32.28 Costs.

(1) In this section:

(a) “Consumer price index” means the average of the consumer price index over each 12-month period, all items, U.S. city average, as determined by the bureau of labor statistics of the U.S. department of labor.

(b) “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 the amount specified in sub. (4) and at least 15 percent 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 the amount specified in sub. (4) and at least 15 percent;

(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 the amount specified in sub. (4) and at least 15 percent, 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 [the amount specified in sub. (4)] and at least 15 percent;

NOTE: The correct amount is shown in brackets. Corrective legislation is pending.

(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 the amount specified in sub. (4) and at least 15 percent;

(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 percent, 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 the amount specified in sub. (4) and at least 15 percent; or

(i) The condemnee appeals an assessment of damages and benefits under s. 32.61 (3), if the judgment is at least the amount specified in sub. (4) and at least 15 percent greater than the award made by the city.

(4)

(a) The amount for the purposes of sub. (3) (d) to (i) shall be $2,700, adjusted as specified in par. (b).

(b) Beginning on January 1, 2018, and annually on January 1 thereafter, the department of administration shall adjust the dollar amount specified in par. (a) by an amount equal to that dollar amount multiplied by the percentage change in the consumer price index for the prior year, rounded to the nearest dollar. The department shall publish the dollar amounts on its Internet site. Notwithstanding s. 227.10, the adjusted dollar amounts need not be promulgated as rules under ch. 227.

History: 1977 c. 440; 1983 a. 236; 1995 a. 140; 2017 a. 59.

Under sub. (3) (d), the difference between the award and offer must meet both the $700 and 15 percent tests, but the two are not cumulative. Acquisition of Certain Lands by Benson, 101 Wis. 2d 691, 305 N.W.2d 184 (Ct. App. 1981).

A condemnee may not recover attorney fees incurred prior to a jurisdictional offer. A contingent fee of 40 percent of an award, plus interest, was reasonable. A condemnor must pay an appraiser for time spent as an adviser during most of a trial. Kluenker v. State, 109 Wis. 2d 602, 327 N.W.2d 145 (Ct. App. 1982).

An evidentiary hearing on the reasonableness of litigation expenses is discretionary, not mandatory. Appellate litigation expenses may be awarded. Narloch v. DOT, 115 Wis. 2d 419, 340 N.W.2d 540 (1983).

For attorney fees to be found reasonable, a condemnee is not required to retain counsel from the locality where the condemned property is located. It implies a reasonable choice of counsel based on the facts of the case. Standard Theatres v. DOT, 118 Wis. 2d 730, 349 N.W.2d 661 (1984).

Litigation expenses were properly awarded under sub. (3) (b) when the condemnor failed to establish the necessity for taking the property. Toombs v. Washburn County, 119 Wis. 2d 346, 350 N.W.2d 720 (Ct. App. 1984).

A successful plaintiff in an inverse condemnation action was entitled to litigation expenses, which included expenses related to a direct condemnation action. Expenses related to an allocation proceeding under s. 32.11 were not recoverable. Maxey v. Racine Redevelopment Authority, 120 Wis. 2d 13, 353 N.W.2d 812 (Ct. App. 1984).

An award under s. 32.06 (8) exclusively for tenant's immovable fixtures constitutes a separate award for purposes of s. 32.28 (3) (d). The unit rule of damages is inapplicable. Litigation expenses are awarded by court order, not by the clerk under s. 814.10. Green Bay Redevelopment Authority v. Bee Frank, 120 Wis. 2d 402, 355 N.W.2d 240 (1984).

A contingent fee contract while not improper, is only a guide in awarding expenses under sub. (3) (e). Milwaukee Rescue Mission v. Milwaukee Redevelopment Authority, 161 Wis. 2d 472, 468 N.W.2d 663 (1991).

A judge who assigns a condemnation petition to the commission may award attorney fees when neither party appeals the commission's award. Contingent fees as the basis of an award are discussed. Village of Shorewood v. Steinberg, 174 Wis. 2d 191, 496 N.W.2d 191 (1993).

The award of litigation expenses upon abandonment of condemnation proceedings applies to all ch. 32 condemnations. Expenses may be awarded when any proceeding in the process is abandoned. Pelfrense v. Dane County Regional Airport, 186 Wis. 2d 538, 521 N.W.2d 460 (Ct. App. 1994).

When an award is appealed, but does not proceed to a verdict, the issue of litigation expenses is treated as arising under sub. (3) (d). Dickie v. City of Tomah, 190 Wis. 2d 455, 527 N.W.2d 697 (Ct. App. 1994).

Attorney fees may not be awarded when an attorney-client relationship does not exist. An attorney represented by his own law firm is not entitled to attorney fees. Dickie v. City of Tomah, 190 Wis. 2d 455, 527 N.W.2d 697 (Ct. App. 1994).

When language in a lease provided that the lessor would receive all of any condemnation award, the calculation of the 15 percent under sub. (3) (e) was based on the entire jurisdictional offer, even though under terms of the lease the lessee was entitled to payments from the lessor upon condemnation. Van Asten v. DOT, 214 Wis. 2d 135, 571 N.W.2d 420 (Ct. App. 1997), 96-1835.

Sub. (3) (b) entitles a successful condemnee to litigation expenses when the condemnor fails to negotiate in good faith before issuing the jurisdictional offer. Good faith negotiation prior to issuing a jurisdictional offer is not merely a technical obligation, but rather, is a fundamental, statutory requirement necessary to validly commence condemnation and confer jurisdiction on the condemnation commission and the courts. The Warehouse II, LLC v. State of Wisconsin Department of Transportation, 2006 WI 62, 291 Wis. 2d 80, 715 N.W.2d 213, 03-2865.

This section does not expressly state that fees are only recoverable prior to abandonment or if the continuation of proceedings was not attributable to the condemnee. However the circuit court in this case properly exercised its discretion in determining that the fees incurred after abandonment were not reasonable or necessary. DSG Evergreen F.L.P. v. Town of Perry, 2007 WI App 115, 300 Wis. 2d 590, 731 N.W.2d 667, 06-0585.

Litigation expenses shall be awarded to an owner under sub. (3) (d) if the owner conveys the property and receives a certificate of compensation pursuant to s. 32.06 (2a), with no jurisdictional offer issued under s. 32.06 (3); timely appeals to the circuit court, which refers the matter to the chairperson of the county condemnation commissioners; is awarded at least $700 and at least 15 percent more than the negotiated price under s. 32.06 (2a); and neither party appeals the commission's award. Klemm v. American Transmission Company, LLC, 2011 WI 37, 333 Wis. 2d 580, 798 N.W.2d 223, 09-2784.