Recovering Reasonable Litigation Expenses 11 June 2014 Appraisal Institute Condemnation Seminar

1. Recovering Reasonable Litigation Expenses11 June 2014Appraisal InstituteCondemnation Seminar Robert W. Roth Attorney at Law

2. 32.28 Stats • Condemnees have the right to recover reasonable litigation expenses under a variety of circumstances. • The focus of this presentation is on what is “reasonable” and how that word is being turned into two new cottage industries by condemnors seeking to defeat landowner’s right to be “made whole.”

3. Isn’t this just about Lawyers and some landowner centric experts trying to get Paid? • Litigation Expenses include: • Appraisers’ fees • Engineers and other experts • Attorneys’ fees • Actual costs of the condemnation process. • 32.28 is a substitution for the regular Cost Recovery Statutes in Chapter 814 Stats.

4. Local Rates Should Apply? • Expertise. • Right of the free and open market to set the prices: Supreme Court View? • Jandrt: Attorney’s fees recoverable in successful sanctions motion case where East Coast law firm represents Barron County business and prevails. Over one million in fees in 9 months, with responsive pleadings billed out at over $40,000. (1999) From the Dissent.

5. Questions for Discussion • Does the “made whole” doctrine of Warehouse II trump restrictions on some litigation expenses under newly enacted 814.045? • Do Condemnors have the right to declare what is “reasonable” or is that the province of the Court. Is this not an executive/judicial branch constitutional issue of separation of powers?

6. Warehouse II and “Made Whole” • When the owner is deprived of property against his or her will, it is obvious that the owner is not justly compensated for his or her property if the owner must initially be forced to litigate in order to obtain the full value of the land, and then must pay for his or her attorney fees from this full value. The attorney fees incurred here were, after all, necessitated by the owner's attempt to get the fair value of the owner's real estate.

7. Warehouse II and “Made Whole 2” • Therefore, one must start from the premise that the owner is to be compensated for the attorney fees. In other words, the purpose behind the statute is to make the owner “whole,” through compensating the owner for the value of the property taken and for the attorney fees incurred in attempting to obtain this value.

8. Warehouse II and “Made Whole 3” •  …In permitting recovery of litigation expenses, the legislature sought to provide the condemnee with just compensation by ensuring that he or she would not be forced to use part of the award to pay for litigation expenses after a successful appeal. • Warehouse II, LLC v. State Department of Transportation, 291 Wis.2d 80, 102-103, 715 N.W.2d 213, 224 (2006) (emphasis added).

9. What is Just Compensation in WI?: •  Since 2006, for sure, the recovery of litigation expenses, that is, all litigation expenses, are part of Just Compensation as the term is used in the US and WI Constitutions. • Just Compensation is a substantive right, and the abridgement of it by the legislature through a capping mechanism in s814.025 is, in and of itself, antithetical to the notion of being made whole…

10. 814.045 effective 6 Dec 11 • Enacted to promote business growth in Wisconsin. • Zero legislative history as to its impact or effect on eminent domain proceedings. • Only applies to “compensatory” damages and is vague ab initio. • Can the presumptive cap actually be overcome? No apparent right to compare fees with those of Condemnor. “Pounder” again.

11. Disparate Impact, Disparate Class? • Is not a Condemnee a suspect classification in the law subject to substantive due process protection? • What else are the restrictions placed on the sovereign, in its use of eminent domain, of due process and just compensation, much less that the taking be only for public use? • Can any loandowner really rely on the Executive Branch or its agents to ever see Litigation Expenses as part of being “made whole.” The settlement gambit…

12. Disparate Impact, Disparate Class? • Where is this coming from? • Green v. • Can any loandowner really rely on the Executive Branch or its agents to ever see Litigation Expenses as part of being “made whole.” The settlement gambit…

13. So What’s going on? • Price fixing by the Condemnors (read that the Executive Branch of Government or Private Enterprise Agents of the Executive Branch of Government wielding Eminent Domain power: • Monongahela Navigation Co. v. United States, 148 U.S. 312, 326, 13 • S.Ct. 622, 626, 37 L.Ed. 463 (1893)). • The determination of Just Compensation is a Judicial Function, period.

14. So What’s going on 2? • Is this a thinly disguised effort to drive competence from the field, be it either lawyers or appraisers? • Excel • DOT • ATC

15. Citations for Reference 1 • Determining Reasonable Attorney Fees. Dudley & Colbert. Wis. Law. Oct. 2012. • s. 814.045 stats. (2011 a.92) • Pounder Brother, Inc. v. Guardian Pipeline, LLC. (unpublished) 2004 • Monongahela Navigation Co. v. United States, 148 U.S. 312, 326, 13 S.Ct. 622, 626, 37 L.Ed. 463 (1893))

16. Citations for Reference 1 • Warehouse II, LLC v. State Department of Transportation, 291 Wis.2d 80, 102-103, 715 N.W.2d 213 (2006) • Jandrt v. Jerome Foods, Inc., 227 Wis. 2d 531, 597 N.W.2d 744 (1999

17. Contact Information • Bob Roth: rroth@nprclaw.com • Joe Niebler Jr: jnj@nprclaw.com • Website: www.nprclaw.com • Office: 262-523-8000