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Recovering Reasonable Attorney’s Fees in Right to Take Actions 1

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Page 1: Recovering Reasonable Attorney’s Fees in Right to Take Actions 1

Recovering Reasonable Attorney’s Fees in Right

to Take Actions

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Thomas S. Hornigvon Briesen & Roper, s.c.

Milwaukee, Madison, Brookfield

With thanks to Nick Boerke of our office for his invaluable research assistance

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Milwaukee | Madison

Three South Pinckney Street | Suite 1000 | Madison, WI 53703 | www.vonbriesen.com

I. Reasonable Fee

Whatever a “reasonable fee” is, it is always within the Trial Court’s discretion to review and ultimately determine it.

“The next issue is whether Judge Wasielewski properly exercised his discretion when he awarded Steinberg litigation expenses which included $108,867 in attorney’s fees. The “litigation expenses” which *204sec. 32.28(3)(d), Stats., authorizes a court to award include “reasonable” and “necessary” attorney’s fees. Section 32.28(1). Our review of the circuit court’s determination of the value of attorney’s fees is limited to determining whether the circuit court properly exercised its discretion. Milw. Rescue Mission v. Milw. Redev. Auth., 161 Wis.2d 472, 494, 468 N.W.2d 663 (1991); Standard Theatres v. Transportation Dept., 118 Wis.2d 730, 747, 349 N.W.2d 661 (1984). A circuit court properly exercises its discretion if it ‘employs a logical rationale based on the appropriate legal principles and facts of record.’ Petros v. City of Watertown, 152 Wis.2d 692, 696, 449 N.W.2d 72 (Ct.App.1989).”

Village of Shorewood v. Steinberg, 174 Wis.2d 191, 496 N.W.2d 57 (1993)

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Milwaukee | Madison

Three South Pinckney Street | Suite 1000 | Madison, WI 53703 | www.vonbriesen.com

B. A contingency fee in an eminent domain case is perfectly permissible, if:

“There is nothing inherently improper about a contingency fee arrangement in an eminent domain case. Hutterli v. State Conservation Comm.,34 Wis.2d 252, 258, 148 N.W.2d 849 (1967). However, a court in an eminent domain case should use a contingency fee agreement as a guide only and must consider all the circumstances of the case to determine whether the contingency fee amount is a just and reasonable figure. Id. At 259, 148 N.W.2d 849. See also Milw. Rescue Mission, 161 Wis.2d at 496-97, 468 N.W.2d 663; Standard Theatres, 118 Wis.2d at 742 n. 7, 349 N.W.2d 661.”

Id. At 204, 496 N.W.2d at 62

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C. CAUTION! – In settlement context, beware of Schmitz:

“As its primary ruling, the court upheld the parties’ demonstrated intent for a contingency fee arrangement, but at a straight one-third contingency fee. To isolate the fee and expenses due Biersdorf from the unallocated lump sum, the court adopted the calculation (“the Koehler calculation”) presented by Schmitz’s expert, Attorney Charles Koehler. The court started with the $1.6 million settlement, subtracted $1.2 million (the net recovery on a one-third contingency fee), for a gross attorney fee award of $400,000. The court then added in the $21,091.05 in costs and expenses Biersdorf claimed that he had incurred, for a total of $421,091.05.

For its secondary calculation, the court applied the equitable factors set forth in SCR 20:1.5(a), arriving at a reasonable-attorney-fee computation of $350,000. Again adding the costs and expenses Biersdorf had incurred, the alternate fees-and-expenses calculation came to $371,091.05. The court entered judgment under its primary ruling for $421,091.05 and, in the alternative, for $371,091.05. Both parties appeal.”

Attorney Biersdorf sought for his fee: $961,563.00

Schmitz v. DOT, No. 2011 AP 849, 2012 WL 933710 (Wis. App. Mar. 21, 2012) (Unpublished)

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And further:

“While there is nothing inherently improper about a contingency fee arrangement in an eminent domain case, that arrangement serves only as a guide for the court. Milwaukee Rescue Mission, Inc. v. Milwaukee Redev. Auth., 161 Wis.2d 472, 496, 468 N.W.2d 663 (1991). The court still has the duty to determine, under all the circumstances of the case, whether the resulting contingency fee amount is just and reasonable. Id. Granted, the court here did not reject the fee application because Biersdorf inflated his fee by, for example, seeking payment for work he did not do. Rather, it deemed the fee unreasonable because it sought to recoup payment on a portion of the settlement meant to pay attorney fees-in other words, to take attorney fees on attorney fees. Still, the court had the authority to examine the resultant fee.” Footnote 5

Id. at ¶11

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D. Of course, the trial court must first have competency to award litigation expenses in the eminent domain setting.

Village of Shorewood v. Steinberg et al., 174 Wis.2d 191, 496 N.W.2d 57 (1993)

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II. Measure of “Reasonableness”

A. Factors

1. SCR 20:1.5

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) The amount involved and the results obtained;

(5) The time limitations imposed by the client or by the circumstances;

(6) The nature and length of the professional relationship with the client;

(7) The experience, reputation and ability of the lawyer or lawyers performing the services; and

(8) Whether the fee is fixed or contingent

2. §814.045, Stats – Wis. Stat. §814.045

(a) The time and labor required by the attorney.

(b) The novelty and difficulty of the questions involved in the action.

(c) The skill requisite to perform the legal service properly.

(d) The likelihood that the acceptance of the particular case precluded other employment by the attorney.

(e) The fee customarily charged in the locality for similar legal services.

(f) The amount of damages involved in the action.

(g) The results obtained in the action.

(h) The time limitations imposed by the client or by the circumstances of the action.

(i) The nature and length of the attorney’s professional relationship with his or her client.

(j) The experience, reputation, and ability of the attorney.

(k) Whether the fee is fixed or contingent.

(l) The complexity of the case.

(m)Awards of costs and fees in similar cases.

(n) The legitimacy or strength of any defenses or affirmative defenses asserted in the action.

(o) Other factors the court deems important or necessary to consider under the circumstances of the case.

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3. See “Determining Reasonable Attorney Fees,” Wisconsin Lawyer – October,

2012 at pp.18-23; pp. 60-63.

Excellent Article

4. Ultimately, the application of the “factors” to the proposed fee will be left to the discretion of the trial court.

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Discussion of Reasonableness of Fees and Discretion of trial court:

“WERE THE FEES CHARGED BY STANDARD’S ATTORNEY REASONABLE AND NECESSARY UNDER THE STATUTE? The second part of our analysis concerns whether the fees charged by Attorney Daly were reasonable and necessary, based upon the proceedings involved. As we noted previously, this court has dealt with the question of what constitutes reasonable attorney fees in numerous past decisions. In Herro, McAndrews & Porter v. Gerhardt, 62 Wis.2d 179, 184, 214 N.W.2d 401 (1974), this court recognized that a conflict exists as to the tests to be applied by the court in determining what constitutes reasonable attorney fees. The Herro decision recognized that this court had stated that since the question of what is a reasonable attorney fee is a finding of fact, it will be sustained upon appeal unless clearly unreasonable and against the great weight and clear preponderance of the evidence. Id. at 183, 214 N.W.2d 401, citing Knoll v. Klatt, 43 Wis.2d 265, 271, 168 N.W.2d 555 (1969); Estate of Marotz, 263 Wis. 99, 103, 56 N.W.2d 856 (1953). However, in Herro, this court also acknowledged that past decisions had also stated that this court will exercise an independent review of the reasonableness of the attorney fees. Id., citing Touchett v. EZ Paintr Corp., 14 Wis.2d 479, 488, 111 N.W.2d 419 (1961). See also, Estate of Tierney, 70 Wis.2d 438, 443, 234 N.W.2d 357 (1975); Giffen v. Tigerton Lumber co., 26 Wis.2d 327, 132 N.W.2d 572 (1965). The Herro court concluded that the proper test to be utilized was the “independent review” of the attorney fees. This was based upon this court’s inherent supervisory power over the practice of law, which the Herro court reasoned would be more effectively exercised by independent review of fees. Accordingly, this court stated in the Herro decision that “this *747 court will independently review attorney’s fees when challenged on appeal and any language to the contrary is withdrawn.” Herro, McAndrews & Porter v. Gerhardt, 62 Wis.2d at 184, 214 N.W.2d 401.

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In First Wisconsin Nat. Bank v. Nicolaou, 113 Wis.2d 524, 335 N.W.2d 390, this court modified the Herro test for determining what constitutes reasonable attorney fees. After acknowledging that the trial **671 court’s findings and award may be given weight on review, the Nicolaou opinion utilized the following language: “As part of its inherent supervisory power over the practice of law, this court may independently review the reasonableness of an attorney fee award.” Id. at 537, 335 N.W.2d 390 (citations omitted; emphasis added). We believe that the trial court is in an advantageous position to make a determination as to the reasonableness of a firm’s rates. This is because the trial court may be aware of the costs incurred by a firm in managing its legal practice, or is capable of asking to be made aware of them. As this court noted in Tesch v. Tesch, 63 Wis.2d 320, 335, 217 N.W.2d 647 (1974), “[The trial judge] has observed the quality of the services rendered and has access to the file in the case to see all of the work which has gone into the action from its inception. He has the expertise to evaluate the reasonableness of the fees with regard to the services rendered.” Accordingly, we hold that the proper standard upon review of attorney fees is that the trial court’s determination of the value of these fees will be sustained unless there is an abuse of discretion.”

Standard Theatres, Inc. v. DOT, 118 Wis.2d 730, 746-47 349 N.W.2d 661, 670-71 (1984)

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III. Eminent Domain – When do you “get fees?”

A. Pre-Section 32.28, Stats.,

1. Martineau v. State Conservation Commission, 54 Wis.2d 76, 78-85, 194 N.W.2d 664 (1972)

“*78 **665 Appellant Beth Carroll Martineau brought an order to show cause to recover costs and disbursements, including reasonable attorney fees, incurred in defending a condemnation action commenced by respondent State conservation Commission of Wisconsin (now Department of Natural Resources).”

“this court, in **666 Martineau v. State Conservation Comm. (1970), held that respondent had no statutory authority to condemn appellant’s land *79 and directed the circuit court to terminate the proceedings.

A substantial amount of work was performed by Attorney McKenna, both in obtaining a favorable jury award, substantially in excess of the jurisdictional offer, and in having the condemnation terminated by appealing to this court. If an hourly rate were applied, the fee would total nearly $22,500. In order to

recover the expenses involved in the action, appellant moved to have costs and disbursements, including a reasonable amount for attorney’s fees, taxed against respondent. The trial court, concluding that no statutory provision permitted the taxation of costs, disbursements or attorney’s fees against the state in this situation, denied the motion by an order dated October 26, 1970, and awarded statutory costs under

sec. 271.04, Stats. Appeal is taken from that order.”

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“Even though statutes allowing the taxation of costs against the sovereign are, in a sense, remedial, they are in derogation of the common law and should, therefore, be strictly construed, Herro v. Natural Resources Board (1971), 53 Wis.2d 157, 192 N.W.2d 104.”

“Sec. 32.17(3), Stats., specifically allows recovery from the state of costs and disbursements, including reasonable attorney’s fees in case of abandonment of condemnation proceedings.”

“The question is whether sec. 32.06(9)(a), Stats., contemplates awarding attorney’s fees in the event of involuntary abandonment of condemnation proceedings brought about by a mandate of this court.”

“We think that appellant is not entitled to have attorney’s fees taxed against the state under sec. 32.06(9)(a), Stats., inasmuch as the statute, by its terms, plainly contemplates voluntary abandonment of *85 condemnation and does not apply in a situation in which this court has determined that the condemnor has no authority to take the property in question. Any other interpretation would violate the rule against taxation of costs against the state in the absence of a statute expressly allowing such taxation.

Appellant also contends that the denial of attorney’s fees would be violative of art, I, sec. 13 of the Wisconsin Constitution, which provides:

‘The property of no person shall be taken for public use without just compensation therefore.’

The same contention was raised and rejected by this court in North America Realty Co. v. Milwaukee (1926), 189 Wis. 585, 586, 208 N.W. 489.”

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2. Usually you didn’t!

“We note at the outset that generally, except for court costs and fees, a plaintiff may not recover attorney fees and expenses of litigation in his or her claim against the defendant unless such liability arises from specific statutory provisions or the contract of the parties. Cedarburg Light & Water Comm. V. Glens Falls Ins. Co., 42 Wis.2d 120, 124-25, 166 N.W.2d 165 (1969).”

Shands v. Castrovinci, 115 Wis.2d 352, 340 N.W.2d 506 (1983)

3. Section 32.05(5) existed, but that was very limited:

“When an owner desires to contest the right of the condemnor to condemn the property described in the jurisdictional offer, for any reason other than that the amount of compensation offered is inadequate, such owner may . . .commence an action in the circuit court of the county wherein the property is located, naming the condemnor as defendant . . . . If the final judgment of the court is that the condemnor cannot condemn the property described in the jurisdictional offer, the judgment shall

also award the owner such sum as will in the opinion of the court reimburse the owner for his reasonable costs, disbursements and expenses including reasonable attorney and

engineering fees actually incurred because of the action of the condemnor, but the judgment shall not, in addition thereto, award the owner taxable costs and disbursements pursuant to ch. 271.”

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4. And, Wisconsin courts interpreted this section restrictively:

a. ABRAHAMSON, Justice.“The sole issue on appeal is whether the property owners are entitled to

attorney’s fees under sec. 32.05(5), Stats., where the condemnation proceeding is terminated as a result of a defect in the jurisdictional offer. The trial court awarded fees; we reverse, holding that the owners were not

entitled to attorney’s fees under sec. 32.05(5), Stats.” Footnote 1

. . .

“We have said that the constitutional requirement of just compensation does not compel the condemnor to pay the condemnee’s attorney’s fees in eminent domain proceedings. Martineau v. State Conservation Comm., 54 Wis.2d 76, 85, 194 N.W.2d 664 (1972) Footnote 5 The allowance of

attorney’s fees in condemnation cases is a matter of policy to be determined by the legislature and not a matter of constitutional right.” Footnote 6

. . .

“This limited legislative history appears to support the city’s contentions that the phrase “cannot condemn” means “has no right to condemn” and that the circuit court therefore improperly awarded attorney’s fees to the Wieczoreks.”

Wieczorek v. City of Franklin, 82 Wis2d. 19, 20-24, 260 N.W.2d 650, 650-52 (1978)

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b. Leathem Smith Lodge, Inc. v. State of Wisconsin, 94 Wis.2d 406, 419-20, 288 N.W.2d 808, 815 (1980)

“The condemnees have filed a motion to review the trial court’s order denying actual costs. We affirm that order, because sec. 32.05(11)(b), Stats. 1975, limits the condemnee’s recovery of costs in an action of this type to no more than statutory costs and disbursements. That section provides: 

‘If the jury verdict as approved by the court exceeds the basic award, the appellant shall have judgment for the amount of such excess plus legal interest thereon to date of payment in full from that date which is 14 days after the date of taking plus statutory taxable costs and

disbursements pursuant to s. 814.02(2).’(Emphasis supplied.) It should be noted that the trial court proceeded under sec. 814.02(2) Stats. 1975, and awarded the maximum statutory costs of $100 and disbursements. The cost awarded was then doubled, pursuant to sec. 807.01(3), because the jury award exceeded the pretrial settlement offer tendered by the condemnees. The trial court correctly stated that any modification of the existing statutory costs was for the legislature. Subsequently, sec. 32.28, Stats., was created to provide that condemnees could recover actual costs covering attorney and expert witness fees. This statute does not apply to the present case. The rule applicable to this case is stated in Wieczorek v. Franklin, 82 Wis.2d 19, 23, 260 N.W. 2d 650, 651 (1978): 

‘We have said that the constitutional requirement of just compensation does not compel the condemnor to pay the condemnee’s attorney’s fees in eminent domain proceedings.

Martineau v. State Conservation Comm., 54 Wis.2d 76, 85, 194 N.W. 2d 664 (1972). The allowance of attorney’s fees in condemnation cases is a matter of policy to be determined by the legislature and not a matter of constitutional right.’ We affirm the court’s order allowing costs.”

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And, then the sun comes out!

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B. Section 32.28, Stats. Costs.

(1) In this section, “litigation expenses” means the sum of the costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees necessary to prepare for or participate in actual or anticipated proceedings before the condemnation commissioners, board of assessment or any court under this chapter. (2) Except as provided in sub.(3), costs shall be allowed under ch. 814 in any action brought under this chapter. If the amount of just compensation found by the court or commissioners of condemnation exceeds the jurisdictional offer or the highest written offer prior to the jurisdictional offer, the condemnee shall be deemed the successful party under s. 814.02(2). (3) In lieu of costs under ch. 814, litigation expenses shall be awarded to the condemnee if:

(a) The proceeding is abandoned by the condemnor;(b) The court determines that the condemnor does not have the right to condemn part or all of the property

described in the jurisdictional offer or there is no necessity for its taking;(c) The judgment is for the plaintiff in an action under s. 32.10;(d) The award of the condemnation commission under s. 32.05(9) or 32.06 (8) exceeds the jurisdictional offer or the

highest written offer prior to the jurisdictional offer by at least $700 and at least 15% and neither party appeals the award to the circuit court;

(e) The jury verdict as approved by the court under s. 32.05 (11) exceeds the jurisdictional offer or the highest written offer prior to the jurisdictional offer by at least $700 and at least 15%

(f) The condemnee appeals an award of the condemnation commission which exceeds the jurisdictional offer or the highest written offer prior to the jurisdictional offer by at least $700 and at least 15%, if the jury verdict as approved by the court under s. 32.05 (10) or 32.06 (10) exceeds the award of the condemnation commission by at least $700 and at least 15%

(g) The condemnor appeals the award of the condemnation commission, if the jury verdict as approved by the court under s. 32.05 (10) or 32.06 (10) exceeds the jurisdictional offer or the highest written offer prior to the jurisdictional offer by at least $700 and at least 15%;

(h) The condemnee appeals an award of the condemnation commission which does not exceed the jurisdictional offer or the highest written offer prior to the jurisdictional offer by 15%, if the jury verdict as approved by the court under s. 32.05 (10) or 32.06 (10) exceeds the jurisdictional offer or the highest written offer prior to the jurisdictional offer by at least $700 and at least 15%; or

(i) The condemnee appeals an assessment of damages and benefits under s. 32.61 (3), if the judgment is at least $700 and at least 15% greater than the award made by the city.

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III. Right to Take Cases and Fees

A. Starting Point:1) 32.28(3)(a)The proceeding is abandoned by the condemnor;

2)32.28(3)(b) The court determines that the condemnor does not have the right to condemn part or all of the

property described in the jurisdictional offer or there is no necessity for its taking.

3) 32.28 (3)(c)The judgment is for the plaintiff in an action under s. 32.10

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B. The Cases

1. First, Background

a. 1983 – Shands v. Castrovinci, 115 Wis.2d 352, 340 N.W.2d 506 (1983)“The issues presented on this appeal are whether sec. 100.20(5), Stats., requires an

award of reasonable attorney fees for an appeal in an action for violation of Wis. Adm.Code sec. Ag 134.06; and, if such attorney fees are recoverable, whether a tax supported legal services organization is entitled to receive attorney fees even though the client is not responsible for

paying a legal fee.”

“In light of these important interests, we find no reason to interpret sec. 100.20(5), Stats., as limiting the award of attorney fees to the original trial court litigation. Accordingly, we hold that a tenant who has suffered pecuniary loss because of a violation of Wis.Adm.Code Ch. Ag 134 shall recover reasonable attorney fees for appellate review undertaken to attack or defend a trial court’s decision in the suit.”

“To permit the recovery of attorney fees for successful appellate work is simply to recognize that an attorney’s effort at that stage is as essential to the tenant’s success as is an attorney’s work at the trial court level. Furthermore, we recognize that, if attorney fees were not recoverable on appeal, landlords could defeat the statutory purposes by the simple expedient of an appeal, which will be prohibitively expensive for many tenants; similarly, tenants would have little incentive to pursue a meritorious claim on appeal where they had not prevailed at

the trial court level. In short, to deny attorney fees to tenants who need to pursue appellate review to enforce their rights would undercut the salutary objectives of the statute.”

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b. 1984 – Maxey v. Redevelopment Authority of the City of Racine, 120 Wis.2d 13, 18-23 353 N.W.2d 812 (1984)

“The effect of the supreme court’s decision in Maxey I was to invalidate the direct condemnation proceedings. Therefore, no litigation expenses could be awarded,

within the context of that action, because none of the events set forth in sec. 32.28(3), Stats., governing when litigation expenses shall be awarded had occurred.” Footnote 5

“However, Racine overlooks sec. 32.28(3)(c) which governs the awarding of litigation expenses in this inverse action. The statute provides as follows:

(3) In lieu of costs under ch. 814, the court shall award litigation expenses to the condemnee if:

. . .

(c) The judgment is for the plaintiff in an action under s. 32.10.

In this inverse action, Maxey has obtained a judgment and is therefore entitled to his litigation expenses. We therefore conclude that Maxey, as the successful plaintiff in an inverse condemnation action, is entitled to *21 litigation expenses which include those expenses related to the direct condemnation case.

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Expenses Related To The Allocation Proceeding

“Based on the above reasoning and absent other authority, we would have little difficulty in accepting the condemnees’ argument that expenses related to an allocation proceeding also constitute litigation expenses within the meaning of sec. 32.28(1), Stats. There is other authority, however, which leads us to conclude that expenses related to an allocation proceeding are not to be paid by the condemnor. This authority is the language and effect of sec. 32.11, Stats., as it relates to the subsequent enactment of sec. 32.28. Section 32.11 provides:

**817 If any defect of title to or encumbrance upon any parcel of land is suggested upon any appeal, or if any person petitions the

court in which an appeal is pending setting up a claim adverse to the title set out in said petition to said premises and to the money or any part thereof to be paid as compensation for the property so taken, the court shall thereupon determine the question so presented. Judgment shall be entered on such determination, with costs to the prevailing party. An appeal from such judgment may be taken as from a judgment in an action. [Emphasis added.]

This section expressly authorizes an allocation of the award with the awarding of costs to the prevailing party.” Footnote 6

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“Section 32.11, Stats., does not allude to “litigation expenses” but rather utilizes the traditional language of “costs.” Prior to the enactment of sec. 32.28, Stats., attorneys fees were not recoverable in a condemnation proceeding. Footnote 8 Maxey argues **818 that the enactment of sec. 32.28 served to broaden the traditional concept of costs as recited in sec. 32.11. We disagree. We note that sec. 32.28 retains the concept of costs, separate and apart from disbursements and expenses (including attorneys fees). Section 32.11 similarly alludes to costs but does not embrace disbursements, expenses or attorneys fees.”

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c. 1988 - Richland County v. State Dept. of Health and Social Services, 146 Wis.2d 271, 430 N.W.2d 374 (Wis. App.1988)

“Frivolous.”

“Harris claims that she is entitled to costs and attorney fees on this appeal. We agree. The trial court was required to award her costs and reasonable attorney fees. To enforce her right she was forced to appeal. We conclude that the purpose of sec. 814.025, Stats., would be substantially compromised if victims of a frivolous claim or defense were compelled to litigate at their own expense their entitlement to costs and fees.

Allowing appeal costs and fees to the successful party to whom costs and attorney fees have been awarded under sec. 814.025, Stats., is consistent with the approach approved in In Matter of Estate of Trotalli, 123 Wis.2d 340, 363-64, 366 N.W.2d 879, 890-91 (1985).”

d. 1990 - Siegel v. Leer, 156 Wis.2d 621, 457 N.W.2d 533 (Wis. App. 1990)

“Leer next challenges the reasonableness of the $4,479.24 attorney’s fees awarded to Cap. The reasonableness of an attorney’s fee is one of those rare questions of law to which we give weight to the trial court’s determination. Nelson v. Machut, 138 Wis.2d 301, 305, 405 N.W.2d 776, 778 (Ct.App.1987).

APPELLATE ATTORNEY’S FEESCap also requests that we award it appellate attorney’s fees pursuant to sec.

135.06, Stats. Cap contends that the “actual costs of the action” language in the statute includes appellate attorney’s fees. We agree.”

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e. 1991 - Radford v. J.J. B. Enterprises, Ltd. et al., 163 Wis.2d 534, 472 N.W.2d 790 (Wis. App. 1991)

Buyers of a cabin cruiser with a wood hull bring intentional misrepresentation claim against several for false representations of the hull’s soundness. The court of appeals holds:

“We hold that the entire amount of the plaintiffs’ attorney’s fees was properly assessed against the defendants.”

and,

“A different issue regarding attorney’s fees is raised by the Radfords. They ask us to remand the case to the trial court for an award of appellate attorney’s

fees pursuant to sec. 100.18(11)(b)2, Stats, and Shands v. Castrovinci, 115 Wis.2d 352, 340 N.W.2d 506 (1983). Shands held that a tenant who prevails on appeal is entitled to reasonable appellate attorney’s fees under sec. 100.20(5), Stats. Shands, 115 Wis.2d at 361, 362, 340 N.W.2d at 510, 511. We similarly hold that a party who prevails on appeal in an intentional misrepresentation case brought under sec. 100.18 is likewise entitled to reasonable appellate attorney’s fees.”

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f. 2001 - Benkoski v. Flood et al., 2001 Wis. App. 84, 242 Wis.2d 652, ¶¶ 37-38, 626 N.W.2d 851

Owner of mobile home brought action against mobile home park operators alleging statutory violations.

“We conclude that the trial court did not erroneously exercise its discretion in awarding Benkoski his attorney fees incurred in defense of Flood’s counterclaim.”

“As a final matter, we address Benkoski’s request for attorney fees incurred on appeal. This question was answered by our supreme court in Shands when it held that a plaintiff who recovers attorney fees at the trial court level shall recover further attorney fees incurred on a successful defense of the award on appeal. See Shands 115 Wis.2d at 359, 340 N.W.2d 506. Therefore we hold that Benkoski is entitled to his appellate attorney fees and remand this case to the trial court for such a determination.”

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2. Fees in “Right to Takes”

a. Toombs v. Washburn County, 119 Wis.2d 346, 350 N.W.2d 720 (Wis.App. 1984)

Court of Appeals holds:

“The first step in condemnation for this purpose is the adoption of a relocation order under sec. 32.05(1), Stats. Wisconsin Town House Builders, Inc. v. City of Madison, 37 Wis.2d 44, 52, 154 n.W.2d 232, 235 (1967). The relocation order takes the place of

and constitutes a determination of necessity. Id. Therefore, until the county produces a valid relocation order, it has failed to establish the necessity for taking the land it seeks to condemn.”

“A valid relocation order is required to establish the necessity for condemnation under sec. 32.05 and, because the county failed to produce a valid relocation order as required by statute, the Toombses were entitled to litigation expenses under sec. 32.28(3)(b).”

Wieczorek distinguished:

“[4] Wieczorek v. City of Franklin, 82 Wis.2d 19, 260 N.W.2d 650 (1978), does not require a different result. In that case, the condemnees were not entitled to attorney fees under sec. 32.05(5) Stats. (1971), for successfully challenging a city’s defective jurisdictional offer. Wieczorek, 82 Wis.2d at 25-26, 260 N.W.2d at 653. The jurisdictional offer is a jurisdictional requisite to condemnation, sec. 32.05(4), Stats., a matter independent of whether the condemnor has proved there is a necessity for the taking.”

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b. W.H. Pugh Coal Co. v. State of Wisconsin, 157 Wis.2d 620, 460 N.W.2d 787 (Wis. App. 1990)

“IV. ATTORNEYS’ FEES

The next issue is whether the trial court erred in awarding Pugh attorneys’ fees for the litigation involving the temporary taking. Footnote 3 The state contends that such an award in a just compensation case is improper because it is not authorized by either statute or by the state constitution. We reluctantly agree.

Just compensation following a taking is a constitutional necessity rather than a legislative dole. See Zinn, 112 Wis.2d at 436, 334 N.W.2d at 76. But the constitutional requirement of just compensation does not necessarily include payment by the state of Pugh’s attorneys’ fees. See Wieczorek v. City of Franklin, 82 Wis.2d 19, 23, 260 N.W.2d 650, 651 (1978); see also Dohany v.Rogers, 281 U.S. 362, 368, 50 S.Ct. 299, 302, 74 L.Ed. 904 (1930). In takings cases, the allowance of attorneys’ fees is a matter for the legislature and not a matter of

constitutional right. Wieczorek, 82 Wis.2d at 23, 260 N.W.2d at 651.

Unless expressly authorized by statute, attorneys’ fees are not taxable against the state. Martineau v. State conservation Comm’n, 54 Wis.2d 76, 79, 194 N.W.2d 664, 666 (1972). While sec. 32.28(3)(b), Stats., allows reasonable attorneys’ fees where “[t]he court determines that the condemnor does not have the right to condemn . . . the property . . . Or there is no necessity for its taking,” this case did not arise under ch. 32, Stats.”

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“But wait – There’s more!”

“V. APPELLATE FEES AND DOUBLE COSTS

Finally, Pugh contends that the state’s errors and dilatory tactics have caused Pugh unnecessary hardship and expense in its attempts to realize the

compensation to which it is constitutionally entitled. Consequently, Pugh asks that we award appellate attorneys’ fees and double costs.

A condemnee who prevails on appeal may recover reasonable attorneys’ fees incurred on appeal. Narloch v. DOT, 115 Wis.2d 419, 440, 340 N.W.2d 542, 552-53 (1983). In Narloch, our supreme court said:

[W]hen part or all of the condemnee’s property has been taken . . . [i]f this determination is affirmed on appeal, and the condemnee prevails, it would be inconsistent [with the concept of just compensation] to allow the condemnee to recover only those litigation expenses incurred in circuit court proceedings, but not those incurred in an appeal.

Id. At 440-41, 340 N.W.2d at 553.”

“We conclude that the Narloch and Riley rationales apply with equal force in the case of an uncompensated taking. Accordingly, we conclude that appellate attorneys’ fees are available as to the issues on which Pugh prevailed on appeal.”

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c. Warehouse II v. DOT, 2006 WI 62, 291 Wis.2d 80, 715 N.W.2d 213

WIS DOT commences a condemnation action against property owner. Property owner challenges DOT’s jurisdictional offer to purchase. The circuit court rules that DOT had not negotiated in good faith and that, therefore, the jurisdictional offer to purchase was invalid. It further held no litigation expenses were due property owner. Property owner appeals.

In a 5:2 decision (The Chief Justice and Justice Walsh Bradley dissenting), the Court holds:

“Because required good faith negotiations are a jurisdictional prerequisite to the exercise of eminent domain power under § 32.05, Stats., the absence of such negotiations causes the Jurisdictional Offer and all actions undertaken thereafter by Defendant, including the Award of Damages, to be null and void.”

§ 32.28(3)(b) was the fulcrum of the Court’s decision:

“In lieu of costs under ch. 814, litigation expenses shall be awarded to the condemnee if:. . . .

(b) The court determines that the condemnor does not have the right to condemn part or all of the property described in the jurisdictional offer or there is no necessity for its taking.”

“Whether Warehouse has proven that the DOT did not have the “right-to-condemn” is at issue.”

“¶34 Therefore, we conclude that Wis. Stat. § 32.28(3)(b) applies when the condemnor’s jurisdictional offer to purchase was not made after good faith negotiations, thereby causing a jurisdictional defect in the jurisdictional offer to purchase. This jurisdictional defect causes the condemnor to lack the statutory right to condemn.”

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Footnote 13 is also important:

“13. The dissent contends that because we interpreted the phrase “cannot condemn” to mean “has no right to condemn” in Wieczorek v. City of Franklin, 82 Wis.2d 19, 260 N.W.2d 650 (1978), Wieczorek controls the outcome of this case. Dissent, ¶ 42. We disagree. First, the defect in Wieczorek was merely a technical defect, not a jurisdictional defect, as is present here. Second, we interpreted a different statute in Wieczorek, as we have explained above. Third, the Legislative Reference Bureau’s Analysis anticipated an increase in litigation costs due to the increased number of circumstances under which a property owner could contest the right to condemn under the 1977 revisions. Our decision is consistent with that legislative policy choice.”

The Chief Justice was not happy:

“¶ 40 The Department of Transportation began a new condemnation proceeding and has successfully condemned Warehouse II’s property. The parties currently dispute the amount of the condemnation award. Warehouse II asks the State to pay for litigation expenses Warehouse II incurred to delay the inevitable condemnation. Unfortunately, the majority opinion obliges. Many of the condemnee’s litigation expenses incurred in the first proceeding, for which Warehouse II seeks reimbursement, probably allowed Warehouse II to avoid expenses in the second proceeding.”

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d. Evergreen v. Town of Perry, 2007 Wis. App. 115, 300 Wis.2d 590, 731 N.W. 2d 667

Landowner files an action that challenged the Town’s right to condemn land. The Town withdrew the condemnation petition during the condemnation commissioner’s hearing. The Circuit Court awarded the property owner certain litigation expenses but less than that requested. Property Owner appeals.

The Court’s three holdings that are relevant here are:

(1) litigation expenses are only recoverable after the date of the jurisdictional offer in all condemnation cases;

(2) attorney fees incurred after town’s abandonment of condemnation proceeding were not “reasonable” or “necessary” under statute governing award of litigation expenses;

(3) attorney fees incurred in seeking temporary restraining order and injunction were not “reasonable” or “necessary”;

“Warehouse II expressly overruled Kluenker in favor of a liberal construction of the award of litigation expenses to a condemnee. We conclude that Kluenker’s core holding has not been overruled, and that the circuit court properly exercised its discretion in determining its award of litigation expenses.”

“Thus, an interpretation of § 32.28 to allow litigation expenses incurred prior to the jurisdictional offer is contrary to the plain language of the statute. Id.” (citing Kluenke v. DOT, 109 Wis.2d 602)

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“¶16 WISCONSIN STAT. § 32.28(3) mandates the award of litigation expenses when (1) the condemnor abandons the proceedings, (2) the condemnor lacks the right to condemn or there is no necessity for the taking, (3) the property owner prevails in an inverse condemnation action, or (4) the property owner ultimately recovers a specified amount above the condemnor’s jurisdictional offer. We are not persuaded that a right to take action should be treated differently than a just compensation action under this section.

¶17 In Kluenker, a just compensation case, the condemnor made an original offer far beneath what the condemnee was willing to accept. It would have been reasonable for the condemnee to believe

negotiations would fail and the condemnor would serve a jurisdictional offer, commencing anticipated or actual condemnation proceedings. However, we held that no litigation expenses were recoverable until the condemnor actually served a jurisdictional offer applying the plain language of the statute. Similarly, in this right-to-take case, although D.S.G. reasonably believed the Town was preparing to serve a jurisdictional offer when it received the Town’s original offer, there were no actual or anticipated proceedings until D.S.G. received the jurisdictional offer. In Kluenker, the condemnee could not prepare to challenge the sufficiency of the amount of the offer, and here, D.S.G. could not prepare to challenge the Town’s right to take, before service of the jurisdictional offer. Footnote 5

¶18 We next address D.S.G.’s contention that the circuit court erred in declining to award expenses incurred after abandonment. While D.S.G. correctly asserts that Wis. Stat. §32.28 does not expressly state that fees are only recoverable prior to abandonment or if the continuation of proceedings was not attributable to the condemnee, we conclude that the circuit court properly exercised its discretion in determining that the fees incurred after abandonment were not reasonable or necessary.”

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e. Klemm v. ATC, LLC, 2011 WI 37, 333 Wis.2d 580, 798 N.W.2d 223

Landowners filed a motion for an award of litigation expenses following a successful challenge to the amount of ATC’s negotiated offer of compensation for grant of an easement.

DOT counsel had anticipated 30 years prior that, with respect to the legislation creating Sec. 32.28, Stats., “it is not clear whether litigation expenses may be awarded if an appeal is taken from a negotiated price, i.e. Certificate of Compensation.”

The Circuit Court answered the question yes; the Court of Appeals no.The Supreme Court’s decision:

“¶5 We examine the texts of Wis. Stat. § 32.06 and § 32.28(3)(d) (the statutes at issue), the statutes in the context of the condemnation statutes, the legislative purpose of awarding litigation expenses, and the legislative history of §§ 32.06 and 32.28(3)(d). Upon such review, we conclude that litigation expenses shall be awarded to an owner pursuant to Wis. Stat. § 32.28(3)(d) if the owner conveys the property and receives a certificate of compensation pursuant to § 32.06(2a), with no jurisdictional offer issued under § 32.06(3); timely appeals to the circuit court, which refers the matter to the chairperson of the county condemnation commissioners; and is awarded at least $700 and at least 15% more than the negotiated price under §32.06(2a); and neither party appeals the commission’s award.”

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f. Town of Perry (Again!) DSG Evergreen F.L.P. and Voss Farms v. Town of Perry, No. 2012 AP 2297, 2012 WL 6049246 (Wis. App. Dec. 6, 2012) (unpublished).

After protracted litigation, the Town files a second petition for condemnation proceedings. Property owners filed a right to take action pursuant to Sec. 32.06(5), Stats., alleging the Town had no right to take their land.

“5 ¶15 Relying on Warehouse II, the circuit court in the present case concluded that the Town did not have the right to condemn the property at issue because, as determined by the circuit court in Case No.2004CV2620, the July 2004 jurisdictional offer was fundamentally defective due to the Town’s failure to negotiate with Voss Farms prior to issuing the jurisdictional offer and the Town’s failure to provide DSG and Voss Farms with separate appraisals for their respective parcels.”

Because the Town’s failure to negotiate with Voss Farms was, by itself, a jurisdictional defect resulting in the Town’s inability to condemn the property, we need not and do not address the Town’s arguments as to whether the deficient appraisal was also a jurisdictional defect.

Property owners were awarded litigation expenses and further sought the Court of Appeals’ assistance with respect to recovering appellate litigation expenses under Sec. 32.28(3)(g), Stats. The Court of Appeals reaction:

“10 ¶30 DSG and Voss Farms also seek to recover their litigation expenses incurred on appeal, pursuant to WIS. STAT. § 32.28(3)(g). 8 We question whether it is necessary for a party to obtain a ruling from this court in order to recover appellate litigation expenses under § 32.28(3)(g), as opposed to simply requesting them from the circuit court following remittitur. Nonetheless, to avoid possible confusion, we address the matter. In Narloch v. State Dept. of Transportation, 115 Wis.2d 419, 439, 340 N.W.2d 542 (1983), the supreme court held that “litigation expenses” under § 32.28(3)(g) included recovery of those expenses that a prevailing condemnee incurs in an appeal. here, pursuant to § 32.28(3)(g) and Narloch, 115 Wis.2d at 439, 340 N.W.2d 542, DSG and Voss Farms, the prevailing condemnees, are entitled to litigation expenses associated with the appellate proceedings.

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g. Waller v. American Transmission Company, LLC, 2013 WI 77, 350 Wis.2d 242, 833 N.W.2d 764

In this 5:2 Supreme Court Decision (The Chief Justice and Justice Walsh Bradley dissenting), the Court held:

(1) right-to-take provision set out proper and exclusive way for a property owner to raise a claim that the owner would be left with an uneconomic remnant after a partial taking by condemnor;

(2) right-to-take action had to be decided promptly by circuit court and did not prevent the condemnor from filing simultaneous valuation petition;

(3) it was not clearly erroneous for circuit court to conclude that utility’s condemnation resulted in remaining property being an uneconomic remnant;

(4) owners were entitled to litigation expenses; and

(5) owners were displaced persons and, thus, were entitled to relocation expenses.

“¶6 First, Wis. Stat. § 32.06(5), the “right-to-take” provision, sets out the proper and exclusive way for a property owner to raise a claim that the owner will be left with an uneconomic remnant after a partial taking by the condemnor. An uneconomic remnant claim should be brought under § 32.06(5) because the condemnor has failed to include an offer to acquire any uneconomic remnant in the condemnor’s jurisdictional offer.”

“¶7 Second, the Wallers’ property, after ATC took two easements for transmission lines, is an uneconomic remnant because it is of such size, shape, and condition as to be of substantially impaired economic viability as either a residential or an industrial parcel.”

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“¶8 Third, the Wallers prevailed on their uneconomic remnant claim brought under Wis. Stat. § 32.06(5) – the right-to-take statute – and, therefore, were entitled to litigation expenses under Wis. Stat. § 32.28.”

Once again, the dissent was not pleased:

¶123 The majority has transformed what should be a case of minor statewide impact involving only a small amount of money into a case with significant ramifications and costly consequences for rate-payers and taxpayers who end up paying the bills.

¶124 The ramifications will affect how all condemnors throughout the state proceed with the taking of property for projects, large and small. Footnote 1

¶125 Because the majority rewrites and broadens the statutory definition of an uneconomic remnant, condemnors may now be required to take an increased amount of property that they do not want or need for their projects. Increased costs to ratepayers and taxpayers will accompany these unnecessary takings because now condemnors can be required to pay for the entire property, together with relocation benefits, rather than paying for the taking of only an easement.”

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In this Wisconsin Court of Appeals Decision, it was held that condemnee was entitled to an award of post-judgment interest despite condemnor’s appeal.

h. Geise v. American Transmission Company LLC, 2014 Wis. App. 72, ¶¶29-36, 355 Wis.2d 454, 853 N.W.2d 564

“¶29 On cross-appeal, the parties dispute whether the circuit court erred in denying post-judgment interest to Geise under Wis. Stat. § 32.06(10)(d). The circuit court determined that, under § 32.06(10)(d), “interest has and does not accrue on the judgment amount (total awarded by jury plus costs of litigation) as a result of ATC’s appeal, which has been filed.” This is an issue of first impression.”

“The provision at issue here, § 32.06(10)(d), regarding post-judgment interest, provides in full:

All judgments required to be paid shall be paid within 60 days after entry of judgment unless within this period appeal is taken to the court of appeals or unless condemnor has petitioned for and been granted an order abandoning the condemnation proceeding. Otherwise such judgment shall bear interest from the date of entry of judgment at the rate of 10% per year until payment.”

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“¶34 We conclude that the only reasonable way to read Wis. Stat. § 32.06(10)(d) is that: (1) a party required to pay a judgment must pay the judgment within sixty days after entry of judgment; (2) a party need not pay a judgment within that sixty-day period if the judgment is appealed to this court within that period or a condemnor petitions for and obtains an order to abandon the condemnation proceeding; and (3) if a judgment required to be paid is not paid within that period, the judgment bears interest from the date of entry of judgment at a rate of ten percent per year until the judgment is paid in full (if that judgment is not reversed on appeal). Thus, we read the statute to mean that a judgment that is appealed within sixty days after entry of judgment does not have to be paid within that time period; however, the judgment nonetheless bears interest from the date of entry of judgment if it is not paid within that time period, assuming the judgment, or some portion of it, is upheld on appeal. The necessary result of this reading is that interest accrues during the pendency of an appeal and post-judgment interest must be paid.

¶35 Our construction of Wis. Stat. § 32.06(10)(d) is the only reasonable construction because it avoids an absurd result.”

“¶36 Moreover, our construction fulfills the legislative purpose behind the statutory provisions in Wis. Stat. ch. 32, which is to justly compensate owners for the taking of their property by condemnation and thus to make them whole. See Standard Theatres, Inc. v. State, 118 Wis.2d 730, 744-45, 349 N.W.2d 661 (1984). Post-judgment interest in a condemnation proceeding, such as this, is part of the just compensation to which a condemnee is entitled. See W.H. Pugh Coal Co. v. State, 157 Wis.2d 620, 633, 460 N.W.2d 787 (Ct. App. 1990). “[J]ust compensation is for property presently taken and necessarily means the property’s present value, presently paid not its present value to be paid at some future time without interest.” Id. (quoting another source). Our construction ensures that the condemnee is awarded just compensation for the taking of his or her property and thus comports with the purpose behind ch. 32.”

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THANK YOU

Thomas S. Hornigvon Briesen & Roper, s.c.

3 S. Pinckney Street, Suite 1000Madison, WI 53703

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