By: dmc-admin//August 16, 2010//
Property
Condemnation; litigation expenses
Where property owners accept a negotiated offer under sec. 32.06(2a), and then successfully litigate for a higher award, they are not entitled to litigation expenses.
"That there are two ways to get to the commission is irrelevant. Instead, our focus is on the plain language of the statute. Because Wis. Stat. § 32.28(3)(d) applies only when there has been a jurisdictional offer, there is no need to harmonize it with the negotiation provision in Wis. Stat. § 32.06(2a). Under § 32.28(3)(d), the condemnee is entitled to litigation expenses only if the commission award 'exceeds the jurisdictional offer or the highest written offer prior to the jurisdictional offer ….' (Emphasis added.) The use of the article 'the' anticipates that there is, in fact, a jurisdictional offer. For example, the statute does not say prior to 'any jurisdictional offer' or 'the jurisdictional offer, if any,' nor does it expressly reference the 'agreed price' under subsec. (2a)."
Reversed and Remanded.
Recommended for publication in the official reports.
2009AP2784 Klemm v. American Transmission Co., LLC
Dist. III, Marathon County, Huber, J., Hoover, J.
Attorneys: For Appellant: Streck, Steven M., Madison; Beachy, Sara K., Madison; For Respondent: VanderWaal, Shane Jon, Wausau