2010 WI App 167
court of appeals of
published opinion
Case No.: |
2009AP2583 |
|
Complete Title of Case: |
†Petition for Review filed. |
|
Plaintiff-Appellant, v. American Transmission Company LLC by its corporate manager ATC Management, Inc., Defendant-Respondent. † |
Opinion Filed: |
November 11, 2010 |
Submitted on Briefs: |
August 6, 2010 |
Oral Argument: |
|
|
|
JUDGES: |
Higginbotham, Sherman and Blanchard, JJ. |
Concurred: |
|
Dissented: |
|
|
|
Appellant |
|
ATTORNEYS: |
On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Kim Grimmer of Solheim Billing & Grimmer, S.C., Madison. |
|
|
Respondent |
|
ATTORNEYS: |
On behalf of the defendant-respondent, the cause was
submitted on the briefs of Katherine Stadler and Hannah L. Renfro of |
|
|
2010 WI App 167
COURT OF APPEALS DECISION DATED AND FILED November 11, 2010 A. John Voelker Acting Clerk of Court of Appeals |
|
NOTICE |
|
|
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
|
Appeal No. |
2009AP2583 |
|
||
STATE OF |
IN COURT OF APPEALS |
|||
|
|
|||
|
|
|||
|
|
|||
Plaintiff-Appellant, v. American Transmission Company LLC by its corporate manager ATC Management, Inc., Defendant-Respondent. |
||||
|
|
|||
APPEAL
from a judgment of the circuit court for
Before Higginbotham, Sherman and Blanchard, JJ.
¶1 BLANCHARD, J. This case raises the question of the procedural steps that clerks of circuit courts are required to take in order to trigger the deadline for a landowner to appeal a just compensation award issued by a condemnation commission. The narrow issue presented is whether a clerk of circuit court needs to comply strictly with the notice requirements in Wis. Stat. § 32.06(8) (2007-08)[1] in order to commence the sixty-day time limit for an appeal pursuant to Wis. Stat. § 32.06(10).
¶2 We conclude that clerks of circuit court must strictly comply
with the unambiguous statutory requirements in order to trigger the clock for
appeal under Wis. Stat. § 32.06(10). In this case, the clerk of court merely sent
a copy of the condemnation commission’s award by
BACKGROUND
¶3 The relevant facts are not contested. This is a non-transportation condemnation proceeding involving two private parties. American Transmission Company LLC (the condemnor) seeks a high voltage transmission line easement over farmland owned by Dahir Lands, LLC (the landowner).
¶4 The condemnor filed a petition for a condemnation proceeding pursuant to Wis. Stat. § 32.06, which establishes procedures for use in condemnations that do not involve a transportation project. The circuit court assigned the matter to the local condemnation commission.
¶5 The commission held an evidentiary hearing on the value of the easement, and issued a written award based on evidence adduced at the hearing. Two days later, on January 16, 2009, the commission filed the award with the clerk of circuit court.
¶6 The single issue presented focuses on what occurred following the filing. The required procedural steps are found in Wis. Stat. § 32.06(8).[2] After the commission finishes its administrative work by creating and providing its award, the clerk of court “shall”: (1) send notice of the award, including a copy of the award; (2) by certified mail with return receipt requested; (3) to the party seeking condemnation and to the landowner. § 32.06(8).
¶7 In this case, on the same day that the clerk of court’s
office received the commission’s award, the clerk’s office sent a copy of the
award, by U.S. mail, to the attorney who had appeared with the landowner at the
hearing. The landowner’s attorney
received the award by
¶8 On March 9, 2009, the landowner filed a notice of appeal and appeal of the award in circuit court. On March 11, 2009, an attorney for the landowner emailed an authenticated copy of the appeal to an attorney who had represented the condemnor at the hearing, inquiring whether the attorney would accept service of the notice of appeal on behalf of the condemnor or whether the landowner should serve the condemnor instead. On March 13, 2009, the attorney for the condemnor emailed in brief reply that he was not authorized to accept service of the appeal.
¶9 On April 10, 2009, the landowner served an authenticated copy of the appeal on the registered agent of the condemnor by certified mail, and followed this certified mail service with service by a process server on April 14, 2009.
¶10 The condemnor moved the circuit court to dismiss the appeal on the grounds that the landowner’s appeal was late under Wis. Stat. § 32.06(10),[3] which governs circuit court review of commission awards by way of “appeal.” Section 32.06(10) required the condemnor to serve the landowner with a notice of appeal within sixty days of “the date of filing of the commission’s award.” The condemnor took the position that the condemnation commission’s “filing” of the award occurred on January 16, 2009, the day the clerk of court received the award. Therefore, the condemnor asserted, the deadline for service of the notice of appeal on the condemnor expired on March 17, 2009, well before the earliest date of formal service, April 10, 2009.
¶11 The circuit court granted the condemnor’s motion to dismiss on
the grounds that the landowner had actual notice of the award and was not
prejudiced by defects in the manner in which the clerk transmitted it. The circuit court found that the award had
been “filed” under Wis. Stat. § 32.06(8),
for purposes of triggering the sixty-day period under § 32.06(10), no later than January 20, 2009, the
date on which the landowner’s attorney received a copy of the award by
DISCUSSION
¶12 We interpret the terms of Wis.
Stat. §§ 32.06(8) and 32.06(10) to construe the statutes in the
context of this case, and to apply those determinations to undisputed
facts. This raises questions of
statutory interpretation and application that we review without deference to
the circuit court, although we benefit from the analysis of the circuit
court. Warehouse II, LLC v. DOT,
2006 WI 62, ¶4, 291
Plain Language
Analysis
¶13 The purpose of statutory interpretation is to “‘faithfully give
effect to the laws enacted by the legislature.’
We defer to the policy choices of the legislature and we assume that the
legislature’s intent is expressed in the statutory language it chose.” Id., ¶14 (quoting State
ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶44, 271
Wis. 2d 633, 681 N.W.2d 110). Therefore,
statutory interpretation begins with the language of the statute. State v. Jensen, 2010 WI 38, ¶14,
324
¶14 There is no dispute
that the plain language of Wis. Stat.
§ 32.06(8) provides that the clerk “shall” send (1) notice directly to the
landowner (2) using certified mail with return receipt requested. The question raised is whether the ordinary
presumption attaches that the legislature’s use of the term “shall” mandates
action, and is not merely directory or permissive, for purposes of triggering
the time a party has to appeal a condemnation commission’s award to the circuit
court.
Adequacy of “Substantial Compliance”
¶15 The condemnor’s argument is that the clerk’s approach here, although not consistent with the plain language of the statute, nevertheless operated to trigger the sixty-day window for appeal to the circuit court because it substantially and adequately fulfilled the purposes of Wis. Stat. § 32.06(8). As part of this argument, the condemnor asserts that the clerk’s actions did not prejudice the landowner in light of actual notice to counsel for the landowner, and therefore the landowner’s service of its appeal on the condemnor was fatally late under § 32.06(10).
¶16 We disagree and conclude that strict compliance with Wis. Stat. § 32.06(8) is required in order to commence the appeal period. Accordingly, we conclude that dismissal was improper because the landowner did not file its appeal beyond the statutory deadline.
¶17 We are guided in part by rules of construction specific to the
interpretation of eminent domain statutes in evaluating the condemnor’s claim
that, despite the plain language of Wis.
Stat. § 32.06(8), substantial compliance is sufficient. This is because our supreme court has
directed that in analyzing whether substantial compliance or strict compliance
with a statute addressing a required manner of service is required, “the court
should keep in mind the purpose of the statute and the type of action to which
the statute relates.” Kruse
v. Miller Brewing Co., 89
¶18 Turning to this specific context, the ability to appeal from an
award issued in the administrative phase of a condemnation case, thereby
commencing a circuit court action, is viewed as highly critical for those
involved. Landings LLC v. City of Waupaca,
2005 WI App 181, ¶¶6, 12, 287 Wis. 2d 120, 703 N.W.2d 689 (use of procedural
requirements as a shield, to allow a landowner’s appeal, may be favored over
use of the very same procedural requirements as a sword, to prevent consideration of the merits of
landowner’s appeal).
¶19 In evaluating the adequacy of a clerk’s mere “substantial
compliance” with the plain language directions of Wis. Stat. § 32.06(8), it is also important to consider
direction from the Wisconsin Supreme Court “that the exercise of the power of
eminent domain is an ‘extraordinary power’ and requires that a rule of strict
construction be employed to benefit the owner whose property is taken against
his or her will.” Redevelopment Auth. of Green Bay
v. Bee Frank, Inc., 120
¶20 The supreme court has quoted the following passage from the Nichols treatise that is referenced above in Bee Frank:
“The rule of strict
construction applies to the power of the condemnor and to the exercise of such
power. It is a rule intended for the benefit
of the owner who is deprived of his property against his will. It follows, therefore, that the converse of
this rule is also true. Statutory
provisions in favor of an owner, such as provisions regulating the remedies of
such owner and the compensation to be paid to him, are to be liberally
construed.” 1 Nichols, Eminent Domain, § 3.213[4] (rev. 3d
ed. 1976); See Lenz v. Chicago & Northwestern Railway Co., 111
Aero Auto Parts, Inc. v. Dept. of
Transp., 78
¶21 We
believe that these rules of construction undermine the condemnor’s claim that
clerks of circuit court need not comply with each requirement set forth in the
plain language of Wis. Stat. § 32.06(8). Section 32.06(8) reflects
meaningful legislative choices directing that notice of an award is given to
the parties themselves and not to their attorneys, and that certified mail with return receipt requested
be used.
¶22 In addition, strict compliance with Wis. Stat. § 32.06(8) is supported by case law that
includes an opinion of this court addressing a case in the same procedural
posture as this one, Dairyland
Fuels, Inc. v. State, 2000 WI App 129, 237 Wis. 2d 467, 614 N.W.2d
829.
¶23 In
Dairyland, the
State sought to condemn property for transportation purposes under Wis. Stat. § 32.05 (1997-98).
¶24 The State moved for dismissal of the appeal on the grounds that
the appeal was filed late, pursuant to Wis.
Stat. § 32.05(10)(a) (1997-98), which gives the parties sixty days
from “the date of filing of the commission’s award” to file appeals with
circuit courts of Just Compensation Awards in transportation cases.
¶25 On appeal, this court concluded that the sixty-day deadline for
filing an appeal had to be extended by the length of the delay in the mailing
by the clerk, thus saving the appeal.
In order to harmonize these competing policies, we read the filing requirement to encompass both the commission’s obligation to file its award with the circuit court clerk and the court clerk’s obligation to mail and record such award. By doing so, we effectuate the legislature’s intent to provide notice to the parties that an award has been entered and that an appeal must be timely filed thereafter.
¶26 We also noted that if the clerk’s obligations were not
enforced, “the recording and mailing requirements carry little force,” which
could result in the severe consequence of a lost right to appeal through no
fault of the landowner.
¶27 Dairyland’s rationale strongly applies here. Non-transportation condemnation cases, such as this one, require certified mail with return receipt requested as proper notice of a commission’s award, but the legislature did not consider that safeguard necessary in transportation cases, such as Dairyland. This is a clear indication of legislative intent. We need not investigate nor speculate as to the legislature’s reasoning in providing this extra level of clarity and protection of rights in cases that do not involve public transportation needs. What matters to our analysis is that it is a legislative choice that favors the arguments made here by the landowner. In Dairyland, as in this case, the clerk failed to process the award properly pursuant to Wis. Stat. § 32.06(8), increasing the risk of confusion, costly litigation, and lost property rights.
¶28 The condemnor argues that this case is distinguishable from Dairyland because in Dairyland, the landowner apparently lacked actual notice that the commission had delivered the award to the clerk of court and here it is not disputed that the landowner’s attorney became aware of the award when he received a copy in the mail from the clerk.
¶29 Yet
Dairyland
did not purport to address the question of whether the landowner’s
actual knowledge that the clerk had received the commission’s award at any time
before a copy of the award arrived in the mail mattered. Dairyland directs that the appeal
period is to be deemed triggered only after the clerk has satisfied all of its
duties in handling a just compensation award, and those duties are unambiguous. Moreover, the decision of our
supreme court in Pool v. City of Sheboygan, 2007 WI 38, 300
¶30 In Pool, Pool filed a notice of claim and claim against a city,
alleging an inverse condemnation on Pool’s property without just
compensation.
¶31 More than six months
later, Pool filed a petition for compensation in circuit court.
¶32 The circuit court granted the City’s motion on the grounds that
Pool had actual notice of the disallowance, a fact that Pool did not
dispute.
¶33 In affirming reversal of
the circuit court by this court, our supreme court first emphasized that
“procedural requirements in statutes that provide benefits to one of the
parties ‘must be strictly complied with in every material particular, or the
attempt to obtain the benefits of them will fail.’”
¶34 Despite Pool’s concession of actual notice, the supreme court
concluded that because the City could not show that Pool had been personally
served with the disallowance, as required by the unambiguous terms of Wis. Stat. § 893.80(1g) (2003-04),
Pool’s lawsuit was not untimely. Pool,
300 Wis. 2d 74, ¶21 (“[s]trict
compliance with the statute is necessary for the City to obtain the benefit of
the shortened six-month statute of limitations period and also to protect Pool’s bona fide claim.”) (emphasis
added). The Pool court concluded that
direct service on the claimant was required to commence the running of the
six-month statute of limitations under the notice of disallowance statute,
regardless of Pool’s actual notice of the disallowance.
¶35 The condemnor in this case seeks to distinguish Pool on the grounds that its application is
limited to circumstances in which compliance with service procedures confers a
benefit on a party, and in this case “the clerk does not receive a benefit” and
“the notice recipient is not penalized” when the clerk provides notice
sufficient to trigger the appeal period. We believe that this reads Pool
too narrowly, and also ignores the rule of statutory construction favoring
merits-based resolution of landowner claims in condemnation proceedings.
¶36 The procedural requirements at issue here provide a benefit to
the condemnor, who is the petitioner in eminent domain cases, to limit the
right of appeal of a condemnation award to a sixty-day time period. The door to appeal closes, and “‘legitimate
claims can be thrown aside,’” in the language of Pool, if a clerk over whom the
landowner has no control fails to follow the statutory requirements.
¶37 The stakes are the same here as in Pool. In both cases, notice was to trigger
the deadline to commence an action. In
both cases, a landowner’s notice rights were slighted by a government employee,
and those notice rights were intended to prevent the landowner’s potentially “legitimate
claims” regarding the landowner’s property rights from being “thrown aside
without redress,” in the language of Pool.
¶38 Moreover, the Pool court noted, “the uniformity of
method of service is a burden the governmental entity can easily bear” to
protect fair opportunities for citizens to assert property rights under Chapter
32 of the Wisconsin Statutes. Pool,
300
¶39 Finally, as this court noted in the opinion affirmed by the
supreme court in Pool, relaxing service requirements would effectively shift the
burden to landowners in some cases to pursue “fact driven and credibility
laced” litigation “instead of merely documentary” questions of whether service
was perfected. Pool v. City of
¶40 The condemnor in this case relies on Big Valley Farms, Inc. v. Public
Serv. Corp., 66
¶41 In response to this form of service, the attorney for the
condemnor explicitly admitted due and personal service of both proper time and
proper manner of service in the following terms: “Due and Personal Service of the within
Notice of Appeal is hereby admitted this 25 day of August, 1972,” (signed,
attorney’s name).
¶42 Our supreme court has recognized that the attorney’s express
waiver in Big Valley Farms renders it a “special circumstances” case falling
outside the general rule requiring adherence to statutory procedural
requirements. See Gangler v. Wisconsin Elec.
Power Co., 110
¶43 In this case, there was no such express waiver of either use of
¶44 The requirement of
certified mail “is obviously intended to prevent or minimize subsequent
disputes as to whether a mailed notice was received or as to the exact date on
which the mailed notice was sent and delivered.” Big Valley Farms, 66
¶45 In sum, the clerk of court did not follow two separate, unambiguous procedural requirements contained in Wis. Stat. § 32.06(8), and there are no special circumstances such as an express admission of service. A claim of actual notice on the part of an attorney for the landowner does not qualify as a special circumstance. The language mandating specific acts by clerks of court is plain, and the claim that “substantial compliance” of a clerk is sufficient is not consistent with precedent favoring the rights of landowners to appeal condemnation awards. The only alleged defect in the landowner’s appeal claimed by the condemnor is that it was filed late, and we conclude that it was not.
CONCLUSION
¶46 For these reasons, we conclude that the sixty-day appeal period had not expired at the time the appeal was filed because the clerk of court did not fulfill its statutory obligations in handling the award. Accordingly, we reverse the judgment of the circuit court dismissing the appeal as untimely, and remand for proceedings consistent with this opinion.
By the Court.—Judgment reversed and cause remanded for proceedings consistent with this opinion.
[1] All references to the Wisconsin Statutes are to the 2007-2008 version unless otherwise noted.
[2] Wisconsin Stat. § 32.06(8) provides:
Commission hearing. Thereafter [i.e., after a chairperson of the county condemnation commission has been assigned to hold a hearing] the commission shall proceed in the manner and with the rights and duties as specified in s. 32.08 to hear the matter and make and file its award with the clerk of the circuit court, specifying therein the property or interests therein taken and the compensation allowed the owner, and the clerk shall give certified mail notice with return receipt requested of such filing, with a copy of the award to condemnor and owner.
[3] Wisconsin Stat. § 32.06(10) provides in relevant part:
Appeal to circuit court. Within 60 days after the date of filing of the commission’s award either condemnor or owner may appeal to the circuit court by giving notice of appeal to the opposite party and to the clerk of the circuit court as provided in s. 32.05(10). The clerk shall thereupon enter the appeal as an action pending in said court with the condemnee as plaintiff and the condemnor as defendant.
[4] In
Cary
v. City of Madison, 203