at Wis. Wis.). Bureau, Madison, Reference majority op., ¶ 29.31Yet See statutes. demnation by allowing policy majority opinion this contravenes paying without errors make "technical" condemnor expenses. litigation support majority opinion for offers no The 114. policy legislative in the text of of

its broad statement 32.28(3)(b) statute, context of or the Wis. Stat. history, legislative the case law. not does Stat. The text of Wis. 115. carefully the fails to follow condemnor if the

state that will be awarded statutes, the condemnee expenses. litigation history support legislative does not The policy. legislative

majority opinion's of statement Summary Legislative Proceed- of the Council Wisconsin ings Special Eminent Domain on Committee of the 1977) majority (Sept. the error of the 9, demonstrates expenses shifting litigation from opinion's view of broad discussing pro- condemnor. to the the condemnee legislation in eminent posed Legislative proceedings, of the members some domain litigation urged recovered costs should be Council expressed a stage litigation. members "Other at each litiga- encourage provision would that such concern approval expressed drafted."32 the bill as tion recovery legislature Ultimately, allow did not litigation. stage expenses litigation at each legislative majority opinion that agree 31 1 with shifting litigation expenses in the current statute choice policy jurisdictional offers to make fair is to force condemnors defined Wis. offers as unreasonably low-ball avoid (2003-04). 13, 32.28(3)(d)-(i) majority op., ¶¶ See §§ Proceedings, Special Council, Summary of Legislative 1977), at 6. (Sept. Domain on Eminent Committee Legislative ¶ 117. Other Council materials indi- purpose shifting litigation expenses cate that the is to equalize bargaining positions encourage condemnor's offers to be close to full value.33The errors present in the case and in Wieczorek do not involve value. Value is not an issue in a Wis. Stat. proceeding. majority opinion

¶ 118. The cases the relies on to support legislative policy its conclusion that the under- 32.28(3)(b) lying encourage Wis. Stat. is to condem- carefully nors to follow the condemnation statutes do support majority opinion's not thesis. Redevelopment Authority Bay Green v. (1984), Frank, Bee 2d 402, Wis. 355 N.W.2d240 Department Transporta Theaters, Standard Inc. v. (1984), tion, 118 upon 730, Wis. 2d 349 N.W.2d661 relied majority opinion, majority op., ¶¶ see 29-32, explain public policy underlying awarding that the liti gation expenses discourage to the condemnee is to making condemnor from a low-ball offer. These cases do legislative policy not supporting shifting describe a broad litigation expenses generally in condemnation cases whenever the condemnee is successful in a lawsuit. majority's

¶ 120. The reliance on Bee Frank and spurious. present Standard Theatres is case and (2003-04), statutory provi- present sion at case, issue do not involve "low-ball offers." majority opinion recog- Indeed, fails to

nize litigation that the statute does not even shift ex- penses every successfully challenges for landowner who 32.28(3)(d)-(i) (2003-04) a "low-ball offer." Sections 33Legislative (June 77-7, Council Staff 3, 13, Brief at 1977) (quoted at note supra). expenses only shifting litigation provide when the for requirements set the mathematical condemnee meets statutory provi- Thus, even the in the statutes. forth expressly are not address "low-ball offers" sions designed every "whole" situ- to make the landowner litigates. the condemnee ation which opinion's explanation majority ¶ 122. If the majority opinion's legislative policy dis- correct, the does and technical flaws between tinction legislative policy. not award It does not fulfill the litigation statutory expenses it deems violations not encour- therefore the condemnor is "technical," and aged follow the condemnation statutes.

* * * * distinguish ¶ sum, 123. no reason exists good prior negotiate in faith a failure to between present making case, offer, as occupancy proposed date of to state a a failure jurisdictional offer, inas Wieczorek. condemning contexts, In each of these 124.

authority error. The more than correct the need do no condemnation, situations is result both inevitable predecessor and the statute 32.28 and Wis. Stat. plaintiff, here the that a the American rule retain expenses litigation pays unless own condemnee, its statutory excep- specified one of the case falls within tions. I hold that stated, would For the reasons governs The circuit court case at bar.

Wieczorek Accordingly, got right. appeals I dissent. it court that Justice ANN I to state am authorized joins opinion. BRADLEY this WALSH

Case Details

Case Name: Warehouse II, LLC v. State Department of Transportation

Court Name: Wisconsin Supreme Court

Date Published: Jun 6, 2006

Citation: 715 N.W.2d 213

Docket Number: 2003AP2865

Court Abbreviation: Wis.