LITIGATION EXPENSES IN CONDEMNATION CASES
The Wisconsin Supreme Court recently clarified that a condemning party is not required to make a jurisdictional offer in order for the condemnee to recover litigation costs.
American Transmission Company (ATC) filed a condemnation proceeding against property owners hoping to obtain an easement on their land to lay transmission lines. Under Wis. Stat. section 32.06(2a), the condemnor must attempt to negotiate personally with the property owner before making a jurisdictional offer. In this case, ATC appraised the easement at $7,750 and the property owners agreed to convey the easement to ATC at that amount. No jurisdictional offer was ever made.
The Supreme Court found that the property owners were entitled to litigation expenses based upon the negotiated price even though ATC never made a jurisdictional offer. Section 32.28(3)(d) allows a party to obtain litigation expenses where the award of a condemnation commission exceeds the jurisdictional offer or the highest written offer prior to the jurisdictional offer by at least $700 and at least 15 percent.
In this case, the property owners appealed the amount of compensation awarded for the easement and the trial court exceeded the award by at least 15 percent. The trial court granted the property owners litigation expenses as a result. The Court of Appeals reversed and concluded that litigation expenses are not available unless the condemnor makes a jurisdictional offer. The Supreme Court ultimately agreed with the trial court and determined that litigation expenses may be awarded even if no jurisdictional offer is made.
The Supreme Court found that it was unreasonable to conclude that the legislature intended to treat better the contentious owner who forces the condemnor to go through the hoops of a jurisdictional offer than the cooperating owner who takes the negotiated price appeal route.