Condemnation by Redevelopment Authority of City of Green Bay, Matter of

• Decision Date: 02 October 1984
• Docket Number: No. 82-330,82-330
• Citation: 120 Wis.2d 402,355 N.W.2d 240
• Court: Wisconsin Supreme Court
• Parties: In the Matter of the CONDEMNATION BY the REDEVELOPMENT AUTHORITY OF the CITY OF GREEN BAY, Wisconsin, of certain lands in said City of Green Bay for Urban Renewal Redevelopment Purposes. The REDEVELOPMENT AUTHORITY OF the CITY OF GREEN BAY, Wisconsin, Appellant and Cross-Respondent, v. BEE FRANK, INC., Respondent and Cross Appellant-Petitioner.

Page 240

355 N.W.2d 240

120 Wis.2d 402

In the Matter of the CONDEMNATION BY the REDEVELOPMENT AUTHORITY OF the CITY OF GREEN BAY, Wisconsin, of certain lands in said City of Green Bay for Urban Renewal Redevelopment Purposes The REDEVELOPMENT AUTHORITY OF the CITY OF GREEN BAY Wisconsin, Appellant and Cross-Respondent, v. BEE FRANK, INC., Respondent and Cross Appellant-Petitioner.

No. 82-330.

Supreme Court of Wisconsin.

Argued Sept. 4, 1984.

Decided Oct. 2, 1984.

Avram D. Berk, Green Bay (argued), for respondent and cross appellant-petitioner; Avram D. Berk and Berk Law Offices, S.C., Green Bay, on briefs.

William Hinkfuss, Green Bay (argued), for appellant and cross-respondent; William Hinkfuss and Hinkfuss, Sickel & Calewarts, Green Bay, on brief.

WILLIAM A. BABLITCH, Justice.

Bee Frank, Inc., the owner of immovable fixtures in a commercial building which was the subject of condemnation, seeks review of a court of appeals' decision which denied it litigation expenses. The award of the condemnation commission to Bee Frank, Inc. for its immovable fixtures exceeded the jurisdictional offer for the fixtures by the amount required by statute to allow recovery of litigation expenses. Nevertheless, the court of appeals held that in order for the owner of immovable fixtures in a condemnation proceeding to be entitled to litigation expenses, the total amount to be paid for the entire property (after the condemnation commission makes its award) must exceed the total amount of the jurisdictional offer for the entire property by the requisite statutory amount. We hold that the owner of immovable fixtures is entitled to litigation expenses when the condemnation commission's award for those immovable fixtures exceeds the tenant's immovable fixtures portion of the jurisdictional offer by the requisite statutory amount. We also hold that the procedure of ch. 814, Stats., is inapplicable with respect to the award of litigation expenses pursuant to sec. 32.28(3), and that the award of litigation expenses is made by a court order.

Bee Frank, Inc., a lessee, owned immovable fixtures in a commercial building owned by another party. On November 18, 1980, the Redevelopment Authority of the City of Green Bay initiated eminent domain proceedings to condemn this property for the purposes of urban renewal development.

The Redevelopment Authority had one appraisal made for the land and building and a separate appraisal made for the immovable fixtures. On October 24, 1980, a jurisdictional offer was made, pursuant to sec. 32.05(3), Stats., which specified that $282,000 was being offered for the loss of the land and the building and that $168,000 was being offered for the loss of the immovable fixtures, for a total offer of $450,408. Both parties rejected the offer.

On November 18, 1980, the Redevelopment Authority petitioned the circuit court for a hearing before the condemnation commission of Brown county, as provided by sec. 32.05(9), Stats., naming both the owner and Bee Frank, Inc. as parties. Prior to the condemnation commission's hearing, the owner of the real estate reached an agreement with the Redevelopment Authority on a $296,100 purchase price for the land and building.

The condemnation commission found at the January 14, 1981, hearing that the only issue left for it to decide was the just compensation to be awarded to Bee Frank, Inc. for its immovable fixtures. The commission awarded Bee Frank, Inc. $210,000 for the immovable fixtures, an amount $41,592 (approximately 25 percent) in excess of the Redevelopment Authority's jurisdictional offer to Bee Frank, Inc.

Bee Frank, Inc. served a notice of proposed taxation of litigation expenses on the Redevelopment Authority, who filed no objections with the clerk of courts. The Redevelopment Authority did not comply with sec. 814.10, Stats., which requires a party to file objections to the clerk of courts' taxation within ten days. Instead, it filed a notice of objection and a request for hearing with the circuit court concerning the litigation expenses.

The trial court rejected the Redevelopment Authority's argument that the total amount of the property as a whole should be involved in determining Bee Frank, Inc.'s entitlement to litigation expenses, and directed the entry of a judgment awarding litigation expenses of approximately $4,100. Subsequently, on November 25, 1981, the court decided that the judgment should be set aside and that an order containing the same terms should be issued in lieu of the judgment. This order was signed on February 9, 1982.

The Redevelopment Authority appealed the award of litigation expenses to the court of appeals and Bee Frank, Inc. cross-appealed on the issues of whether sec. 814.10, Stats., is applicable to the award of litigation expenses, and whether the award of litigation expenses should be incorporated in a judgment or an order. In a published opinion, the court of appeals held that immovable trade fixtures were an integral part of the building and could not be considered separately from the purchase price for the land and building in determining entitlement to litigation expenses. Green Bay Redevelopment Authority v. Bee Frank, 112 Wis.2d 1, 331 N.W.2d 840 (Ct.App.1983). The court of appeals concluded that the commission's award for the entire property, totaling $506,100, did not exceed the jurisdictional offer of $450,408 for the entire property by 15 percent, the requisite amount, and reversed the trial court. The court further concluded that the procedures set forth in sec. 814.10 were inapplicable. The court of appeals did not reach the question of whether the award of litigation expenses should be incorporated into a judgment or an order because it concluded that Bee Frank, Inc. was not entitled to litigation expenses.

Bee Frank, Inc. subsequently filed a petition for review with this court which was granted.

The issues for review are:

(1) Whether the owner of immovable fixtures is entitled to litigation expenses when the amount attributable to the immovable fixtures, as determined by the condemnation commission award, exceeds the immovable fixtures portion of the jurisdictional offer by the requisite statutory amount? We hold that Bee Frank, Inc. is entitled to receive litigation expenses because the commission's award exceeded the jurisdictional offer for the immovable fixtures by the requisite statutory amount.

(2) Whether litigation expenses are to be taxed pursuant to the procedures set forth in sec. 814.10, Stats., and whether they are to be followed by a judgment or by a court order? We hold that the procedures set forth in sec. 814.10 are inapplicable and that litigation expenses are to be awarded by court order.

I.

Section 32.28(3), Stats., provides in part:

"In lieu of costs under ch. 814, the court shall award litigation expenses to the condemnee if:

"...

"(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 $700 and at least 15% and neither party appeals the award to the circuit court...." (Emphasis added.)

The petitioner argues that the term "award" refers to the condemnation commission's award for its immovable fixtures and does not include the negotiated settlement made with the real estate owner prior to the condemnation commission hearing. The Redevelopment Authority argues that the term "award" refers to the total award for the real estate, including the building and the immovable fixtures. Because the words of the statute, on their face, are reasonably capable of being understood in either of these senses, we agree with the court of appeals that the test for statutory ambiguity--whether the statute is capable of being construed in two different ways by reasonably well-informed persons--has been met. Kollasch v. Adamany, 104 Wis.2d 552, 561, 313 N.W.2d 47 (1981).

Thus, this court is faced with a question involving an interpretation of an ambiguous statute to a set of undisputed facts. The construction of an ambiguous statute is a question of law. Sprague-Dawley, Inc. v. Moore, 37 Wis.2d 689, 693, 155 N.W.2d 579 (1968). Therefore, this court need not give special deference to the determinations of the trial court or court of appeals. LePoidevin v. Wilson, 111 Wis.2d 116, 121, 330 N.W.2d 555 (1983).

In construing sec. 32.28(3), Stats., this court is guided by a number of well settled rules of statutory construction. First and foremost among them is the rule that the purpose of engaging in statutory interpretation is to ascertain and give effect to the intent of the legislature. Ball v. District No. 4, Area Board, 117 Wis.2d 529, 537-38, 345 N.W.2d 389 (1984). When the language of a statute is ambiguous or unclear, this court will examine the scope, history, context, subject matter and object of the statute in order to discern the intent of the legislature. Id. at 538, 345 N.W.2d 389; Midland Fin. Corp. v. Department of Rev., 116 Wis.2d 40, 46, 341 N.W.2d 397 (1983). One further principle which must direct the court in construing a statute is that the court must interpret it in such a way as to avoid an absurd or unreasonable result. Braun v. Wisconsin Electric Power Co., 6 Wis.2d 262, 268, 94 N.W.2d 593 (1959).

Additionally, this court has recognized that the exercise of the power of eminent domain is an "extraordinary power" and requires that a rule of strict construction be employed to benefit the owner whose property is taken against his or her will. Standard Theatres v. Transportation Dept., 118 Wis.2d 730, 742-43, 349 N.W.2d 661 (1984) (citing 1 Nichols, Eminent Domain sections 3.213 and (rev. 3d ed. 1976)). For the same reasons, this court has recognized that statutory provisions which favor an owner regarding the compensation to be paid to him or her are to be liberally construed. Aero Auto Parts, Inc. v. Dept. of Transp., 78 Wis.2d 235, 241,...