Maxey v. Redevelopment Authority of City of Racine
| Decision Date | 06 June 1984 |
| Docket Number | No. 83-1468,83-1468 |
| Court | Wisconsin Court of Appeals |
| Parties | Louis T. MAXEY, Plaintiff-Respondent and Cross-Appellant, v. The REDEVELOPMENT AUTHORITY OF the CITY OF RACINE, Wisconsin, a municipal corporation, City of Racine, a municipal corporation, Defendants-Appellants and Cross-Respondents, Continental Bank and Trust Company, a banking corporation, James R. Hammes, James R. Fish, Jane Howard Namtvedt, Ernst William Schoen-Rene, Juliet A. Baker and Ethel Ann Richards, Defendants-Respondents, James C. McNeely, as former attorney for plaintiff-respondent Louis T. Maxey, Cross-Appellant. |
Joseph E. Boyle, City Atty., Racine, for defendants-appellants and cross-respondents.
Stanley F. Hack, Milwaukee, for Continental Bank and Trust.
John W. Foley and Garth R. Seehawer of Foley, Foley & Seehawer, Racine, for James R. Hammes.
Harley Brown of Brown & Black, of Racine, on behalf of James R. Fish, Jane Howard Namtvedt, Ernest William Schoen-Rene, Juliet A. Baker, and Ethel Ann Richards.
James C. McNeely, Milwaukee, pro se.
Ronald L. Wallenfang and Bruce R. Bauer of Quarles & Brady, Milwaukee, on behalf of Louis T. Maxey.
Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.
This is an appeal by the condemnor and cross-appeals by the condemnees in an inverse condemnation action pursuant to sec. 32.10, Stats. 1 The condemnor (Racine) appeals from that portion of the judgment which awarded, as litigation expenses, attorneys fees rendered in a separate direct condemnation action and in a proceeding for allocation of the condemnation award pursuant to sec. 32.11, Stats. The condemnee/lessee (Maxey) cross-appeals from that portion of the judgment fixing the amount allowed for attorneys fees and from the decision of the trial court refusing to make an inflation adjustment on the compensation award. The condemnees/owners (Fish, Namtvedt, Schoen-Rene, Baker and Richards) and the condemnees/mortgagees (Continental and Hammes) cross-appeal from that portion of the judgment fixing the amount allowed for attorneys fees. Finally, Maxey's former attorney of record (McNeely) cross-appeals from that portion of the judgment which awards attorneys fees directly to Maxey, rather than to himself, and from the amount of the attorneys fees awarded.
This case has an extensive history and protracted facts. 2 On August 20, 1974, Racine accomplished a "taking" of Maxey's property. 3 At the time of the taking, Maxey held a ninety-nine year lease on the property with approximately forty years yet to run on his leasehold interest. More than two years after the taking, Maxey commenced this inverse condemnation proceeding pursuant to sec. 32.10, Stats. Three days later, Racine commenced a direct condemnation proceeding pursuant to sec. 32.06, Stats. The trial court dismissed the inverse action concluding that Racine had previously exercised its power of condemnation. This ruling was overturned by the supreme court in Maxey v. Redevelopment Authority of Racine, 94 Wis.2d 375, 288 N.W.2d 794 (1980) (Maxey I ), and the inverse action was reinstated. 4 While this inverse action was pending, Maxey petitioned for an apportionment of the award to be made. The issue of compensation was fully litigated resulting in a jury determination of fair market value in the amount of $370,000. The competing claimants (Maxey as the lessee, the owners, and the mortgagees) to the award ultimately settled the apportionment dispute on the "courthouse steps."
Racine contends that the expenses related to the ill-fated direct condemnation action do not constitute part of the litigation expenses in this inverse condemnation action. Racine argues that the actions are completely independent and separate and that no legal basis exists upon which the litigation expenses of one can be imposed on the other. We must determine whether the expenses related to the direct action are "litigation expenses" as set forth in sec. 32.28(1), Stats., for purposes of this inverse action. Section 32.28(1) provides as follows:
In this section, "litigation expenses" means the sum of the costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees necessary to prepare for or participate in actual or anticipated proceedings before the condemnation commissioners, board of assessment or any court under this chapter or chapter 275, laws of 1931, as amended (Kline Law).
We conclude the above language defining "litigation expenses" is clear and unambiguous on its face and does not require resort to rules of statutory construction in order to obtain its meaning. Hucko v. Jos. Schlitz Brewing Co., 100 Wis.2d 372, 376, 302 N.W.2d 68, 71 (Ct.App.1981). However, the question of the application of a statute to a particular set of facts is a question of law. Bucyrus-Erie Co. v. DILHR, 90 Wis.2d 408, 417, 280 N.W.2d 142, 146-47 (1979). When considering a question of law, we owe no deference to the trial court's decision. Behnke v. Behnke, 103 Wis.2d 449, 552, 309 N.W.2d 21, 22 (Ct.App.1981).
The effect of the supreme court's decision in Maxey I was to invalidate the direct condemnation proceedings. Therefore, no litigation expenses could be awarded, within the context of that action, because none of the events set forth in sec. 32.28(3), Stats., governing when litigation expenses shall be awarded had occurred. 5
As the trial court aptly observed in its decision:
The circumstances here are such that the action in inverse condemnation commenced in 1976 could proceed only upon successful challenge to the Authority's action for direct condemnation.... Absent the successful challenge to the direct condemnation proceeding, the inverse condemnation would not have continued.
In the direct action commenced by Racine, the condemnees were required to not only defend but also to attempt to preserve the integrity of this inverse proceeding. Therefore, while litigation expenses could not be awarded in the direct action, they were certainly necessary to successfully prosecute this inverse action. It strikes us as patently illogical and unfair to deny as litigation expenses in this inverse action those expenses which the condemnees were required to incur in resistance to the condemnor's commencement of an invalid action. Those efforts were, in the very words of the statute, "necessary to prepare for or participate in actual or anticipated proceedings ...." Sec. 32.28(1), Stats. Absent other statutory provisions or authority governing this question, any other conclusion would be unrealistic and unreasonable. Such interpretations are to be avoided. 2A Sutherland, Statutory Construction § 45.12 (4th ed. 1973).
Racine also contends that sec. 32.28(3)(d), Stats., bars the awarding of litigation expenses since Maxey, in the direct condemnation case, appealed the award of the condemnation commissioners to the circuit court. The statute provides as follows:
(3) 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.
However, Racine overlooks sec. 32.28(3)(c) which governs the awarding of litigation expenses in this inverse action. The statute provides as follows:
(3) In lieu of costs under ch. 814, the court shall award litigation expenses to the condemnee if:
....
(c) The judgment is for the plaintiff in an action under s. 32.10.
In this inverse action, Maxey has obtained a judgment and is therefore entitled to his litigation expenses. We therefore conclude that Maxey, as the successful plaintiff in an inverse condemnation action, is entitled to litigation expenses which include those expenses related to the direct condemnation case.
Based on the above reasoning and absent other authority, we would have little difficulty in accepting the condemnees' argument that expenses related to an allocation proceeding also constitute litigation expenses within the meaning of sec. 32.28(1), Stats. There is other authority, however, which leads us to conclude that expenses related to an allocation proceeding are not to be paid by the condemnor. This authority is the language and effect of sec. 32.11, Stats., as it relates to the subsequent enactment of sec. 32.28. Section 32.11 provides If any defect of title to or encumbrance upon any parcel of land is suggested upon any appeal, or if any person petitions the court in which an appeal is pending setting up a claim adverse to the title set out in said petition to said premises and to the money or any part thereof to be paid as compensation for the property so taken, the court shall thereupon determine the question so presented. Judgment shall be entered on such determination, with costs to the prevailing party. An appeal from such judgment may be taken as from a judgment in an action. [Emphasis added.]
This section expressly authorizes an allocation of the award with the awarding of costs to the prevailing party. 6 The condemnor does not pay costs in a sec. 32.11 proceeding since the only dispute is between competing claimants to the compensation award. On the other hand, sec. 32.28 defines litigation expenses and authorizes the awarding of such expenses against the condemnor when a condemnee qualifies under subsection (3). The threshold issue is: Which of the two statutes applies? We again note that the question as to the application of a statute to the particular facts of a case presents a question of law. Bucyrus-Erie, 90 Wis.2d at 417, 280 N.W.2d at 146-47.
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