Standard Theatres, Inc. v. State, Dept. of Transp., Div. of Highways
| Decision Date | 30 May 1984 |
| Docket Number | No. 82-1387,82-1387 |
| Citation | 349 N.W.2d 661,118 Wis.2d 730 |
| Parties | STANDARD THEATRES, INC., Plaintiff-Respondent-Petitioner, v. STATE of Wisconsin, DEPARTMENT OF TRANSPORTATION, DIVISION OF HIGHWAYS, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
Marvin Klitsner (argued), Milwaukee, for plaintiff-respondent-petitioner; Eugene C. Daly, David A. Baker and Foley & Lardner, Milwaukee, on brief.
Donald W. Smith, Asst. Atty. Gen. (argued), for defendant-appellant; Bronson C. La Follette, Atty. Gen., on brief.
Petitioner, Standard Theatres, Inc. (Standard), appeals from a published decision of Standard owned a parcel of real estate in Vilas county, Wisconsin, on which a summer residence for the out-of-state theatre owner was located. The respondent, State of Wisconsin, condemned a portion of the land, pursuant to ch. 32, Stats., for the purpose of widening and relocating Highway 70, which would in effect move the highway nearer to Standard's residence. The state offered to pay $36,000 for the property and other damages sustained by Standard, pursuant to section 32.05(3). Because Standard felt that the compensation offered by the state was inadequate, it applied to the Vilas county circuit court judge for assignment to the commission of county condemnation, as provided by section 32.05(9), in September of 1978.
the court of appeals 1 which reversed and remanded the circuit court's award of attorney fees under section 32.28, Stats. The circuit court for Vilas county, Timothy L. Vocke, Circuit Judge, awarded Standard $29,410 in attorney fees arising from a condemnation proceeding under ch. 32, and the court of appeals reduced this award to $7,600. Because we conclude that the circuit court properly awarded attorney fees under the statute, we reverse the court of appeals.
Standard's attorney participated in a hearing before the condemnation commission on November 29, 1978. See, section 32.08(6), Stats. The county commission increased the award to $55,000. The state then initiated an appeal of the commission's award to the Vilas county circuit court, as provided in section 32.05(10), on January 8, 1979.
A trial was scheduled for August 13, 1979, and a pretrial date was set for July 20, 1979. On July 2, however, Standard's attorney notified the court of the death of Standard's appraiser, who had died in May of that year. The attorney also advised the court that he was having difficulties finding an appraiser who would be able to testify at the August trial date. As a result, Standard's counsel requested postponing both the pretrial conference and trial date. On July 20, 1979, the state stipulated to such a postponement, to "be adjourned until approximately November, 1979, the exact date to be set by the Court." In a letter from Standard's counsel which was attached to the stipulation, the attorney stated that as soon as he had received a new appraiser's report, he would forward a copy to the state.
Standard's attorney apparently never forwarded a copy of a new appraiser's report to the state. Also, neither side asked the court to set a new trial or pretrial date. However, on July 28, 1980, the clerk of courts issued a notice entitled, "Failure to Prosecute or Comply with Procedure Statutes," and mailed such notice to both parties. 2 2 The notice provided that unless within
twenty days [118 Wis.2d 734] good cause was shown for further delay, the action would be dismissed, pursuant to section (Rule) 805.03, Stats. 3 The state responded with an offer to Standard to settle the case for an additional $2,500 over the original $36,000, but the state apparently never notified the trial court of this offer. 4 Standard also did not respond to the notice of the pending dismissal, obviously because it would have been satisfied with the dismissal of the state's appeal. Accordingly, on August 25, 1980, the circuit court dismissed the case on the court's own motion.
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* * *
DEPARTMENT OF TRANSPORTATION, Defendant(s)
DIVISION OF HIGHWAYS
Attorney(s) for Plaintiff(s): Eugene C. Daly
Counsel and/or parties are hereby notified the above action will be dismissed under the provisions of Rule 805.03 Wisconsin Practice, Rules of Civil Procedure, unless within twenty (20) days from date hereof good cause is shown for further delay. This must be done to clear the court files of pending, dormant actions.
If this matter has been settled, please forward the necessary papers to dispose of this case.
Dated this 28th day of July , 1980
By order of the Court:
Notice mailed to:
Eugene C. Daly
-----------------
Donald Smith Ruth Wolfe Ellis
----------------- ----------------------
Ruth Wolfe Ellis
----------------- Clerk of Courts
-----------------
----------------- By: /s/ signature
----------------------
Deputy
No party having shown to the Court good cause why the above entitled matter should not be dismissed, and more than twenty (20) days having expired since the date of the foregoing Notice:
Now therefore, IT IS ORDERED, the above entitled action be and the same is hereby dismissed pursuant to Rule 805.03 Wisconsin Practice, Rules of Civil Procedure.
Dated this 25 day of August, 1980
/s/signature
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On March 19, 1981, the state requested a conformed copy of the court's order of dismissal. On May 14, 1981, the state filed a notice of motion and motion for order vacating the trial court's dismissal of the case on August 25, 1980. The state alleged in its affidavit in support of the motion that it had been the only party who had made any attempt to move the case to its resolution by its settlement offer to Standard and that "the state should [not] be penalized for a sincere effort to accommodate plaintiff following the death of his witness."
The motion was heard by the circuit court on October 19, 1981, and Standard's attorney was present to contest the state's motion. The motion to vacate the August 25 dismissal was denied. The state then appealed to the court of appeals on December 14, 1981, and Standard subsequently moved for summary affirmance of the circuit court's denial of the state's motion to vacate. On March 31, 1982, the court of appeals granted the motion for summary affirmance in an unpublished decision. The court of appeals found that the state had not shown good cause for its delay in bringing the motion to vacate the circuit court's order dismissing the case. See, section 806.07(2), Stats.; Rhodes v. Terry, 91 Wis.2d 165, 280 N.W.2d 248 (1979). The court reached this conclusion based upon the observation that when the state received notice that the action would be dismissed in twenty days for failure to prosecute, it took no further action until it requested a copy of the dismissal order on March 19, 1981, and subsequently moved to vacate on May 14, 1981.
On February 1, 1982, Standard's attorney had filed a motion in the circuit court for an award of litigation expenses pursuant to section 32.28, Stats. 5 After the court of appeals decision was issued, the motion was argued before the circuit court judge via a three-way telephone conference on May 18, 1982. During that conference, the court ordered the state to reimburse Standard for its appraisal fees and other miscellaneous disbursements, but reserved deciding the award of attorney fees. The court asked Standard's attorney for affidavits of fees from similarly qualified attorneys practicing in the Milwaukee county area.
After receiving affidavits from Standard's attorney and letters from the state concerning similarly qualified attorneys, the circuit judge issued an order on July 8, 1982, followed by a July 16 judgment. The circuit judge awarded Standard $29,410.00 for attorney fees and $3,608.87 for other litigation expenses.
The state filed an appeal of the circuit court's award of attorney fees with the court of appeals on October 5, 1982. On April 26, 1983, the court issued an opinion in Standard Theatres, Inc. v. Dept. of Trans., 113 Wis.2d 103, 334 N.W.2d 281. The court of appeals reduced the award of attorney fees to $7,600 and remanded the case to the circuit court with directions to enter judgment for this amount. Standard then petitioned this court for review, and we granted the petition.
The issue before us is whether the attorney fees awarded Standard by the circuit court were reasonable and necessary under section 32.28, Stats. However, to resolve this issue, we find that there are two underlying issues which must be resolved. They are: (1) Was Standard's choice of an attorney reasonable under section 32.28, and (2) were the fees charged by Standard's attorney reasonable and necessary under the statute?
Section 32.28(1), Stats., provides:
"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)."
Section 32.28(3), Stats., provides in part:
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