Village of Shorewood v. Steinberg

• Citation: 166 Wis.2d 794,480 N.W.2d 780
• Decision Date: 14 January 1992
• Docket Number: No. 91-0506,91-0506
• Parties: VILLAGE OF SHOREWOOD, a municipal corporation, Petitioner-Condemnor-Appellant, d v. Robert A. STEINBERG, Hiram A. Dorfman, Mark E. Schussel and First Bank, N.A., Condemnees-Respondents.
• Court: Court of Appeals of Wisconsin

Page 780

480 N.W.2d 780

166 Wis.2d 794

VILLAGE OF SHOREWOOD, a municipal corporation Petitioner-Condemnor-Appellant, ^d v. Robert A. STEINBERG, Hiram A. Dorfman, Mark E. Schussel and First Bank, N.A., Condemnees-Respondents.

No. 91-0506.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 5, 1991.

Opinion Released Jan. 14, 1992.

Opinion Filed Jan. 14, 1992.

On behalf of the petitioner-condemnor-appellant, the cause was submitted on the briefs of Hugh R. Braun and Richard R. Robinson of Godfrey, Trump & Hayes of Milwaukee.

On behalf of the condemnees-respondents, the cause was submitted on the Before MOSER, P.J., and SULLIVAN and CANE, JJ.

briefs of Alan Marcuvitz and Andrea Roschke of Weiss, Berzowski, Brady & Donahue of Milwaukee.

SULLIVAN, Judge.

The Village of Shorewood (the Village) appeals from an order of the circuit court awarding litigation expenses under sec. 32.28(3)(d), Stats. ¹ to the condemnees Robert A. Steinberg, Hiram A. Dorfman, Mark E. Schussel and First Bank, N.A. (collectively, Steinberg). The Village argues that the circuit court does not have competency to exercise its subject-matter jurisdiction to grant such an award and that Steinberg's attorney contingency fee arrangement is unenforceable. ² We disagree and affirm.

FACTS

The undisputed facts show that the Village condemned a 2.8 acre parcel of unimproved land upon its resolution of necessity. ³ On March 21, 1990, the Village served a $345,000 jurisdictional offer to Steinberg for its land. Upon Steinberg's prompt rejection of the offer, the Village petitioned the circuit court for assignment of the matter to the Condemnation Commission (Commission). ⁴ The Honorable Francis J. Wasielewski, circuit court judge, was assigned the case by the clerk of circuit court. Judge Wasielewski subsequently assigned the matter to the Commission chairman in accordance with sec. 32.06(7), Stats. The Commission awarded $655,000 on July 19, 1990, to Steinberg as compensation for its land. The Village paid the award to the clerk of circuit court and upon Steinberg's petition, Judge Wasielewski on October 1, 1990, ordered the clerk to disburse the funds. ⁵

On October 10, 1990, Steinberg filed a motion under sec. 32.28(3)(d), Stats. for payment of litigation expenses totaling $112,358.40, including the contingent attorney fee of $108,867. ⁶ The court subsequently The two issues on appeal are whether the circuit court had competency to assert its subject-matter jurisdiction to award attorney's fees to Steinberg and whether the attorney contingency fee arrangement is enforceable.

heard arguments on the motion and, over the Village's objection, executed an order directing the Village to pay Steinberg for its litigation expenses. It is from this order that the Village appeals.

COMPETENCY

The Village argues that the trial court lacked competency to determine litigation expenses because sec. 32.28(3), Stats., provides that "the court" shall award the litigation expenses and not the judge who assigned the case to the Commission. The Village concludes that a sec. 32.28 application for litigation costs should be commenced as an original action by filing with the clerk of court a summons and complaint in accordance with sec. 801.02(1), Stats. (civil action for personal judgment).

In arguing that the jurisdiction of the circuit court is not invoked until a party files an action in the circuit court, the Village relies upon City of Madison v. Tiedeman, 1 Wis.2d 136, 83 N.W.2d 694 (1957) and In re Acheson, 14 Wis.2d 475, 111 N.W.2d 446 (1961). The primary issue addressed by the court in Tiedeman was whether a demurrer was a proper pleading to a necessity condemnation petition. Tiedeman, 1 Wis.2d at 137-38, 83 N.W.2d at 695. The Tiedeman court noted that the general rules of trial practice do not apply to a condemnation petition until after a Commission's award is rendered. Id. at 141, 83 N.W.2d at 696-97. Therefore, an appeal of an order on a demurrer or of an order on any objection to the petition is not reviewable by an appellate court until a Commission award is issued and an appeal of that award is taken to the circuit court. Id. at 147, 83 N.W.2d at 700; see sec. 32.06(10), Stats. (appeal to circuit court).

The condemnee in Acheson sought a county-judge determination of the value of land taken before the petition was assigned to a Commission. Acheson, 14 Wis.2d at 476, 111 N.W.2d at 446. In affirming the county court's denial of the condemnee's motion for leave to amend his condemnation petition, the supreme court stated:

[W]e have no authority to entertain an appeal taken prior to the making of an award by the commissioners appointed for that purpose. The present landowner's appeal to the county court is subject to the same lack of jurisdiction. Nor do the statutes give the judge as an administrative officer jurisdiction to review the County Highway Committee's award. ⁷

Id. at 478, 111 N.W.2d at 447. Here, the Village relies upon the Acheson court's further statement that the assignment of a petition to the Commission by the judge is an "administrative, not [a] judicial [function]. Until the commissioners have made an award, a proceeding under ch. 32, Stats., is not of a judicial nature, the judge merely acting in an administrative capacity." Id. (citation omitted).

Whether an order is void for want of competency when the facts are undisputed presents a legal issue which we determine de novo. See State ex rel. R.G. v. W.M.B., 159 Wis.2d 662, 666, 465 N.W.2d 221, 223 (Ct.App.1990), review denied. An order is void if the court rendering it lacked competency. Id. The party who asserts that a judgment is void for want of competency has the burden to prove the assertion. Id. at 668, 465 N.W.2d at 224.

The issue of whether the circuit court has competency to award attorney's fees in a condemnation matter arises from a legislative oversight. The statute fails to provide a procedure for adjudication of contested litigation expenses where no appeal to the circuit court is taken from the Commission award. We conclude that the word "court" found in sec. 32.28(3), Stats., is ambiguous; that it means "judge;" and that the legislature intended that litigation expenses should be adjudicated in a proceeding less formal than commencement of an action in the circuit court.

In determining that an ambiguity exists, we are mindful of the rules pertaining to statutory construction. ⁸ Absent ambiguity, this court may not use extrinsic sources to interpret a statute. Brandt v. LIRC, 160 Wis.2d 353, 362, 466 N.W.2d 673, 676 (Ct.App.1991), review granted, 160 Wis.2d lv, 471 N.W.2d 509 (1991). Interpretation of a statute is a legal issue which we review de novo. Id. Related sections of the statute are considered to provide contextual balance. Id. The legislative purpose of sec. 32.28, Stats., is also instructive in determining statutory meaning. History of a statute may also be examined to discern legislative intent. Id. 160 Wis.2d at 369, 466 N.W.2d at 679.

Section 32.28 was created by Chapter 440, Laws of 1977. Prior to this, a condemnee was limited to costs available under Chapter 814, the general costs statute. As amended, Chapter 814 remains the omnibus cost statute for eminent domain actions, except as provided by sec. 32.28(3). When the statute enabling a condemnee to recover litigation costs was added, the legislature used nomenclature different from that of the existing statute. The legislature references "judge" in sec. 32.06(7), Stats. (petition for condemnation proceedings), when it sets forth the mechanism by which a condemnor is to file a petition for condemnation with the clerk of court. The clerk in turn assigns the matter to a judge for a hearing to determine whether the petitioner is entitled to condemn the property. If so, the judge assigns the matter to the Commission chairman for a determination of the compensation award for the property. Section 32.06(7), Stats.

We agree with the Village that Tiedeman and Acheson stand for the proposition that a judge's function in the proceedings prior to assignment to the Commission is administrative, even though the assigning judge makes a determination of condemnation entitlement. However, the law for which these cases stand is irrelevant to this case. Both Tiedeman and Acheson address appeals from judicial determinations prior to a hearing before a Commission. In this instance the circuit court's grant of litigation expenses to Steinberg occurred after the Commission's award.

The Village's assertion that the only way litigation expenses can be awarded is through the commencement of an action in circuit court is erroneous. The Village overlooks the fact that within the eminent domain statute, the only means by which competency may vest in the circuit court is an appeal from a Commission's award. The Village also overlooks the fact that within sec. 32.28, Stats. (costs), litigation expenses may be awarded with or without a Commission award, or with or without an appeal to the circuit court. Instead of using "judge" and "circuit court" precisely in each situation, the legislature generally referred to "court" as the determiner of costs under sec. 32.28, Stats. ⁹

The word "court" found in sec. 32.28(3), Stats. is ambiguous in a case where no appeal is taken, because there is no "court." The judge acts administratively under sec. 32.28(3), Stats. In subsection (3)(d), the statute provides for the award of costs where neither party appeals to the "circuit court." It is significant that the legislature used the word "court" in the preface of subsection (3), and used the words "circuit court" in subsection (3)(d). We conclude that an ambiguity arises from these terms because the legislature must have meant something other than "circuit court" when it used the word "court."

To require commencement of an original circuit court action to secure litigation expenses, including reasonable attorney's...