Summary Judgement – Evidentiary Hearing

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WI Court of Appeals – District IV

Case Name: Avonelle M. Kissack Living Trust v. American Transmission Company, LLC, et al.,

Case No.: 2019AP408

Officials: Fitzpatrick, P.J., Kloppenburg, and Graham, JJ.

Focus: Summary Judgement – Evidentiary Hearing

American Transmission Company, LLC condemned land for a utility easement on real estate owned by the Avonelle M. Kissack Living Trust.  ATC and Kissack did not agree on the amount ATC is required to pay to Kissack for the diminution of the fair market value of Kissack’s real estate because of the condemnation for the easement. See WIS. STAT. § 32.09(6g) (providing that the compensation paid for the taking of the easement be “determined by deducting from the fair market value of the whole property immediately before the date of evaluation, the fair market value of the remainder immediately after the date of evaluation, assuming the completion of the public improvement”). Kissack filed this action in the Sauk County Circuit Court, and that issue was tried to a jury. See WIS. STAT. § 32.06(10) (providing that the amount of just compensation may be tried in the circuit court). The jury returned a verdict determining the diminution in the fair market value of Kissack’s real estate because of ATC’s taking of the easement.

Kissack appeals the judgment based on that verdict. Kissack contends that the circuit court erred in denying its post-verdict motion for a new trial based on purportedly erroneous evidentiary rulings by the circuit court. Separately, Kissack contends that the circuit court erred by relying on an unpublished per curiam opinion issued by this court which was cited by ATC in argument in the circuit court. We largely affirm the challenged rulings of the circuit court. However, we conclude that, as to rulings of the court limiting Kissack’s cross-examination of two witnesses, the circuit court materially erred. On that basis, we conclude that Kissack is entitled to a new trial. Accordingly, we reverse the judgment and remand this matter to the circuit court.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.