519 Corp. v. State Dept. of Transp., Division of Highways, 77-101

• Decision Date: 06 November 1979
• Docket Number: No. 77-101,77-101
• Citation: 92 Wis.2d 276,284 N.W.2d 643
• Parties: 519 CORPORATION, a Wisconsin Corporation, Plaintiff-Appellant and Cross-Respondent, v. STATE of Wisconsin DEPARTMENT OF TRANSPORTATION, DIVISION OF HIGHWAYS, Defendant-Respondent and Cross-Appellant.
• Court: Wisconsin Supreme Court

Page 643

284 N.W.2d 643

92 Wis.2d 276

519 CORPORATION, a Wisconsin Corporation Plaintiff-Appellant and Cross-Respondent, v. STATE of Wisconsin DEPARTMENT OF TRANSPORTATION, DIVISION OF HIGHWAYS, Defendant-Respondent and Cross-Appellant.

No. 77-101.

Supreme Court of Wisconsin.

Submitted on Briefs Sept. 12, 1979.

Decided Nov. 6, 1979.

Roger Pinkert and Pinkert, Smith, Koehn & Weir, Sturgeon Bay, for plaintiff-appellant and cross-respondent.

Bronson C. La Follette, Atty. Gen., and David T. Flanagan, Asst. Atty. Gen., for defendant-respondent and cross-appellant.

ABRAHAMSON, Justice.

The condemning authority and the owner each assert that the opposing party committed procedural irregularities in this condemnation proceeding. The State, the condemning authority, moved to vacate the circuit judge's assignment to a county condemnation commission to determine compensation on the ground that the owner's application for assignment was a nullity. The circuit court denied the State's motion to vacate the assignment, and we affirm this order of the circuit court. 519 Corporation, the owner, moved to dismiss the State's appeal to the circuit court from the county condemnation commission's award on the ground that the State's notice of appeal was improperly served. The circuit court denied 519 Corporation's motion to dismiss the State's appeal, and we reverse this order of the circuit court.

I.

519 Corporation owned a tract of land in Door county, part of which was acquired by the state through condemnation under sec. 32.05, Stats. The State served a jurisdictional offer upon the Corporation and paid an award of damages for the land taken on October 28, 1975.

Pursuant to sec. 32.05(9), Stats.1975, the Corporation appealed the award of damages on April 5, 1976, by applying to the circuit judge for an assignment of the matter to the county condemnation commission to determine the compensation to be paid. The circuit judge assigned the matter to the commission which held a hearing on November 29, 1976 and awarded damages to the Corporation which were higher than the original award of damages by the State.

On March 10, 1977, after the State sought to appeal the commission's award to the circuit court (which appeal we shall discuss later), the State moved the circuit court to vacate the judge's assignment of the matter to the commission, on the ground that, in violation of the provisions of sec. 32.05(9), Stats.1975, the Corporation's application upon which the assignment was based disclosed the amount of the jurisdictional offer and the amount of the award of damages. The pertinent parts of sec. 32.05(9)(a), Stats.1975, prohibiting disclosure of the amounts in the application for assignment are as follows:

"Any party having an interest in the property condemned may, within 2 years after the date of taking, appeal from the award, except as hereinafter limited by applying to the judge of the circuit or county court of the county wherein the property is located for assignment to a commission of county condemnation commissioners as provided in s. 32.08 . . . Such application shall contain a description of the property condemned and the names and last known addresses of all parties in interest but shall not disclose the amount of the jurisdictional offer nor the amount of the basic award. Violation of this prohibition shall nullify such application. . . ." (Emphasis added.)

Section 32.05(9)(a) prohibits the application from disclosing the amount of the jurisdictional offer or the amount of the basic award in order to prevent that information from being disclosed to the condemnation commission. ¹

The parties concede that the Corporation's application contained the amount of the jurisdictional offer and the amount of the basic award. ²

The State argues that chapter 32 of the statutes constitutes "a complete and exclusive method of procedure in condemnation matters"; ³ that a judge in making an assignment to the commission is acting in an administrative capacity; ⁴ that sec. 32.05(9)(a) prohibits disclosure of the amount of the offer or of the amount of the basic award in the application; that sec. 32.05(9)(a) characterizes an application which discloses these amounts as a "nullity"; and that when the application is a nullity, the judge is "without the administrative power to make an assignment to the commission . . . ." ⁵

The circuit court in refusing to vacate the assignment to the commission relied on affidavits filed by the Corporation in opposition to the State's motion to vacate the assignment. The Corporation filed three affidavits, each executed by a condemnation commissioner stating that the commissioner did not know the amount of the jurisdictional offer or basic award prior to the entering of the commission's award and that the award by the commission was based solely on the evidence and testimony presented at the hearing held by the commission on November 29, 1976. The parties concede that the commissioners were not aware of the amount of the jurisdictional offer or of the basic award before the entering of the commission's award.

The Corporation's attorney also filed his affidavit, which is not part of the record on appeal but which was described by the circuit court in its decision as follows:

"Mr. Pinkert (Corporation's attorney) then filed a brief with the Court in the form of a response to which he has appended his affidavit and an affidavit of each of the Door County Condemnation Commissioners. The essence of Mr. Pinkert's affidavit is that upon receipt of the original affidavit and Notice of Appeal in this case back in April or May of 1976, an offer was then made to the Attorney General's office to voluntarily dismiss the action and to start over, but that the Attorney General's office, in the person of Mr. Flanagan felt it was unnecessary and that in fact all that would be necessary would be that any reference to the Jurisdictional Offer be removed from the file until the Condemnation Commissioners had rendered their decision.

"The affidavit further recites that the Clerk was requested to remove any reference to the Jurisdictional Offer from the file until after the Commissioners had rendered their decision." ⁶

The State, relying on Acheson v. Winnebago County Highway Comm., 14 Wis.2d 475, 111 N.W.2d 446 (1961), urges us to hold that the circuit judge had no authority to ignore the defect in the application or to permit an amendment of the application. The Acheson Case, like the case at bar, involved a section 32.05 condemnation proceeding in which the application to the judge for an order of assignment to a condemnation commission disclosed the amount of the award of damages. In Acheson the circuit judge granted the condemnor's motion to dismiss the application and refused to grant the condemnee an opportunity to amend the application to delete the amount of the award. The condemnee wished to amend the application rather than file a new one apparently because the statutory time for filing had already expired. ⁷ This court dismissed the appeal for lack of jurisdiction to entertain the appeal ⁸ and did not reach the merits of the matter. Nevertheless, in Acheson, we stated, obiter dictum, that the judge had no power to permit amendments to an application filed pursuant to sec. 32.05(9). ⁹

The Corporation, relying upon Evans v. Wisconsin Department of Local Affairs & Development, 62 Wis.2d 622, 626, 215 N.W.2d 408 (1974), urges us to treat the surplus information in the application as a harmless technical error. In the Evans Case there was an error in the caption of the petition for judicial review of a decision of the administrative agency. The agency appeared initially without objecting to the petition. This court held that the appeal proceeding was valid.

". . . Here there was not a failure to serve the right agency or untimely service. The petition set forth the decision or determination to be reviewed and alleged the reasons for a review. The attorney general, in behalf of the agency, responded with a general appearance and a statement of the department's position as to the review without any objection as to jurisdiction. No one was misled in any way." Id. 62 Wis.2d at 626, 215 N.W.2d at 410-411.

We agree with the State that the Evans Case is distinguishable from the instant case. Evans involved a technical error of pleading; in this case before us the petition includes substantive information whose disclosure was explicitly prohibited by statute.

Nevertheless we conclude, as did the circuit court, that under the special circumstances of this case, the application of the Corporation was not a "nullity" and should not be dismissed.

The circuit court found that the parties had communicated about the defect prior to the condemnation commission hearing and had, in effect, agreed that the application, with the amounts deleted, would constitute a new application. The circuit court stated:

"(T)he County Condemnation Commissioners by agreement of counsel in this case were not provided with the information contained in the Jurisdictional Offer or the amount of the basic award. In all events, the agreement of the parties that had been made following the commencement of this matter, and the issuance of the order of May 6, 1976, was an entirely new and different arrangement with respect to the facts to be presented to the County Condemnation Commissioners, although they were contained in the original application."

Unlike the facts in the Acheson Case, the owner in the case at bar was well within the statutory time period for submitting a new application.

On the basis of the papers filed, there being no oral testimony, ¹⁰ we conclude, as did the circuit court, that the application, with the amounts deleted, became, as a result of the agreement of the parties, a new application. The new application was made within the statutory time period, and because it does not include the amount of...