Standard Theatres, Inc. v. State, Dept. of Transp., Div. of Highways

• Citation: 334 N.W.2d 281,113 Wis.2d 103
• Decision Date: 26 April 1983
• Docket Number: No. 82-1387,82-1387
• Parties: STANDARD THEATRES, INC., Plaintiff-Respondent, v. STATE of Wisconsin, DEPARTMENT OF TRANSPORTATION, DIVISION OF HIGHWAYS, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 281

334 N.W.2d 281

113 Wis.2d 103

STANDARD THEATRES, INC., Plaintiff-Respondent, v. STATE of Wisconsin, DEPARTMENT OF TRANSPORTATION, DIVISION

OF HIGHWAYS, Defendant-Appellant.

No. 82-1387.

Court of Appeals of Wisconsin.

Submitted on Briefs, March 14, 1983.

Opinion Released April 26, 1983.

Opinion Filed April 26, 1983.

Bronson C. La Follette, Atty. Gen., and Donald W. Smith, Asst. Atty. Gen., on briefs, for defendant-appellant.

Foley & Lardner and Eugene C. Daly, Milwaukee, on brief, for plaintiff-respondent.

Before FOLEY, P.J., and DEAN and CANE, JJ.

FOLEY, Presiding Judge.

The state appeals a judgment awarding litigation expenses to Standard Theatres, Inc., in a condemnation proceeding. Because the court awarded more attorney fees than were reasonably necessary to allow Standard to prepare for and participate in the commission and court proceedings, we reverse the judgment. Because Standard could have obtained reasonable representation for $11,208.87, we remand this matter to the circuit court with directions to enter judgment for this amount.

Standard owned property in Vilas County in northern Wisconsin. The state condemned a small portion of the property and offered to pay $36,000 for it. Because Standard wanted more money for the property, it asked for a determination of value by county condemnation commissioners. See sec. 32.05(9), Stats. The commissioners determined that the value of the condemned property was $55,000. The state appealed the commissioner's award to the circuit court. See sec. 32.05(10), Stats. The state lost its appeal, and the circuit court awarded Standard over $33,000 for its litigation expenses. See sec. 32.28, Stats.

We independently determine the reasonableness and necessity of Standard's litigation expenses. See Estate of Tierney, 70 Wis.2d 438, 443, 234 N.W.2d 357, 359 (1975); Sommer v. Carr, 95 Wis.2d 651, 654 n. 1, 291 N.W.2d 301, 302 n. 1 (Ct.App.1980), rev'd on other grounds, 99 Wis.2d 789, 299 N.W.2d 856 (1981). Standard has the burden of proof. See In re Disciplinary Proceedings Against Marine, 82 Wis.2d 602, 607, 264 N.W.2d 285, 287 (1978). Standard is entitled to recover costs and "reasonable attorney ... fees necessary to prepare for or participate in actual or anticipated proceedings before the condemnation commissioners ... or any court ...." Section 32.28, Stats. Supreme Court Rule 20.12 (1982) lists factors to be considered in determining the reasonableness of attorney fees. See also Herro, McAndrews & Porter, S.C. v. Gerhardt, 62 Wis.2d 179, 184, 214 N.W.2d 401, 404 (1974).

From our review of the record, we are satisfied that it was not necessary for Standard to incur litigation expenses of over $33,000 for reasonable representation in these proceedings. Standard's attorneys charged $100 to $150 per hour. Based on the state's undisputed submissions, Standard could have found competent representation in northern Wisconsin for $75 per hour or less. We do not read sec. 32.28 to require the state to pay for Standard's decision to seek more expensive representation.

For the same reason, we reject substantial portions of Standard's claim for its attorney's travel time from southern Wisconsin. Standard has not shown that competent local counsel...