Condemnee can get litigation expenses without a jurisdictional offer,
supreme court rules
Supreme court answers the question of whether a party may obtain
litigation expenses in condemnation cases when a party appeals the
negotiated price of just compensation.
By Joe Forward, Legal Writer,
State Bar of Wisconsin
June 6, 2011 – The Wisconsin Supreme Court recently clarified
that a condemning party need not make a jurisdictional offer of
compensation in order for the condemnee to recover litigation costs.
American Transmission Company (ATC) filed a condemnation proceeding
against property owners Mark and Jeanna Klemm, hoping to obtain an
easement on the Klemms land to lay transmission lines.
Under Wis. Stat. section 32.06(2a), the condemnor must attempt to
negotiate personally with the owner before making a jurisdictional
offer. ATC appraised the market value of the easement at $7,750, and the
Klemms agreed to convey the easement at that price. No jurisdictional
offer was made.
v. American Transmission Co. LLC, 2011 WI 37 (May 26, 2011), a
unanimous supreme court ruled the Klemms were entitled to litigation
expenses based on the negotiated price, even though ATC never made a
jurisdictional offer of compensation for the easement.
In general, 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
Under statute, a jurisdictional offer or a negotiated price goes to the
county condemnation commissioner for approval. The commissioner here
valued the easement at $10,000, and awarded that amount as just
compensation. The parties subsequently agreed on a $30,000
The Klemms filed an action in circuit court to collect litigation
expenses under section 32.28(3)(d). The circuit court awarded litigation
expenses, but the appeals court reversed, concluding that litigation
expenses are not available unless the condemnor makes a jurisdictional
But the supreme court agreed with the circuit court’s
“Regardless of whether the parties proceed under the negotiated
price appeal route or the jurisdictional offer route, the county
condemnation commission and court procedures are the same,” wrote
Chief Justice Shirley Abrahamson in her opinion.
The purpose of awarding litigation expenses in these cases discourages
the condemnor from making inequitably low jurisdictional offers and to
make the condemnee whole, the court explained.
“It is 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.”
The court rejected ATC’s other arguments, including the argument
that fee shifting will “open the floodgates of litigation in the
“Awarding litigation expenses has the same function in both the
negotiated price appeal route and the jurisdictional offer route: to
encourage condemnors to be fair and reasonable in calculating just
compensation and to make the owner whole.”
Shane J. Vanderwaal of Pietz, Vanderwaal, Stacker & Rottier S.C.,
Wausau, represented the Klemms. Steven M. Streck and Sara K. Beachy of
Axley Brynelson LLP, Madison, represented American Transmission