Petros v. City of Watertown, 88-1394

• Decision Date: 19 October 1989
• Docket Number: No. 88-1394,88-1394
• Citation: 449 N.W.2d 72,152 Wis.2d 692
• Parties: Nicholas E. PETROS and Angele Petros, Plaintiffs-Respondents-Cross Appellants, v. CITY OF WATERTOWN, Wisconsin, a municipal corporation, Defendant-Appellant-Cross Respondent.
• Court: Wisconsin Court of Appeals

Page 72

449 N.W.2d 72

152 Wis.2d 692

Nicholas E. PETROS and Angele Petros Plaintiffs-Respondents-Cross Appellants, v. CITY OF WATERTOWN, Wisconsin, a municipal corporation Defendant-Appellant-Cross Respondent.

No. 88-1394.

Court of Appeals of Wisconsin.

Submitted on Briefs June 8, 1989.

Opinion Released Oct. 19, 1989.

Opinion Filed Oct. 19, 1989.

Whyte & Hirschboeck S.C. by Richard C. Ninneman and Robert J. Berdan, Milwaukee, on the briefs, for plaintiffs-respondents-cross appellants.

Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.

GARTZKE, Presiding Judge.

The city of Watertown condemned land owned by Nicholas and Angele Petros (owners). The owners did not accept the city's jurisdictional offer of $140,000, and a jury determined that the property taken was worth $232,979. The trial court awarded the owners $94,463.50 for attorney's fees, $4,692.08 for legal disbursements, and $5,592.22 for out-of-pocket expenses. The city appeals from the order awarding those sums. The owners cross-appeal, seeking an award of their litigation expenses on appeal.

We conclude that the trial court erred to the extent it awarded expenses the owners incurred (1) before the city made its jurisdictional offer and (2) in negotiating division of the proceeds from the award of compensation before the parcel's transfer to the city. We conclude that the trial court did not otherwise err when determining the reasonableness of the condemnees' attorneys fees. We reverse the order in part and remand for appropriate deductions from the award. We grant the owners' request in their cross-appeal for their expenses in this appeal, and we direct the court to determine a reasonable sum for the owners' expenses with respect to the issues which they successfully litigated before us.

It is undisputed that the owners are entitled to their "litigation expenses" under sec. 32.28(3), Stats. Section 32.28(1) defines "litigation expenses" as "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 ... under this chapter." Appellate review of a trial court's allowance of litigation expenses under sec. 32.28 is limited to whether the court properly exercised its discretion. Standard Theatres v. Transportation Dept., 118 Wis.2d 730, 747, 349 N.W.2d 661, 671 (1984). The Standard Theatres court chose that scope of review because of the "advantageous position [of the trial court] to make a determination as to the reasonableness of a firm's rates." Id.

A trial court properly exercises its discretion if it employs a logical rationale based on the appropriate legal principles and facts of record. Loy v. Bunderson, 107 Wis.2d 400, 414-15, 320 N.W.2d 175, 184 (1982). If those criteria have been met, we must affirm the court's decision even if we would have made a different decision. Independent Milk Producers Co-op v. Stoffel, 102 Wis.2d 1, 12, 298 N.W.2d 102, 107 (Ct.App.1980). If the criteria are not met, we reverse and usually remand for the court to redo its decision.

The trial court had before it a detailed statement by the owners' counsel of the hours their attorneys devoted to described subjects pertaining to the condemnation on various dates. The city does not challenge the facts detailed in the statement. The court also had the record made before it prior to and during the trial.

The city challenges the extent of legal services provided, not the hourly rate the owners' attorneys charged. The trial court rejected the challenge. It viewed the case as a unique condemnation action because it involved an airport clear zone. It described the city's trial defense as "tenacious." It said the city's defense had provided "exquisite coverage of every possible issue," and noted that the city and the owners had brought voluminous motions in limine and that stipulations were almost nonexistent. In the court's view, the city had overtried the case, and that had prolonged the trial and preparation for it. Some seventeen on-site inspections had occurred, a record in the experience of the trial judge. While the city urged that the owners had not needed two attorneys at the motion hearings and at the trial, the city itself had two attorneys at one motion hearing and during the entire trial. We conclude that the trial court's rationale for the award was adequate, unless it embraced an error of law.

The award embraces an error of law to the extent that it includes legal expenses incurred before the date the city served its jurisdictional offer. In Kluenker v. State, 109 Wis.2d 602, 605, 327 N.W.2d 145, 147 (Ct.App.1982), we held "that the plain meaning of [sec. 32.28(1), Stats.] precludes a condemnor from responsibility for attorney's fees incurred prior to the jurisdictional offer." Litigation expenses do not accrue under sec. 32.28(1) "whenever a landowner feels that his property is the target" of a condemnation action. Matter of Condemnation by Dairyland Power, 110 Wis.2d 377, 380, 328 N.W.2d 903, 904 (Ct.App.1982). The award must be reduced to the extent it includes fees and disbursements the owners incurred before the jurisdictional offer.

The award of litigation expenses embraces a second error of law, since it includes the legal expenses the owners incurred to "clear title." Two mortgagees held interests in the original parcel owned by Petros out of which the condemned land was carved. Counsel for Petros negotiated with the mortgagees over division of the award-of-compensation check that the city would release pursuant to sec. 32.05(7)(d), Stats. Petros argues here, following the apparent rationale of the trial court, that the negotiations avoided litigation over the division under sec. 32.05(9)(a)3, and that the fees incurred should therefore be allowed as litigation expenses. We disagree.

Litigation over the division of proceeds from a condemnation is a separate action to partition personal property. Section 32.05(9)(a)3, Stats., provides that an interested party may petition for division under sec. 820.01, Stats. Such an action is between the parties interested in the land prior to the condemnation and...