Avonelle M. Kissack Living Tr. v. Am. Transmission Co.

• Decision Date: 20 August 2020
• Docket Number: Appeal No. 2019AP408
• Parties: AVONELLE M. KISSACK LIVING TRUST, PLAINTIFF-APPELLANT, v. AMERICAN TRANSMISSION COMPANY, LLC, ATC MANAGEMENT INC., NORTHERN STATES POWER COMPANY DBA XCEL ENERGY, WPPI ENERGY, DAIRYLAND POWER COOPERATIVE AND SMMPA WISCONSIN, LLC, DEFENDANTS-RESPONDENTS.
• Court: Wisconsin Court of Appeals

AVONELLE M. KISSACK LIVING TRUST, PLAINTIFF-APPELLANT, v. AMERICAN TRANSMISSION COMPANY, LLC, ATC MANAGEMENT INC.,NORTHERN STATES POWER COMPANY DBA XCEL ENERGY,WPPI ENERGY, DAIRYLAND POWER COOPERATIVE AND SMMPA WISCONSIN, LLC, DEFENDANTS-RESPONDENTS.

Appeal No. 2019AP408

STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV

August 20, 2020

NOTICE

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.

Cir. Ct. No. 2016CV636

APPEAL from a judgment of the circuit court for Sauk County: WENDY J.N. KLICKO, Judge. Reversed and cause remanded for further proceedings.

Before Fitzpatrick, P.J., Kloppenburg, and Graham, JJ. ¶1 FITZPATRICK, P.J. American Transmission Company, LLC condemned land for a utility easement on real estate owned by the Avonelle M. Kissack Living Trust.¹ ATC and Kissack did not agree on the amount ATC is required to pay to Kissack for the diminution of the fair market value of Kissack's real estate because of the condemnation for the easement. See WIS. STAT. § 32.09(6g) (providing that the compensation paid for the taking of the easement be "determined by deducting from the fair market value of the whole property immediately before the date of evaluation, the fair market value of the remainder immediately after the date of evaluation, assuming the completion of the public improvement"). Kissack filed this action in the Sauk County Circuit Court, and that issue was tried to a jury. See WIS. STAT. § 32.06(10) (providing that the amount of just compensation may be tried in the circuit court). The jury returned a verdict determining the diminution in the fair market value of Kissack's real estate because of ATC's taking of the easement.

¶2 Kissack appeals the judgment based on that verdict. Kissack contends that the circuit court erred in denying its post-verdict motion for a new trial based on purportedly erroneous evidentiary rulings by the circuit court.Separately, Kissack contends that the circuit court erred by relying on an unpublished per curiam opinion issued by this court which was cited by ATC in argument in the circuit court. For the reasons discussed below, we largely affirm the challenged rulings of the circuit court. However, we conclude that, as to rulings of the court limiting Kissack's cross-examination of two witnesses, the circuit court materially erred. On that basis, we conclude that Kissack is entitled to a new trial. Accordingly, we reverse the judgment and remand this matter to the circuit court.

BACKGROUND

¶3 The following material facts are not in dispute.

¶4 This case concerns the acquisition of a transmission line easement by ATC for the construction of a high voltage transmission line, known as the Badger Coulee Transmission Line Project, from northern Dane County to the La Crosse area.² The route taken by the transmission line runs through a 39.10 acre parcel of land owned by Kissack in Sauk County. Pursuant to the applicable statutes in WIS. STAT. ch. 32, ATC condemned an easement on the Kissack property for the erection, maintenance, and operation of the transmission line.³

¶5 ATC retained Edward Steigerwaldt, the owner and president of Steigerwaldt Land Services, Inc., to conduct a statutorily required appraisal of theKissack property, and the appraisal was sent to Kissack.⁴ See WIS. STAT. § 32.06(2)(a) and (b) ("The condemnor shall cause at least one ... appraisal to be made of the property proposed to be acquired," and "[t]he condemnor shall provide the owner with ... any appraisal made under par. (a)."). The appraisal reflected Steigerwaldt's then-opinion regarding the diminution in the fair market value of the Kissack property resulting from ATC's condemnation of the Kissack easement and the placement of the transmission line. See generally WIS. STAT. § 32.09(6g)⁵ and Fields v. American Transmission Co., 2010 WI App 59, ¶¶9, 14, 324 Wis. 2d 417, 782 N.W.2d 729 (regarding determining the diminution of the fair market value). Steigerwaldt opined that the fair market value of the Kissack property before the taking of the easement was $782,000 or $20,000 per acre, and that the property's fair market value after the taking of the easement and the placement of the transmission line is $761,345 - a diminution in value of about $20,700.

¶6 Kissack did not dispute ATC's condemnation of the easement. See WIS. STAT. § 32.06(5) (providing for a circuit court action to contest the right of condemnation). But, pursuant to § 32.06(8) and WIS. STAT. § 32.08(5), Kissackchallenged the adequacy of ATC's proposed compensation for the Kissack easement before the Sauk County Condemnation Commission.

¶7 Steigerwaldt prepared a second appraisal of the Kissack property just prior to the Commission proceedings. Steigerwaldt opined in the second appraisal that the Kissack property's fair market value before the easement was $832,650 (or $21,295 per acre) and that the property's fair market value after the taking of the easement and placement of the transmission line is $802,878 - a diminution in value of about $29,800.⁶

¶8 Before the Commission, Kissack and ATC stipulated that the Kissack property had a fair market value of $20,000 per acre before the taking. The parties presented evidence concerning the property's fair market value after the taking of the easement and placement of the transmission line, and the Commission issued a compensation award regarding the diminution of the fair market value of the Kissack property.⁷ See WIS. STAT. §§ 32.06(8) and 32.08(6) (providing for proceedings before a commission of county condemnation commissioners to determine a compensation award); see also Waller v. American Transmission Co.

, 2013 WI 77, ¶64-65, 350 Wis. 2d 242, 833 N.W.2d 764 (describing the statutory process for the determination of a compensation award by such a commission).

¶9 Kissack appealed the Commission's compensation award to the Sauk County Circuit Court. See WIS. STAT. § 32.06(10) (providing that "[w]ithin 60 days after the date of filing of the commission's award either condemnor or owner may appeal to the circuit court ....").⁸

¶10 Kissack presented an expert witness at the jury trial in the circuit court regarding the diminution in fair market value of the Kissack property as a result of the easement and the placement of the transmission line. Kissack's expert witness opined that the fair market value of the Kissack property was $782,000 (or $20,000 per acre) before the taking. Kissack's expert witness opined that the fair market value of the Kissack property diminished to $547,000 after the acquisition of the easement and placement of the transmission line for a $235,000 loss of fair market value for the Kissack property.

¶11 ATC presented expert witnesses who testified that the fair market value of the Kissack property was, respectively, $355,000 (or $9600 per acre) and $168,130 (or $4300 per acre) prior to the taking. The ATC expert witnesses testified that the fair market value of the Kissack property after the taking and the placement of the transmission line diminished by, respectively, $4000 and $2130. Steigerwaldt did not testify at trial.

¶12 The jury found that the Kissack property's fair market value was $352,000 (or about $9500 per acre) before the taking, and $343,500 after thetaking and the placement of the transmission line (or about $9300 per acre) for a diminished fair market value of $8500.

¶13 Post-verdict, Kissack moved for a new trial on the grounds that, because of material and prejudicial errors in the circuit court's evidentiary rulings, Kissack was prevented from presenting evidence at trial concerning: the Steigerwaldt appraisals; closing arguments by ATC's counsel at a separate trial concerning a different property in which counsel referred to Steigerwaldt's testimony at that separate trial regarding the Kissack property; and the parties' stipulation before the Commission.⁹

¶14 The circuit court denied Kissack's motion for a new trial and entered judgment on the jury's verdict.

¶15 Kissack appeals. We set forth other material facts in our discussion, below.

DISCUSSION

¶16 On appeal, Kissack argues that the circuit court erred in its rulings which excluded evidence regarding: (1) the Steigerwaldt appraisals of the Kissackproperty; (2) closing arguments made by ATC's counsel in the circuit court in Wanat v. American Transmission Company, No. 2017CV71 (Sauk Cty. Cir. Ct.); and (3) the stipulation between Kissack and ATC before the Commission.¹⁰ Kissack also argues that the circuit court erred in purportedly "relying" on ATC's citations to an unpublished per curiam opinion issued by this court. We address each set of arguments in turn.¹¹

I. Motion for a New Trial Based on Evidentiary Rulings.

¶17 We begin by setting forth our standard of review and governing principles.

¶18 Kissack appeals the circuit court's denial of its motion for a new trial based on alleged errors in the court's evidentiary rulings. WISCONSIN STAT. § 805.15(1) states, in pertinent part, that "[a] party may move to set aside a verdict and for a new trial because of errors in the trial ...." Id.

¶19 We review a circuit court's evidentiary rulings for an erroneous exercise of discretion. State v. Meehan, 2001 WI App 119, ¶23, 244 Wis. 2d 121,630 N.W.2d 722. "A court's decision on a motion for a new trial is reviewed under that same standard." Fields, 324 Wis. 2d 417, ¶8 (citing Larry v. Commercial Union Ins. Co., 88 Wis. 2d 728, 733, 277 N.W.2d 821 (1979)).

¶20 "The burden to demonstrate an erroneous exercise of discretion rests with the appellant." Winters v. Winters, 2005 WI App 94, ¶18, 281 Wis. 2d 798, 699 N.W.2d 229. "The [circuit] court abuses its discretion, however, when it grounds its decision upon an erroneous view of the law." State v. City of La Crosse,...