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  • WisBar News
    November 16, 2010

    Mailing error keeps case alive for private landowner in condemnation dispute 

    Attorney files a late appeal, but court clerk did not send notice to the appellant-client by certified mail, and Wis. Stat. section 32.06 requires it. Thus, appellant-client will get a second shot at appeal.

    By Joe Forward, Legal Writer, State Bar of Wisconsin

    Mailing error keeps case alive for   private landowner in condemnation dispute Nov. 16, 2010 – A party that appealed a condemnation commission’s award beyond the 60-day period for filing such appeal is saved by a circuit court clerk’s error in notifying that party of the award, a Wisconsin appeals court recently held.

    In Dahir Lands, LLC v. American Transmission Company LLC, 2009AP2583 (Nov. 11, 2010), the District IV appeals court reversed a circuit court order that dismissed Dahir Land’s appeal even though the circuit court clerk did not comply with statutory notice requirements.

    American Transmission Company (ATC) filed a nontransportation condemnation proceeding against Dahir Lands (Dahir), hoping to acquire a transmission line easement across Dahir’s farmland. A local condemnation commission held an evidentiary hearing on the land’s value, and filed its award with the circuit court clerk.

    Wis. Stat. section 32.06 required the circuit court clerk to send a notice of the award by certified mail to both Dahir and ATC. But the clerk sent notice by U.S. (noncertified) mail to Dahir’s attorney, not Dahir directly.

    Under section 32.06(10), Dahir had 60 days from the date on which the commission’s award was filed with the circuit court to file an appeal. Dahir filed its appeal well after the 60-day deadline, and ATC moved to dismiss the case for untimely filing.

    The circuit court granted the motion to dismiss, concluding that Dahir had actual notice and was not prejudiced by defects in the clerk’s transmission of notice. Dahir appealed.

    Strict compliance required 

    ATC argued that although the circuit court clerk did not comply with the plain language of section 32.06 in transmitting the award notice, substantial compliance was sufficient. The appeals court disagreed.

    Aside from a plain language analysis of the statute, the court explained, the Wisconsin Supreme Court has determined that strict compliance is required in this situation to benefit the owners who are deprived of property against their will.

    The court also rejected ATC’s argument that dismissal was appropriate because Dahir had “actual notice” through its attorney, who became aware of the award before the deadline for filing a notice of appeal.

    “[T]he decision of our supreme court in Pool v. City of Sheboygan, 2007 WI 38, 300 Wis.2d 74, 729 N.W.2d 415, confirms that actual notice is not relevant when the stakes involve the right to commence an action involving one’s right to property or compensation for its taking,” wrote Judge Brian Blanchard for the appeals court.

    The court noted the “special circumstance” case of Big Valley Farms, Inc. v. Wis. Public Service Corp., 66 Wis. 2d 620, 225 N.W.2d 488 (1975), which falls outside the “general rule requiring adherence to statutory procedural requirements.” In that case, a landowner failed to use certified mail to serve the condemnor, as required by statute, but the condemnor’s attorney explicitly “admitted due and personal service of both proper time and proper manner.”

    Big Valley Farms is inapplicable, the court explained, because here “there was no such express waiver of either use of U.S. mail or service on an attorney.” The appeals court reversed the circuit court judgment of dismissal and remanded the case.

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